ON Friday, the Supreme Court of the United States ('SCOTUS'), by a majority of 6-3, in Dobbs versus Jackson Women's Health Organisation, upheld the Mississippi ban that prohibits abortion after fifteen weeks of pregnancy under Mississippi's Gestational Age Act, and more importantly, held that the U.S. Constitution does not confer a right to abortion. The SCOTUS, therefore, overturned its judgments in Roe versus Wade (1973) and Planned Parenthood of Southeastern Pa. versus Casey (1992).
Roe held that the right to privacy protects women's rights to access abortion under the guarantee of the U.S. Constitution's 14th Amendment of liberty without any unwarranted State intrusion. This was upheld by the SCOTUS in Casey, wherein the court ruled that the right to abortion extends to 24 weeks of gestation, that is, until the foetus is viable outside the womb. Roe and Casey have been the landmark decisions, settling the law of the land for decades, shaping women's expectations of their choices when an unplanned pregnancy occurs. Unfortunately, the drastic ruling in Dobbs changed all that, and leaves the issue of abortion to be decided by individual states.
The Leaflet spoke to Anand Grover, Senior Advocate practicing in the Supreme Court of India, who has served as the United Nations ('UN') Special Rapporteur on the Right to Health. In that capacity, he prepared and submitted a ground-breaking report on the right to abortion to the UN General Assembly. The report studied the interaction between criminal laws and other legal restrictions relating to sexual and reproductive health, and the right to health, including the impact of criminalising abortion.
Edited excerpts from the interview:
Q: Roe never gave an unqualified constitutional right to an abortion. Instead, it protected "the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy". Can you explain to us this, and the overturning of Roe?
A: There are two points here to understand the overturning of Roe. There is a school of law in the United States – Originalism – which says that only what is explicitly conferred in the Constitution of the United States can be recognized as a Constitutional right. What is not stated explicitly, cannot be considered a constitutional right. This is what the majority in Dobbs has followed.
In contrast, there is the school which looks at the Constitution in a dynamic way and states that there are implied rights in the Constitution, based on privacy and liberty of the Equal Protection Clause and Due Process under the 14th Amendment. These rights are inbuilt into the Constitution and are recognized as society develops. That is how Roe actually developed the right to abortion as a constitutional right to abortion and terminate a pregnancy.
Traditionally in common law, there is neither an absolute right to abortion nor is there an absolute restriction. This is the common law jurisprudence, that India has also borrowed, which stipulates abortion can be performed before the 'quickening' of the child, which is the first recognisable movement of the foetus. By the common law, once the foetus becomes viable, the right of the foetus is recognized and any termination of the foetus after that is an offence. This is the rationale behind provisions in the Indian Penal Code (Sections 312 to 316 and 318).
The law under question in Mississippi is the ban on abortion after 15 weeks of pregnancy. However, a lot of abortions take place even after the 15th week. This is especially true in the case of American women coming from poor and/or marginalised communities such as Afro-Americans and Hispanics because they do not have access to information and health services. However, there are jurisdictions, in the Americas, particularly the Latin American countries influenced by Catholicism, which recognize the right to life of the unborn immediately after conception.
Roe actually tried to strike a balance between the two extremes. If the foetus becomes viable, you cannot undertake an abortion. We have also tried to strike a balance in The Medical Termination of Pregnancy (Amendment) Act, 2021. But we have a discretion under the Indian law which is far more liberal.
In Dobbs, on the basis of the argument that there is not an explicit mention of the right to abortion in the Constitution of the United States, the SCOTUS held that the right to abortion cannot be recognized as an implied right in any of the provisions, original or the amendments. The Dobbs court also looked at the history and deep-rooted notions in America, a traditional way of deciding whether there is an implied right at all (See Lawrence versus Texas (2003)). The majority said that prior to Roe, there was nothing to indicate that abortion was not criminalised. In fact, they held that in common law also, abortion was criminalised.
