Overruling Roe vs Wade will mean the death knell of reproductive rights

A coercive and punitive framework that seeks to limit access to abortion for pregnant persons should find no place in modern liberal democracies.

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"WHAT'S at stake in this case matters to the countless girls and women who have been raped — including those who, like me, were raped by a father, an uncle or another family member. … As a survivor of childhood rape and pregnancy — and today a law professor who teaches constitutional law and bioethics — I recognize the grave dangers of the current crop of abortion bans." Thus wrote American legal academic Michele Goodwin, Chancellor's Professor at the University of California, Irvine in a powerful New York Times op-ed titled I Was Raped by My Father. An Abortion Saved My Life. This was written in light of the SB 8 bill of Texas and the hearings at the United States Supreme Court in Dobbs versus Jackson Women's Health Organisation, which has been in the news for a leaked draft opinion published by American political news website POLITICO. Since then, abortion rights have been under threat in the United States.

Abortion is a fairly common practice and according to the World Health Organization, there are 73 million abortions annually across the world, out of which 45 per cent are unsafe. Making abortion illegal will not stop abortions, but merely make them unsafe and threaten maternal health.

Last week, a leaked draft of United States Supreme Court opinion in Dobbs written by U.S. Supreme Court Justice Samuel Alito that could potentially overturn Roe versus Wade, a landmark 1973 decision of the U.S. Supreme Court that legalised abortion across the United States, has been the centre of legal and feminist rights movement across the United States and the world. Arguing that Roe was 'egregiously wrong', Justice Alito wrote: "We hold that Roe and Casey must be overruled…It is time to heed the Constitution and return the issue of abortion to the people's elected representatives." POLITICO also reported that Justice Alito was joined in his opinion by four other conservative judges: Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett

In this article, I will contextualise what Roe meant for bioethics, and more importantly, feminist bioethics, and what would happen, should the U.S. Supreme Court overturn Roe in its final opinion.

Also read: Everything you need to know about the leak of draft opinion of U.S. Supreme Court to annul abortion right

State interest and chipping away at Roe

In 1970, an unknown and unmarried American woman, Jane Roe wanted to safely end her pregnancy, but was prohibited to do so by a Texas law that mandated that no pregnancy could be terminated unless the mother's life was in danger. She sued the Texas Attorney General, Henry Wade, and argued that the Texas law was vague and violated her rights under the First, Fourth, Fifth, Ninth, and Fourteenth Amendments of the U.S. Constitution.

On January 22, 1973, the U.S. Supreme Court pronounced its decision in favour of Roe and struck down the Texas law. In its ruling, for the first time in U.S. constitutional history, there was a recognition of the constitutional right to privacy that was "… broad enough to encompass a woman's decision whether or not to terminate her pregnancy", and was inherent to the Fourteenth Amendment. In a 7-2 majority opinion written by Justice H.A. Blackmun, the court held that although the State had legitimate interests in protecting the health of pregnant women and the potentiality of human life, the interest varies over time and the law must account for that. Simply put, the court held that there is an absolute right of the woman to abort in consultation with her doctor without interference by the State in the first trimester; the second trimester allowed for reasonable restrictions to protect maternal health; and once the pregnancy reaches the final trimester, the State can prohibit abortions unless there is a threat to the life of the mother.

Since the day it was pronounced, Roe has been consistently under attack, and the scope has been getting narrower and putting the rights of pregnant persons consistently under threat, even at the cost of their health. It might be pertinent to look at how the U.S. Supreme Court has gradually chipped away at what was perhaps one of the most progressive feminist judgements of its time.

In 1992, in Planned Parenthood of Southeastern Pennsylvania versus Casey, the U.S. Supreme Court held that any restrictions on abortion which place an "undue burden" on a woman seeking an abortion before the foetus is viable, are unconstitutional. Fifteen years later, in Gonzales versus Carhart, the court upheld a federal statute of 2003 called the Partial-Birth Abortion Ban Act, which prohibited an abortion procedure called an intact dilation and evacuation. Nearly a decade later, in 2016, in Whole Women Health versus Hellerstedt, the court struck down two provisions of a Texas law requiring abortion clinics to meet certain engineering standards and admission privileges for doctors, arguing that they place an undue burden. In 2020, in the case of June Medical Services L.L.C. versus Russo, the court struck down a similar Louisiana statute.

This brings us to the case in question, and the leaked opinion in Dobbs. The single issue before the court is this: are all pre-viability abortion bans unconstitutional? This leaked decision declares them constitutional, and pushes America into the dark ages for reproductive rights and feminist movements.

Also read: Abortion in India – still not a right but a privilege

Bioethics of abortion

Abortion has far-reaching implications, and is often a ray of hope for victims of rape, incest or even persons who simply do not want to get pregnant. The leaked decision threatens the fundamental right to bodily autonomy.

Before I delve into what this means for the feminist movement and feminist bioethics in general, there is some merit in looking at the bioethics of abortion. Abortion is perhaps the most hotly contested bioethical issue, with constant debate between the right of the foetus and the pregnant person. At a simplified level, conservatives argue that life begins at conception, and thus, the moral status of the foetus is at par with that of the pregnant persons and their rights are equal. Liberals and feminists, on the other hand, do not deny that the foetus is biologically human, but with lesser moral status. Thus, in case of conflict, the pregnant person's rights take precedence over those of the foetus. There are more nuanced arguments on the politics of abortion, but I will not go into them here.

