ROE V WADE OVERTURNED: A BACKWARD STEP FOR HUMAN RIGHTS

ROE V. WADE OVERTURNED: A BACKWARD STEP FOR HUMAN RIGHTS

By Shanelle George CW: Abortion, death, r*pe, incest

Ten years ago, it was only natural to assume that the world would move in a linear fashion. That as time goes on, so would society. Ten years ago, we all believed that the future would ensure progression in protecting human rights. But on June 24 2022, the U.S moved backwards as the decision of Dobbs v Jackson Women’s Health Organisation was handed down. The result? The abolition of the American constitutional right to abortion that was set out in Roe v. Wade.

ABOUT ROE V. WADE

The case of Roe v. Wade was a 1973 class action case brought by Jane Roe on behalf of herself and others to challenge Texas abortion laws. The basis of the case centred on the argument that Texas’s laws which criminalised abortion were unconstitutional as they intervened in a woman’s right to privacy, protected under the 14th Amendment. At the time of the trial, abortion was only permitted in instances where the pregnancy presented a serious risk to the mother’s life, thereby setting a high threshold for termination which failed to give women any substantial reproductive decisions. However, in a landmark decision handed down by a 7-2 majority, the Supreme Court found that the right to abortion fell within a person’s right to privacy under the 14th Amendment. Specifically, it found that excess government control of a person’s body was unconstitutional and unjust. It is important to note that the case did not legalise abortion but rather significantly altered the way states could regulate abortion. As a result, women were given a right to an abortion within the first trimester of pregnancy which could not be interfered with by state regulation.

WHAT IS PRECEDENT?

Before we discuss the disheartening result of Dobbs v Jackson Women’s Health Organisation, you may question how such an important decision can be removed? The answer rests in the concept of ‘precedent’. Roe v. Wade is considered constitutional precedent, which means that judges in lower courts are bound to follow its decision. However, the caveat is that superior courts, or courts at the same level on the hierarchy, can make rulings that overturn constitutional precedent. This means that the decision of Roe v. Wade, which was handed down in the Supreme Court, could be overturned

Photographs from Aston Brown

by another decision in the Supreme Court. For the right to an abortion to become an absolute right — that is, safe from future Court decisions — it would need to be codified into federal law, which has not yet been passed successfully. Consequently, the future of the Roe v. Wade precedent and the right to abortion rested in the hands of a conservative Supreme Court operating in an increasing polarised political environment.

DOBBS V. JACKSON WOMEN’S HEALTH ORGANISATION

Fast forward 49 years, and the Supreme Court heard the case of Dobbs v. Jackson Women’s Health Organisation. The case was a challenge to a ban introduced by Mississippi that made abortion illegal after 15 weeks of pregnancy. Although lower courts upheld that the ban was unconstitutional and violated the precedent in Roe, the state of Mississippi appealed the decision to the Supreme Court. Upon hearing the case, the Court upheld Mississippi’s ban and by doing so, destroyed the protections afforded to women under Roe v. Wade by removing the constitutional right to abortion. More importantly, the Court gave no regard to instances of r*pe and incest which could result in unwanted, harmful pregnancies. The case of Dobbs marks the first time in US history the Supreme Court has ever ruled to remove a person’s fundamental right.

WHAT DOES THIS MEAN?

To put it simply, it means that in 2022, American women have fewer rights than their mothers did in 1973. As a result of Dobbs and the abolition of the right to abortion, individual states have

been given back the power to regulate abortion. States such as Arkansas and Oklahoma had previously legislated “trigger bans”, which meant abortion would become illegal as soon as Roe v. Wade was overturned. It is expected that at least 20 more conservative states including South Dakota, Utah, Mississippi, and Alabama will also immediately exercise their power to criminalise abortion. As such, women who are unable to access abortion services are forced to choose between travelling unreasonable distances or bringing their pregnancy to term. Furthermore, any ban on termination will disproportionately affect low socio-economic communities that cannot afford the cost of travel needed to access abortion services. In Arkansas, the trigger ban creates a maximum sentence of 10 years in prison for illegal abortions with no exception for r*pe or incest. To put this into perspective, Arkansas considers incest a Class C felony with a maximum sentence of 10 years.

However, perhaps the most frightening outcome of this case is the standard it sets for future decisions on human rights. The ruling of Dobbs has paved the way for unprecedented legislation that removes fundamental rights and may very well encourage the introduction of future bills that attempt to regulate access to birth control, gender, and marriage equality.

