Understanding the US Supreme Court’s Controversial Decision overturning Roe v Wade

In a 6-3 Conservative majority decision, the Supreme Court of the United States has recently overturned almost the 50-year-old landmark abortion decision Roe v Wade (1973). Earlier to the recent decision, women's right to abortion was a constitutionally protected right; but now it is no longer a constitutional right, and hence, the authority to outlaw or allow the right to abortion returns to the individual state legislature. To understand the decision and its reasoning, we have to first understand the politics of constitutional interpretation in the US.

There are two contrasting leading theories of constitutional interpretation relevant to the case: one is 'originalism' and the other one is 'living constitutionalism'. Originalism is the antithesis to living constitution. Originalists believe that the constitutional provision means what the original understanding of the text at the time it was drafted and ratified, meant. According to this theory, constitutional provisions do not change its meaning over time. If the constitution needs any change to meet the needs of the time, it can only be so done by the amendment.

On the other hand, living constitution is the idea that the constitution is a document that evolves, changes over time from decade to decade and adapts to new circumstances without being formally amended. This theory is of the view that the amendment procedures of the constitution is so rigid that it would be unrealistic to expect cumbersome amendment process to keep up with the changed circumstances which were unforeseeable when the constitution was in fact adopted.

Prior to the Roe v Wade decision, it was up to the states to allow, restrict or ban women's right to abortion. Back then abortion was prohibited in almost 30 states of the US. Thus, the effect of the decision significantly affected the individual states' prerogatives to regulate abortion in the manner as their citizens wanted it to be.

Since then, Roe v Wade has always been one of the controversial decisions of American constitutional law history. The conservative justices regarded Roe as a bad decision which illegally usurped to the field of parliament. According to them, abortion is a policy question and the democratically elected representatives should be allowed to do their job on the subject-matter. All issues not addressed by the constitution should be decided by the people, by the state legislatures.

On the contrary, under the living constitutionalism theory, the 14th amendment protection of liberty, as liberals opine, includes a fundamental right to privacy that protects an implicit right to abortion and abortion is covered under constitutional right to privacy.

Now the Supreme Court of super majority conservative judges returns to the position from the pre-Roe v Wade (1973) context. Conservative Justice Samuel Alito writing for the majority expressly reflected jurisprudence of originalism saying 'the constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision'.

He went on adamantly holding 'abortion couldn't be constitutionally protected. Until the latter part of the 20th century, such a right was entirely unknown in American law. It is time to heed the constitution and return the issue to the people's elected representatives.'

Living constitution theory, generally speaking, from which judgements like Roe v Wade flows from is enormously attractive to judges and its supporters (vast number of American citizens) because it empowers both of them. Judges are empowered to re-write their philosophy into the constitution in the guise of interpretation and similarly thereby their supporters' views become binding even upon the large number of people who do not support the theory. On the other hand, originalism leaves the questions like abortion right, death penalty, same sex marriage to be decided by the people through legislature whereas living constitution theory imposes the rule not explicitly in the constitution even upon the persons who are against such exercise.

The writer is a Final Year Law Student, University of Dhaka.