Revisiting the United States Abortion Law and the Legal Implications

Abstract

Generally, female reproductive rights include the right to reproduce, maternity protection and childcare, access to adequate health care facilities, including information, counseling, and services in the family. More specifically, the right to reproduction refers to a woman’s right to decide whether or not to have children, whether to carry or terminate an unintended pregnancy, and to choose the family planning and contraception technique that she prefers. This article examines the exercise of this right in the light of recent development in the United States jurisprudence. It also reviews the legal implications of this development on women’s reproductive rights and other social cum medical issues particularly in relation to human rights and the “right” of the unborn.

1. Introduction

The controversy on when a fetus (or foetus) becomes a living being has been recently resurrected in the United States of America (the “US” or “United States”) justice administration and amongst the public both within and outside the United States. Prior to the decision of the US Supreme Court in the case of Dobbs v. Jackson Women’s Health Organization,¹ the well settled law which was established in Roe v. Wade² and applicable to all the States in the US (“States”), was that a pregnant woman has a right to determine what happens to her pregnancy whether to keep it or abort it.

In order words, women were granted the reproductive freedom and legal right to abort any unwanted pregnancies. This age long right recently came under scrutiny when the US Supreme Court took a new position, albeit overturning the principle in Roe v. Wade which upheld the legal right to abortion. Why did the Court reverse its decision in Roe v. Wade? To answer this question, it is imperative to examine first how Roe’s case became a defining factor in establishing the right to abortion in the American society.

2. Women’s reproductive right in the United States: the right to abortion

Abortion was already legal in several States of the United States prior to the Supreme Court decisions in Roe v. Wade³ and Doe v. Bolton⁴ which decriminalized abortion nationwide in 1973. The rulings created a federally mandated and consistent framework for States’ legislations on the issue of abortion. Additionally, they set a minimum window of time during which an abortion would be permitted, with varying levels of limitations through the course of the pregnancy. This fundamental structure, updated in Planned Parenthood v. Casey,⁵ was officially maintained throughout the States in the United States, although actual accessibility to abortion clinics varied greatly from State to State due to the absence of abortion providers in many counties. The permissibility and decriminalization of abortion has made many rethink the sanctity of life in an attempt to resolve the debate on when a fetus can become human.

The question several people, including biologists, ethicists, and jurists, have tried to answer over time has been “when does life begin?” In order words, at what time of conception can a fetus be classified as a human being; or put differently at what time can a fetus be worthy of ethical and legal consideration. Before delving into the arguments, it is important to consider the concepts of “human being”, the “human person” and “human rights” or otherwise “rights.” In this regard, a “human being” or the “human person” is used in this context interchangeably to refer to a living thing with the features of a human or person, that is a homo sapiens. The concept of a “person” may be more complex to define than that of a “human”, as the former is largely a philosophical term while the latter is a scientific term. Whereas a “person” is used to refer to a being with certain capacities and attributes, which includes life, soul, and consciousness, that is a sentient being. A “human” on the other hand, is used to describe a being which is part of the homo sapiens with certain features including life, soul, conscious thoughts, erect posture, complex brain, amongst others. For all intent and purposes and without going into the various philosophical and scientific theories and analysis of these concepts, a human being and a human person are one and the same.⁶

Rights as used in this context refers to human rights. That is the rights available to a human being. These rights are regarded as human rights because they enure to a person on the grounds of being human. The United Nations (UN) defines human rights as the “rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status. Human rights include the right to life and liberty, freedom from slavery and torture, freedom of opinion and expression, the right to work and education, and many more” [1]. These rights are available to all humans, irrespective of gender.

Thus, critical to this discourse is the right to life and liberty, on which the issues relating to the right of the unborn child and women’s reproductive right lie. Although “people agree that women have the right to make reproductive decisions involving their own bodies, many debate if those decisions directly affect other humans’ bodies. This dispute on when a human’s life begins likely plays a role in Americans’ ethical and legal positions on abortion” ([2], p. 2). In his attempt at answering albeit understanding the question, the author of the article “Biologists’ Consensus on ‘When Life Begins’” has approached the issue from the standpoint of biologists’ conception of human life, which majority agreed that ‘life begins at fertilization.’ He then went ahead to scrutinize the issue using the David Hume’s is—ought problem.

