Robin Leigh has known for her entire life that she did not want to become a parent. When she unexpectedly got pregnant in her 20s, she instantly knew that an abortion was the right choice. The abortion procedure itself was easier and smoother than expected. Leigh had gone to an encouraging women’s clinic that reaffirmed that her decision was a rational choice. When she requested to donate the fetal tissue to stem cell research, the clinic gladly assisted her with the process. With abortion and a single release form for donation, she was proud to make a decision that could potentially alleviate someone’s future suffering.
Back then, Leigh avoided speaking openly about her abortion story, sharing it with as few people as possible. Even among those whom she had told, their reactions were mixed. While her mother, who went with her on the day of the abortion, had always been supportive, her fiancé could not deal with her decision and ended their relationship. It was not until recently that she began to realize that her instinct to keep it a secret stemmed from the conservative notion that abortion is a shameful act.
“It is no more fair to a child to be born unwanted than it is fair to make someone put their own life on hold to raise another being,” Leigh said. “Abortion is not shameful. It is an act of love. An act of love. I speak of it casually because abortion should not be thought of as a life-ending or even life-changing event.”
Although Leigh was afraid, what mattered more to her was the intense relief she felt when she knew that she could make a choice. Now, a growing number of women across the United States are no longer able to enjoy that fundamental right.
Roe v. Wade was a historic decision that declared abortion rights to be protected at the federal level, on the basis of the Fourteenth Amendment, which affirmed that no state should make or enforce any law that violates the rights of privacy. Under Roe v. Wade, the trimester system divided a woman’s pregnancy period into three, allowing pregnant women to carry out an abortion within the first trimester, or first three months, of her pregnancy. In the recent Dobbs v. Jackson Women Health’s Organization ruling, however, the U.S. Supreme Court (SCOTUS) reversed the ruling after nearly 50 years on the grounds that the original ruling’s arguments were “exceptionally weak.”
In the latest issue’s Overseas Special, Ewha Voice looked into the reactions to the historic overturning of Roe v. Wade on campuses across the United States. For this issue, Ewha Voice sat down with Professor Shoshanna Ehrlich from women’s, gender, and sexuality studies at the University of Massachusetts Boston to understand how the Roe v. Wade ruling and its overturning happened and Associate Director Rebecca Reingold from the O’Neill Institute for National & Global Health Law at Georgetown University to hear her insights regarding the international consequences of the Dobbs v. Jackson ruling.
Professor Shoshanna Ehrlich explains abortion rights in pre- and post-Roe v. Wade eras
“I was devastated but not shocked because we have sort of been on a path in this country to greater and greater restriction on abortion,” said Shoshanna Ehrlich, a professor from women’s, gender, and sexuality studies at the University of Massachusetts Boston, when asked about her first reaction to the overturning of Roe v. Wade.
Just like other activists and scholars pursuing abortion rights, Ehrlich had seen the rulings and state laws leading to the overturning of Roe v. Wade. Ehrlich pointed out Planned Parenthood v. Casey ruling, which was decided by SCOTUS in 1992, as one of the major milestones.
Before Planned Parenthood v. Casey, SCOTUS had abolished most of the state laws that restricted abortion with an exception: SCOTUS affirmed that federal Medicaid funding could not be used for abortions unless the pregnancy endangers the life of a woman carrying a fetus.
Through the decision of Planned Parenthood v. Casey, however, the court left room for states to regulate abortions, albeit still upholding Roe v. Wade’s constitutional protection of abortion rights. In its plurality decision, the ruling upheld all the abortion requirements of the Pennsylvania Abortion Control Act, except for the clause that mandates men responsible for pregnancy to be notified about the abortion procedure.
Making matters worse, SCOTUS adopted the “undue burden test” as the criterion to determine whether a state law can survive or not. With the “undue burden test,” SCOTUS declared that it would only review whether a state’s abortion law became a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus or not.
Ehrlich criticized Planned Parenthood v. Casey in that it marked the opening of period of tremendous constriction of abortion rights which women who were economically or socially marginalized were not assured already due to the lack of support from federal funding. A woman easily loses access to abortion when she is impoverished, undocumented, or underage. Residency in some politically conservative states in the South and Midwest can also restrict access to safe abortion.
Gradually, the trigger bans were passed even before the overturning of Roe v. Wade. Subsequently, at least 12 states began to restrict abortion rights after the overturning.
Most of all, Ehrlich was concerned about the Texas law, which went into effect on September 1, 2021, among all the other trigger bans. It changed the framework of abortion law; rather than treating abortion as a crime clamped down on by the states, it allowed any private person to act against someone who performed or aided an abortion. In other words, the law gave private citizens the right to sue abortion providers including those who introduced clinics, raised funds, or drove a woman to get an abortion.
“The Texas law seems to be the model that a lot of states are looking to adopt,” Ehrlich said. “It forms a broad chilling effect on abortion funds and abortion providers, which is the whole purpose in states restricting abortion.”
