Roe v. Wade was repealed—what happens now?
"My body, my choice"
In a monumental decision made by the American Supreme Court, Roe v. Wade—the 1973 landmark ruling that protects the right to have an abortion—was overruled. As a federated nation, this does not mean that all states will have blanket bans on abortions, but rather that individual states reserve the right to decide whether or not to criminalise abortions.
Despite this, thirteen Republican states, such as Missouri, Alabama and Utah, instantaneously imposed ‘trigger bans’ (laws that automatically ban medically unnecessary abortions) after the ruling against Roe v. Wade.
At its most extreme extent, the removal of Roe v. Wade from the Constitution will result in the prohibition of the abortion of even potentially life-threatening pregnancies, and likely will force pregnant people to carry children to term in cases of incest and rape.
1. Why was it repealed and how did this happen?
In the wake of the overruling of Roe v. Wade, many people may be wondering why repeal it after almost fifty years of the freedom to choose. One explanation may be the misrepresentation of political parties in the Supreme Court; the Court is disproportionately represented by Republican-appointed Justices, with Justices Alito, Kavanaugh, Gorsuch, Thomas and Coney Barrett making up a five-four majority against the liberal justices (Kagan, Sotomayor and Breyer) and Chief Justice Roberts.
The liberal justices, in their joint statement, called out this disparity, “The Court reverses course today for one reason and one reason only: because the composition of this Court has changed.” But this is not the only reason that Roe v. Wade was called into question—Donald Trump’s 2016 election served to create an irreparable divide between the Democrats and Republicans along ideological lines. After Trump’s first year of tenure as the President of the United States, it was found that American Facebook users on the political left and political right shared almost no common interests.
The end result is a deep-seated antipathy between members of these opposing parties, and it is arguable that this antipathy has tampered with the integrity of the court and its onus to provide ‘Equal Justice Under Law’. Rather than making decisions beneficial to the majority, it is possible that this case represents the Republican-appointed Justices’ desire to appease their voter base, i.e., ‘pro-life’ communities.
Source: Pablo Ortellado and Marcio Moretto Ribeiro
2. What does it mean for Americans?
In their joint dissent, the liberal justices stated: “Either the mass of the majority's opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other." This ominous, almost-prophetic statement has generated a lot of confusion—how can one ruling affect another? Well, put simply, originalism is a school of legal thought which believes that the Constitution should be interpreted based on its original understanding at the time it was adopted.
While most argue that life in 1787 is drastically different to life in 2022, and hence should adapt to changing circumstances, originalist judiciaries, such as Justice Coney Barrett, disagree. The right to abortion was justified using the concept of a right to privacy, which was never explicitly mentioned in the American Constitution. Using the originalist debate, the majority were able to argue that since the Constitution does not refer to a right to privacy, abortion should not be a universal right.
The basis of this ruling has already opened the door to the questioning of further civil liberties—what the liberal justices have suggested may result in the ‘jeopardy of other rights’ as a result of a lack of ‘constancy in the law’. Their sentiment has already proven true: Justice Clarence Thomas, in an open letter, demanded that other cases legally justified the same way as Roe v. Wade—such as the right to contraception, same-sex intimacy and marriage—are unconstitutional and should be reconsidered.
If the mass majority is not, in fact, being hypocritical, we may soon see restrictions on birth control, same-sex marriage and even sovereignty for Native Americans. More immediately, this ruling will disproportionately impact low-income, already-marginalised communities, as they are forced to drive across state borders and take more extreme measures to secure safe abortions. In fact, numerous global health reports have shown that irrespective of whether abortion is legal or not, unwillingly pregnant individuals will perform unsafe abortions. Speaking on The Tonight Show Starring Jimmy Fallon, actress Maya Hawke candidly speaks about her mother’s abortion and summarises how the ability to have an abortion, in the wake of the new legislation, will become a commodity that generally only the wealthy can access.
Many are taking this as a call to action, highlighting the flaws and flagrant hypocrisy in the legal system that simultaneously promotes the ‘pro-life’ philosophy whilst refusing to restrict gun access, which kills thousands of living children annually. The ‘pro-life’ ideology should realistically improve existing human life, by spending on universal healthcare, reducing institutionalised inequality, and improving the overburdened and underfunded foster care system.
