When the US Supreme Court ruled in favour of the universal right to access to abortion for women in 1973, nobody could have predicted that 49 years later that right would be taken away by the same court. A pregnant single woman, identified as Jane Roe, challenged the Texas law which criminalised abortion. At the time, Roe argued that she deserved access to a legal and safe abortion in the state that she lived in, performed by a competent and licensed physician. She argued that the fact that abortion was criminalised in her state infringed on her 14th amendment rights to due process and equal protection of laws.
The 1973 decision was groundbreaking, creating the space for universal access to abortion in the US. It also helped to create similar rulings in other countries. The decision has now bizarrely been overturned by the US Supreme Court, meaning women who want to access abortion services will be in the hands of state constitutions which all differ in their implementation. It is estimated that up to two-thirds of states will disallow abortion services, forcing women to travel to other states or to have unsafe backdoor procedures.
The new Supreme Court decision essentially sends women back to the 1960s.
The new Supreme Court decision essentially sends women back to the 1960s. The court has rationalised overturning Roe v Wade by saying that residents of individual states have the right to make decisions on laws that affect them. “Abortion presents a profound moral question. The constitution does not prohibit the citizens of each state from regulating or prohibiting abortion. Roe and Casey arrogated that authority. The court overrules those decisions and returns that authority to the people and their elected representatives,” the court said. The court forgets that those who disagree with their neighbours should also have their rights to choice protected. The tyranny of the majority is a very real problem in society, one which constitutions are meant to safeguard against.
In SA, we might have the advantage of a constitution that enshrines many rights on a national as opposed to federal level, but the process of upholding these rights is often left to individuals, institutions and government departments. The overturning of the Roe v Wade decision drives home the point that democracy is an imperfect system that requires citizens to safeguard their rights.
South Africans know full well that the rights we now have came at a high cost, including the lives of many ordinary citizens and time lost for those jailed and exiled. We would be foolhardy to imagine that the fight has been won and there is no longer a need to fight. Active citizenry, championed by ordinary people, will ensure that rights to healthcare, housing and equality remain protected. This will involve paying close attention to changes to municipal by-laws and legislation through all three levels of government process. It involves keeping a close eye and participating in the appointment of judges at all levels as their decisions are able to change law and lives forever. We, the people, have much work to do to ensure democracy continues to protect the rights we hold dear. If we don’t, we might find them eroded one decision at a time.
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