“‘When does a human’s life begin?’ is subject to David Hume’s classic is-ought problem since the question has two primary interpretations: the descriptive view (i.e., when is a fetus classified as a human) and the normative view (i.e., when ought a fetus be recognized as a person worthy of ethical and legal consideration). The is-ought fallacy is present in some pro-life stances that confuse the former for the latter such that a certain descriptive view necessitates a corresponding normative view (e.g., ‘since a human’s life begins at fertilization, fetuses are worthy of legal protection throughout pregnancy’). This fallacy is also present in some pro-choice stances that confuse the latter for the former such that a certain normative view necessitates a corresponding descriptive view (e.g., ‘since fetuses are not worthy of legal protection, a human’s life begins at birth’). Careful consideration of the specific language used in a stance on when life begins is required to understand which interpretation drove that stance….

This is-ought analysis can explain why people disagree on when life begins. Disagreement might not emanate from different biological views on when to classify a fetus as a human or different judgments on when a fetus is deserving of legal consideration. Conflicting stances could merely represent that one person interprets ‘when life begins’ descriptively while the other interprets it normatively. Thus, Americans could merely disagree because they understand the question differently.” ([2], pp. 2–3)

Hence, the arguments on ‘when life begins’ contributes to the debate on abortion, particularly as it relates to its legality, restriction, or permissibility. While some argue that life begins at conception, that is, life begins at fertilization, others say life begins at quickening, and some say at birth, and even argue that nobody knows when life begins until birth. The position one takes, would ultimately determine the person’s value proposition on the ethical and legal considerations for abortion and if pregnancies are worthy of protection or otherwise.

The debate over ‘when life begins’ has shaped the various legislative policies on abortion in the United States. Quickening has been considered as a vital stage of pregnancy for determining that the fetus is a living being, in the sense that it is usually the moment a pregnant woman begins to feel the movement of her baby in her womb. In this regard, quickening is seen as the stage where the fetus becomes a living being. Thus, the fetus is a distinct living entity as soon as the woman begins to feel movement in her womb. At that point, the fetus ascends to the position of a human being which needs and deserves protection. The stance that life begins at conception is a further reflection of this view. Accordingly, States in the United States were influenced by this position whereat they enacted legislations which restricted abortions largely throughout the various stages of pregnancy, until these bans were lifted by the US Supreme Court in Roe v. Wade.⁷

In Roe v. Wade, the Court was faced with the ultimate question of the living status of a fetus, and whether same is a person deserving of protection. In drawing the line between the legal status of a fetus or otherwise, the Court made recourse to the concept of conception, quickening, viability, and other theories in analyzing the debate about when a fetus becomes human. In the words of Mr. Justice Blackmun, who delivered the Opinion of the Court, he said:

“The [Hippocratic] Oath varies somewhat according to the particular translation, but in any translation the content is clear: ‘I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner I will not give to a woman a pessary to produce abortion,’ or ‘I will neither give a deadly drug to anybody if asked for it, nor will I make a suggestion to this effect. Similarly, I will not give to a woman an abortive remedy.’ …

The Oath was not uncontested even in Hippocrates’ day; only the Pythagorean school of philosophers frowned upon the related act of suicide….

The Oath came to be popular. The emerging teachings of Christianity were in agreement with the Pythagorean ethic. The Oath ‘became the nucleus of all medical ethics’ and ‘was applauded as the embodiment of truth.’ …. it is ‘a Pythagorean manifesto and not the expression of an absolute standard of medical conduct.’…

It is undisputed that at common law, abortion performed before ‘quickening’ – the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy – was not an indictable offense. The absence of a common-law crime for pre-quickening abortion appears to have developed from a confluence of earlier philosophical, theological, and civil and canon law concepts of when life begins. These disciplines variously approached the question in terms of the point at which the embryo or fetus became ‘formed’ or recognizably human, or in terms of when a ‘person’ came into being, that is, infused with a ‘soul’ or ‘animated.’…”⁸.

