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America's latest battle over abortion turns out to have been something entirely different

Editorial Staff

After Carlill v The Carbolic Smoke Ball Company (in 1892), possibly the most famous court case in the world is Roe -v- Wade (1973) which has been a constant battleground in the US, the Senate and the Courts for decades. The latest Supreme Court case does not directly affect that case but might have even greater consequences because while everyone is focussing on the abortion element of National Institute of Family and Life Advocates v. Becerra, the case was actually about something very different and that's how the US Supreme Court decided it.

When it comes to matters relating to abortion, lines are complex: political, religious, moral, gender are only part of the story. Ignorance and misinformation are rife as are pleas to emotions rather than reason. Not only are the lines within the debate per se complex but the boundaries of the subject are .. choose an adjective .. porous, flexible, broken. The issue of abortion in the USA is absolutely not behind any kind of wall. States argue that their authority is usurped by Federal law. The latest argument is over free-speech and a referral to the Supreme Court over the rights of anti-abortionists to make their case.

The State of California, in the person of Attorney-General Beccara, said "no." The Supreme Court took a centrist view and applied the First Amendment to the Constitution. But there's something else causing concern to the abortionists - a Supreme Court Judge has just resigned and he, generally, was on their side.

Roe -v-Wade was a reference to the Supreme Court on the question of whether a state was entitled to pass and enforce by criminal law a ban on abortions except to save the life of the mother. The State in question was Texas. An unmarried pregnant woman, Roe, was the lead plaintiff in a class action. Mr and Mrs Doe (not, note, Roe) had no children and did not want to have children. They argued that, although they took contraceptive precautions, there was a risk of pregnancy which "alleged injury on the future possibilities of contraceptive failure, pregnancy, unpreparedness for parenthood, and impairment of the wife's health." A doctor, Hallford, who had two prosecutions pending against him, joined the action.

The laws "proscribe procuring or attempting an abortion except on medical advice for the purpose of saving the mother's life." (1) While Roe's claim was permitted to proceed before the Supreme Court, the other claims were not granted leave to appeal from the lower court on the basis that they had no locus standi (that is, the legal standing to bring an action). In fact, Roe spontaneously aborted her fœtus and she therefore was not pregnant at the time of the hearing. The Supreme Court said that she had been pregnant with a viable fœtus at the time the action was issued and therefore her locus was maintained.

In summary, it was FOUND that the Texas state laws were unconstitutional in relation to a fœtus that has not reached the state of viability. After that, the Court ruled, "the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." It also went on to say that abortions must be performed only by a licensed medical practitioner - which has caused considerable problems as technology has moved onto "abortion pills." Moreover, the question of what is viable has also moved a long way as medical technology and practices have developed over a period of what is now almost half-a-century.

Some reports simplify the decision to say that the case prevented states making abortion of a pre-viable fœtus illegal, subject to adequate care.