The Supreme Court of the United States, in its recent judgement in Dobbs V. Jackson Women’s Health Organization, held that right to an abortion was not a Constitutional Right, thus entitling the State to regulate or even ban abortion. By this judgment, the Supreme Court reversed its own judgment in Roe vs Wade, which had held the field since 1973.
The Supreme Court has justified the reversal of its earlier judgement on the grounds that taking social and economic decisions was within the purview of the legislature and not the Courts. And further on the grounds that Supreme Court judgements holding same-sex marriage as a Constitutional Right of liberty did not involve any critical moral question as is posed by abortion. The critical moral question identified is “the right to life of an unborn foetus.” One does not have to go far to understand the medical and health repercussions of this judgement on women in the United States. In 2012, the world witnessed the tragic death of a young 31-year-old woman, Dr. Savita Halappanavar, in a hospital in Ireland. She had a miscarriage but it took time for the foetus to lose its heartbeat. The Irish doctors refused to remove the foetus by abortion because it is banned in that country. She ended up getting septicemia and died.
Medical experts opined that the abortion laws interfered with the medical discretion that could have saved her life. This incident galvanized campaigners leading to a repeal of the abortion ban in Ireland. Let us hope young women in the United States, especially poor women, who do not have the means to fly out of the US or to a pro-abortion state for health care, do not have to pay this price before the United States Supreme Court reconsiders its legally questionable and morally conservative judgment.
In its over-200-page judgement, the Supreme Court appears preoccupied with the state’s interest in foetal life. The court brushes away a women’s autonomy to reproductive choice as being equivalent to drug abuse or prostitution and waives away health care considerations and costs as being addressed by insurance (without any data). The court also suggests that having unwanted children adopted was not difficult in the United States, again without any data to support or justify this from a child rights perspective. The US Supreme Court places reliance on British Common Law to suggest that the history and traditions of the Country did not support abortion and in fact criminalised it.
In contrast to the situation in the US, here in India, the issue of whether abortion is a constitutional right of a woman has not arisen for consideration. However, in 1971, the Indian legislature passed the Medical Termination of Pregnancy Act, legalising abortions. The statement of objects and reasons of the Medical Termination of Pregnancy Act, 1971 acknowledged that though in the past century, British Common Law criminalised abortion the law was rampantly breached and was one of the major factors for the untimely death of pregnant mothers. It further records that doctors were confronted with pregnant women whose uterus had been tampered with by quacks conducting illegal abortions. Therefore in order to save pregnant women’s health, strength and sometimes life, the Medical Termination of Pregnancy Bill was introduced and passed by Parliament.
In contrast, the US Supreme Court judgement appears to have little concern for the health or life of the mother and is preoccupied with the State having a legitimate interest in the issue of potential life of the foetus. The judgement is not merely a setback to the safety and dignity of women but also to the constitutional jurisprudence of the United States of America as it narrows the scope of liberty and life in contrast to what is stated in the Constitution. This strict interpretation is harmful to a scientifically, socially and morally dynamic society. Constitutional courts must not show historic rigidity or deference to majority public opinion, but ought to decide the right to life and liberty of an individual or gender based on the impact of such laws on that individual and gender.
In fact, the US Supreme Court has also failed to take into consideration international covenants on human rights including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights that prohibit arbitrary or unlawful interference in the privacy, of family or home of an individual. It cannot be denied that the decision of the US Supreme Court has given a blanket sanction to the legislature to ban abortion, without even insisting that any legislation regulating abortion must not be arbitrary and must have a nexus with the health, both physical and mental, of a woman.
By allowing the State legislature or majority tyranny to regulate what a woman can and cannot do with her uterus creates a scary precedent whereby a majority can license the harvesting of other organs of a citizen or a group of citizens if deemed to be in the public interest. In a society where slavery was legally sanctioned, this judgement brings alive a dark phase of US history where human beings and their progeny were bought and sold and owned through legislation. This judgement is nothing short of slavery of women as far as their reproductive rights are concerned. One can only hope that the ruling will be reconsidered by the court before women have to pay for majority tyranny with their life, freedom, and mental and physical health.
Advocate, practices at the Delhi High Court