Dobbs returns normality to US abortion laws?

Dobbs v Jackson overturned Roe v Wade, what now ...

Aractus 20, July, 2022

The Dobbs decision overturning Roe v Wade in the US is understandably shocking, and some of the consequences truly horrifying. But in truth the decision brings US law back into a field of normality though it may not seem like it at first.

Terminations in Australia

Yes here in ‘Straya we are more civilised than our distant ‘Murican friends and we prefer the term termination to describe medical interventions to terminate a pregnancy, which shall be the term I use here (note I’m using medical to mean both pharmaceutically-induced and surgical terminations). Here in ‘Straya termination is not a political issue, both sides of politics agree with allowing them within guidelines that are set State-by-State. The ACT is the only State or Territory to have removed all guidelines for physicians, therefore here it is purely up to doctors to decide and the government plays no role at all other than approving facilities where surgical terminations can take place (some news websites have been misreporting this as the ACT having a 16 week gestation limit such as the SBS, you can read the legislation for yourself there’s no gestational limits imposed). WA is the most restrictive of the ‘Straya jurisdictions where a pregnant woman may access an elective termination up to 20 weeks but needs the approval of two doctors, after which she needs the approval of a six-doctor panel. While there are criminal offences, in effect abortion is fully decriminalised here.

What do most ‘Strayans think about this? Well I think most of them would think that lawful access to medically-required or medically-recommended terminations is a no-brainier. Elective terminations, I think most ‘Strayans would approve in the first trimester and be uncomfortable at some point if the foetus is healthy. That is to say that with rights come responsibility, I think most ‘Strayans would think if you want to choose to end a pregnancy then you should be expected to make that choice earlier rather than later. I do not think there would be much public support to provide free access to terminations in public hospitals, as mentioned rights and responsibilities I think most ‘Strayans would expect people to use contraceptives to prevent unplanned pregnancies.

However there will be a large number of people who will be uncomfortable with those who choose terminations, and that’s okay. Part of the problem has been the framing of unplanned pregnancies. An unplanned pregnancy need not be a bad thing – for many families it’s a wonderful thing. Secondly there has been a history in this country of healthcare providers pushing women into getting terminations instead of allowing them a properly informed choice, this was particularly the case with pregnancies that involve a foetus with a disability such as autism. Thirdly there are a number of women and families who go through many years of unsuccessfully trying to get pregnant or who suffer miscarriages (or both) and that may inform a more negative opinion over elective terminations. Of course I have not captured the fully nuanced views of the public, but what I’m attempting to express is that there is a valid variety of views that need not fall to one extreme or the other.

Roe v Wade was unconstitutional

Dobbs is correct that Roe was unconstitutional. The situation in ‘Straya that I’ve described above is exactly what ‘Murica is returning to – one where termination law is not set federally, but rather State-by-State. It’s just the because of Roe ‘Murica is now 50 years behind other comparable democracies like Australia. That doesn’t mean that I agree entirely that there is no constitutional right to terminations in the US or for that matter here, in fact I think a case could be made both here in Australia before our High Court that there exists a right to terminations under certain conditions. We have separate constitutions and the arguments would be different, but before I get to the arguments for this I will need to explain why Roe was demonstrably wrong in the first place 49 years ago.

Roe was an act of judicial activism. The court acted beyond its powers to correct a social injustice. In effect they reinterpreted the US constitution in order to enshrine a right to an elective termination. As Dobbs demonstrated the justices were manifestly incorrect in their interpretation of the US Constitution. Planned Parenthood of Southeastern Pa. v Casey laid the groundwork in overturning much of Roe, but leaving the right to access terminations in the US intact. Roe took away the power to regulate terminations entirely from the States, yet as I described above that’s how termination is regulated here in Australia. Some regulation is required to ensure termination services are safe. Indeed some guidance in law may be justified. A foetus at some point becomes an unborn baby who should have the same right to life as a baby of the same age born prematurely.

