Abortion is dead, long live the foetus

The conch shell for the battle for women's rights, queer rights, and human rights has been sounded, and the Supreme Court of the United States has made it evident which side it is on.

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NEARLY half a century ago, in what was called the Manifesto of 343 Sluts which was a declaration signed by 343 women that they had an abortion, French existentialist philosopher, writer, social theorist and feminist activist Simone de Beauvoir wrote "Free abortion on demand is not the ultimate goal of women's plight. On the contrary, it is but the most basic necessity, without which the political fight cannot even begin." But we remain in the 21^st century, fighting once more for the rights of women over their own bodies as the Supreme Court of the United States ('SCOTUS) decided last week in the case of Dobbs versus Jackson Women's Health Organisation that there is no constitutional right to abortion in the U.S.

In a previous piece for The Leaflet, I had traced how any ban on abortion will have more effect on people of colour, and examined the repercussions of the criminalisation of abortion in the wake of the leaked draft in Dobbs.

A few weeks later, most of our nightmares have come through. The SCOTUS has overruled two landmark cases (Roe versus Wade (1973) and Planned Parenthood of Southeastern Pa. versus Casey (1992)) and held that there is no constitutional right to abortion. The purpose of this article is to analyse the majority opinion written by Justice Samuel Alito, the concurring opinion by Justice Clarence Thomas, and the dissenting opinion jointly written by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan.

Since U.S. political news website, POLITICO first published the leaked draft in May, a Syllabus has been added to the judgment. The syllabus, which runs into eight pages and is uncharacteristically long, now provides an insight into how the decision was arrived at. The syllabus tells us that the court considered five factors in arriving at its decision— "the nature of the Court's error," "the quality of the reasoning," "workability," "effect on other areas of law" and "reliance interests." In the syllabus, the court also sought to deal with three legal issues:

(1) First, the Court reviews the standard that the Court's cases have used to determine whether the Fourteenth Amendment's reference to 'liberty' protects a particular right. …"

"(2) Next, the Court examines whether the right to obtain an abortion is rooted in the Nation's history and tradition and whether it is an essential component of 'ordered liberty.' …"

"(3) Finally, the Court considers whether a right to obtain an abortion is part of a broader entrenched right that is supported by other precedents. …"

In the wake of the decision, trigger laws which were in place in 18 states have come into effect, affecting approximately 40 million people. These laws affect the black and brown, disabled, and queer communities more than they do to their white, cisgender heterosexual counterparts. Not only are black women more likely to suffer from prosecution if they miscarry, but due to systemic racism, they have poorer access to healthcare and are more likely to miscarry. Additionally, studies have shown that lesbian youth are 10 times more likely to get pregnant than their heterosexual counterparts. Similarly, bisexual women are at a higher risk of sexual assault which may result in pregnancy. LGBTQ youth are also likely to suffer from unintended pregnancies on account of 'camouflage sex' indulged in to avoid persecution for their sexual orientation and gender identity, according to Oregon's Department of Public Health. Since the decision leaves it up to the states to regulate abortion, abortion laws in the U.S. will vary state-wise. In this piece, I will analyse the three opinions mentioned earlier, and look at what it means for the future of the SCOTUS.

But first, the facts. In 2018, Mississippi passed a statute called the Gestational Age Act which prohibited any abortion (save a few exceptions) after 15 weeks. The only licensed abortion clinic in the state, Jackson Women's Health Organization filed for a temporary restraining order. After a hearing, the district court injuncted the statute and held that the state had not provided sufficient evidence to show that the foetus would be viable at 15 weeks. This decision was appealed before the 5^th Circuit, which affirmed the district court judgement. The constitutional validity of the statute thus came up in question before the Supreme Court. As the Syllabus notes, the court held that "[t]he Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives."

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

Turning stare decisis on its head: The majority opinion

In overturning nearly 50 years of precedent, the Supreme Court held, by a 6-3 majority, that Roe was "egregiously wrong and on a collision course with the Constitution from the day it was decided". Justice Alito's scathing critique of the decision states that "(Roe) imposed the same highly restrictive regime on the entire Nation, and it effectively struck down the abortion laws of every single State". As I noted above, the SCOTUS, while granting the hearing, had limited itself to a single question: "Whether all pre-viability prohibitions on elective abortions are unconstitutional?

