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In overturning Roe v. Wade, US Supreme Court has shown lack of constitutional courage

The disregard for legal precedent, as well as the elimination of a constitutional regime that weighed both federal and pregnant persons’ interest has serious implications for sexual and reproductive health rights

SCOTUS held that the Constitution of the United States does not confer a right to abortion, overruling Roe and returning the authority to regulate abortion to “the people and their elected representatives”, meaning state authorities. (Photo Source: Reuters/Moira Warburton)

On 24 June 2022, the Supreme Court of the United States (SCOTUS) overturned the landmark Roe v Wade case, which guaranteed abortion as a constitutionally protected right in 1973. The reversal took place by the conservative-majority court in Dobbs v Jackson Women’s Health Organization. SCOTUS held that the Constitution of the United States does not confer a right to abortion, overruling Roe and returning the authority to regulate abortion to “the people and their elected representatives”, meaning state authorities. The court found that the right to abortion is not deeply rooted in US history and tradition, and that the right to abortion is not part of a broader entrenched right to autonomy.

In Dobbs, the Court characterised Roe as “egregiously wrong and on a collision course with the Constitution from the day it was decided”. The judgment stated that the court’s decision in Roe “short-circuited the democratic process” by excluding those who disagreed with the decision, imposing detailed conditions for different stages of pregnancy, similar to a statute or law. The judgment was delivered by Justice Samuel Alito, joined by Justices Thomas, Kavanaugh and Gorsuch. Only Justices Breyer, Sotomayor and Kagan passed a dissenting opinion. The immediate implication of the majority opinion is that about 26 American states are certain or likely to ban abortions, with 13 states having “trigger bans” that take effect immediately upon the overruling of Roe.

Criminalising abortion is a major legal barrier to safe abortion access, forcing women to resort to risky underground abortion procedures. In the 2016 Mellet v. Ireland decision by the UN Human Rights Committee, the petitioner described the traumatic experience of having to travel out of her country (as abortion was not permitted in Ireland at the time) to access abortion services, and inability to access post-abortion and bereavement counselling. Criminalising abortion does not decrease the demand for services, but merely forces women to undergo significant burdens to access it.

Many countries have decriminalised or are moving towards the decriminalisation of abortion. Vietnam provides abortion on request, having decriminalised it in the 1960s, and explicitly recognises women’s unconditional right to abortion. In Canada, the Supreme Court in R v. Morgentaler held that the restrictions on abortion constituted a “breach of security of the person” interfering with a woman’s bodily integrity, right to life and liberty. Other countries have relaxed restrictions on abortions, even if it is still within the criminal code. Singapore provides for abortion on request up to 24 weeks on grounds of rape/incest, risk to the woman’s life, or on diagnosis of foetal anamoly. Nepal permits abortions on request up to 12 weeks, and further up to 28 weeks on medical or compassionate grounds. Reversing the right to abortion at a time when most countries are moving towards decriminalisation and the upholding of abortion on demand can have severe implications on legal and policy trajectories affecting the reproductive rights of persons globally.

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Firstly, it could infuse domestic anti-abortion movements with both symbolic and financial resources to expand anti-choice campaigning. It can also embolden anti-choice movements to adopt similar legislative strategies to challenge abortion in countries where it is legal. Further, as indicated by Justice Clarence Thomas, this reversal is likely to endanger constitutionally recognised rights to same-sex relationships and contraception, among others. Secondly, it cannot be denied that America is a global hegemonic power, with Roe providing a well-recognised framework for those involved in local abortion advocacy to articulate local abortion rights and demands. Third, the overturning of Roe can have grave implications on international funding provided by the USA for the upholding and protection of sexual and reproductive health and rights (SRHR) in low and middle-income countries. Finally, the judgment is an important international precedent used in courts across the world to grant abortion rights — the Australian legislature, Supreme Court of Canada and High Court of Pretoria have all cited Roe.

In India, Justice Chandrachud cited Roe in Justice K S Puttaswamy v Union of India, while including the right to privacy and decisional autonomy within constitutionally protected fundamental rights. The reversal is unlikely to impact domestic law. India has a strong legislative framework on abortion governed by the Medical Termination of Pregnancy Act, 1971 amended in 2021. Although India’s penal code criminalises abortion, the MTP Act outlines the statutory exceptions that make abortions legal. The Act provides for legal abortion services up to 24 weeks under certain conditions, with the approval of one or two registered medical professionals. Further, it has no upper gestational limit in the case of abortions on the grounds of foetal anomalies but leaves the adjudication of such abortions to medical boards. Even though seemingly progressive, the law has been criticised for being doctor-centric, premised on a eugenic, patriarchal and cis-heteronormative rationale.

The overturning of Roe signals abdication of judicial responsibility from the highest court of the country in a split opinion — based on the ideological bent of individual judges in the SCOTUS, which has the potential to not just affect individualised rights, but also to foster a trend amongst courts across the world to make decisions based on prevailing political environments.

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In SCOTUS’ dissenting opinion, the majority judgment was called out for violating stare decisis, which forms a “foundation stone” for the rule of law, and is described by the minority opinion as being a “doctrine of judicial modesty and humility”. Deviation from established rule of law also lends credence to the legal indeterminacy argument, where all legal outcomes of a case can be justified as being legally “correct”, regardless of the erstwhile position. The disregard of the SCOTUS majority with respect to decades-old established legal precedent, as well as the elimination of the erstwhile balanced constitutional regime that weighed both federal and pregnant persons’ interest for a regime that now only weighs state interest, has serious implications for the latter’s sexual and reproductive health rights. This is a painful example of a gendered construction and interpretation of the Constitution and judicial politics, rather than the upholding of constitutional rights and morality, in turn exhibiting a lack of constitutional courage.

The writer is professor, Jindal Global Law School

First published on: 28-06-2022 at 08:05:45 pm
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