Opinion Abortion and Supreme Court: A contrast between two democracies

Meanwhile, the US Supreme Court (US SC) earlier this year, delivered a number of regressive judgments, including declaring abortion as a non-fundamental right in Dobbs v. Jackson (Dobbs) and holding state-imposed restrictions on gun ownership unconstitutional in New York State Rifle & Pistol Association v. Bruen (Bruen). Though these two judgments operate in distinct spheres, their genesis and impact on the determination of liberty, autonomy, and public interest in the US is much more similar than is evident.

As people in the US experience an erosion of trust by their SC, and continue to be governed by a rigid Constitution, they could look towards India’s Constitution and judgments of the Indian Supreme Court, such as the one delivered last week, to identify ways to safely secure, and prioritise the personal liberty and autonomy of all its citizens.

As conservative politics proliferate globally, the US SC’s judgments highlight and warn other democracies’ apex courts of the fragility of judicial institutions and their shrinking independence from everyday politics. They also expose the antiquated text of the US Constitution. The US SC in Dobbs and Bruen held that any understanding or interpretation of the US Constitution must be based on a historical analysis that finds its origins in the nation’s history.

Based on this interpretation, the US SC overruled its decision in Roe v. Wade (1973) — a judgment that has guided jurisprudence on personal and bodily autonomy in the US for almost half a century now and has been cited in several verdicts of Indian courts. The US SC held that abortion is neither expressly stated in the US Constitution, nor deeply rooted in the nation’s history and tradition, and therefore does not deserve protection. In Bruen, the US SC, using a similar yardstick, rejected the long-standing judicial precedent of assessing gun control regulation on a combination of historical traditions and larger public interest purposes, and held historical traditions to be the exclusive ground for assessing the validity of restrictions on gun ownership.

Prioritising its selective and narrow interpretations of US history and tradition, the US SC refuses to be bound by the judicial principle of stare decisis, the principle of abiding by judicial precedents set by the same court, in both these judgments. Its insistence on the reliance on history to be the critical component of judgments’ reasoning, is coloured by the judges’ political beliefs, fueled by their reliance on an archaic Constitution.

The relevance of an idea in history can have different degrees of interpretation, based on the epoch of history in question. Ideas and belief systems are after all products of their times, and always in transience. Therefore, when history becomes the centrepiece of judicial reasoning, it allows for unfettered subjectivity that doesn’t serve the purpose of justice.

In Dobbs, the SC chose to deprive pregnant people of their bodily autonomy by grounding its understanding of the US’ traditions of the mid-19th century, during which male physicians’ interests in professionalising medicine were concretized, and cultural anxieties about shifting gender roles were at their peak. In Bruen, the court refused to acknowledge historical gun regulations in Texas and states in the western US, by holding them to be outliers and inconsistent with the broader layout of history. In basing its decisions on convenient historical precedent, the SC unequivocally picks a side which is congruent with its conservative politics.

The judges who delivered the majority opinions relied on the experiences of conservative white men while refusing to acknowledge the experiences of women, primarily black women who had to risk their lives and undergo back-alley abortions. They also invisiblised the experiences of Black people, for whom the lack of gun regulation was reminiscent of slavery.

The judgments of the US SC in relying on the US Constitution, ignore the unfair atmosphere in which it was signed in 1787, when women and Black people did not have citizenship, and the latter even lacked personhood. Dobbs will primarily impact poor women, and Black women who will be compelled to resort to dangerous illegal methods of aborting an unwanted pregnancy. Similarly, Bruen’s impact though seemingly race-neutral will further empower white men, who comprise a majority of the demography who own guns.

By using history to define the notions of liberty and public interest, the US SC finds itself isolated amongst its peers in other common law jurisdictions that have since adopted younger, more progressive constitutions. Other former colonies of Britain, including Canada, New Zealand and Australia have all expressly rejected sole reliance on history to define constitutional interpretation. Interestingly, the New Zealand Supreme Court, known for its progressive opinions, refused to be bound by the framers’ intentions behind the nation’s founding treaty since the traditional Maori tribal people in New Zealand were not adequately represented during its adoption.

India’s Constituent Assembly navigated through centuries of Indian history and attempted to correct historical wrongs, by proclaiming everyone, irrespective of race, religion, caste, sex, and place of birth, to be equal. The primary law of the land positioned every citizen on the same pedestal, and in fact, laid the ground for jurisprudence favouring historically discriminated people, such as Dalits and women. Though the Indian Constitution recognises only the right to equality explicitly, its text allows judges to expansively interpret fundamental rights, unlike the US Constitution. The Indian Supreme Court’s judgment on abortion is an example of the flexibility the Indian Constitution offers: Under the umbrella of the right to life, new rights such as the right to dignity, the right to privacy and the right to reproductive autonomy have been recognised.

Having a diverse Constituent Assembly has further ensured the legitimacy of India’s Constitution, as has its flexible amending process. As opposed to this, the rigidity of the US Constitution and its extensive reliance on history has forced the US to remain misaligned with the current socio-economic concerns.

Although the Indian Supreme Court has not taken outright positions about using history as an aid to legal interpretation, in recent times several developments have been undermined by the Constitution’s spirit. The Supreme Court should extend its mighty arm of justice and not cede to popular politics. It must emerge as a counterforce to brute majoritarianism and continue to offer guidance on expanding liberty, and securing the rights of political minorities in a non-partisan and independent manner — as it did last week. Else, it will find itself treading down the same path as the US Supreme Court.

Shah is pursuing her doctoral degree at Columbia Law School. Atreya is pursuing his Master’s in Public Administration at Columbia University