Alito's decision is fuelled by textualism, a jurisprudential school of thought that law is determined by the original meaning attributed to the text. He holds that Roe "was remarkably loose in its treatment of the constitutional text. It held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned." If rational basis and legitimate State interests are served, any law which prohibits pre-viability abortion must be upheld as constitutionally valid. He talks about some of these interests as "respect for and preservation of prenatal life at all stages of development," "maternal health and safety" and "the integrity of the medical profession", and the "mitigation of foetal pain." The court held that these interests were sought to be protected by the Mississippi statute and it was thus upheld.

Strangely, the court seems to defend itself by holding that by divesting the power to regulate abortion back to the states, the decision allows women to affect legislative process, run for office and even lobby senators. So, while taking away the choice from women over their bodily autonomy and failing in its constitutional duty, the judges in the majority put the onus on women to re-secure the rights which they have taken away.

A major talking point regarding the judgment is the future of other rights which were read into the United States Constitution through the Substantive due process clause. Though Alito clearly states in his opinion that that this does not affect any other right other than the right to an abortion, Thomas' opinion, which I discuss in the next section, points towards a bleak future.

Also read: Dobbs should not be considered as a precedent anywhere, says Anand Grover, Senior Advocate, Supreme Court

A future collapse of rights?

In what I think is intellectually dishonest, both Alito's majority opinion and Justice Brett Kavanaugh's concurrence, clarify that this decision does not endanger other rights which the SCOTUS has recognized, including those of same-sex marriage, contraception, and even interracial marriage. Kavanaugh is quite clear in his opinion that, "Overruling Roe does not mean the overruling of those precedents and does not threaten or cast doubt on those precedents."

But there are cracks in the court on political lines which are quite evident on reading Kavanaugh's opinion. He argues that the minority dissent which proclaims that these rights could be next on the chipping block is "designed to stoke unfounded fear that our decision will imperil those other rights." Never before has such an accusation been made by one SCOTUS justice about another, much less in an opinion.

However, a perusal of the concurring opinion by Thomas shows that he not only calls for revisiting Obergefell versus Hodges (2015), which legalised same-sex marriage and Griswold versus Connecticut (1965), which provided access to contraception to married couples, but overturning those precedents as well. This should be understood to cast doubt on precedents that do not concern abortion." He writes, "[I]n future cases, we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence [versus Texas (2003) — a landmark judgment invalidating anti-sodomy laws] and Obergefell… Because any substantive due process decision is 'demonstrably erroneous,' we have a duty to 'correct the error' established in those precedents."

A mere revisiting would be problematic in itself, but Thomas goes a step ahead and argues that these should be overturned. "After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated."

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

An appeal to the brooding spirit of the law: The scathing dissent and crisis in the court

Having read a fair number of decisions of the SCOTUS, I am of no two minds that this is perhaps the most scathing dissent ever written. It argues that the court reduces women to a second-class citizenship and questions the reasoning of the majority opinion. Breyer, Sotomayor and Kagan rip the majority opinion to shreds and argue that, "Whatever the exact scope of the coming laws, one result of today's decision is certain: the curtailment of women's rights, and of their status as free and equal citizens. … It says that from the very moment of fertilization, a woman has no rights to speak of". They make bare that the decision shifts merely because the composition of the court has changed. In so doing, the three justices indirectly question the legitimacy of the decision, and by extension that of SCOTUS itself.

Taking note of Thomas' concurring opinion, the dissent augurs for a broader collapse of rights. It states, "Either the mass of the majority's opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other. …we cannot understand how anyone can be confident that today's opinion will be the last of its kind."

For the sake of human rights, rights of women, and the SCOTUS, one hopes that this dissent was "an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed."

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

What next?

American professor of constitutional law and bioethics Dr. Michelle Goodwin, in a recent New York Times piece, wrote "It is no hyperbole to say that the Supreme Court's decision in the Dobbs case is in league with some of the darkest rulings — Plessy v. Ferguson, which opened the floodgates to "separate but equal" laws that ushered in Jim Crow, and Buck v. Bell, which sanctioned states' eugenics laws permitting forced sterilization of poor women." In states which have passed trigger laws that criminalise and ban abortion or those that will do it soon, any foetal death past the cut off period will be liable to be investigated as a crime. Even if found not guilty, the process will turn into punishment for BIPOC, queer, and disabled communities.

Whether the United States goes into a pre-Roe era or will the right of women and their bodily autonomy be protected by the U.S. federal government remains to be seen. But the conch shell for the battle for women's rights, queer rights, and human rights has been sounded, and the SCOTUS has made it evident which side it is on. How many lives will this battle claim? Who will be the prisoners of war? Will both sides fight fairly? These are the questions that will be answered in the coming weeks, months, and years. But one thing is clear: like in every battle, innocent lives will be lost.