Two philosophical debates surround abortion, and the ethical conundrum between the right to life of the foetus and the autonomy of the pregnant person. Early philosophical treatises, such as American philosopher Judith Jarvis Thompson's essay A Defence of Abortion and the work of American philosopher Laura M. Purdy, argue that these are women's rights and women themselves are objects and subjects of ethical dilemmas. For that reason, abortion is a woman's right. Recent radical feminists like American legal scholar, activist and author Catherine A. McKinnon, whom I find myself agreeing with, posit that abortion is simply a debate of pleasure derived from intercourse without the fear of an unwanted pregnancy. She argues that the scales of the world have always been tilted in favour of men, and sex is no exception.

However, a bioethical reading of the decisions cited above will show that the U.S. Supreme Court makes a case for State interference in the private lives of women and regulating their bodily autonomy. There is no justification for the State to interfere as the Dobbs draft decision does by outlawing all forms of abortion. Who should govern bodies? How do we govern the bodies of pregnant persons? What interest should the State have in pregnancy? These are amongst a litany of questions that have been raised in recent times as the world grapples, once again, with issues surrounding choice, abortion rights and reproductive justice. I would argue that a pregnant woman and her foetus should never be considered separate legal entities, much less as adversaries in litigation surrounding pregnancies. The right of an individual to make decisions about their bodies should be absolute, and these rights should not be subject to the whims and fancies of judges, much less of the legislature that is hardly representative of the demographics that it claims and seeks to represent and consisting predominantly of cisgender, heterosexual white males.

A coercive and punitive framework that seeks to limit access to abortion for pregnant persons should find no place in modern liberal democracies. I will argue that there are two reasons for this – first, that such a ban will disproportionately affect immigrants, transgender persons, people with disabilities and immigrants; and second, that there will be pregnant persons dying because of this ban. These bans will violate equal protection clauses under the American Constitution as they affect people of colour, people with disabilities, immigrants, and transgender persons more than they do their white cisgender heterosexual counterparts.

Also read: The Texas 'Heartbeat Bill': A Blow to Abortion Rights in the U.S.

Activists have long argued that abortion rights are subject to socio-economic determinants. Studies by the American national public health agency, the Centers for Disease Control and Prevention in 2019 show that black and Hispanic women have the highest rates of abortion, and thus, this ban will affect them more. Add to this, the already dismal state of healthcare for black and brown people in the U.S., and this will have a chilling effect on the reproductive rights of already disadvantaged populations.

Secondly, in some cases such as ectopic pregnancies, pregnancy is more dangerous than death. Studies have shown that the bans that are sweeping across the United States could lead to a drastic 21 per cent increase in pregnancy-related deaths. There is an urgent need to repeal laws that seek to criminalise access to abortions and contraception, to ensure that abortion rights are firmly rooted in a rights-based framework to protect the right to free and accessible abortions.

A manifesto to guide the future of activism and bioethics which seeks to ensure the protection of these rights must ensure that it is cognizant of crucial factors in access to abortion such as race, class, caste and gender. It must strive towards ensuring that people across communities have equal and unhindered access to abortion. There is a need for an urgent movement-building rooted in reproductive justice frameworks focusing on policy advocacy, research and legal challenges to laws that seek to limit the dearly held bodily autonomy of pregnant persons. As American author and social activist bell hooks wrote, "Feminist focus on reproductive rights is needed to protect and sustain our freedoms."

Also read: This is for you, Savita: Ireland's referendum legalising abortion is the fruit of decades-long feminist struggles

What Dobbs could spell out for other hard-won rights

As I conclude this article with over five decades of precedent being potentially overturned, I am reminded of what American jurist, philosopher and U.S. constitutional law scholar Ronald Dworkin wrote in 2007 against the backdrop of the Carhart decision, "We must now regard all these decisions as vulnerable to reconsideration and reversal in the next several years as the fiercely conservative justices set out to rewrite American constitutional law without much caring about the logic of the arguments they use to do so."

The decision does not end with Dobbs, but there are far more sinister implications for the right to privacy in Justice Alito's opinion. The opinion criticises multiple other rights that are derived from the right to privacy, including those of interracial marriage, the legality of same-sex marriage and the decriminalisation of same-sex relationships. All of these were read into the U.S. Constitution by the U.S. Supreme Court in various judgments through the right of privacy, of which Roe was the foundational stone.

The future seems bleak, but one hopes that better sense prevails over the U.S. Supreme Court and this draft opinion remains a draft, and that the U.S. Congress protects the right of the women to do as they please in recognition of their bodily autonomy should the draft be the final opinion. Abortion is a fundamental human right that needs to be recognised and access to it must be ensured in an accessible, inclusive, non-discriminatory and rights-based framework.

Note: In some places, I use the term 'mothers' because the Court decisions use the term 'mothers'. There is a need to understand that pregnancies are possible for people across genders, and the term pregnant persons should be used now.