Abortion has been an issue of great debate over several years. In India, unlike the United States, the legislature has sanctioned abortions under the Medical Termination of Pregnancy Act, 1971 – albeit with conditions. In America, however, the Supreme Court of the United States, in 1971, in the now overruled decision of Roe[1], found that the right of a woman to have an abortion...
Abortion has been an issue of great debate over several years. In India, unlike the United States, the legislature has sanctioned abortions under the Medical Termination of Pregnancy Act, 1971 – albeit with conditions. In America, however, the Supreme Court of the United States, in 1971, in the now overruled decision of Roe[1], found that the right of a woman to have an abortion was constitutionally protected under the Fourteenth Amendment.
Prior to Roe, abortions, except to save the life of a woman, were illegal. The situation faced by young women with unwanted pregnancies in America prior to Roe is well documented – they often had to opt for risky abortion procedures in dingy ill-lit rooms with equipment whose sterilization was suspect. Some even had to opt for a coat hanger or a knitting needle! Statistics indicate that more than a million women underwent illegal abortions a year. The problems faced by women relating to abortion were first highlighted in 1962 by Sherri Finkbine – a television presenter in Arizona, who, during the course of her fifth pregnancy, took a drug which was linked to deformities in children. Sherri, at the time, did not know of the side effects of the drug. She, however, upon getting to know of the side effects, opted for an abortion based on medical advice. When the newspapers caught a whiff of this, the doctors in Arizona refused to conduct the procedure, and she had to fly to Sweden for the procedure – not because she did not want to have child, but because she wanted to save the child from a limbless existence. Apart from social ostracization, Sherri lost her job and faced protests for being a killer or a murderer.
In Roe, the validity of a Texas criminal abortion law was challenged by Norma McCorvey, who was pregnant with her third child at the age of 21. She thought that her pregnancy would cause an upheaval in her life and she would lose her job as a waitress at the local diner.[2] In Roe, the SCOTUS found that the constitution guaranteed a right to a woman to opt for an abortion of an unwanted pregnancy and held that while the State did have a legitimate compelling interest in preventing abortions, such a compelling interest was at the point of viability of the fetus.[3] Justice Harry Blackman also found that "the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interest in regulation."[4] Though the judgment of Roe was watered down in Casey[5], the right of a woman to have an abortion continued to be recognized. In an article prior to her appointment to the SCOTUS, Justice Ruth Bader Ginsburg thought that Roe reshaped the "opportunity women will have to participate as men's full partners in the nation's social, political, and economic life."[6]
After almost half a century, in June 2022, the SCOTUS overruled Roe and Casey as being "egregiously wrong". The fundamental foundation of the majority opinion in Dobbs[7] was that there was absolutely no basis for finding a right to abortion in the text of the constitution. The majority opinion[8] authored by Alito J. was based on the fact that Roe failed to show that the right to an abortion was grounded in the constitutional text.[9] "Roe either ignored or misstated this history, and Casey declined to reconsider Roe's faulty historical analysis."[10] The majority while overruling Roe and Casey, held that "the authority to regulate abortion must be returned to the people and their elected representative." In their strong dissent, Justices Breyer, Sotomayor and Kagan, noted that "(r)especting a woman as an autonomous being and granting her full equality meant giving her substantial choice over the most personal and most consequent of all life decisions."[11] The dissenters lamented that the majority opinion "consigns women second–class citizenship"[12] and that Roe and Casey "fit neatly into a long line of decisions protecting the government intrusion a wealth of private choices about family matters, child rearing, intimate relationships and procreation."[13] The right of abortion which was recognized by Roe, was taken away by Dobbs. In sharp contrast was the decision of the SCI in X v. The Principal Secretary[14] rendered last week by Justice D.Y. Chandrachud along with Justice A.S. Bopanna and J.B. Pardiwala.