While the Court agreed that there were distinctions in the penalties for pre-quickened and post-quickened abortions, with the latter being more severe, the Court went on to opined that:

“It is thus apparent that at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a-pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this choice was present in this country well into the 19th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy.”⁹

The contention before the Court therefore was to decide whether States laws criminalizing abortions (particularly abortions in early pregnancies, that is prior to the end of the first trimester), where made to protect the life of the pregnant woman rather than the preservation of prenatal life on the theory that life begins at conception. In resolving the debate, the Court then resorted to hold that a pregnant woman has a right to privacy, which is an inherent part of her right to liberty, and this right entitles her to decide the fate of her pregnancy, but within certain bounds. The Court stated as follows:

“This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy…. On the basis of elements such as these, appellant and some amici argue that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree…. The Court’s decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life…. The privacy right involved, therefore, cannot be said to be absolute.”¹⁰

The Court could not define the “unborn” as a person as defined in the statutes, but it however considers it a “potential life” whose protection may outweigh that of the pregnant woman in certain circumstances, albeit at third trimester, as the woman’s right to privacy in respect of abortion decisions is not absolute and must be measured against the interest of the State in preserving a potential life. The Court had this to say thus:

“We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation… As we have intimated above, it is reasonable and appropriate for a State to decide that at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman’s privacy is no longer sole and any right of privacy she possesses must be measured accordingly.”¹¹

The Court though could not provide a definite answer to the question “when does life begin”, but nevertheless was in agreement that life begins at some point during pregnancy for which the State would be justified to provide certain level of protection for the potential life. It added that the “compelling” point for which a State could regulate abortion is at viability, thus suggesting that life begins at viability. Here is what the Court opined:

“We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”¹²

On the whole, the court in resolving the matter against the State of Texas went on to say that:

“In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes ‘compelling.’

With respect to the State’s important and legitimate interest in the health of the mother, the “compelling” point, in the light of present medical knowledge, is at approximately the end of the first trimester…. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health.

With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.”¹³

In summary, the Court held as follows:

“(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”¹⁴

In view of the above, the Court challenged and struck down in part Article 1196 of the Texas Penal Code in that case, which criminalizes abortion, on the grounds of vagueness, limiting its permissibility to only to save the life of the mother,¹⁵ and without distinguishing between abortions procured in early pregnancy and those performed later. As such, the Court held that such code was unconstitutional as it is a violation of the Due Process Clause of the Fourteenth Amendment on the right to privacy and liberty.

Thus, a critical analysis of Roe v. Wade shows that the case did not give unfettered and absolute right to abortion. It however permitted same prior to viability, which could be between 24 to 28 weeks, thereafter the States can regulate or proscribe abortion for the sake of the unborn. In order words, the primary consideration must be that of the pregnant woman at any of the stages prior to viability and it is until viability, before consideration can be given to the potential life. A fetus is therefore considered viable where it can possibly exist outside the woman’s womb, that is it can survive gestation and childbirth. In the US, viability is usually put around 24 weeks, although, the period of viability could differ between genders, race, and the statutory provisions on viability in the US differ from State to State.¹⁶

This decision gave room for US abortion laws across the country, whereby women could exercise their rights to abortion at various stages of pregnancies thereby asserting their reproductive rights in protection of their rights to autonomy, liberty, and equality. However, the decision in Roe v. Wade also propelled pro-life activists to challenge the position by redefining the beginning of life as conception for the purpose of protecting fetuses throughout pregnancy.

It is important to point out nonetheless the dissenting opinion of Mr. Justice Rehnquist in Roe v. Wade where he stated that the decision of the Court was given too broadly, as it addressed a hypothetical situation and further compounded by the introduction of the constitution rather than limiting the matter and the decision thereon to the set of facts presented to the Court. He posited that the decision imposes virtually no restrictions on medical abortions performed during the first trimester of pregnancy, whereas the Plaintiff who filed the case against the Texas statute was as at the date of the complaint may have been in her last trimester of pregnancy.¹⁷

In his opinion, the decision of the Court did not relate to the facts of the case in relation to the Plaintiff, but to the broader society as a whole, rather than the Plaintiff’s own circumstances alone. He further argued that the regulation of abortion by the States did not violate any right of privacy, and that rights can be curtailed by due process of law. In his words:

“The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment. The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental,’”¹⁸

The above dissenting position seems to have been justified by the decision in the recent case of Dobbs v. Jackson Women’s Health Organization. The right to abortion came under intense scrutiny in Dobbs v. Jackson’s case, where the US Supreme Court had the opportunity to revisit its decision in the Roe’s case.

