Author: Sarthak Chugh, pursuing BLS.,LL.B. from Vivekanand Education Society’s College of Law (VESCOL)
Introduction
This article aims to give a picture of how the situation in the United States of America might look like if the landmark case which guaranteed the right of abortion is overturned by the Supreme Court of The United States (SCOTUS)
A brief history of abortion rights in America
America has had a fraught relationship with abortion rights for decades. As a recently independent country, facing a lot of internal issues in the eighteenth century, the colonies made use of several aspects of Common Law which, at the time, allowed and even encouraged abortion.
However, the Malicious Shooting or Stabbing Act of 1803 also known as Lord Ellenborough’s Act (See Here) declared the performance of an enforced abortion as an offence, penalized with the death penalty.[i] Several other laws act and the general political shift towards conservatism saw 30 states make abortion completely illegal, which included rape and incest cases. It was highly impossible for women from these states to seek abortion unless they had the time, money and the ability to consult with physicians from other states where the act was legal.
Changes brought about by Roe v Wade and Planned Parenthood v Casey
After decades of protests, demands and judicial litigation to bring about a change, the landmark case of Roe v Wade was brought before the Supreme Court of the United States (hereafter referred to as SCOTUS). The facts of the case were such that Norma McCorvey (under the alias of Roe) filed a case against the Dallas County District Attorney, Henry Wade. The federal action was filed to make safe abortion a legal right. SCOTUS, in 1973, decided in a 7-2 ruling that under the rights guaranteed by the Fourteenth Amendment to the United States Constitution, which states that no state shall deprive any person of life, liberty or property without due process of the law, every woman has the constitutionally guaranteed right to abort the unborn child.[ii]
This judgement was historical and was followed by the equally landmark ruling in the 1992 judgement of Planned Parenthood v Casey, with the SCOTUS opining that abortion cannot be outlawed until the fetus reaches viability. Viability is referred to as the ability of the fetus to live outside the mother’s womb and is generally attained around the 24th week of gestation. These two rulings created a foundation for women to have their natural and human rights protected without the unduly intervention of the State. But as is so often the case, there were contrary steps taken to limit and even erode the rights. These steps were taken mostly from the two other branches, that is the Legislature and the Executive, in several states across the country.
The two recent issues that are challenging the precedents set earlier
In the past few months, there have been a couple of issues that have been raised to effectively counter the precedents set by the two earlier judgements. The first issue is the bill that is passed by the Texas State Legislature, often referred to as SB-8, which has made provisions to make it not only illegal to get an abortion after the sixth week of pregnancy but also allowed any individual to sue another individual or a corporation which provides abortion after the legal time limit. This piece of legislative bill is not only against a well-established stare decisis but also against the very basic human rights that every individual is enshrined with.
The second issue is the sub-judice matter of Dobbs v. Jackson Women’s Health Organization which has just recently concluded its oral statements. This case, from the state of Mississippi, has gone further than a legislative bill and aims to overturn the two landmark cases. The petitioners aim to make any abortion illegal after the fifteenth week of pregnancy.
The American judiciary, contrary to the one in our own country, is a complex and largely politicized one. The Justices of SCOTUS are appointed by the discretion of the President, transcending the boundary between the independence of the judiciary and the separation of powers. The 45th President of the United States, Mr Donald Trump, had the esteemed responsibility of appointing three justices in the four years that he held office. Undoubtedly, each of those three Justices that Trump appointed was Conservatives which makes a 6-3 partisan split of all of the nine Justices, in favor of the Conservatives. This is being seen as one of the most important factors that could change the fate of America by overturning Roe.
The consequences of overturning Roe v Wade
Although one cannot predict all the consequences that could arise but statisticians, health experts, lawyers and human rights activists have predicted these circumstances should Roe be overturned or its use is diluted.
1. If the Justices in the Dobbs v Jackon Health case return a verdict to overrule Roe, then at least twenty-two of the fifty states of the USA would immediately either completely ban abortions or keep the legal limit abysmally low. Something akin to this is already in the works in Texas, as mentioned previously about the Bill.
2. Two extensive studies show that women from a low socio-economic background would struggle to travel to a state providing abortion, find childcare and the burden of missing work. The second study, an extension of the first, points out a statistic that says that making the long journey to another state would reduce the chances of getting a successful abortion by 40% [iii]
3. From the legal perspective, it would be detrimental to women carrying the fetus as it goes against several fundamental rights that they have solely on the basis of them being an individual. It not only violates the 14th Amendment of the United States Constitution but also Articles 3 (Right to life and liberty), 12 (No interference with privacy) and 25 (Adequate standard of living) of the Universal Declaration of Human Rights, of which the USA is a signatory.
4. Finally, a ban on abortions in totality or keeping the legal time too small creates room for increased illegal abortions which are not only dangerous and unsafe for the woman carrying the fetus but also a commission of a federal offense.
What could the Congress or the State Legislatures do if Roe is overturned or diluted?
If the Supreme Court of the United States overturns Roe v Wade or substantially dilutes it, it is well established how almost half of the total states could make it completely illegal to get an abortion. In this scenario, there will be tremendous pressure on the Congress (the collective term for the House of Representatives and the Senate; the Legislative wing) and the State Legislatures of those states which wish to protect the human right to initiate and pass legislations in favor of the women carrying the fetus.
American politics is heavily partisan in nature and while the Democrats enjoy majority in the White House and Congress, there are still many states that could hamper and hinder the progress or proposals that the Federal Government passes.
The most immediate and necessary step that Congress and the State Legislatures should take is to increase the social safety policies to ensure that all those women who have been forced to deliver the baby are not facing serious poverty or starvation or destitute conditions of living. The right to choose what one does with their body is not only a fundamental right but also a human right that should not be denied to an individual merely because of partisanship. Moreover, it will be a wake-up call for judiciaries around the world to learn from the issues at stake in the sub-judice case of Dobbs v. Jackon Women’s Health and to ensure that the rights of each and every person is maintained and upheld. [iv]
The reasons why the situation looks so legally and socially disturbed
One might wonder how a country like the United State of America has come on the precipice of denying the basic rights of life and livelihood to people. The problem is not despite the aforementioned reason but because of it. As we all are well aware, the law is an intricate process of interpretation. While many may interpret the freedom to live life with dignity as the reason abortion should be legalized, certain lawmakers, judges and political commentators are of the opinion that abortion should be made unlawful or extremely difficult to achieve as it ceases the right to life of the fetus. Furthermore, the same people who advocate for the right to life of every individual, whether born or still a fetus, are those who advocate for the health of the woman carrying the fetus. These two reasons are being held as the epitome of denying the legality of abortion.
Conclusion
The article aimed to provide a brief overview of the entire situation and tried to emphasise the importance of preserving the rights and freedom of every individual. The assumptions would turn into certainties once the Justices of SCOTUS reach a majority verdict, expected next year.