3. But why should we, as Malaysians, care?
While the repeal of Roe v. Wade is a buzzing topic of discourse, it may seem irrelevant to us, considering we’re half-way across the world. What many of us don’t know is that abortion is not totally illegal in Malaysia—under our current penal code, termination is permissible when carrying the pregnancy to term poses mental or physical danger to the mother. Ironically, this system is far more progressive than some of the blanket bans on abortion in some states in America in the wake of the new ruling.
Speaking on BFM, abortion-rights activist Amanda Tiew warns us that the decision in America will inevitably have a ripple effect in the rest of the world. She reminds us of the USA’s incredible power over the world when it comes to reproductive health, especially in developing countries like ours, which depend on their foreign aid to continue to carry out NGO work. In 2016, Donald Trump reinstated the global gag rule—a policy which essentially silences countries which receive aid/global health funding from the USA from speaking out about abortion counselling and services.
Tiew warns that countries that have unstable political situations which ‘look to the US for guidance and funding’ are in danger of having their own abortion laws reconsidered. The consequences of this may be catastrophic. Tiew states that this will not only increase the number of unsafe abortions, but empower dangerous, existing black markets which swindle the vulnerable.
If a decision is made locally to place blanket bans on abortion, this will, contrary to popular belief, not only impact promiscuous, young, unmarried women—the NGO Tiew works for, International Network for the Reduction of Abortion Discrimination and Stigma (inroads), found that 48 per cent of the clients on their hotline are married, with 32 per cent having two or more children.
Conversations need to be opened up urgently to address the lack of proper reproductive education and family planning in Malaysia. If abortion is truly criminalised in Malaysia, we may see an increase in crime and baby dumping rates, and a public health crisis pertaining to the safety of anyone who can get pregnant.
Ultimately, Tiew reminds us that ‘the requests that people make for safe abortion can be incredibly nuanced and complex, and much more so than the media or political or religious institutions may want us to believe,’ and ultimately, the decision to terminate an unwanted pregnancy grants the lease of life back to victims of sexual assault, domestic violence and individuals susceptible to post-partum depression.
The right to choose, despite political rhetoric, comes down to basic human rights and dignity. Taking away reproductive rights is not only policing womens’ bodies, but taking away the choice of a better future for everyone involved.
4. Reactions to the repeal–this is not the end
With the decision to overturn Roe v. Wade as catastrophic as it is, people all over the world have expressed their anger and grief. Many with large platforms have used it to communicate their dissent, additionally sharing resources for a ‘post-Roe’ world and urging people to take immediate action under the hashtag #CodifyRoeNOW.
As activist and congresswoman Alexandria Ocasio-Cortez explains, the Supreme Court ruling of Roe v. Wade and the ‘right to privacy’ had been established, “but a law was never passed to codify it”. She advocates for the Womens Health Protection Act (WHPA) which effectively would pass Roe v. Wade as a law and “re-establish access to abortion in the US despite Roe being overturned”. The WHPA, she elaborates, has been passed, but Senate filibuster prevents it from being actually enacted.
Furthermore, world representatives (outside the USA) have shown solidarity for what this means for pregnant people in the States and in their own countries, some making moves to reassure their citizens that the same will not happen to them. First Minister of Scotland Nicola Sturgeon tweeted about the domino effect this will have outside the USA, saying it “will embolden anti-abortion & anti-women forces in other countries too.”
Belgian Prime Minister Alexander De Croo similarly expresses his concern “about [the] implications of [the Supreme Court’s] decision on Roe v. Wade and the signal it sends to the world”, especially with global gag rules in place.
Gloria Steinem, a famous feminist, cries for people to push the ratification of the Equal Rights Ammendment higher on the agenda—something she has been trying to pass for decades. The ERA essentially “forbids discrimination based on sex or gender”, so it would be a law that benefits everybody. Now more than ever, ERA is vital in taking action so no further civil liberties can be removed. Steinem asks and answers:
“If democracy means anything, it means [...] equal decision-making power. Can men be forbidden to have a vasectomy? So why are women uniquely governed—in terms our physical selves—by various state laws? [...] And when you look back in history at authoritarian movements around the world, you learn that often the first thing they have done is to outlaw abortion and declare family planning a crime against the state”
Hence, Steinem expresses, the passing of ERA is an imperative step in protecting women from the oppressions of the patriarchy, and more immediately, protecting pregnant people’s reproductive rights.
