In 1973, in the landmark Roe vs Wade judgment, the Supreme Court of the United States made the right to abortion constitutional up to the point of foetal viability, establishing a benchmark for abortion laws across the world. Now, a leaked first draft of the Court’s majority opinion in an ongoing case has revealed its momentous move to overturn the judgment and the 1992 verdict that partially upheld it. In an apparent nod to the Conservative right wing’s anti-abortion position on the issue – Republicans have packed the highest court with conservatives who are expected to lend support to measures such as rolling back abortion rights and expanding gun rights — the majority opinion in the draft cites, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives”.
The leaked draft has sounded the alarm with regard to the curtailing of essential freedoms guaranteed by the Fourteenth Amendment of the US Constitution. In his note of concern posted on social media, former President Barack Obama and his wife Michelle wrote that should the repudiation come to pass, “it will relegate the most intensely personal decision someone can make to the whims of politicians and ideologues”. In essence, in overlooking the checks and balances of Roe vs Wade and in disabling personal agency, the matter will no longer be set within the paradigm of women’s rights. It is also likely to impact the larger framework of human rights, tilting it away from the poor and the voice-less.
While the judgment will be a significant turning point in the US’s position on individual freedoms, its tremors will also be felt across the world. In India, 50 years after the Medical Termination of Pregnancy (MTP) Act was passed in 1971, key changes were brought in by the MTP (Amendment) Act, 2021, including the right to terminate unwanted pregnancies caused by contraceptive failure, regardless of the woman’s marital status. In a climate in which the state is seeking increasing control over the lives of citizens, the amendments might seem more mindful of a woman’s right to bodily autonomy and privacy. The fact is, however, that they do not go far enough. Under the Indian Penal Code, 1860, abortion remains a criminal offence under Section 312. Both the MTP Act and its amendment simply provide an exception to the criminalisation. Notwithstanding the landmark 2017 Supreme Court judgment of Justice KS Puttaswamy that upheld the right to privacy of Indian citizens, by its undue deference to patriarchal structures that make the consent of others — doctors, partners, family members, and even the state — critical to the woman’s awareness of and access to abortion-related services, the law makes the right to abortion, and, by extension, to her body, individuality and life, limited and hemmed in. When the US Supreme Court passes its final judgment on the matter, it would do well to remember how dangerously easy it is to set a precedent for backsliding on hard-won rights and freedoms. The choice is clear: To make the woman’s battle-scarred body a site of further contestations and power-play, or to work towards expanding freedom and choice and inclusivity. To be “pro-life” should not, and does not, mean to be anti-women.