In Dobbs, they also looked into the various aspects such as workability and held that Roe's decision is totally wrong as it creates an undue burden for women when terminating a pregnancy because there were prescriptions deciding the termination. The court said it is up to the legislature to decide the prescription and not the judges.
Q: The SCOTUS ruled that the right to abortion cannot be considered as a broader right to autonomy under the Constitution. It noted the fears of such an extension to potentially "… license fundamental rights to illicit drug use, prostitution, and the like". What is your opinion on the court claiming legitimacy to criminalise abortion from such an argument, especially in the context of your UN report that primarily focuses on decriminalising abortion?
A: In Dobbs, the SCOTUS did not look at the impact of the criminalisation of abortion. It is, in a straight jacket way, going by what it considered as the jurisprudence of the United States, that is, whether it is an explicit right under the Constitution of the United States and whether the notion is deep-rooted in the United States, and decided that it cannot read an implied right of abortion into any of the provisions of the Constitution.
The right to abortion is a completely different type of right, as the SCOTUS itself recognizes, where the life of another human being (notwithstanding it may be incipient) is involved, and the unborn child's rights cannot be taken away, unlike under rights relating to prostitution or same-sex relationships.
Q: Do you agree that they have violated the international law doctrine of non-retrogression?
A: Yes, they have. It means that when you have created a right or recognised it, you cannot go back on it. This is the principle of international law. The principle is well recognized in international law, particularly in commentaries on the International Covenant on Economic Social and Cultural Rights ('ICESCR'), flowing from Article 2.1 of that Covenant. The ICESCR mandates the progressive realisation of economic, social and cultural rights, but once a right is established it cannot be retrogressed (as per ICESCR General Comment 3).
In the United States, the principle has been applied in cases relating to race and voting rights, but it has been questioned academically. Also, as the United States has not ratified the ICESCR, it does not consider itself bound by the international law principle applicable. But the jurisprudence in the United States and for that matter, the United Kingdom, till recently, as well as Australia, among others, is very parochial in terms of sources of law. Whereas we cite their decisions all the time, as persuasive, they consider themselves immune from the knowledge created outside their shores.
Nevertheless, Dobbs is the most retrogressive step in the history of American jurisprudence in the last 50 years. Though the Mississippi law makes abortion criminal after 15 weeks, any state can now enact a law to make it criminal from inception, which Roe had prevented. This will have horrendous consequences for women in general, and women from poor and marginalized communities, in particular.
Also read: Overruling Roe vs Wade will mean the death knell of reproductive rights
Q: Your report says forced pregnancy is a form of State-sanctioned coercion, and a violation of the right to sexual and reproductive health. Can you elaborate on this?
A: Any kind of mandatory requirement to do something which is not acceptable to the person, and interferes with her autonomy and dignity, amounts to coercion and torture. This is because when a woman wants to abort and is not allowed to abort, she is kept in that position, carrying a pregnancy to term, by State law. This amounts to coercion and torture.
Q: The respondents in Dobbs did not put forth any data to show the impact of criminalising abortion. What do you think about that?
A: I am surprised. They did not even consider the effect of the criminalisation of abortion on women. There appears no data was put forth to show the impact of criminalising abortion. In any event, none is considered. And the consequences are drastic, particularly the resultant deaths of women. The data is well documented. In my UN report, the data is clearly present. It's been 12 years since I presented the report. There is much more data available now.
“Traditionally in common law, there is neither an absolute right to abortion nor is there an absolute restriction. This is the common law jurisprudence, that India has also borrowed, which stipulates abortion can be performed before the 'quickening' of the child, which is the first recognisable movement of the foetus.
This judgment will send women back to the dark ages of criminalisation and the data could have proved that. Dobbs's judgment is totally out of sync with notions of civilized nations. Thus, Latin American countries have started legislating abortion. Brazil is thinking about it. Ireland has already done it. Dobbs should not be considered a precedent and followed by any court anywhere in the world.
