On 28th June 2022, the USA had 1,849.0 abortions that day, 436,924 as of this year, and 63,896,707 since Roe v. Wade in 1973. Having said that – Shame. Trauma. Choice. Fear. Restricted access. Diminishing the human rights framework. Eviscerating privacy and subjecting a woman’s body to judicial scrutiny. These are some of the themes associated with abortion care in the world and the reprobation of said right in the United States of America.
No society evolves with the linearity of time but its maturity can be measured with the level of fundamental and natural rights it grants to its historically weakest and marginalised groups (in this case women). What lies at the heart of this debate isn’t whether the Supreme Court of the United States of America is pro-life or pro-choice but instead whether women’s right to intimate and personal choices outweighs the State’s interest in protecting an unborn human’s right. The Constitution of America does not prohibit the citizens of each State from regulating or prohibiting abortion, but Dobbs, v. Jackson Women’s Health Organization, overrules Roe by arguing that by virtue of the former, the Supreme Court wishes to return such authority to the people and their elected representatives. Hence, it leaves the matter of introducing such a Bill/Act criminalising abortion in each State to its respective lawmakers.
Abortion Rights USA
On the one hand, we are on the precipice of a global feminist movement and on the other hand, the fabric of women’s rights is being eroded in some countries. Abortion, as defined by the WHO, is a healthcare procedure that can be managed by health workers using medication or a surgical procedure. According to an article by BedBible.com, it was reported that there were 14.4 abortions in the U.S. per 1,000 women ages 15 to 44 in 2020. Post the Roe era, the right of a pregnant woman to terminate pregnancy could be found in the concept of personal “liberty” embodied in the Fourteenth Amendment’s Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights in the United States of America. Some of the arguments for this justification rest on the theory that a new human life is present from the moment of conception. Roe had argued the State’s interest and general obligation to protect life extends to prenatal life. Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or foetus not prevail. Logically, of course, a legitimate state interest in this area need not stand on acceptance of the belief that life begins at conception or at some other point prior to live birth. Where certain “fundamental rights” are involved, the Court had held that regulation limiting these rights may be justified only by a “compelling state interest”. The primary argument advanced on behalf of pro-life supporters is that life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception.
Roe recognised that the State has an important and legitimate interest in preserving and protecting the health of the pregnant woman and that it has still another important and legitimate interest in protecting the potentiality of human life. It classified these interests as separate and distinct. The “compelling” point is a garb under which the State may intervene and restrict an American woman’s right to privacy and right to reproductive health in accessing abortion care. It follows that a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. The judges in Roe opined that any state law, similar in nature to the one in question that is the criminal abortion statute of the Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment. Roe made a clear nod to regulate and not ban abortion laws up until the first trimester. The crux of the matter can be found in the simple truth that the fundamental right to privacy was broadened to encompass a woman’s decision whether or not to terminate her pregnancy. Now, Dobbs has held that the Constitution does not confer a right to abortion stating that the right to abortion is “not deeply rooted in the nation’s history and tradition”. On the surface, this judgment undoes decades’ worth of gains made by the women’s rights movement. But piercing the veil and the judgment has far-reaching consequences on the legal identity of women and the autonomy they command over their bodies.
Roe had previously been classified as a “super precedent” which closely translates to those constitutional decisions in which public institutions have “heavily invested, repeatedly relied on, and consistently supported” over a long period of time. But the Court rejected this line of reasoning by stating that Roe was erroneously decided and hence abortion rights cannot be found under the periphery of “liberty” in the American Constitution.
According to the statistics by the Centers for Disease Control and Prevention, 629,898 legally induced abortions were reported in the United States of America in 2019. From 2010 to 2019, the number, rate, and ratio of reported abortions decreased by 18%, 21%, and 13%, respectively. Overturning this judgment has granted the State and, in effect lawmakers, vested interest and autonomy over a woman’s body to restrict abortion. The judgment grants complete leeway to states to decide what a woman may or may not do with her body, with no regard to even worst-case scenarios such as fetal abnormalities or pregnancy due to rape or incest. The legitimate right of the State has now been branded as one of totalitarian control.
Suggested Reading: Roe V Wade: Why Men Need To Back Women On Abortion Rights
At the end of the day, the fact remains we do not and cannot ban abortions in the truest sense. No court cannot ban necessity. Necessity, in the absence of safe abortion, will resort to illegal abortions that will result in an increased mortality rate among women. When we limit access to reproductive care, we limit freedom. We curtail agency. We do not outlaw the act itself. It is worth pointing out at this juncture that some of the risks associated with an unsafe abortion include bleeding, increased risk of infection, uterine perforation and damage to the genital tract and internal organs. With this in mind, we can deduce that Dobbs in failing to qualify abortion as a right protected by the Constitution also invalidated the right a woman has to the highest attainable standard of physical care, the right to decide freely and responsibly on the number, spacing and timing of her children; the right to refuse to carry a foetus with an abnormality to term; the right of a rape survivor to abort her assailant’s lineage; and quite simply – the right of a woman to bodily integrity and autonomy. Lastly, one cannot ignore the enormity of this judgement coming from a country like the USA as it sets a precedent of persuasive value for other countries to use should they think of treading down the same path.
Aaliya Waziri is a lawyer at the High Court of Delhi presently working as International Consultant (Women, Peace & Security) with UN Women’s Office for Timor Leste. The views expressed are the author’s own.