“That is what our mothers and grandmothers and great-grandmothers lived through, and now here we are again. [...] This horrifying decision will have devastating consequences, and it must be a wake-up call, especially to the young people who will bear its burden. I know this is not the future you chose for your generation–but if you give up now, you will inherit a country that does not resemble you or any of the values you believe in.” (@michelleobama, Instagram)
Countless celebrities have spoken out in a similarly frustrated tone, and many artists touring the USA this season have taken the opportunity to express their anger towards the Supreme Court and Justices responsible for this upheaval. From Billie Eilish and Phoebe Bridgers to Janelle Monae and Pink, all have spoken words reflective of our current state of mind and unabashedly displayed their stance on the matter. Olivia Rodrigo in particular, in her Glastonbury concert with Lily Allen, calls out the Justices directly:
“I’m devastated; I’m terrified. So many women and so many girls are going to die because of this, and I wanted to dedicate this next song to the five members of the Supreme Court who have showed us that at the end of the day, they truly don’t give a sh*t about freedom. [...] We hate you!”
Halsey powerfully incorporated her message into the design of their show itself after giving a rousing speech, causing several audience members to walk out. Inspiringly, they bear no regret from this choice, instead responding: "If you don't like it, I don't know why you came to a Halsey concert, because I've never been shy that this is how [I feel]."
Finally, let’s not forget this isn’t just an issue for people who can get pregnant. It’s also important for those who can’t to step up and do their part as well. “Let’s utilise collective power. Men, your voices are necessary too. You’ve benefitted from our access [to abortion],” writes actress Dianna Argon.
In her BET acceptance speech, Jazmine Sullivan called out: “If you have ever benefited from a woman making one of the toughest decisions of her life—to terminate a pregnancy—you need to be standing with us. This is not just a woman’s issue. This is everybody’s issue, and we need your support more than ever.”
5. What you can do
Organisations like Planned Parenthood and the American Civil Liberties Union are still actively pushing for abortion access in the US, with ACLU going into court suing Texas, Florida, Kentucky (and more states to come) for abortion rights.
If you’re living in the USA or planning to live there soon, there are some important things you can do to ensure your safety and join the fight in pushing for abortion access—other than of course donating to local abortion funds, keeping informed, and putting in your votes.
Privacy will be a major concern in a ‘post-Roe’ world, as the main difference between the USA before the original implementation of Roe v. Wade and now, after its repeal, is that we are in an era of unprecedented digital surveillance. It is highly likely that states which criminalise people who get abortions may take advantage of the current digital advancements and use it for tracking.
Using private browsers such as DuckDuckGo, VPNs, throwaway email addresses, as well as deleting period apps that require sign-ins, are good steps to take for your safety, especially if you’re in an impacted state.
Planned Parenthood’s period tracking app Spot On is one of the anonymous applications around, where your menstruation data cannot be identified to your person in any way (other than by yourself), and can be deleted at any time through deleting the app itself. In terms of messaging, using encrypted applications with disappearing messages is a good precaution when discussing plans.
To note, an alternative way to obtain an abortion if you are unable to travel outside of state/unable to get an abortion through normal channels, is to conduct a self-managed abortion. Organisations like Plan C provide pills for SMAs in all 50 states, but make sure to use trustable and recognised organisations and do your research on their delivery methods/details of the pills, especially if you require these pills to be sent discreetly.
Finally, for those not in the USA, your support is still important. Start conversations with those who hold anti-abortion views in your life, and keep yourself informed on any legislative shifts that may occur as well as the discourse surrounding abortion rights. Read and share stories of people who have undergone abortions; for those with conflicting views on the topic, garnering empathy may be key to understanding the right to choose. Planned Parenthood’s ‘Our Abortions, Our Stories’ continues this conversation, sharing real experiences from real people.
For more info and help finding an abortion provider, click this link.