Q: The SCOTUS in the Dobbs case examined the right to obtain an abortion in terms of America's history of criminalising abortion and on the question of whether it is deep-rooted in America's tradition. What are your views on the State's (collective) will weighed against the individual's will to have total and personal autonomy to terminate their pregnancy without the State's interference?
A: According to Dobbs, the collective will is determined on the basis of the right of the unborn child. Right to privacy, according to Dobbs, does not cover the right to abort a child, because the involvement of another human being is at stake. It is irrelevant that it is in the woman's womb. It is separated and distinguished, according to the construct of law. Now according to Dobbs, when the child is conceived, it has the right to be born. Abortion will kill the unborn child.
Dobbs has also held that privacy/liberty does not embrace abortion. Once that is assumed, altogether different rules come into play. The State has an interest over that unborn child not only by the enacted law but also under the doctrine of parens patriae, that is, when there is no other person to look after the interest of the child, the State has the right to look after it. If there is a conflict between the mother and the child, the State comes in as parens patriae by enacted law to intervene on behalf of the child and override the interest of the mother.
The state of Mississippi has extended a fifteen weeks concession. Another state can, following Dobbs, potentially enact a law that prohibits abortion the moment a child is conceived, banning abortion from day zero of its being conceived. The court in Dobbs enables states to introduce a law that disallows abortion at any stage whatsoever.
Q: Justice Samuel A. Alito Jr., writing for the majority said, "nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion." But Justice Clarence Thomas, in his concurring opinion, says in future cases, we should reconsider Griswold versus Connecticut (1965), Lawrence and Obergefell versus Hodges (2015) as they "demonstrate erroneous decisions". The last two judgments protect same-sex rights. Would this impact India since we have relied on American judicial jurisprudence in Navtej Singh Johar & Ors. versus Union of India (2018) and many other cases?
A: This is actually very serious. Although the majority has said abortion is 'sui generis', that is, Dobbs has nothing to do with other rights, but let's be honest here: the logic of Dobbs is otherwise.
If you look at the SCOTUS's previous cases, for instance, Loving versus Virginia (1967), the court declared Virginia's law banning interracial marriage as unconstitutional based on the Equal Protection Clause of the Fourteenth Amendment. Similar constitutional protection has been granted in Brown versus Board of Education of Topeka (1954) which held that racial segregation in public schools is unconstitutional under the Equal Protection Clause. This ground is explicitly mentioned in the Constitution of the United States. These were not held unconstitutional on broader aspects of privacy, liberty, autonomy, and dignity, unlike Roe and Casey.
“Dobbs is the most retrogressive step in the history of American jurisprudence in the last 50 years. It will have horrendous consequences for women in general, and women from poor and marginalized communities, in particular.
Even if Justice Alito says it will not apply to other cases, it is wishful thinking. The logic of Dobbs will certainly apply to future cases. Those cases like Griswold, Lawrence and Obergefell are the ones based on implied rights in the Constitution which the Dobbs judgment has rejected. The majority in Dobbs distinguishes abortion on the ground that it is entirely different because it involves the life of the unborn child. But the logic of Dobbs is clear. That is exactly what Justice Clarence Thomas logically concluded.
I do not think this will impact India. Please appreciate that we were able to read Article 21, a classical negative right, into a positive right in Francis Coralie Mullin versus Administrator, Union Territory of Delhi & Ors. (1981) wherein, the Supreme Court relied on the decision of the SCOTUS in Munn versus Illinois (1876) that holds that the fundamental basis of all human rights is dignity. Flowing from that we have the fundamental right to health, education, livelihood, environment, and so many other rights that ave been interpreted and read into our Constitution.
We do not have any dispute on reading into an explicit fundamental right in our Constitution and another fundamental right by implication. That has been the history of our constitutional jurisprudence for a very long time. There has never been a dispute about this in India. In contrast, in the United States, there has been a long-standing dispute. They have now, with Dobbs, held what is written in the Constitution as a cast in stone. But we have a different trajectory from that of the United States.
