6 min readNew DelhiJun 24, 2022 09:54 PM IST
First published on: May 5, 2022 at 06:34 PM IST
The leak of an initial draft majority opinion of the US Supreme Court voting to overturn the decision in Roe v Wade has sent shockwaves across liberal and conservative quarters alike, globally. Written by Justice Samuel Alito, the draft decision seems to hold that “Roe was egregiously wrong from the start” and proposes to “heed the Constitution and return the issue of abortion to the people’s elected representatives”, leaving it to the legislatures across states to criminalise or legalise abortion as they deem appropriate.
Roe, the 1973 outcome of an unmarried woman’s crusade for bodily autonomy, had declared overbroad, and consequently unconstitutional, a provision of the Texas Penal Code which permitted only those abortions that were “procured or attempted by medical advice to save the life of the mother”. The decision simultaneously recognised the state’s interest in protecting the life of the foetus as also the life of the mother. In devising a trimester framework for legally permissible abortions, Roe held that as the pregnancy progressed and the foetus became increasingly viable, the state’s interest in protecting potential life became compelling. Later, in 1992, the US Supreme Court in Planned Parenthood v Casey reaffirmed the woman’s right to terminate her pregnancy before viability as the “most central principle” of Roe. While locating the right of privacy within the guarantee of personal liberty enshrined in the fourteenth amendment of the American constitution, Roe embodies a supervening constitutional right to abortion emanating from this right of privacy.
The overturning of Roe is more than the mere abdication of the judicial responsibility to protect individual rights — it signals a dangerous trend of courts making long-standing determinations of legal rights based on transient political considerations. It would also mean legitimisation of state incursions into women’s right to abort and consequently their right to bodily autonomy and liberty, in addition to forcing them to move to states with enabling laws to procure abortions, leading to issues of access and affordability of abortions.
Roe is not only relevant as a progressive trailblazer for reproductive rights in the United States but is also fundamental to constitutional jurisprudence globally for the interpretative tools it employed. For instance, the US Supreme Court recognised that although there is no explicit mention of the right to privacy in the American constitution, it held that a guarantee of certain “zones of privacy” are found within the first and fourteenth Amendments. As such, the right to abort was held to be a constitutionally protected right within the right of privacy.
This approach finds reflection in the Indian Supreme Court’s decision in KS Puttaswamy v Union of India, where Justice Chandrachud referred to Roe and Planned Parenthood while reading the right to privacy into the existing framework of constitutionally protected fundamental rights subject to “just, reasonable and fair” restrictions. In the lifetime of the Indian Supreme Court, recognising derivative rights within the existing framework of fundamental rights has been regularly witnessed — be it rights during arrest and detention, the right to express one’s sexual and gender identity, or rights against harassment at the workplace, to cite a few.
While the impact of Roe’s absence would most profoundly be felt in the US, it is likely to embolden conservative anti-abortion voices across the world. It will inevitably also raise fundamental questions on the limits of judicial activism aimed at protecting the rights of persons and classes, which do not find explicit mention within a country’s constitutional framework. For instance, in the Indian context, the overturning could be seen as a setback to the celebrated doctrine of transformative constitutionalism, which sees the Indian Constitution as a “living document” that moulds, adapts and responds to changing times and circumstances. However, despite Roe arguably having been the genesis of the jurisprudence on a constitutional right to abortion, specifically the test of foetal “viability”, it is no longer the solitary basis of this guarantee in India. The Indian legal framework on reproductive rights has developed, both judicially and legislatively, in a manner that the overturning of the American locus classicus would not by itself warrant reconsideration of Indian laws on abortion.
In 2021, the abortion laws in India underwent substantial changes, with the introduction of the Medical Termination for Pregnancy (Amendment) Act, 2021 which, in addition to destigmatising pregnancies outside marriage by introducing the nomenclature of “any woman or her partner”, also increased the upper gestational limits within which pregnancies are legally terminable. The Act, however, carries ambiguities and leaves room for both judicial and executive interpretation and only permits the termination of pregnancy subject to the opinion of medical practitioner(s), which retains the patronising tenor of the law albeit with some progressive alterations. As cases of subjective determination arise, the Indian judiciary will be called upon to reconcile the right to privacy recognised in Puttaswamy with the permissible limits of abortion in the Act. The likelihood of the overturning of Roe leading to more conservative approaches to judicial interpretation in abortion rights cases, cannot be ruled out. However, with Puttaswamy crystalising the contours of the right to privacy, an optimistic view would suggest that abortion rights and questions of bodily autonomy would be determined within this very legal framework.
This column first appeared in the print edition on May 6, 2022, under the title ‘Roe v Wade beyond the US’. The writers are advocates practicing in New Delhi
Demonstrators protest outside of the US Supreme Court on Thursday. (Photo: AP) 
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