Dobbs is not fully constitutional

The US was unprepared for the overturning of Roe v Wade. This situation was probably front-of mind to the justices in determining Casey: What would overturning Roe look like in practice? Well unlike Australia which has reasonably comparable laws jurisdiction-by-jurisdiction, it would mean a very messy patchwork of laws. Most US States only want rather reasonable regulations, however there are two major issues. The first is that abortion goes back onto the criminal code in most US States whereas they should decriminalise it entirely for medical practitioners like is the case in Australia. That means there are consequences for a physician here who performs a surgical termination without the appropriate approvals, but those consequences are not criminal – rather it may result in their medical accreditation being suspended or something like that. Medical malpractice laws cover criminal misconduct as it is. Secondly there is a small number of US States which have effectively banned all surgical terminations even when medically required: they may think they haven’t, but they have. That situation is untenable.

Allow me to briefly give some real-life examples. A 10-year old girl showed up to school visibly pregnant, she had been raped by her uncle. No this is not the recent case that happened in the US to an Ohio girl who was given a pharmaceutical abortion in Indiana, this happened to an Aboriginal girl who was a student of a friend of mine in a remote community around 20 years ago now. The population of this community was about 80 or so, it was a multi-day car trip to the nearest major hospital located at end of defunct rail line to what had once been a thriving mining town. Unlike the Ohio girl, a pharmaceutical termination was not possible in Australia at the time, but even if it was her gestation was likely past the date for a non-surgical termination. It should be a no-brainier that a 10-year old’s body is not developed enough to carry a child to term (let alone any other reason).

A local woman here in Canberra had been trying to get pregnant for some years I believe. She succeeded and the family was thrilled. Sometime early on in the pregnancy she was diagnosed with stage 3 cancer. She was advised that her best chances for survival would mean she would need a termination so that she could begin treatment, or she could delay treatment until her child is born. Even though I don’t know this lady, reciting this story is emotional – even more so than the story of the Aboriginal girl. The reason being that the girl didn’t have to make a profound choice, a termination was clearly in her best interests. In this case however neither choice was ideal, in the end the family decided that they would carry the child to term and delay cancer treatment. Although she made the choice to carry the pregnancy to term, few would argue that she had a medically-justified reason to make the other choice.

This illustrates where Dobbs is deficient. Firstly, even Dobbs recognised that “pre-quickening” terminations are rooted in American history (up to the 16-18th week when the first foetal movements are felt), which in the 1800’s began to be expanded to around 20-22 weeks as it represented better medical science. This should have protected a constitutional right to elective terminations up to around 16-22 weeks under the Due Process Clause of the Fourteenth Amendment, yet the judgment erroneously finds that the practice was not deeply-rooted in American history. I should note that Roe did not find this either, but they should have.

Secondly, there exists other constitutional rights: freedom of speech, freedom of movement, freedom of religion, justice, all persons equal under the law. We would extend these rights in most democracies to include the following: the right eduction, liberty, health, employment, access to healthcare, and the right to live your life free from persecution. Some of these rights while not constitutional are legally enshrined, both in America and in Australia. This is why I said earlier that in certain situations I think there is a constitutional argument to be had that there exists a right to access terminations, and in others there would exist a legal right. If a person will lose their job due to a pregnancy, if they will lose their ability to have an eduction, if they will face persecution (for example a person may have a legitimate fear of death from their partner if they find out a pregnancy to another man has occurred or even from their own parents/family – yes honour killings are still a thing in certain cohorts), if it will interfere with their health such as by restricting the medications they can take or interfering with medical treatment such as radiation and chemotherapy, then I think there is a case to be made that those rights overrule the State’s rights to restrict a woman’s access to termination. For rape victims both here in Australia and in ‘Murica, their constitutional right to justice would enshrine a constitutional right to access an elective termination in my view.


Overturning Roe was constitutionally valid, but that does not mean that Dobbs is a better decision. Dobbs is deficient for the reasons I outlined – it needed to find and protect the valid constitutional grounds for accessing termination services. The US Supreme Court has been politically stacked by a hyper-partisan political system determined to overturn Roe. The media has failed to provide a nuanced evaluation on the impacts and outcomes of this process. Their reporting on the Dobbs decision has not been balanced. A correct interpretation of the American constitution would provide a constitutional right to elective terminations up to 20-22 weeks, or at the very least 16-18 weeks. A correct interpretation would also have found that in certain situations the exists a right to access a termination in order to protect a person’s other constitutional rights.