3. Overturning Roe v. Wade: a review of Dobbs v. Jackson Women’s Health Organization

The case of Roe v. Wade¹⁹ had over the years created heated debates on abortion between pro-abortionists and pro-life advocates. This case came under review by the US Supreme Court in Dobbs v. Jackson Women’s Health Organization (Dobbs’ case) (see [4]), wherein the court was faced with the question of whether “all pre-viability prohibitions on elective abortions are unconstitutional.”

By way of a brief background, this case was instituted following the ban on most abortion operations after 15 weeks of conception by the State of Mississippi Gestational Age Act in 2018, which aims to protect the life of the unborn and provides that:

“Except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform … or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.”²⁰

The respondent, an abortion clinic, sued the State’s health officer, Thomas E. Dobbs, challenging the constitutionality of the ban on the ground that it violates the constitutional right to abortion as established in the cases of Roe v. Wade²¹ and Planned Parenthood v. Casey.²² The challenge to the Act was upheld by the District Court which stated that the ban was a violation of the US Constitution and precedents which prohibit States from placing a ban on pre-viability abortion. This position was affirmed by the Fifth Circuit and then appealed to the Supreme Court by way of certiorari.

The Supreme Court recognized that abortion was a critical moral issue for which the Court needed to provide direction. In the words of Mr. Justice Alito in delivering the Opinion of the Court held:²³

“Abortion presents a profound moral issue on which Americans hold sharply conflicting views. Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just as strongly that any regulation of abortion invades a woman’s right to control her own body and prevents women from achieving full equality. Still others in a third group think that abortion should be allowed under some but not all circumstances, and those within this group hold a variety of views about the particular restrictions that should be imposed.”²⁴

It was argued at the Supreme Court that the Mississippi Gestational Age Act was constitutional on the basis that it satisfies the rational-basis review and that the case of Roe v. Wade was wrongly decided and should be overruled. The Supreme Court in deciding the Dobbs’ case effectively overturned the long-standing precedent established by the landmark cases of Roe v. Wade and Planned Parenthood v. Casey in holding that the Constitution of the United States does not confer a right to abortion, and further that the Constitution does not forbid the States from regulating or prohibiting abortion and as such the authority to regulate or prohibit abortion is returned to the people and their elected representatives.

The rationales for the decision of the Court are that there is no express provision in the Constitution or its amendments granting a right to obtain abortion; the right to abortion is not rooted in the history and tradition of United States as it is not an essential component of America’s “scheme of ordered liberty”;²⁵ and that the right to obtain abortion cannot be justified as forming part of the entrenched rights supported by other precedents. Further, the Court took the view that the critical moral problem generated by abortion had not been a focus of prior precedents, and as such cannot constitute a basis for supporting a right to abortion. In the words of the Court, it stated as follows:

“We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’ Washington v. Glucksberg, 521 U. S. 702, 721 (1997).

The right to abortion does not fall within this category….

It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. ‘The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.’ Casey, 505 U. S., at 979. That is what the Constitution and the rule of law demand.”

Thus, Dobb’s has reversed the federal right to abortion, and has provided the States the power to regulate abortion at any stage or otherwise. In other words, the exercise of the “right to abortion” must be circumscribed within the permissible limits of the States legislations. This decision has been greeted with mixed feelings of resentment from pro-abortionists and jubilation from pro-lifers.

