Roe v. Wade was a landmark legal decision issued on January 22, 1973, in which the U.S. Supreme Court struck down a Texas statute banning abortion, effectively legalizing the procedure across the United States. The court held that a woman’s right to an abortion was implicit in the right to privacy protected by the 14th Amendment to the Constitution. Prior to Roe v. Wade, abortion had been illegal throughout much of the country since the late 19th century. Since the 1973 ruling, many states imposed restrictions on abortion rights. The Supreme Court overturned Roe v. Wade on June 24, 2022, holding that there was no longer a federal constitutional right to an abortion.
The latest case is Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al. v Jackson Women's Health Organization et al. The court's full, and lengthy opinion is HERE.
It is important to note this from the court's opinion -
"Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion." In the court's view, Roe v Wade had abrogated that authority. The court therefore overruled the decision and returned the "authority to the people and their elected representatives."
Presented in this way, the SCOTUS decision is a question of where, under the United States written constitution, the power rests to regulate abortion. The court's answer is that it lies with the individual State legislatures.
The US Constitution dates from September 1787 and came fully in force on 4 March 1789. It vests the legislative power of the Union in Congress (Article I), the executive power in the President (Article II), and the judicial power in the Supreme Court (Art III).
UK - no codified constitution:
Of course, the SCOTUS case has no bearing on the law outside the USA.
The United Kingdom does not have a codified (or written) constitution and constitutional arrangements have therefore to be gleaned from sources such as legislation, decisions of the courts, and so-called constitutional conventions. THE basic rule of those arrangements is the legislative supremacy of Parliament which, according to orthodox theory, is able to make or unmake any law it wishes.
There is no power in the UK for the courts to "strike down" (i.e. rule as unconstitutional) any Act of Parliament. The furthest that a UK court can go is to make a declaration of incompatibility where the court finds that a provision in an Act of Parliament is not compliant with conventrion rights. It then becomes a matter for politicians and Parliament to address the incompatibility and, if they so choose, they can do nothing.
Rights in the UK:
The rule that Parliament can make or unmake any law it wishes leads to the crucial fact that, in the UK, people do not have basic rights. The people have freedom in so far as Parliament has not intervened to restrict or remove those freedoms. For instance, recent legislation has further restricted the freedom to protest - Law and Lawyers: Public Order - yet another Bill ... (obiterj.blogspot.com). Proposed legislation in the form of the Bill of Rights will reduce the protections for human rights currently accorded to the British people by the Human Rights Act 1998.
Abortion in the UK:
The Abortion Act 1967 applies to England, Wales, and Scotland and permits medical termination of pregnancy. The Act provides (section 1) - "Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith - .... etc" The law of abortion referred to means sections 58 and 59 of the Offences Against the Person Act 1861, and any rule of law relating to the procurement of abortion.
Hence, there is no RIGHT to an abortion but there is no criminal offence provided that an abortion is conducted in accordance with the 1967 Act.
(Note: See also the Abortion (Scotland) Regulations 1991 and the Abortion (Scorland) Amendment Regulations 2021).
The position in Northern Ireland has been very different to the rest of the UK and the is discussed in this House of Lords publication - Abortion law in Northern Ireland - House of Lords Library (parliament.uk)
The Northern Ireland (Executive Formation etc) Act 2019 (‘2019 Act’) changed the law on abortion in Northern Ireland. The 2019 Act came into force on 22 October 2019. Section 9 of the 2019 Act, amongst other things, required the UK Government to introduce regulations by 31 March 2020 that gave effect to certain recommendations set out in the United Nations Committee on the Elimination of all Forms of Discrimination Against Women report. This was in respect of lawful access to abortion services. Section 9 of the 2019 Act also repealed sections 58 and 59 of the Offences Against the Person Act 1861 (‘OAPA’) in Northern Ireland. The OAPA previously made it a criminal offence for persons to attempt to procure an abortion.
The latest Northern Ireland regulations are The Abortion (Northern Ireland) (No. 2) Regulations 2020 (legislation.gov.uk) and see the discussion in the House of Commons Research Briefing - 1 June 2022
The following reference from Northern Ireland to the Supreme Court should be noted - REFERENCE by the Attorney General for Northern Ireland - Abortion Services (Safe Access Zones) (Northern Ireland) Bill - The Supreme Court
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26 June 2022
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