US abortion case shows we cannot take reproductive rights for granted

Progressive lawyers, activists and politicians are understandably dismayed by the US Supreme Court decision to radically restrict a woman’s right to access an abortion under the Fourteenth Amendment. The decision in Dobbs v Jackson Women’s Health threatens to expose American women in dozens of states to serious health risks and is a major rollback in their right to decisional autonomy.

In Australia, the right to an abortion is legally protected federally and in almost all states, including in NSW, which decriminalised abortion in 2019. But the overturning of Roe v Wade in the United States illustrates that such protections cannot be taken for granted, and depend on a political system that shows bipartisan support for reproductive rights.

Protests have erupted in the US after the overturning of Roe v Wade by the Supreme Court.Credit:AP

The US Court in Dobbs voted to overturn longstanding precedents that have supported abortion as a right, which were established in Roe v Wade in 1973 and in Planned Parenthood v Casey in 1992. The court also overlooked numerous decisions of the court that have upheld a constitutional right of access to abortion.

Moreover, the reasoning of the majority of the Supreme Court cast a wide conservative net: it suggests that constitutional guarantees of liberty and equality in the Fourteenth Amendment of the United States Constitution are to be understood in an extremely narrow and backward-looking way.

And in his concurring judgment, Justice Thomas explicitly suggests that this approach has clear implications for the broader constitutional recognition of reproductive rights and gay rights, including the right to same-sex marriage in the US.

The decision, however, was at once deeply regrettable and legally defensible. It exploited inconsistencies between the court’s reasoning in Roe and Casey, and the failure of the court in Casey fully to explain the constitutional basis for limits on abortion regulation in the later stages of pregnancy.

Crowds outside the US Supreme Court in Washington on Friday.Credit:AP

Many conservatives suggest that limits on access to abortion protect the dignity of fetal life. But as the well-known feminist philosopher Martha Nussbaum and I have argued, women have the same – or indeed arguably even greater rights – to respect for their dignity. And dignity for women means dignity of choice, and the dignity that comes from enjoyment of a right to physical and psychological health. This logic, however, was implicit, not explicit, in the court’s reasoning in Casey.

The Dobbs court’s overruling of Roe was therefore a legal mistake, not a legal coup. It was the product of a legal and political system that is increasingly polarised, and in which Republicans have long been bent on forcing the court to overrule Roe.

Indeed, the decision in Dobbs is the direct product of a series of Republican electoral victories, which have seen the Supreme Court become more conservative and many states more willing to advance radical anti-abortion legislation that puts poor women and girls at serious risk. The most effective way to win the abortion wars – or the battle to protect women’s reproductive rights –is also for Democrats to reverse this trend and regain control of the court and many state houses.

In Australia, we are lucky that core reproductive rights are already protected by legislation, but the US experience reminds us that these protections cannot be taken for granted. Their endurance depends on ongoing electoral support, and who is elected to make decisions on these questions. It also depends on a politics where both parties agree that access to healthcare – including reproductive healthcare – is a fundamental right.

So far, all major parties in Australia have taken that position. But the Liberal-National party is going through a major overhaul, and reproductive rights advocates should be seeking to be part of it. Access to abortion in Australia will not be secure if it is supported by Labor and Teal movement alone. It also needs to retain the support of the Peter Dutton wing of the Liberal-National Coalition.

Women’s rights are human rights. But they are also rights that depend on support from across the political spectrum. We forget that, the American experience suggests, at our peril.

Rosalind Dixon is a professor of law and the director of the Gilbert + Tobin Centre of Public Law at UNSW Sydney. She is director of the Pathways to Politics for Women Program NSW and was the only non-US expert to testify before the White House Commission on the Supreme Court.

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