Editorial
Why Roe v. Wade must be defended
“Abortion presents a profound moral issue on which
Americans hold sharply conflicting views.” So begins a
draft opinion by Associate Justice Samuel Alito, leaked
from the US Supreme Court on May 2, 2022. If confirmed,
this judgement would overrule the Court’s past decisions
to establish the right to access abortion. In Alito’s words,
“the authority to regulate abortion must be returned to
the people and their elected representatives”. The Court’s
opinion rests on a strictly historical interpretation of the
US Constitution: “The Constitution makes no reference
to abortion, and no such right is implicitly protected
by any constitutional provision.” His extraordinary text
repeatedly equates abortion with murder.
The Due Process clause of the 14th Amendment
to the Constitution has been the main foundation
underpinning the right of American women to an
abortion. That 1868 Amendment was passed during the
period of American Reconstruction, when states’ powers
were being subjected to certain limitations. The goal
of the Amendment was to prevent states from unduly
restricting the freedoms of their citizens. That guarantee
of personal liberty, so the Supreme Court had previously
held, extended to pregnant women, with qualifications,
who decided to seek an abortion. Alito rejected that
reasoning. He argued that for any right not mentioned
in the Constitution to be protected, it must be shown to
have had deep roots in the nation’s history and tradition.
Abortion does not fulfil that test. Worse, Roe was an
exercise in “raw judicial power”, it “short-circuited the
democratic process”, and it was “egregiously wrong”
from the very beginning. It was now time, according to
Alito, “to set the record straight”.
What is so shocking, inhuman, and irrational about this
draft opinion is that the Court is basing its decision on an
18th century document ignorant of 21st century realities
for women. History and tradition can be respected, but
they must only be partial guides. The law should be able
to adapt to new and previously unanticipated challenges
and predicaments. Although Alito gives an exhaustive
legal history of abortion, he utterly fails to consider the
health of women today who seek abortion. Unintended
pregnancy and abortion are universal phenomena.
Worldwide, around 120 million unintended pregnancies
occur annually. Of these, three-fifths end in abortion.
And of these, some 55% are estimated to be safe—that is,
www.thelancet.com Vol 399 May 14, 2022
completed using a medically recommended method and
performed by a trained provider. This leaves 33 million
women undergoing unsafe abortions, their lives put at
risk because laws restrict access to safe abortion services.
Jim Watson/Contributor/Getty Images
In the USA, Black women have an unintended
pregnancy rate double that of non-Hispanic White
women. And the maternal mortality rate for Black
women, to which unsafe abortion is an important
contributor, is almost three times higher than for white
women. These sharp racial and class disparities need
urgent solutions, not more legal barriers. The fact is
that if the US Supreme Court confirms its draft decision,
women will die. The Justices who vote to strike down Roe
will not succeed in ending abortion, they will only succeed
in ending safe abortion. Alito and his supporters will have
women’s blood on their hands.
The 2018 Guttmacher–Lancet Commission on Sexual
and Reproductive Health and Rights For All concluded
that these rights, which included the right to safe
abortion services and the treatment of complications
from unsafe abortion, were central to any conception of
a woman’s wellbeing and gender equality. The availability
of an essential package of sexual and reproductive health
interventions should be a fundamental right for all
women—including, comprehensive sexuality education;
For the draft opinion see
access to modern contraceptives; safe abortion services; https://www.politico.com/
prevention and treatment of HIV and other sexually news/2022/05/02/supreme-
court-abortion-draft-
transmissible diseases; prevention and treatment for opinion-00029473
gender-based violence; counselling for sexual health; and For the Guttmacher–Lancet
Commission see Commissions
services for infertility. What kind of society has the USA Lancet 2018; 391: 2642–92
become when a small group of Justices is allowed to harm For global unintended
women, their families, and their communities that they pregnancy and abortion
estimates see Articles
have been appointed to protect? Lancet Global Health
The route forward is unclear and perilous. This Court’s 2020; 8: e1152–61
For more on unintended
argument suggests possible future attacks on a raft of pregnancy in the USA see
other civil rights, from marriage equality to contraception. https://doi.org/10.1016/j.
contraception.2011.07.013
Despite urgent pleas from some members of Congress,
For maternal mortality rates in
the long-overdue encoding of Roe into law by the Biden the USA see https://www.cdc.
administration is highly unlikely. That a Court is about gov/nchs/data/hestat/maternal-
mortality/2020/maternal-
to force through a health policy supported by only mortality-rates-2020.html
39% of Americans is dysfunctional. Indeed, if the Court For more on public views of
abortion in the USA see https://
denies women the right to safe abortion, it will be a www.pewresearch.org/fact-
judicial endorsement of state control over women—a tank/2021/05/06/about-six-in-
ten-americans-say-abortion-
breathtaking setback for the health and rights of women, should-be-legal-in-all-or-most-
one that will have global reverberations. n The Lancet cases/
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