Let me repeat: a woman impregnated as a result of incest that attempts to access abortion services will be subject to the same penalties as her perpetrator.

HOW DOES THIS AFFECT US?

So what does the overturning of Roe v. Wade mean for Australia’s abortion laws? Although it has no direct legal effect on our abortion laws, it has increased scrutiny over the lack of a national framework regulating access to abortion. In Australia, there is no constitutional right to an abortion, leaving it to individual states and territories to rule on the matter. Although all jurisdictions have legislated to make abortion legal, each state and territory imposes different restrictions on the circumstances which permit abortion. In NSW, the right to access abortion services comes from the Abortion Law Reform Act 2019. This Act decriminalises medical and surgical abortion in the first 22 weeks of pregnancy and requires the consent of two medical

practitioners for abortions performed after 22 weeks. Furthermore, section 12 of the Abortion Law Reform Act 2019 provides that a woman is not held to have committed an offence if she performs a termination on herself, thereby permitting the use of self-induced abortion pills. However, it is important to recognise that although abortion is legal, it took Australia till 2021 to fully decriminalise abortion. With SA being the last jurisdiction to decriminalise abortion under the Termination of Pregnancy Act 2021, it raises the question of whether Australia is really as progressive as everyone believes.

However, despite room for improvement, it is clear that women in Australia are substantially more protected than their US counterparts, given Australia’s abortion laws are based on legislation rather than constitutional precedent. For abortion to become a criminal act in Australia, it cannot simply be overturned as was done in Dobbs v Jackson Women’s Health Organisation. Instead, it would require new laws to be passed through the House of Parliament of each State, which is substantially harder to achieve. Furthermore, the decriminalisation of abortion, and more specifically self-induced abortion in NSW, recognises the systemic barriers that women face in accessing costly abortion services. Australia’s laws ensure that marginalised groups that cannot access surgical abortion services can obtain alternative termination routes without the fear of persecution.

Clearly, Australia’s laws represent the rights and freedoms that women have been fighting for. When we compare this to the laws working against our female counterparts in the US, the injustice becomes clear. In a judicial system where the protection of human rights is erratic and unstable, we may wonder where they will draw the line. If the US courts are so willing to strip fundamental human rights and replace them with barbaric provisions, what’s next?

Anonymous by When I was in Year Ten, I completed work experience right near Oxford Street. As a young girl who identified as bisexual, being among an integral part of Sydney’s Queer culture was invigorating. I remember grabbing a coffee just before my first day in the office and seeing a small rainbow flag wedged in the cafe’s window. It was weirdly life altering: a small token of visibility. It was like the street and I shared a secret.

Years later, during Pride Month, I caught the train to Museum and returned to soak in the streets welcoming queerness once more. I was no longer a naive Year Ten student but 19 years old, more cynical, and identifying as a lesbian. I was less secure in my identity, not because it wasn’t true, but because it felt like something I had to prove. Walking down the familiar street, I couldn’t help but notice something missing: the lesbian pride flag. All of the most prominent queer identities were represented in shop windows and on street poles — gay, trans, non-binary, pansexual, asexual — but not the identity represented by the first letter of the LGBTQIA+ acronym.

This worsened the ache in my chest that had been there for years.

This month marks my eighth Pride Month knowing I’m a queer person; my first knowing I’m a lesbian. I still don’t feel comfortable using that word. Lesssbian. It seems to be something associated with the “boarders” in Chris Lilley shows, straight girls kissing each other for laughs at house parties.

“God, you’re such a lesssbian,” they always hiss bitterly.

I think that’s part of why I haven’t yet reconciled with this part of myself. Growing up, I was lucky to attend a pretty prestigious, but pretty religious school. It offered me the opportunity to grow my mind, which I thought was the best opportunity I could ever receive. But, simultaneously, it offered me the opportunity to grow my own self-doubt, namely doubt in my own identity. And that’s not to say it was the Orwellian image of a private religious school that many people conjure up when reflecting on their high school years. I never felt as if I would be ousted if I was outed. I think the bad part was the little comments. They always seemed to get under my skin.

I am a relatively straight-presenting girl — I have long hair, sort of long nails (always painted), and I dress up most days. The music I listen to and the books I read tell a different story, but you would only recognise it if you’re clued in on the culture. Because of this, people never thought twice about making pretty homophobic comments in my presence, always operating under the assumption that I was “one of them.”