America is not prepared for the fallout. It’s one thing to regulate, but it’s another to restrict people’s rights. You cannot anticipate all the harm that will result from this decision. While I made an argument in agreement that termination should be regulated State-by-State, we have to acknowledge that many US States are now more than 50 years behind comparable common-law democracies like Australia. That is extraordinary. Roe effectively stagnated progress for 47 years and may have played a role in causing termination to become a hyper-partisan issue in the US.

While Dobbs has returned US law on this to a field of normality, the abnormality is a politically partisan judicial system. One that has been planted and cultivated over a 40-year period. A return to full normality would see de-politicisation of the courts. That’s no happening any time soon and should be of deep concern to all of us in democratic common-law nations.

Afterword: The role of Region

You’ll notice I did not discuss the role of the conservative Christian movement in all of this. Christianity as well as most other religions looks different region-to-region. It would be unfair to Australian Christians and those of moderate faith to embark on a quest of Christian-bashing. Nevertheless let’s put this to bed, and I’m sorry in advance that this will not sound kind to those of faith. The average Christian today is a 24-year old poor uneducated woman living in Africa or Latin-America. The fastest growing Christian denomination is Pentecostalism. The Religious Right in America were essentially hoodwinked by an ideology that sought to use them to further their agenda. The man who instigated this movement was Paul Weyrich. The equivalent in Australia is the Australian Christian Lobby, a group that seeks to influence politics with religiously-motivated views that are out-of-step with that of the vast majority of Australians including those of faith. The key difference being that the ACL has so far failed to dupe conservative Christians into their ideology.

For example the ACL is currently opposing the Tasmanian government from banning gay conversion therapy. They cannot point to any evidence for their position, rather they argue for it purely based on liberty, i.e. “we think adults should have the right to choose”. Should they also have the right to choose cheap all-natural asbestos insulation for their homes because liberty?

In the US this movement built by Weyrich is foreign to many of our Australian values, and this is why even Evangelical Christians in Australia are uncomfortable with the religious-right of America. Firstly, we’re a proud multicultural nation even though this is condemned in the Bible most Christians here do not have a problem with it. Weyrich was against multiculturalism, as is the US Religious Right movement today – they want a monoculture. The Religious Right is against the decriminalisation of prostitution, whereas the average Australian Christian would see that as unfairly oppressive against vulnerable women. The Religious Right is opposed to gun reform. They oppose universal healthcare. In the most extreme instances they want a flat 10% income tax. They’re opposed to compulsory voting like we have in Australia because that would mean that more people who don’t agree with their views would be voting in elections. They want their faith/belief-based ideals to overrule science or evidence-based policies in shaping regulation and legislation. They support the hard-line traditional views taught by the church towards women, sexuality, and marriage. They are hearkening back to a golden age that was not-so-golden.

I became confronted with this group as a young adult. A young conservative-Evangelical Christian. It’s difficult to believe we’re talking about events 20 years ago, and appalling beliefs that have not shifted in all of that time, but that is what we have when we have a well-organised movement which is what what we’re dealing with here. The Religious Right build a movement in the US that said Christian values and Christianity itself is under threat. It was not abortion that was the original call-to-arms, no, it was their right to practice racial segregation: white-only churches. Even today Americans have a very different view about “race” compared to Australians. The choice to use termination as the core issue is what makes this so jarringly artificial to an Australian Christian: the issue was chosen deliberately by Weyrich in order to galvanise his movement into a coherent one to further his religiously-motivated agenda of political influence. This is why American Christians have an indoctrinated belief about terminations which is entirely foreign to Christians here. It was taught to them as religion, yes – they created an anti-abortion religious belief that had previously not existed in American Christian culture.

So as you can see this is very much a ‘Murican thing. The belief is shallow, it’s not a traditional Christian belief, it can only be taught to an uneducated class, but once taught like with other religious beliefs it’s difficult to dislodge even with scientific reasoning, education, or empirical evidence. The issue of abortion was successful because it vindicated a core doctrine of both the Roman Catholic and Evangelical Protestant churches: their views about controlling women, their place in marriage, and that sex is only for reproduction not pleasure. Most Australian Roman Catholic women for what it’s worth would reject the notion that sex is not for pleasure, however to this day it’s a doctrine taught by their church.

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