“We do not have any dispute on reading into an explicit fundamental right in our Constitution and another fundamental right by implication. That has been the history of our constitutional jurisprudence for a very long time. There has never been a dispute about this in India. In contrast, in the United States, there has been a long-standing dispute.
Lastly, in Navtej Singh Johar, we have recognised that we are bound by the principle of non-retrogression. We are bound by international law and the human rights committee under the International Covenant on Civil and Political Rights ('ICCPR'). We have recognised the landmark decision of the UN Human Rights Committee in Toonen versus Australia (1999) wherein, it was held that continuous criminalisation of same-sex relations under the Tasmanian Criminal Code is incompatible with Article 26 of the ICCPR. Hence, we have a different story, in consonance with our dynamic Constitution, which is transformative in nature.
Also read: When will abortion become a right for every pregnant person?
Q: One of the judges, in their concurring judgment, has described the right to abortion as "a policy goal in desperate search of a constitutional justification". What are your views on this, particularly in light of your report that describes restrictive laws on abortion as "impermissible barriers to the realisation of women's right to health"?
A: The right to abortion is a policy decision by the legislature, according to Dobbs. But in my view, it is implicit from Constitutional rights to liberty in their Constitution. I do not agree that it is not a justification because Roe was deciding on a statute on whether it is constitutional or not. So they came up with the implied right to abortion. Once you question the notion of implied rights, you will talk of "constitutional justification."
The woman who has an unborn child in her womb has the fundamental right to autonomy, privacy and dignity to decide what should happen to her body. Saying that the right to privacy is in need of justification is rhetorical. This is based on an a priori position that an unborn child has a right to be born. Thus the unborn child becomes an independent personality. In the event of a 'conflict' when the right to abortion is not embraced by autonomy, privacy or dignity, the rhetorical idea of justification gets introduced.
Q: Chief Justice John Roberts did not agree with the viability rule of Roe and Casey because he says it does not recognise legitimate State interest. But then he says, "None of this, however, requires that we also take the dramatic step of altogether eliminating the abortion right first recognized in Roe." What do you have to say about this dubious stand?
A: I do not understand his opinion. I do not think it could not have been done without overruling Roe and Casey. The viability rule is fundamental and it is the basis of Roe and Casey. Common law proscribes abortion after the quickening of the foetus. They could not have independently modified the viability rule, without holding that there is an implied right to abortion. If done otherwise, it would mean the judges are legislating. That is not what judges are supposed to do. I will give you an Indian example.
We had challenged Section 31A of the Narcotics Drugs and Psychotropic Substance Act, 1985 which prescribed a person the mandatory death penalty on a subsequent possession of a commercial quantity of a banned substance. The court held that the death penalty is discretionary. I argued that the court can either strike it down or uphold it. It cannot rewrite the statute and hold it discretionary. It could read a statute down as was done in Naz Foundation versus the Government of NCT Delhi (2009) by the Delhi High Court or Navtej Singh Johar by the Supreme Court. That was challenged in the Supreme Court, and they agreed with me and issued notice. But the respondents went to the Parliament and made it a law.
Also read: The Texas 'Heartbeat Bill': A Blow to Abortion Rights in the U.S.
Q: Your report provides for international human rights law on the right to sexual and reproductive rights under the ICESCR, the Convention on Elimination of All Forms of Discrimination Against Women, and the Convention on the Rights of the Child. In view of the non-ratification of these international legal instruments by the United States, can we expect any kind of international scrutiny of the judgment?
A: International scrutiny of the judgment can be seen in the criticisms of it being a retrograde step by the Prime Minister of the United Kingdom, Boris Johnson; President of France, Emmanuel Macron, and other leaders of the G-7 grouping. It has also been widely criticized on various other platforms.
“The woman who has an unborn child in her womb has the fundamental right to autonomy, privacy and dignity to decide what should happen to her body. Saying that the right to privacy is in need of justification is rhetorical.
