The controversy over when a foetus becomes a living being has been recently resurrected in the United States (“US”) justice administration and amongst the public both within and outside the United States of America. Prior to the decision of the US Supreme Court on June 24th, 2022, in the case of Dobbs v. Jackson Women’s Health Organization, the well-settled law which was established in Roe v. Wade, where the US Supreme Court held that the Constitution of the United States guarantees a woman’s right to have an abortion, was applicable to all the States in the US. In other words, women were granted reproductive freedom and the legal right to abort any unwanted pregnancies.
The Court ruled that foetal viability, or the ability to survive outside the womb, begins within 24 weeks, before which time a woman has the right to abortion under the Fourteenth Amendment to the United States Constitution. A similar position was reached in Planned Parenthood v. Casey, which applied the right to liberty as granting women the right to obtain an abortion. This age-old right recently came under scrutiny when the US Supreme Court took a new position, albeit overturning the principle in Roe v. Wade and Planned Parenthood v. Casey, which upheld the legal right to abortion. Why did the Court reverse its decisions in these cases? This will be examined shortly.
OVERTURNING ROE V. WADE: A REVIEW OF DOBBS V. JACKSON WOMEN’S HEALTH ORGANIZATION
The case of Roe v. Wade, which struck down federal and state laws against abortion on the basis of the Due Process Clause of the Fourteenth Amendment to the United States Constitution and other cases that had followed, had over the years created heated debates on abortion between pro-abortionists and pro-life advocates. This case came under review by the US Supreme Court in Dobbs v. Jackson Women’s Health Organization (Dobbs’ case), wherein the court was faced with the question of whether “all pre-viability prohibitions on elective abortions are unconstitutional.”
By way of brief background, this case was instituted following the ban on most abortion operations after 15 weeks of conception by the State of Mississippi Gestational Age Act in 2018, which aims to protect the life of the unborn and provides that
“Except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform… or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.”
The respondent, an abortion clinic, sued the state’s health officer, Thomas E. Dobbs, challenging the constitutionality of the ban on the ground that it violates the constitutional right to abortion as established in the cases of Roe v. Wade and Planned Parenthood v. Casey. The challenge to the Act was upheld by the District Court, which stated that the ban was a violation of the US Constitution and precedents which prohibit states from placing a ban on pre-viability abortion. This position was affirmed by the Fifth Circuit and then appealed to the Supreme Court by way of certiorari.
The Supreme Court recognized that abortion was a critical moral issue for which the Court needed to provide direction. In the words of Justice Alito in delivering the Opinion of the Court held:
“Abortion presents a profound moral issue on which Americans hold sharply conflicting views.” Some believe fervently that a human being comes into being at conception and that abortion ends an innocent life. Others feel just as strongly that any regulation of abortion invades a woman’s right to control her own body and prevents women from achieving full equality. Still others in a third group think that abortion should be allowed under some but not all circumstances and those within this group hold a variety of views about the particular restrictions that should be imposed.
It was argued at the Supreme Court that the Mississippi Gestational Age Act was constitutional on the basis that it satisfies the rational-basis review and that the case of Roe v. Wade was wrongly decided and should be overruled. The Supreme Court in deciding the Dobbs case effectively overturned the long-standing precedent established by the landmark cases of Roe v. Wade and Planned Parenthood v. Casey in holding that the Constitution of the United States does not confer a right to abortion, and further that the Constitution does not forbid the States from regulating or prohibiting abortion, and as such, the authority to regulate or prohibit abortion is returned to the people and their elected representatives.
