With the overturning of one of the most applauded judgments in American Constitutional history, the Supreme Court of the United States has put numerous rights of the American citizenry in mortal peril.
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ONLY a year ago, the Texas Heartbeat Act had led to worldwide outrage for its conservative approach to abortion rights, but on June 24, another stepping stone in the road towards denuding women of their bodily autonomy and their reproductive rights was laid down with the overturning of the historical judgement of the Supreme Court of the United States (‘SCOTUS’) in Roe versus Wade (1973).
This decision by SCOTUS will undoubtedly have unfathomable consequences upon millions of American women, as now states are free to enact laws banning abortions either directly or indirectly. The overturning of the historical verdict comes at a time when women’s rights are threatened all over the world.
The immediate result is that 26 American states are preparing to outlaw abortion in the coming years, with 13 states enacting a “trigger ban” that would go into effect soon after the decision was delivered.
Roe versus Wade created a safeguard for American women to ensure that their reproductive and sexual rights were not stripped by State authorities. The judgement had been upheld for more than half a century and had established numerous precedents, all of which have been negated in the recent judgment in Dobbs versus Jackson Women’s Health Organisation, in which the SCOTUS held, by a 6-3 majority, that right to abortion was no longer a constitutional right. The majority of the bench remarked that Roe had been on a “collision course” with the US Constitution since its inception and that it was “egregiously wrong”.
What the judgment means
This decision will undoubtedly have far-reaching consequences, and will set a dangerously incorrect precedent for countries all over the world. The immediate result is that 26 American states are preparing to outlaw abortion in the coming years, with 13 states enacting a “trigger ban” that would go into effect soon after the decision was delivered. Millions of women’s rights would be violated as a result, and the harsh reality is that this step would inevitably result in health complications, risky underground abortions and, in the worst-case scenario, the deaths of both the foetus and the mother. Women will be forced to travel to other states or countries to obtain abortions, incurring additional costs and risks.
In his concurring opinion, Justice Clarence Thomas went so far as to say that the decision could be used to overturn other major SCOTUS decisions, such as those that led to the legalisation of homosexual marriage, the prohibition on criminalising consensual homosexual conduct, and the protection of married people’s rights to medical contraception.
In a world where many countries are decriminalising abortions, this step would unquestionably have negative repercussions, further degrading women’s social standing in having the choice of what they want done with their bodies.
The dissenting judges, Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, expressed the harsh inescapable truth of the majority opinion veiled behind legal jargon, writing, “[Y]oung women today will come of age with fewer rights than their mothers and grandmothers. … A woman’s rights are stripped from the moment of fertilisation”. They state that the State is thus empowered to force pregnancy to term “even at the highest personal and familial costs.”
Abortions in India are regulated by the Medical Termination of Pregnancy Act, which after its recent amendment in 2021, permits legal abortion for up to 24 weeks of pregnancy in case of rape survivors, victims of incest and other vulnerable women. There is no gestational limit in case of substantial foetal abnormality.
“With sorrow — for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection — we dissent,” they observed.
On the other end of the spectrum, the 78-page majority opinion appears to leave no authority unchecked in establishing that the “constitution does not confer a right to abortion.” The judgement allows states to impose any abortion regulation they deem necessary to serve “legitimate state interests.”
In his concurring opinion, Justice Clarence Thomas went so far as to say that the decision could be used to overturn other major SCOTUS decisions, such as those that led to the legalisation of homosexual marriage, the prohibition on criminalising consensual homosexual conduct, and the protection of married people’s rights to medical contraception. All of these cases, he believes, were “demonstrably erroneous.”
On the surface, it appears that the United States has turned back the clock and is on its way to undo the many judgments that had been celebrated around the world for the freedom that they granted to the American people. The U.S. is seemingly slowly transforming from a land of liberty to one of suffocation, with the rights of millions being subjected to the political colours associated with the SCOTUS bench. What’s worse is that this degrading metamorphosis is overseen by none other than the apex Court of the land, which is sworn to protect the rights of millions.
Legal position on abortion in India
As far as India is concerned, it is ironic to note that Justice D.Y.Chandrachud had cited Roe in the majority opinion he authored in the Indian Supreme Court’s landmark fundamental right to privacy judgment in 2017 while laying down the foundations of bodily autonomy and right to privacy, and the court had held that the “constitutional right of women to make reproductive choices forms a part of personal liberty under Article 21 of the Indian Constitution”.
The overturning of Roe is unlikely to have any direct impact on domestic laws of India. Abortions in India are regulated by the Medical Termination of Pregnancy Act, which after its recent amendment in 2021, permits legal abortion for up to 24 weeks of pregnancy in case of rape survivors, victims of incest and other vulnerable women. There is no gestational limit in case of substantial foetal abnormality. This new amendment significantly contributes towards decreasing preventable maternal mortality and helps in attaining the Sustainable Development Goals 3.1 (by 2030, reduce the global maternal mortality ratio to less than 70 per 100,000 live births), 3.7 (by 2030, ensure universal access to sexual and reproductive health-care services, including for family planning, information and education, and the integration of reproductive health into national strategies and programmes) and 5.6 (ensure universal access to sexual and reproductive health and reproductive rights).
Also read: Abortion in India – still not a right but a privilege
In the maelstrom of constitutional fissure that this judgement was, it has provided unimpeded leeway to American states to obstruct, hinder, and bereave people of their right to bodily autonomy.
The conservative majority that has delivered the judgement either failed to understand or completely ignored the necessary implications of this decision. Americans now have no constitutional backing to their claims for abortion rights. Countries that look up to the great American judicial precedents will now be shrouded by doubts regarding the steps to be taken in their own jurisprudence. It is indeed a dark age in the history of American judiciary; an age in which the rights of millions have been stripped and handed over to state authorities, to be subjected to the whims and fancies of politicians and their ulterior motives. The worst sufferers are of course the innocent citizenry, which will now be bereft of dignity, autonomy and freedom to access safe abortion services.