4. Differing views on the decision of the supreme court

Many, particularly pro-choice activists, have attacked the judgment of the Court as a retrogressive move. Some have alleged that the decision was initiated, pushed forward, and supported by centrist-conservative justices appointed by Republican Presidents George W.H. Bush and Donald Trump, who now form the majority of justices at the Supreme Court, because all three appointed justices by Democrat Presidents Bill Clinton and Barak Obama dissented. They argued that the right to abortion was an extension and integral part of the broader prescribed rights which includes the right to privacy as recognized in Roe v. Wade and right to liberty, which is the freedom to make “intimate and personal choices” which are “central to personal dignity and autonomy” as held in Planned Parenthood v. Casey.²⁶

For example, President Joe Biden had described the decision of the Supreme Court as “cruel”, stating that it “is the culmination of a deliberate effort over decades to upset the balance of our law. It’s the realization of an extreme ideology and a tragic error by the Supreme Court, in my view”²⁷ and urged the Congress to codify Roe v. Wade into federal law. In the words of the Vice President, Kamala Harris she said:

“This is the first time in the history of our nation that a constitutional right has been taken from the people of America. And what is that right? — some might ask. It’s the right to privacy.

Think about it as the right for each person to make intimate decisions about heart and home; decisions about the right to start a family, including contraception, such as IUDs and the morning-after pill; decisions about whether to have a child…; decisions to marry the person you love — Obergefell v. Hodges, Loving vs. Virginia…

In holding that it is not deeply rooted in our history, today’s decision on that theory, then, calls into question other rights that we thought were settled, such as the right to use birth control, the right to same-sex marriage, the right to interracial marriage…

Today, I invite all people to stand together in defense of one of the most fundamental ideals and principles that for generations, for centuries, I believe, we have held dear, which is that fundamental principle about the importance of liberty — to stand for liberty, to stand for freedom, to stand for self-determination, and for the right to privacy.”²⁸

Pro-life proponents have also added their voices in the commentaries on the decision of the Court. One of whom is the former president of the United States, Donald Trump. He praised the decision of the Court and said it “is following the Constitution, and giving rights back when they should have been given long ago.”²⁹ The U.S. Conference of Catholic Bishops (USCCB) has expressed overwhelming acceptance of the decision stating that:

“America was founded on the truth that all men and women are created equal, with God-given rights to life, liberty, and the pursuit of happiness…

This truth was grievously denied by the U.S. Supreme Court’s Roe v. Wade ruling, which legalized and normalized the taking of innocent human life…

We thank God today that the Court has now overturned this decision.”

While the debate on the decision of the Supreme Court continues, it is important to briefly highlights some reservations the American people have held about the decision and the likely impact it could have on the American society.

5. Implications on the American society

In Roe’s case the Court agreed that there was no absolute right to abortion. It however, provided conditions for exercise of the right to abortion viz-a-viz States’ intervention on the ground of “compelling State interest”. For a pregnancy within the first trimester, the pregnant woman has unrestricted right to determine whether to terminate or keep it and the State cannot regulate such. However, for pregnancies within the second and third trimesters, the State may regulate but must do so for the protection of the pregnant woman in the former instance, and then the unborn child in the latter case, except the life of the mother is at risk. Thus, the States cannot regulate abortion for the protection of the unborn at any stage until the third trimester.

At the stage of the third trimester, the potential life would have become viable, and being capable of living outside the body of the mother, the Court opined that such unborn could be afforded some level of legal protection. Hence, the decision of the Court in Roe’s case provided room for unregulated medical abortions up to the point of viability, which in most cases, starts at third trimester. In addition, the discretion of the States to regulate or not for protection of the unborn at third trimester seems to have offered an opportunity for an unlimited period for abortion.

Americans had since Roe’s case championed the idea of women’s right to abortion, but this has also faced criticisms from pro-life groups. It was only until recently, the Supreme Court once again revisited the debate on abortion and made a review on the Roe’s case. Unsurprisingly, since the Court handed down its decision in Dobbs’ case, the American society had expressed anxieties over what could be the implications of the decision on other matters on human rights, particularly those in relation to liberty and privacy.

