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Roe v Wade: Overturning the Landmark Precedent and its global implications

Decision Overturned
In June 2022, a bench led by Justice Samuel Alito in Dobbs v. Jackson Women’s Health Organization
appears to overturn the decision in the landmark case of Roe v. Wade. “Roe was egregiously wrong
from the start,” Justice Alito writes in the draft document. Roe was a benchmark which was set to
uphold the legal and bodily rights of women by giving abortion a legal status. Not only that, but the
verdict of Roe was also a key precedent to identify the right to privacy of women. The reason stated
for the same the state’s responsibility to protect the rights of unborn child and that ‘Right to body
autonomy’ is not mentioned as a fundamental right under the First Amendment.

Problems Galore

The Judgment failed to address the plight of women who are impregnated through rape, unprotected
sexual intercourse or forced impregnation. The worst impact would be on marginalized groups,
including people living in economic poverty, young people, and Black, Indigenous, and other people
of color. These populations already face significant barriers accessing abortion care. The opinion also
goes against the ruling of Griswold v. Connecticut which identified privacy with respect to one’s own
body, established the right to access to contraceptives, and cemented the transformation from the right
to privacy to being about people instead of property.

According to an article published in the Journal of the American Medical Association, the risk of
death due to legal abortion in the United States of America has fallen considerably since legalization
in 1973, due to increased physician skills, improved medical technology, and earlier termination of
pregnancy.

Overturning the landmark ruling would mean that the rights enshrined under international law and the
constitutional realm for women can then be violated. It is necessary to uphold these rights in a
developed country, especially when only half of women in a developing world have bodily autonomy.

Global Implications

Negative effects on abortion laws and policies may surface in different ways, as noted by the authors
of these articles. Perhaps the most straightforward is that the US decision may derail or slow down the
trend towards liberalising abortion laws in countries around the world. The positive global trend is
compelling: some countries have expanded the legal grounds for abortion this century, whereas only
three—including the US—have curtailed legal access to abortion. Reversal of Roe v Wade may
strengthen antiabortion activists in sub-Saharan Africa, the region with the highest level of maternal
mortality from unsafe abortion, and in Latin America and the Caribbean, where substantial progress
has been made in recent years.

Secondly, it could lead to increased efforts to prosecute those who seek or provide abortions that do
not align with legal criteria and official guidelines—as was occurring in the UK even before the US
decision. Of the 88 countries where abortion is broadly legal, abortion remains in the penal code of all
but two: Canada and South Korea (Mexico and the US are excluded from these counts because
abortion laws or criminal codes are determined by states). An increased risk of prosecution is likely to
have a chilling effect on abortion provision and exacerbate stigma.

A third and perhaps less obvious repercussion concerns access to abortion services, especially where
the procedure is broadly legal. In Northern Ireland, for instance, the Department of Health has still not
commissioned abortion services, even though abortion was decriminalised in 2019. The US decision
may lead to restrictions that reduce access to abortion care, such as requiring parental consent, that
run counter to the World Health Organization’s evidence based guidelines for safe abortion care

International Provisions Involved

• General Comment No. 36 of UNHRC has already declared abortion as a human right, stating
that “restrictions on the ability of women or girls to seek abortion must not, inter alia,
jeopardize their lives, subject them to physical or mental pain or suffering…”
• Article 6 of the International Covenant on Civil and Political Rights protects right to life for all
human beings. Hence, there is a clear trade-off of human rights where the legal, private, and
fundamental body rights of a woman are ignored.
• Article 17 of International Covenant on Civil and Political Rights, both of which deal with
arbitral interference with one’s privacy.