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Reproductive rights have been an urgent topic of discussion around the world in recent days, following the leak of a draft opinion of the US supreme court, written by Justice Samuel Alito, in the case of Dobbs v Jackson Women’s Health Organization. If enacted by the court, this opinion would overturn the landmark 1973 case of Roe v Wade. Roe instated the constitutional right to abortion in the US under the Due Process Clause of the 14th Amendment, which references a woman’s right to privacy.
Overturning Roe would mean that abortion, no longer deemed a constitutional right, would return to the individual US states to legislate. So far, 12 states have so-called “trigger laws”, which would immediately criminalise or ban abortion in the case of Roe falling. This would clearly be disastrous for the rights of women and pregnant people in the US, many of whom would lose all access to abortion healthcare services.
The potential loss of Roe’s constitutional protection for abortion highlights the need for a framework of not just reproductive rights, but reproductive justice. Reproductive justice is about creating a society where principles of equity and inclusion mean that every woman has the right to exercise control over their own body. It is a concept developed by Black American feminists in the 1990s. Reproductive justice goes beyond merely the “right to choose” upheld in a case such as Roe, and asks broader intersectional questions of society.
The global picture
Reproductive justice frameworks have become a hallmark of recent movements to legalise abortion in Ireland, the UK and Latin American countries such as Argentina and Mexico. In Ireland, the “Repeal the 8th” campaign also included calls for the provision of free contraception and comprehensive sex education in state schools. Ireland voted to remove a ban on abortion from its constitution in 2018.
In the UK, Northern Irish activists, including those from Alliance for Choice, have emphasised the need for “free, safe, legal, and local” abortion provision including telemedicine for community members who cannot otherwise access abortion, in particular during the COVID-19 pandemic.
In Argentina, the “¡Aborto legal ya!” (Legal Abortion Now) campaign took the form of a “marea verde” or “green wave” of feminist campaigners who took to the streets to protest in favour of legalising abortion. One of the hallmarks of the campaign was an awareness of the socioeconomic divide in the country.
Although people from all backgrounds were accessing illegal abortion before the new law, people living in poverty were far more likely to die from it.
Standing strong and united
Reproductive justice therefore requires an intersectional approach, viewing society as a community in which demographic factors require that particular care and attention is given to certain parts of the whole. In the US, it is clear that people of colour, LBTQ+ people, undocumented immigrants, disabled people, and people living in poverty will be the first and worst hit by the fall of the Roe doctrine. Women and pregnant people from poorer socioeconomic backgrounds, including many of the aforementioned marginalised communities, will find themselves unable to find the means to travel to a state where abortion remains legal.
Roe was decided based on the right to individual privacy. But what the Alito/Dobbs leak has shown is that rights are fragile things, easily removed. A reproductive rights framework is only as strong as the law it is written in. The constitutional foundations of Roe were criticised by many – including former Supreme Court Justice, the late Ruth Bader Ginsburg – as not being rooted firmly enough in principles of liberty and equality.
This constitutional weakness is what enabled Justice Alito to write his opinion overturning it, using an originalist view of the Constitutional text that sees abortion rights – as Alito reportedly wrote in his leaked opinion – as not “deeply rooted in this Nation’s history and tradition”.
What the US will see now, and where a justice framework proves strongest, is a culture of mutual aid springing up to circumvent or defy abortion bans in states where the legislature chooses to render the procedures illegal. Already, these informal support networks have been seen in countries such as Poland, Malta, and Gibraltar, where Abortion Support Network aims to fund procedures and travel for women and pregnant people who cannot afford to leave their jurisdiction to access abortion care.
Other campaigns such as Women on Waves have taken part in direct action, performing abortions in international waters near countries where it is illegal. The National Network of Abortion Funds in the US will no doubt attract significant support.
The potential overturn of Roe signals dark days ahead for women and pregnant people in the US. But the international abortion and reproductive justice movements show that people stand strongest when they are united.
Sandra Duffy is affiliated with Lawyers for Choice, an independent advocacy group of legal academics and lawyers who work to promote reproductive rights and justice in Ireland.