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Overturning of Roe v Wade: A catastrophic constitutional rewind

Sanya Kumar and Rakshanda Deka write: It will impact American constitutional jurisprudence and the global human rights discourse. It also sends a larger message about the ease with which women can be stripped of their right to choice and bodily autonomy

On 24 June, the decision in Dobbs v. Jackson Women’s Health Organisation was pronounced, overruling Roe which recognised a woman’s right to have an abortion half a century ago. (Photo: The New York Times)

In May 2022, a leaked draft of the majority opinion of the United States Supreme Court sounded the alarm on a potential seismic shift in women’s right to personal autonomy with the overturning of the landmark 1973 decision in Roe v. Wade. On 24 June, the decision in Dobbs v. Jackson Women’s Health Organisation was pronounced, overruling Roe which recognised a woman’s right to have an abortion half a century ago. With this, speculative apprehensions have turned to real consequences of a catastrophic constitutional rewind in American jurisprudence. The practice of courts overturning precedents is not unheard of, but as observed in the dissenting opinion, the overruling in Dobbs is unprecedented as it takes away an individual right that was once held to be recognised by the Constitution. With the overturning of Roe and the country being thrown into legal, political and social bedlam, the lives and health of millions have been put in jeopardy with women being forced to give birth, undergo unsafe abortions, and potentially being at risk of prosecution.

In running contrary to global trends and joining Nicaragua, Poland and El Salvador, the United States is only the fourth country since 1994 to backtrack on abortion rights, according to the Center for Reproductive Rights. The tremors of Dobbs will inevitably be felt globally, even if the impact is likely to be felt differentially based on the existing legislative framework and social movements across different countries. For instance, in fueling anti-abortion groups, this decision is likely to adversely impact efforts aimed at legalisation or decriminalisation globally, particularly where reliance was being placed on Roe and other decisions that echo the principles of this landmark verdict. Further, this decision can be cited as an easy example of “course correction” by conservative groups in countries where efforts are being made toward increasing abortion access. The decision in Dobbs is not just about abortion rights though — it also sends a larger message about the ease with which women can be stripped of their right to choice and bodily autonomy.

The overturning of Roe may also have a bearing on abortion access in developing countries that are constrained to rely on funding and other forms of aid from the United States. The Mexico City Policy, or the “Global Gag Rule”, which was first implemented in 1984, and has been implemented during all Republican administrations and rescinded during all Democratic administrations, bars international non-profits from receiving funding from the United States if they make referrals for abortion or provide abortion counselling or advocate for abortion reforms, even using their own funds. Although the policy stands rescinded by the Biden administration, absent its permanent repeal, there exists a looming threat of its reinstatement by future administrations, which will only be emboldened by the overturning of Roe. With the risk of being stripped of funding in the future, governments and organisations will find it increasingly difficult to develop progressive global health programmes centred around women’s sexual and reproductive rights.

Also in Express Opinion |Backsliding in America

Another dangerous consequence of the overturning of Roe stems from the fact that in addition to legalising abortions as a qualified right within the constitution, Roe also reaffirmed and strengthened an interpretative method whereby the right to privacy identified within the Fourteenth Amendment guarantee of liberty could be interpreted broadly enough for an unlisted right (in this case, the right to terminate a pregnancy) to be read into it. For instance, decisions such as Obergefell v. Hodges read unlisted rights — the right to marry a person of the same sex — as a facet of the implicit guarantee of privacy within the explicit guarantee of liberty. However, with Dobbs’ extremely restrictive reading of the constitutional guarantee of liberty, several other substantive due process decisions, both before and after Roe, would inevitably be the next rights to be annihilated – something underlined by the dissenting judges.

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Justice Alito unconvincingly rebuts the dissenters’ apprehension by stating that the majority opinion does not put in doubt precedents that do not concern abortion claiming that the latter “uniquely” involves the question of “potential life”. However, Justice Clarence Thomas’s concurring opinion, explicitly states that the Supreme Court “should reconsider” “all of” the court’s past substantive due process decisions including the decisions recognising rights to contraception, same-sex relationships and same-sex marriage, and virtually invites conservative states to challenge these precedents.

Finally, Dobbs is yet another illustration that the rule of law will easily stand compromised based on partisan considerations of the bench and the political dispensation. For instance, the very same justices who gave the majority opinion adopted irreconcilable approaches to constitutional interpretation in two decisions rendered on consecutive days — Bruen and Dobbs. In Bruen, the conservative majority categorically cautions against excessive reliance on the historic basis of a law while determining the constitutionality of a New York gun-licensing law and holds that a “proper cause” requirement for possession of arms violated the constitutional right of citizens to bear arms for ordinary self-defence. The very next day, in Dobbs, the same justices find that the practice of abortion is not found in the “history and tradition” of the country, and consequently cannot be located within the guarantee of liberty in the Fourteenth Amendment. In addition to the inadequately justified departure from precedents, another unprecedented facet of Dobbs is the recognition of the lack of judicial independence by the dissenting justices who unequivocally state that the majority’s decision-making is driven by power, not reason, and that the rule of law is replaced by the rule of judges. It may be safely stated, particularly in view of Justice Thomas’s observation of further upheavals, that the sense of resignation and betrayal running through the dissenting opinion will inevitably revisit American constitutional jurisprudence in the near future and relatedly, the human rights discourse globally.

The writers are advocates practising in New Delhi

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First published on: 27-06-2022 at 06:13:03 pm
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