The rationales for the decision of the Court are that there is no express provision in the Constitution or its amendments granting a right to obtain an abortion; the right to abortion is not rooted in the history and tradition of the United States as it is not an essential component of America’s “scheme of ordered liberty”; and that the right to obtain abortion cannot be justified as forming part of the entrenched rights supported by other precedents. Further, the Court took the view that the critical moral problem generated by abortion had not been a focus of prior precedents, and as such, could not constitute a basis for supporting a right to abortion. In the words of the Court, it is stated as follows:
“We hold that Roe and Casey must be overruled.” The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some non-constitutional rights, but any such right must be “deeply rooted in this nation’s history and tradition” and “implicit in the concept of ordered liberty.”Washington v. Glucksberg, 521 U. S. 702, 721 (1997).
The right to abortion does not fall within this category.
It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. “The permissibility of abortion, and the limitations upon it, are to be resolved like the most important questions in our democracy: by citizens trying to persuade one another and then voting.” Casey, 505 U. S., at 979. That is what the Constitution and the rule of law demand. “
This decision has been greeted with mixed feelings of resentment from pro-abortionists and jubilation from pro-lifers.
Different Views on the Decision of the Supreme Court
Many, particularly pro-choice activists, have attacked the judgment of the Court as a retrogressive move. Some have alleged that the decision was initiated, pushed forward, and supported by centrist-conservative justices appointed by Republican Presidents George W. H. Bush and Donald Trump, who now form the majority of justices on the Supreme Court, whereas all three appointed justices by Democratic Presidents Bill Clinton and Barak Obama dissented. They argued that the right to abortion was an extension and integral part of the broader prescribed rights, which include the right to privacy as recognized in Roe v. Wade and the right to liberty, which is the freedom to make “intimate and personal choices” that are “central to personal dignity and autonomy” as held in Planned Parenthood v. Casey.
For example, President Joe Biden described the decision of the Supreme Court as “cruel”, stating that it “is the culmination of a deliberate effort over decades to upset the balance of our law.” “It’s the realization of an extreme ideology and a tragic error by the Supreme Court, in my view,” and urged Congress to codify Roe v. Wade into federal law. In the words of the Vice President, Kamala Harris, she said:
“This is the first time in the history of our nation that a constitutional right has been taken from the people of America.” And is that correct? — some may ask. It’s the right to privacy…
In holding that it is not deeply rooted in our history, today’s decision on that theory, then, calls into question other rights that we thought were settled, such as the right to use birth control, the right to same-sex marriage, and the right to interracial marriage…
Pro-life advocates, on the other hand, have added their voices to the Court’s decision commentary. One of whom is the former president of the United States, Donald Trump. He praised the decision of the Court and said it “is following the Constitution and giving rights back when they should have been given long ago.” The U.S. Conference of Catholic Bishops (USCCB) has expressed overwhelming acceptance of the decision, stating that:
“America was founded on the truth that all men and women are created equal, with God-given rights to life, liberty, and the pursuit of happiness.”
This truth was grievously denied by the U.S. Supreme Court’s Roe v. Wade ruling, which legalized and normalized the taking of innocent human life…
We thank God today that the Court has now overturned this decision.
THE IMPACT ON AMERICAN SOCIETY
The Dobbs’ case has presented a new dimension to the issues of human rights, morality, public policy, and administrative justice. Against this background, matters relating to the right to contraceptives, rights of LGBTQI people, issues relating to privacy, equality, and reproductive health, amongst others, have come to the fore. Thus, many Americans have expressed fear that the legal precedents of Lawrence v. Texas, United States v. Windsor, Hollingsworth v. Perry, and Obergefell v. Hodges, recognize the right to privacy and the right to marry for same-sex couples as guaranteed by the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the American Constitution, and other rights available to the LGBTQI community may come under question and threat as a result of the overturn of Roe v. Wade.
Suffice it to say that the decision in Dobbs’ case could create a precedent for many other controversial legal, social, moral, or religious issues in the near future. This uncertainty by the American public is fuelled by the view that some justices of the US Supreme Court are centrist-conservative, and specifically Catholic justices, who would hardly be able to separate their Christian beliefs from the doctrines of law.