Regarding the reforms prior to the Roe v. Wade ruling, Ehrlich emphasized the significant role of women’s rights movements that tried to repeal laws criminalizing abortion. There were two main efforts that propelled the Roe v. Wade ruling: professionals’ work to liberalize abortion laws and the women’s liberation movement. Ehrlich stressed that the women’s liberation movement was formed in the awareness of the ability of women to make their own reproductive decisions. The awareness raised by the movement eventually led to Roe v. Wade.
Therefore, Ehrlich finds a footnote from Dobbs v. Jackson Women’s Health Organization that claims some proponents of liberal access to abortion were motivated by eugenics, unsubstantiated and historically misleading. Ehrlich explained that the footnote completely ignored the fact that African American women have a disproportionately large share of abortions due to contextual variables in women’s lives, such as poverty. Rather, the ruling used statistics to insist that there is a causal relationship between abortion and race, falsely leading to the conclusion that abortion rights supporters were driven by the attempt to commit racial genocide.
“Reproductive rights groups consisting of African American women, such as SisterSong’s Trust Black Women, have resisted the idea of relating racial genocide and abortion,” stated Ehrlich. “This misunderstanding underlies a stereotype that African American women cannot be trusted to make their own reproductive decisions. It shows the lack of respect for African American women’s decision-making capability to steer their own lives.”
Ehrlich sees that the overturning of Roe v. Wade apparently showed how polarized U.S. society is. According to Ehrlich, unlike other issues such as marital rights for same-sex couplesthat the younger generation is completely on board with, discussion over abortion rights got more polarized and left little possibility to reach a consensus.
“What we have seen here is abortion rights gradually chipping away, and I think it sends a message to the Korean women,” Ehrlich said. “So never stop fighting for your right to make decisions. Women’s struggles are to reassert our control and authority over women’s sexuality. That needs to be never lost sight of."
Rebecca Reingold shares the domestic and international impact of Roe v. Wade overturning
Q. How were American women and even women across the world impacted due to the overturning in terms of legal rights or their status?
A. What we have seen is that about half of the states within this country have now moved to ban abortion or expressed willingness to do so. This means that abortion is only permitted very early in pregnancy or it is completely banned in many states, and potentially soon half of the country will be in that situation. Many of the women who seek abortion in those places will either have to travel long distances or face even greater hardships when it comes to accessing safe abortion services. That process in itself will have a devastating impact on their health, their lives, and their emotional well- being. Then, there will be other women who will not be able to access services altogether – and that is already happening. From carrying an unwanted pregnancy to term to undergoing a stillbirth, various situations can have devastating emotional and life-threatening physical consequences on women.
We are also seeing changes in access to other types of reproductive health services beyond abortion because there can be so many overlaps between miscarriage management and abortion management. There is not a lot of clarity in many of the new state abortion restrictions about how to handle situations where it is unclear whether it is a miscarriage or an abortion. Then, there is also the issue of doctors who are fearful of criminal prosecution. While the doctor is busy consulting with the lawyer, and the lawyer is trying to navigate what these laws mean in practice, a woman cannot access urgent emergency care that she needs. This is already having an effect on access to care for ectopic pregnancies, miscarriages, and other pregnancy losses. The other thing is that this climate of fear, which we know affects doctors and their willingness to provide care, also affects a patient’s willingness to seek service. If they have a self-managed abortion and experience complications, they may not want to access services because they are fearful of what will happen to them.
As for other people around the world, SCOTUS’s decisions do carry weight in other countries. They may inspire a backlash and a roll-back of abortion rights in other places. However, I would say, although there are a few exceptions, generally the trend is moving towards greater protection of abortion rights around the world. Many countries, in fact, responded by trying to increase abortion protections because they were concerned about what happened in the U.S. So, it may inspire some countries to take bold action to further protect abortion rates. I think it certainly affects the public perception around what could be rolled back in countries all over the world.
Q. Many Latin American countries, such as Argentina and Mexico, made major progress in ensuring abortion rights legally in the last three years. Is there any possibility that the current trend of ensuring abortion rights in Latin America will be weakened by the influence of the overturning?
A. I do not think so because the constitutions in those countries are more recent than the U.S. constitution. Latin American countries have the right to health, the right to privacy, and the right to autonomy explicitly protected and enshrined in their constitution. They think about equality and non-discrimination as tied to the right to abortion; thus, there are greater protections in those constitutions of social rights than in the U.S. In Mexico and Colombia, their high courts recently ruled to expand abortion rights. Now, it is a matter of implementing that through the adoption of laws, policies, and regulations. However, the other key difference between the U.S. and those countries that have made gains recently in Latin America is the federal government that we have set up here and the balance of state and federal rights. That sort of dynamic is not quite the same in other countries. Even when they do have federal systems, the balance, division of powers, and areas of law that are governed by the federal government versus the state government do not line up exactly with the way we have it here, where almost everything goes to the states unless there are specific carved-outs that fall under the constitution.
