The Hard Conversations – Roe v. Wade: Part 1

A few days ago, the US Supreme Court, in the Mississippi case of Dobbs v. Jackson, overturned a previous landmark judgment in Roe v. Wade, which gave women the constitutionally protected right to abort. As would be expected, this has sparked heated debates regarding the pro-life vis-à-vis pro-choice issue. Personally, I see this decision as a giant stride, in the wrong direction. It is retrogressive to say the least.

The impact this has on the society generally, is that it claws back on progressive steps made in the last half of a century, since the Roe v. wade decision was made in 1973. Seeing as court decisions are considered ‘judge-made’ law by virtue of the legal doctrine of stare decisis (a Latin phrase which means, ‘to stand by things decided’) this decision will have a ripple effect, not just in the United States, but on several jurisdictions around the world.

Essentially stare decisis obliges courts to be guided by previous court decisions and there are two types of precedent: binding and persuasive. The former binds lower courts in a particular jurisdiction to the decisions of higher courts. This will be the case in the US, where lower courts are obligated to follow the Supreme Court’s decision in matters touching on abortion.

For other countries, this decision will affect them in the sense that even though courts in their respective jurisdictions are not bound by the decisions of the US Supreme Court, persuasive precedent allows them to rely on its decisions, or decisions made by courts in other countries. As a result, many courts could end up making similar judgments.

Seemingly, this judgment has raised mixed reactions from people, and while some hail it, I find it a dangerous precedent because of the effect it is going to have on societies around the globe; because after all, it boils down to one thing: judicial interpretation. The million dollar question is, will women stop procuring abortions just because a bench of 5-4 judges decided against it? Being cognisant of the defiant nature of human beings, I think not.

The way I see it, protecting a woman’s right to abort doesn’t mean women can sleep around recklessly then resort to abortion when they unexpectedly get pregnant. On the contrary, it means when the need to terminate a pregnancy (for whatever reason) arises, the woman in question can do it in the open, and through safe procedures in an authorized facility.

Ideally, where abortion is legal, it opens the general forum for discussion about what is safe, and what is not. Furthermore, trained medical professionals are given the mandate to carry out these procedures, and giving counselling, thus reducing the chances of having abortion related complications and deaths, and alleviating the trauma the patient could experience, subsequent to the procedure.

The glaring truth we cannot run away from, is that even in countries where abortion is illegal, women still get them. Difference is, where it is criminalized, professional medical practitioners desist from getting caught up in that mire that could have them imprisoned, and their practicing licenses revoked.

As a result, such delicate procedures are left in the hands of untrained quacks. It doesn’t require rocket science to imagine, what tragedy could befall a woman who entrusts her life to an untrained ‘doctor’. It is horrifying!

In my first semester in law school, I learnt three key aspects: first, laws are rules, which regulate human behaviour; two, law does not operate in a vacuum; and three, law is dynamic. In a nutshell, what this means is that laws guide us on what is required of us in terms of how we conduct ourselves.

Where the laws are flouted, penalties are meted out against those who violate them. While most of us adhere to the rules, we do it primarily out of fear of being penalized. Think Covid… most of us walked around in masks and stayed home during lockdowns to avoid arrests and penalties.

That notwithstanding, when laws are being made, they should factor in societal beliefs and practices. Where laws are made blindly then imposed on people, there is usually resistance, therefore the implementation of the said laws fails to a large extent; hence the saying law does not operate in a vacuum.

Thirdly, law is not static; it is always changing, because of the fact that even society is evolving. As society evolves, different issues come up, thus the need to have effective laws in place to regulate them; and more importantly, to have legal interpretation that is alive to the said evolution.

Now making reference to the overturning of the Roe v. Wade case, what comes to my mind is, people in this era are relatively more ‘woke’ than they were 50 years ago. If there was ever a time society needed protection of reproductive health rights, it is now. For that simple reason, we cannot be acting retrogressively, undoing progressive steps spanning decades.

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