I vividly remember a conversation that took place around a campfire on a cold night. Many of my friends and I were clinging to plastic cups filled with vodka and fanta, throwing it down our throats to heat up our insides. Words were spilling out, quick and heavy, like molasses on a hot spoon. A string of those weighted words came from one of my friends. I think she knew that I wasn’t straight, but I also think she was careless about that fact because it made her uncomfortable — she forced me onto her male friends and never asked me about girls.

That familiar hiss sounded even worse on a voice coated with liquor. I froze, but the girls around me burst out laughing, and not even forcefully. I was mortified, but not fully surprised. I mean, I couldn’t be, right? I was surrounded by a group of painfully straight high school girls who saw the concept of love as an easy game that was rigged for them to win. But not me. Stupidly, I said something. My response isn’t as clear in my memory — I don’t think I was particularly eloquent, given the anxiety and the alcohol — but I stammered out something that pointed out how ignorant the comment was, and probably blurted out that one statistic about lesbians having better orgasms. I didn’t hiss the word lesbian out like they always did. But, again, I was met with laughter, and the topic was swiftly dropped. They moved on, but my mind meditated on it for the rest of the night.

I was probably younger than most when I came to the conclusion that I liked girls, which was nice. I remember sitting on the grassy hills of my school oval and looking at my friend — a female friend — like she was the sun, and I sort of just knew: accepted it there and then.

But when I did, I never came back to question if I didn’t like boys. To me, it was a given. Boys were the sun, girls were the moon. Both were nice, and liking boys felt like a necessity. I could like girls, sure, but removing the possibility of liking boys was inexplicable.

And that’s not to say that bisexuality doesn’t exist, but it is to say that I just wasn’t bisexual.

I have a pretty unrelenting mind. I feel like I’m constantly searching for a boy that my eyes can grab onto. Someone digestible, never too attractive, just kind and gentle, and I force myself to wax poetic about him when, in reality, I’m not feeling anything at all. Perhaps that’s a result of how we are raised. We are expected to dress and express ourselves in a way that appeals to men, and it’s hard to ever grow out of it. I still find myself craning my neck in clubs to see if any guys are looking at how a dress holds my figure or looking up every five minutes in class to see if the boy with the dark eyes will meet my gaze. It’s a habit I can’t seem to shake. I’m honestly scared I never will. And frankly, I’m sick of it. Why should I feel this unrelenting need to attach my worth to men when nothing fruitful will come of it?

What I’m describing is something called “compulsory hetereosexuality”, a term coined by poet Adrienne Rich in 1980 but popularised by the now-famous “Lesbian Masterdoc”. The master doc originated on Tumblr and disseminates much of Rich’s writing in a diluted way. I remember stumbling across this document during lockdown in 2020, and it rocked my world. Each point deeply applied to me, and at first, I couldn’t believe it. I lost crushes when a man reciprocated, the idea of marrying a man caused discomfort, and I found myself unable to see myself happy with one.

That fact was solidified when I recently dated a guy. At the time, I was still combatting the ache within me that told me I didn’t like men, so when the opportunity presented itself, I took it. Here was a nice guy who I got along with, so I took it as a test of sorts. I could prove that that stupid ache was lying to me and that I could still fill the role I was always supposed to.

I know that’s wrong, to operate under that knowledge and still let a man date me. But now I can start to understand why exactly I did it.

I truly convinced myself at the time that this was it for me, that he was it for me. I ignored the fact that the peppering of kisses coloured me pale. During the sweaty nights in bars, he’d buy me drinks, and when I was sick, he’d bring me flowers, and my friends told me he was lovely. And he was, so, I convinced myself it was real and it was right. I know now that it was all a performance. I can still remember my straightened spine and the forced smile, the uncomfortable ache in my stomach that flared up again like an open wound when he kissed me for the first, and second, and third time. The hot tears that rolled down after I finally admitted to a friend that something was wrong. My friend tried to blame it on him, and so did I, but it really wasn’t. He was a good boyfriend, and he told me he loved me… I just knew I could never say it back. So I ended things very very badly, and cried myself silly more, feeling that uncomfortable ache expand until it consumed my whole body.

And that’s not right in any respect. I hate that I’ve had to go through so much forced love that’s knocked me down each time because it’s what’s expected of me.

I guess that’s part of why I’m writing this anonymously. If this is something I’ve struggled to accept so much myself, how will the world do any better? But at the very least, I’m getting there. I’ll stop shivering when I say the world lesbian, and I’ll speak to the other people I see shivering too. I won’t question myself on drunken outings and thoughtful nights anymore because I know in my heart who I am.

And I think that will heal my ache soon enough.