The Dobbs’ case has presented a new dimension to the issues of human rights, morality, public policies, and administration justice. Against this background matters relating to right to contraceptives, rights of LGBTQI+, amongst others, had come to fore. Thus, many Americans have expressed fear that some of these previously settled rights could then be challenged on the basis of Dobbs. Consequently, it is feared that the legal precedents of Lawrence v. Texas,³⁰United States v. Windsor,³¹Hollingsworth v. Perry³² and Obergefell v. Hodges,³³ recognizing the right to privacy and right to marry for same-sex couple as guaranteed by the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the American Constitution, and other rights available to LGBTQI+ community, may come under question and threats as a result of the overturn of Roe v. Wade. Suffice to say that the decision in Dobbs’ case could create a precedent for many other controversial legal, social, moral cum religious issues in the near future.

This uncertainty by the American public is fuelled by the view that some justices of the US Supreme Court are centrist-conservative, and specifically Catholic justices who would hardly be able to separate their Christian beliefs from the doctrines of law. However, this fear may be considered imaginative than realistic as the Court had emphasized that its decision only relates to the constitutional rights to obtain abortion and no other rights. Hence, an expression of anxiety over threats to other rights would seem to be unsubstantiated.

Further, apart from the fear of threat to other rights, there are also anxieties in relation to the direction of States across the United States in their various legislations on the differing definition of a viable foetus. The Mississippi’s Gestational Age Act, which was the subject of controversy in the Dobbs’ case seems to have put the age of “viability” at 15 weeks.³⁴ In Alabama and Arkansas, for example, abortion at conception is outlawed and only permitted in exceptional circumstances for life and physical health.

In Missouri abortion is prohibited after 8 weeks of pregnancy, while in some States like Georgia, Ohio, South Carolina and Tennessee, 6 weeks is prescribed, in Idaho, 22 weeks is statutorily prescribed and in some other States it is 18 to 20 weeks.³⁵ Virginia however imposes a statutory limit on abortion in the 3rd trimester of pregnancy which usually begins at 27 weeks, whereas in California, New York, Delaware, Washington, Connecticut and some others, a foetal viability standard is imposed as the gestational age limit for abortion following the federal standard of foetal viability.

The decision in Dobbs has also brought to the forefront the legal consideration for frozen embryos and whether same can qualify as human beings or persons capable of protection. An embryo and a fetus both refer to a baby but at different stages of development. Thus, an embryo is a fertilized egg, and the developing zygote is considered an embryo from the moment of conception (fertilization) till about the eight or ninth week of gestation, where it thereafter becomes a fetus. In this regard, an embryo is a potential human being. What then happens if the embryo is frozen? Considering that the decision in Dobb’s case, does not imply that frozen embryos are persons, it does not however rule out the potentiality of frozen embryo becoming a human person. Hence, States’ laws which prohibit abortion at the point of fertilization,³⁶ could also be extended as legal protection for frozen embryos.

Prior to Dobb there was no likely liability for “wrongful death” of lost embryos unlike loss of post-viable fetus. However, “after Dobbs, liability risks could attach for any damage to embryos in transporting or receiving from one clinic to the other, or if spilling culture media in the lab and losing several embryos or if there is active decision making on the part of an individual or couple to discard the embryo. Added to this is the complexity of insurance coverage for everything from medical malpractice to criminal abandonment” [5, 6].

Thus, the questions of who a child is, and whether an unborn child is a human being that has a constitutional guaranteed right to life may continue to be subject of debate or legislations in time to come, and this could influence a review of some of these States’ laws in future.

6. Conclusion

The decision of the US Supreme Court which overturns Roe v. Wade does not necessarily ban or criminalize abortion nor does it recognize the constitutional right to life for an unborn child. It does however take away the encoded legal restrictions created by the judiciary which prevent States across the United States from restricting or prohibiting abortion, especially pre-viability abortions. Dobbs’ decision will uncontrovertibly have a long-time impact on the American society, the judicial system, policy formulation and administration in many years to come.

The power to restrict, prohibit or otherwise allow abortion is now left in the hands of the States, and the outcome of the exercise of this power by the various component States will be seen in the coming days. While the Dobbs’ case is an unprecedented legal victory for the pro-life movement and a loss for pro-choice, the debates on abortion right and the right to life of an unborn child remain continuing controversial argument which are yet to be over.