How Ruth Bader Ginsburg's death could see abortion rights ruling Roe v. Wade overturned

Leading Australian abortion rights advocate Wendy McCarthy says she is enraged that the death of women's rights champion Ruth Bader Ginsburg could lead to a reversal in the landmark Roe v. Wade ruling.

UPDATED 26/09/2020 BY EMMA BRANCATISANO

The woman who became the face of a movement to decriminalise abortion in New South Wales says the death of United States Supreme Court Justice Ruth Bader Ginsburg will trigger a "groundswell" to rewind some of the wins of a decades-long battle for women's rights - and could reach Australia. 

Prominent Australian activist Wendy McCarthy knows the fight for abortion rights all too well. The Women's Electoral Lobby co-founder was one of 80 women who published their names - and that they'd illegally terminated pregnancies - in a national newspaper advertisement in the early 1970s. Decades later, she rallied to support legislation to decriminalise abortion in New South Wales, which was passed last year.  With the death of Justice Ginsburg, Ms McCarthy told SBS News she is "enraged" to think that "we're trading women's rights for a new justice".  The Supreme Court vacancy left by Justice Ginsberg could be filled by US President Donald Trump before the upcoming election. It would be the third vacancy he has filled and would give the nine-member court six conservative justices. With a Senate supporting increasing restrictions on abortion, groups on both sides say the future of the landmark Roe v. Wade ruling is now in jeopardy. Among her many attributes as a pioneer for gender equality, Justice Ginsburg was a staunch advocate for abortion rights. Throughout her career as a litigator and her 27 years with the Supreme Court, she consistently cast her vote for the right to access abortion care, maintaining the right to the procedure was key to women's autonomy. 

During the 2007 Gonzeles v. Carhart case, she called abortion "a right declared again and again by this court - and with increasing comprehension of its centrality to women's lives".  "Whatever happens, there will be a groundswell to rewind some of the rights that women have achieved over a very, very long battle over the last 20 years," Ms McCarthy said.   

What is Roe v. Wade?

Roe v. Wade is the landmark Supreme Court decision that established a constitutional right to abortion across the US in 1973. 'Jane Roe' (a pseudonym) was an unmarried pregnant woman who filed a suit challenging Texas abortion laws. Henry Wade was the defending district attorney. At the time, Ms McCarthy said the ruling was seen as "the most wonderful piece of legislation in the world".  "It became the norm for countries to take it to a federal level and legislate access, and to recognise what was the rapidly blossoming women's movement at the time," she said.  But while Justice Ginsburg was a staunch supporter of abortion, she believed the landmark ruling was too sweeping and vulnerable for legal precedent. "Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable," she said during a lecture at New York University in 1992, prompting criticism from new-wave feminists.  Justice Ginsburg believed the court should have grounded the case in the equal protection clause of the 14th Amendment and not in "privacy" and "personal liberty". "The difficulty I see with the structuring - she [Justice Ginsburg] wanted it done on gender equality - is that it is one big piece of legislation which is trying to fulfil the needs of millions of people, across all the states of the US," Ms McCarthy said. "And once you start tampering with it, know the battles will go on forever. It will be easier from their [the justices'} point of view to kill it and start again than to tamper with it." 

How could Roe v. Wade be overturned? 

During his 2016 presidential campaign, Mr Trump - who had previously expressed support for abortion rights - made multiple pledges to make it harder to get an abortion. He promised to appoint Supreme Court justices open to overturning Roe v. Wade, and his second pick, Justice Brett Kavanaugh, all but confirmed the conservatives had the votes to reverse the ruling.  Ms McCarthy was in New York several weeks before the 2016 election.  "I definitely saw it when I was there ... you could hear the drums beating with Trump, you could see the rising power ..." she said. "But it depended on how the election would go."  “It is at least conceivable for the first time that we have a majority [on the Supreme Court] that would overturn Roe v. Wade, and the battle would return to the states,” Andrew Bath, executive vice president of the Thomas More Society, a conservative public interest law firm, told the Associated Press.  Ms McCarthy also believes there will be "significant attempts" in the immediate future to challenge Roe v. Wade.  "It’s a really shocking dilemma to think we might have enough justices on the Supreme Court who think it’s okay to rewind women’s rights back," she said.  "I would imagine even the more aggressive of them [about this matter] would probably think it would be the most ghastly fight to take on. And it will be. But that doesn’t mean it won’t happen." It remains unclear if the Senate will hold a confirmation vote before the 3 November election and how it would respond if Mr Trump lost to Democrat Joe Biden before the vacancy is filled. But Mr Trump has urged the Senate to move quickly and Senate Majority Leader Mitch McConnell said there will be a vote on Mr Trump’s nominee, who he plans to announce this weekend. 

What would happen then?

If Roe v. Wade was overturned, the battle over abortion rights would turn to the states.  "It becomes a big argument between the federal justice system and state rights. Then there will be different conventions around health systems," Ms McCarthy said. "It’s going to be a very messy thing."

According to the Centre for Reproductive Rights' 'What if Roe Fell' project, abortion would remain legal in 21 states and would likely be banned in 24 states and three territories. Planned Parenthood, the largest abortion provider in the US, also says if Roe v. Wade were dismantled, sweeping bans could be imposed in 20 states that are home to an estimated 25 million women of reproductive age.

(Source: SBS)