The case arose when an unmarried girl had an unwanted pregnancy and wanted to have it terminated at 22 weeks – permissible only if there was danger to the life of the pregnant woman or the child. She initially petitioned the Delhi High Court and after interim relief was disallowed – thereby, in one sense, compelling her to have a child. So, she appealed to the SCI pleading that she was not emotionally and financially ready to bear a child. The SCI recognized that the right to reproductive autonomy was a sine qua non with the right to bodily autonomy. The Court held that "the decision to carry the pregnancy or terminate it is firmly rooted in the right to bodily autonomy and decisional autonomy of the pregnant woman."[15] Expounding on bodily autonomy, the Court held that "(t)he right to decisional autonomy also means that women may choose the course of their lives. Besides physical consequences, unwanted pregnancies which women are forced to carry to term may have cascading effects for the rest of her life by interrupting her education, her career, or affecting her mental wellbeing."[16] The Court also recognized the social stigma faced by an unwed pregnant woman and noted that "If women with unwanted pregnancies are forced to carry their pregnancies to term, the state would be stripping them of the right to determine the immediate and long-term path their lives would take. Depriving women of autonomy not only over their bodies but also over their lives would be an affront to their dignity. The right to choose for oneself – be it as significant as choosing the course of one's life or as mundane as one's day-to-day activities – forms a part of the right to dignity. It is this right which would be under attack if women were forced to continue with unwanted pregnancies."[17] The SCI also held that "the right of every woman to make reproductive choices without undue interference from the state is central to the idea of human dignity."[18] The Court even put an obligation on the State to ensure the dissemination of "information regarding reproduction and safe sexual practices"[19], without which the right to bodily autonomy and dignity could not be realized in full.
X is closer in spirit to the dissent in Dobbs. The fundamental distinction between the regressive decision in Dobbs – which took away a right recognized as fundamental for half a century, and the progressive decision in X is that while the SCOTUS failed to find the right to abortion in the text of the US Constitution or in the Fourteenth Amendment enacted in 1868, the SCI has not only recognized the "right to equality and equal protection" enjoyed by a pregnant woman, but also the right to bodily autonomy and right of a pregnant woman – married or unmarried – to choose. Since the seminal judgment in Maneka Gandhi[20], the 18 words used in Article 21 have been expounded toward realization of larger constitutional goals. It is no secret that the Judges of the SCOTUS needed only one vote to overturn Roe – an opportunity President Trump grabbed when he nominated the conservative Justice Amy Coney Barret upon the death of the liberal Justice Ruth Bader Ginsburg. Abandoning the path chosen by Harry Blackmun, J. in Roe after such a length of time can only be detrimental to the rights of women. Thus, Justice Blackmun's prophesy in Casey – "I fear for the darkness as four Justices anxiously await the single vote necessary to extinguish the light."[21] – has come true, nightmarishly for an American woman.
The author is an Advocate on Record at the the Supreme Court of India. Views are personal.
[1] Roe v. Wade, 410 U.S. 113
[2] Norma had her child, and gave her away in adoption prior to the case being brought to the Supreme Court. Shelley Lynn Thornton has recently identified herself as Baby Roe.
[3] Roe at Page 163
[4] Roe at Page 154
[5] Planned Parenthood v. Casey, 505 U.S. 833
[6] As quoted in Ian Millhiser, Injustices: The Supreme Court's History of Comforting the Comfortable and Afflicting the Afflicted, Nation Books, New York, 2015, Page 206
[7] Dobbs v. Jackson Women's Health Organization, 597 U.S. ____
[8] The opinion was joined by Thomas, Gorsuch, Kavanaugh and Barrett, JJ.
[9] Dobbs at Page 69 of the majority opinion.
[10] Dobbs at Page 69 of the majority opinion.
[11] Dobbs at Page 1 of Dissent
[12] Dobbs at Page 15 of Dissent
[13] Dobbs at Page 22 of Dissent
[14] Civil Appeal No. 5802 of 2022 decided on 29.09.2022.
[15] Para 99
[16] Paragraph 106
[17] Paragraph 110
[18] Paragraph 116
[19] Paragraph 134
[20] Maneka Gandhi v. Union of India, (1978) 1 SCC 248
[21] Planned Parenthood v. Casey, 505 U.S. 833, Page 923