Q. Could the overturning of Roe v. Wade infringe on other rights such as the right to contraception?
A. It is hard to say with certainty what could happen. SCOTUS, in their decision in Dobbs, said that this only applies to abortion. Abortion is different from the other rights currently protected under the right to privacy. It involves prenatal life, which does not exist in the case of the right to contraception, same-sex marriage, and other rights that people have expressed concerns about also being overruled.
I think the one where you could maybe stretch the argument most easily would be the right to contraception, where some people may argue that potential life is involved depending on how far you go back and say that life begins. However, it depends on how much we trust in what the court has said in the limits of this decision and whether they would stand by it as these other rights are potentially challenged and brought before them.
Q. During your time in Planned Parenthood, the O’Neill Institute, law school, and other places, you must have encountered countless stories of different women. What story do you still remember to this day?
A. There was a woman who was put in jail for 30 years for an obstetric emergency in El Salvador. In El Salvador, there have been cases where women suffer obstetric emergencies and end up being prosecuted for the crime of homicide and put in jail for 30 years or more. I was at one of the hearings that she was at, and she was exactly the same age as me. Just having that experience of being in the same place as her and understanding the life- altering, devastating consequences of this charge was very powerful.
Q. What are some efforts, big or small, that students can make to compensate for the disadvantages the Roe v. Wade overturn has brought?
A. I think a huge area of work where there is a lot that still needs to be done is around destigmatizing abortion, and the extent to which we can highlight the stories of women, their partners, and their families who have experienced abortion, and normalize it because it is a relatively common occurrence. People can participate in a supportive way and talk about how access to abortion does not just affect the individual woman: it can affect a family; it can affect her partner; it can affect an entire community. That is, it is not an isolated thing. It is different than any other health service and if we can bring it into the mainstream that can help people understand why people seek abortions, it can hopefully become a bit more normalized and less stigmatized in society. You likely have a mother, a sister, or a woman in your life who is affected by this. I think when you personalize it, people have an easier time connecting with an issue. If you can bring it into their immediate circle and people that they know that could hopefully help them engage more.
Abortion rights in South Korea: An interview with attorney Ryu Minhee about the current situation
In April 2019, the Constitutional Court in South Korea ruled that it is unconstitutional to ban abortion through criminal law. The abortion ban was maintained until the first day of 2021, according to the decision of constitutional nonconformity, which upheld the effect of the abortion ban before the law was revised. Since the legislators have not enacted a law related to abortion, no restriction exists regarding abortion in Korea at this point. However, there are remaining problems to be resolved to fully allow women’s rights to choose.
To discuss urgent problems and the current situation of abortion in Korea, Ewha Voice met Minhee Ryu, a Staff Attorney from Korean Lawyers for Public Interest and Human Rights (KLPH). Ryu was one of the legal representatives who took part in the constitutional appeal in 2019.
Ryu clearly recalls what happened on the day the abortion ban was struck down by the Constitutional Court. On her way out of the Constitutional Court, Ryu could spot the dancing and smiling rally celebrating the decision. It is one of the most unforgettable moments she had while taking part in numerous human rights actions. Ryu could feel that participants in the rally were enjoying the moment that they finally earned autonomy and controlover their bodies.
Three years have passed since the decision, and now doctors and medical students can learn and perform abortions without the fear of prosecution. However, Ryu points out that many barriers hinder women from making decisions about abortion. Politicians, both left-wing and right-wing, still cleave to a misconception that it is necessary to limit abortion in terms of a pregnancy period or reasons. In November 2020, an initiative proposed by the government tried to preserve the abortion-banning law, but allow unconditional abortion until 14 weeks into the pregnancy. Although it has not been enacted, women and surgeons still cannot rule out the possibility of enacting new regulations.
In the new guideline World Health Organization (WHO) has announced on abortion care in March, WHO recommends that countries remove unnecessary policy barriers to safe abortion, such as criminalization. Currently, South Korea has checked off the box of decriminalization, but has yet to take the important step forward of guaranteeing and treating abortion as a right.
“We are on the right track, we just need to pick up the pace and take further actions,” Ryu said. “For instance, ensuring health insurance coverage, guaranteeing equal access to abortion, approving abortion pills and providing easy access to accurate information on abortion.”
In other countries such as New Zealand, there is an official website provided by the government offering information on where and how to find abortion services, get abortion pills and specific insurance coverages, whereas there are no known official websites in South Korea. People with disabilities, teenagers, immigrants and people who do not speak Korean all deserve equal access to abortion in South Korea, no matter their backgrounds. Another critical situation is that abortion pills have yet to be approved by the Ministry of Health and Welfare and the Ministry of Food and Drug Safety.
In the end, the unnecessary delay of due policies and services is what is keeping us from taking that step forward. Ryu believes the reason behind this delay is the stigma around abortion. There certainly is a need for national effort, especially at a government level, to eradicate the ancient, inaccurate mindset and break through the stalled progress that is going on.