The abortion debate must be couched in equality, not just privacy

The right to privacy cannot be the sole framework through which the abortion debate is navigated. It must concern itself with the right to equality and group-based discrimination.

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WITH the Supreme Court of the United States ('SCOTUS') in Dobbs versus Jackson Women's Health Organisation ruling against a right to abortion, it becomes important to have a look at the right's judicial history and how it had developed. Here, it is argued that the right to privacy cannot be the sole framework through which the abortion debate is navigated. It must concern itself with the right to equality and group-based discrimination.

Also read: U.S. Supreme Court's judgment in Dobbs versus Jackson Women's Health Organization: The reasoning and the takeaways

Tracing judicial decisions

Roe versus Wade (1973) did not stand on firm ground, to begin with. The SCOTUS in this judgment traced the right to privacy to be implicit in the right of ordered liberty, and the right to abortion to be part of this implied right to privacy. The reasoning implies that the U.S. Constitution protects liberty, and decisions that are fundamental to one's liberty are protected by a right to privacy.

The court did not get into an explanation of why the right to liberty might be inadequate to protect those choices that are fundamental to liberty, or to say why it is inherently unique about the right to privacy that it is able to capture what liberty cannot. Further, the court did not conclusively answer where the right to privacy arises from, the protection of liberty under the 14^th Amendment to the U.S. Constitution or the reservation of rights to people under the 9^th Amendment to the U.S. Constitution. The right to privacy is therefore assumed to be offering something that liberty cannot and assumed to be protected under the Constitution, regardless of its source or value. Roe thus stood on flimsy grounds and was headed towards its end from the get-go.

The next judgment in line, Planned Parenthood versus Casey (1992) seems to offer a three-way justification for upholding Roe. First, Roe does not do something significantly different from cases like Griswold versus Connecticut (1965), for they all recognize liberty and the autonomy to make private choices. Second, Roe recognizes a rule of bodily autonomy and integrity and post-Roe, it has been the view that the State must prove why its interest in protecting life must override liberty, which it had failed to do. Lastly, Roe has continuously been affirmed by succeeding cases. However, all three justifications seem to assume the correctness of Roe and seem to be arguments from precedent, not principled reasons.

Roe, through weak reasoning, holds the right to privacy to be implicit in the U.S. Constitution, which goes on to be upheld in Casey. This makes it easy for the SCOTUS to take the right of abortion away in Dobbs. What is interesting to note, however, is that the minority opinion in Casey and the majority opinion in Dobbs seem to mirror each other's reasoning. They both argue that first, Roe gets is wrong when it relies on the right to privacy cases preceding it, for the exercise of the right here concerns the extinguishment of another 'potential life' and thus abortion is something qualitatively different from say, access to contraception (Griswold). Second, for a right to be implicit under the 14^th Amendment, it must be supported by historical tradition, which, in the case of privacy, does not seem to be the case; for states have continued to ban abortion throughout American history.

Also read: Right to Privacy in the United States of America

Given this background, the death of Roe comes as no surprise. Reliance on a weakly developed right to privacy, to carve out a right to abortion in a pro-life America could not have ensured a sustained right to abortion. The next section seeks to answer why.

Equality or privacy

Privacy couches the right to abortion in the framework of negative liberty, where the State must not interfere with the decision to abort; however, given that abortion impacts black bodies, queer bodies, poor bodies, specially-abled bodies and others differently, any interference with the right to abortion impacts the social, economic and political lives of these bodies differently than anyone else.

Privacy does not capture this role of the State, and the sole lens through which it contextualises the debate is one of decisional autonomy in matters of private choices. Any interference with this right to privacy requires the State to show that it has a compelling interest in restricting the right, which in a highly polarized America, is a test that can be easily passed through by the justification that preserving life is a compelling interest.

Equality and group-based discrimination must be the lenses through which the issue is analysed and debated, for the same recognizes that the burden of the State action would be borne by one group exclusively, and the burden on the State is thus higher when it comes to justifying its actions.

Equality recognizes that there is something different about one body and its social conditions that the impact it feels will be inherently unique, and any State action would thus require justification. The hint here is at something close to the strict scrutiny test, where the burden is on the State to show that certain classifications made on suspect grounds – including race and religion, are necessary to achieve compelling interests, and are narrowly tailored. Any State action here would be presumed to be unconstitutional unless the State proves it to be otherwise.

Justice R.B. Ginsburg too, in her critique of Roe argues that the decision had no dimension of sex-based inequality, which could have added to the issue being more fueled than other cases of sex-based inequality that were decided at the time, in favour of women. The equality argument does not erase the dimension of privacy, but rather, as American legal academic Elizabeth M. Schneider argues, the argument is for a 'synergy' between the two.

First, equality recognises that the issue is specific to bodies that bear children; and the social and economic condition of these bodies is generally, to their disadvantage. Second, due to the impact of the law on these bodies, their concerns gain primacy over social morality, and the role of the State is to uplift their social and economic conditions to help them move towards independent decision making. Third, privacy becomes the tool through which these bodies then exercise choices, once the State has fulfilled its obligation to create the conditions for the exercise of that choice.

To make it less abstract, in Navtej Singh Johar & Ors. versus Union of India (2018), the Indian Supreme Court recognised that the challenge against Section 377 of the Indian Penal Code is not about the right to participate in private sexual acts, but rather against a law that treats homosexuals differently from heterosexuals, and thus attacks their dignity and freedom of self-expression. An attack on the right to abortion similarly impacts pregnant bodies and impacts not just their choice to carry a child, but all aspects of their life, including their economic decisions.

Also read: Equality – Jurisprudential interest resurrected

The debate in India

In Suchita Srivastava & Anr. versus Chandigarh Administration (2009), the Indian Supreme Court held the right to abortion to be part of the guarantee of personal liberty under Article 21 of the Constitution of India, and crucial to women's right to privacy. Last week, the Supreme Court held that abortion under the Medical Termination of Pregnancy Act, 1971 is available to unmarried women as well, for the legislation intended for the same to be the case. Not allowing a woman the right to abortion is an attack on her personal freedom, as per the court.

The Indian Supreme Court thus remains within the framework of privacy while adjudicating on the issue of abortion. This means that abortion becomes the issue of solely women whose decisional privacy is being hampered; queer bodies are removed from the discussion, for the way abortion is currently connected to privacy is through the homogenous, gendered category of a woman.

Further, decisional privacy captures the question of abortion as merely the extension of privacy within a person's sexual life, the right to decide on the consequences of your private sexual acts. It does not give us an answer to why only the body bearing the child gets to choose. That can only be captured through equality – taking the right to abort away is an attack on a person's freedom because it affects their social, economic and political life exclusively. The current vocabulary of private choices does not capture this element.

Also read: When will abortion become a right for every pregnant person?

The framework of equality and discrimination thus grounds the debate on abortion within the premises that there is some impact that is felt only by bodies that undergo pregnancies and the State has a positive duty to protect them, which a weakly developed right to privacy does not capture. The latter is a right to be let alone, within a sphere of decisional autonomy, which might not be available to certain groups to begin with.

Privacy captures the relationship between the State and the citizen through the framework of negative liberty; where the citizen must be left alone. However, equality recognizes the intersectional nature of disadvantage, and captures the relationship between the State and the citizen in the framework of positive liberty, with the burden being on the State to alleviate that disadvantage. The right to abortion is thus much more than a case about private choices and must be seen to be so.