Although the United States has not ratified the ICESCR, it is bound by the Universal Declaration of Human Rights ('UDHR'). In fact, the ICESCR and ICCPR contain provisions that are developed from the UDHR. When we, as UN Special Rapporteurs, want to scrutinise the United States, we do it on the basis of the UDHR. The Human Right Council and the United Nations Security Council can also scrutinise in only limited ways because they have no teeth.
The Human Rights Committee under the ICCPR and the Committee on Economic, Cultural and Social Rights under the ICESCR have adjudicatory rights and their decisions are binding. For that, the United States, like India, is not a signatory to the Optional Protocols under the ICESCR and the ICCPR, and hence is not bound by them. The scrutiny is, thus, limited to the Rapporteurs going, the United States being bound by the reprimands of the Human Rights Council, and so on.
When I prepared the report in 2010, it was presented before the UN General Assembly's third committee. The report was anticipated to be highly contentious because the United States and other Latin American countries were assumed to oppose it. The lead was taken by Norway and Sweden (ruled by women), and they had taken a strong interest in my report. Surprisingly, the United States did not take a hostile stance, and it expressed its willingness to incorporate the suggestions from the report into its administrative decisions. Now, there has been a sea change in the composition of the SCOTUS. The Dobbs decision has come about because of the change in the composition of the SCOTUS. Thus, it is coloured by ideological precepts of the U.S. Constitution.
Q: India's Medical Termination of Pregnancy Act, 1971 considers consent of the women as an essential condition for performing an abortion. But the law says the opinion of the medical practitioner is necessary. Do you think it may lead to paternalism?
A: Our laws give utmost importance to the consent of the women. In Suchita Srivastava & Anr. versus Chandigarh Administration (2009), it is clearly mentioned by our Supreme Court that the consent of the women cannot be overruled on a non-rational basis. Medical opinion is only considered for the safety of women and the child. But if the mother is clear that there is no contraindication of any medical issue, only her decision will prevail.
“Women who cannot afford to travel to another state in the United States where abortion is legal will have to resort to untrained doctors and physicians with poor facilities, and they have to risk dying. With increased criminalisation, victimisation increases, thereby increasing the chances of death.
Also read: Abortion in India – still not a right but a privilege
Q: What will be the consequences of Dobbs in cases of unwanted or unplanned pregnancies?
A: The consequences will depend on how the individual states in the United States change their laws. The SCOTUS has given the states a carte blanche to enact laws as per their discretion. A lot of women, particularly those belonging to poor or marginalised communities like Hispanics, African-Americans, and so on, will have no support from the government, or public health care. Pregnant women whose partners desert them will be left in difficult circumstances.
The police will become hyperactive and will be on the doorsteps of women who access abortion through illegal clinics ill-equipped to deal with pregnancy and carry out safe abortions, many times leading to avoidable deaths. Instead of receiving medical help, they will be arrested and face jail sentences. How that would help a child who has no support is anyone's guess. As is the fate of all criminalisation, including HIV transmission or same-sex relationships, the criminalising of the already marginalised causes re-victimisation, leading to adverse health consequences, sometimes even death, which is avoidable. The death of women should be on the conscience of all persons who support Dobbs.
For instance, in the Indian context, LGBT activist Arif Jafar, belonging to a poor community, had to spend 47 days in prison in Lucknow in 2001 after being arrested under Section 377 of the Indian Penal Code. Others from the upper class never had to worry about being held by the police. It is the poor and the marginalised who will be further stigmatized. It is they who will have to suffer the consequences of laws criminalizing abortion.
Similarly, rich women in the United States can travel to other states or other countries like Canada or Latin American countries that allow them to abort. Women who cannot afford to travel to another state in the United States where abortion is legal will have to resort to untrained doctors and physicians with poor facilities, and they have to risk dying. With increased criminalisation, victimisation increases, thereby increasing the chances of death. There is enough data on this globally, but nothing was looked into in the present case (Dobbs), and nobody argued about it. In my opinion, apart from the jurisprudence, the consequences on the ground for women are going to be horrendous.