However, this fear may be considered more imaginative than realistic as the Court has emphasized that its decision only relates to the constitutional right to obtain an abortion and no other rights. Hence, an expression of anxiety over threats to other rights or issues, such as those mentioned above, would seem to be unsubstantiated and needless.
Further, apart from the fear of threat to other rights, there are also anxieties in relation to the direction of states across the United States in their various legislation on the differing definition of a viable foetus. The Mississippi Gestational Age Act, which was the subject of controversy in the Dobbs’ case, seems to have put the age of “viability” at 15 weeks. In Alabama and Arkansas, for example, abortion at conception is outlawed and only permitted in exceptional circumstances for life and physical health. In Missouri, abortion is prohibited after 8 weeks of pregnancy, while in some states like Georgia, Ohio, South Carolina, and Tennessee, 6 weeks is prescribed, in Idaho, 22 weeks is statutorily prescribed, and in some other states it is 18 to 20 weeks. However, these laws were enjoined by court orders and had not taken effect. With the decision in Dobbs’ case, these states can then take appropriate steps to enforce the laws. Virginia, however, imposes a statutory limit on abortion in the 3rd trimester of pregnancy, which usually begins at 27 weeks, whereas in California, New York, Delaware, Washington, Connecticut, and some others, a foetal viability standard is imposed as the gestational age limit for abortion, following the federal standard of foetal viability. Thus, the questions of who a child is and whether an unborn child has a constitutionally guaranteed right to life may be subject of debate or legislation in the time to come, and this could influence a review of some of these states’ laws.
THE POSITION IN NIGERIA
Nigerian law does not provide a right to abortion unless it is done to save a life, as it criminalizes abortion with terms of imprisonment ranging from 3 to 14 years. Sections 228, 229, and 230 of the Criminal Code Act, applicable in Southern Nigeria, and Sections 232, 233, and 234 of the Penal Code Act, applicable in Northern Nigeria, make similar provisions for the prohibition of abortion. The Penal Code provides a statutory exception to save the life of the mother. Although the Criminal Code does not expressly make such an exception, some cases like Rex v. Edgal, following the English case of Rex v. Bourne, seem to suggest that abortion performed to save the life of the mother is not a violation of the Criminal Code.
Thus, in Nigeria, an unborn child could be seen to qualify as a child/person capable of legal protection. The constitutional right to life, as provided in section 33 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, arguably guarantees a right to life to an unborn child. It is instructive that by virtue of sections 309 of the Criminal Code Act and 236 of the Penal Code Act, the act of killing an unborn child carries a punishment of life imprisonment.
However, given that the federal laws prohibit abortion, it is a common phenomenon or an easy option among pregnant young women in Nigeria. Abortion is not a regular subject in court as there have only been a handful of abortion and abortion-related cases in Nigeria. In most cases like R. v. Idiong and Umo, State v. Ade-Ojo, and Commissioner of Police v. Modebe that have been litigated, death would have resulted from complications arising from abortion, wherein the accused would then be charged with murder or manslaughter.
The prohibition of abortion in Nigeria is largely on paper rather than in practice. Hence, for several years, there has been a call for the liberalization of abortion laws and the promotion of women’s rights in Nigeria. This issue has remained a continuing controversial debate that is yet to be settled.
The decision of the Supreme Court which overturns Roe v. Wade does not necessarily ban or criminalize abortion, nor does it recognize the constitutional right to life for an unborn child. It does, however, take away the encoded legal restrictions created by the judiciary which prevent states across the United States from restricting or prohibiting abortion, especially pre-viability abortions. Dobbs’ decision will undoubtedly have a long-time impact on American society, the judicial system, and policy formulation and administration in many years to come.
The power to restrict, prohibit, or permit abortion is now left in the hands of the states, and the outcome of the exercise of this power by the various component states in the United States will be seen in the coming days. While the Dobbs’ case is an unprecedented legal victory for the pro-life movement and a loss for pro-choice, the debates on abortion rights and the right to life of an unborn child are yet to be over.