IMPACT OF OVERRULING ROE V. WADE
“The 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.”1
With these words, the Supreme Court of the United States (“SCOTUS”) speaking through Hon'ble Mr. Justice Samuel Alito ended the constitutional protection granted to a woman's right to terminate her pregnancy. On 24th June, 2022, the SCOTUS over-ruled their long standing judgment in Roe vs. Wade2 which had upheld a woman's right to have an abortion until the fetus became viable (usually 24-28 weeks after conception). It was also held that this right was based on the ‘Right to Privacy' enshrined in the Fourteenth Amendment to the Constitution of the United States.
The judgment of the SCOTUS in Dobbs vs. Jackson arose out of a challenge to the Gestational Age Act (Mississippi)3 which banned the act of abortion after fifteen weeks into pregnancy, except in the case of medical emergency or fetal abnormality. The sole abortion clinic in Mississippi – Jackson Women's Health Organization challenged the legislation. The U.S. District Court for the Southern District of Mississippi as well as the Fifth Circuit Court of Appeals upheld the challenge and ruled that such legislation flies in the face of the law laid down in Roe v. Wade. 4 It was held that the issue of prohibitions/bans on the right of a woman to abort a fetus prior to viability was already decided by the SCOTUS, and States could not pass any legislation contrary to the judgment in Roe v. Wade. The State of Mississippi then challenged the decision of the Fifth Circuit Court of Appeals before the SCOTUS.
The SCOTUS overruled the judgment in Roe v. Wade which had formed the basis of the estoppel on States to pass legislations banning abortion. The reasoning behind such overruling is that there was no history of permitting abortion through legislations and that the conclusion of including the ‘right to abort' within the ‘right to privacy' amounts to judicial overreach. The majority opinion in Dobbs vs. Jackson was based on inter alia, the following reasoning:
“The Constitution makes no express reference to a right to obtain an abortion, but several constitutional provisions have been offered as potential homes for an implicit constitutional right…The Court finds that the right to abortion is not deeply rooted in the Nation's history and tradition…Until a few years before Roe, no federal or state court had recognized such a right. Nor had any scholarly treatise. Indeed, abortion had long been a crime in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages.. This consensus endured until the day Roe was decided. Roe either ignored or misstated this history, and Casey declined to reconsider Roe's faulty historical analysis.”
To understand the magnitude of the over-ruling, it is apposite to pay heed to the impact that the judgment in Roe v. Wade had over the law governing abortion and the larger sphere of law on privacy.
The judgment of the SCOTUS in Roe v Wade arose out of a challenge to the laws governing abortion in Texas. The SCOTUS, speaking through Hon'ble Mr. Justice Blackmun held that the right of a woman to choose whether or not to abort the fetus is an intrinsic part of the ‘right to privacy'.
“This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved….. We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.”
Thus, in 1973, the SCOTUS created a constitutionally protected right to ‘choose'. The judgment had a far-reaching impact because it propounded that the foremost condition in passing legislations related to abortion should be women's health and autonomy. The highest level of constitutional protection was granted to a woman's right to make decisions about her pregnancy. Due to this judgment, several subsequent legislations prohibiting abortion failed to pass the constitutional muster and the right to choose rested solely with the woman conceiving the child and not the State.
The judgment in Roe v. Wade also sparked an inevitable debate on State interference with the right of privacy of its citizens. Apart from the political debates surrounding ‘abortion' , the judgment serves as a cornerstone in defining right to privacy and its supremacy over State action and surveillance. The judgment has had a significant impact on developing jurisprudence surrounding judicial activism and right to privacy. Arguably, the discourse on ‘right to privacy' in India has also been influenced by the decision of the SCOTUS in Roe v. Wade which has been relied upon to hold that although the right to privacy is not absolute, other rights (such as the right to choose) are covered under the term ‘privacy' and any unwarranted interference with such rights by the State amounts to violation of the citizens' constitutional rights. [Ref: Govind vs. State of Madhya Pradesh & Ors5. ; R Rajgopal & Ors. vs. State of Tamil Nadu & Ors.6 ; Binoy Viswam vs. Union of India7]
Interestingly, the impact of overruling Roe v. Wade, has been described best in the dissenting opinion of Dobbs v. Jackson authored by Hon'ble Justice(s) Breyer, Sotomeyer and Kagan. It has been observed that the overruling of Roe v. Wade will not only have an adverse impact on a woman's right to terminate pregnancy, but also the legislative intent which was mandated to give priority to women's health and autonomy while framing such legislations.
“The right Roe and Casey recognized does not stand alone. To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation…Either the mass of the majority's opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other…..The majority would allow States to ban abortion from conception onward because it does not think forced childbirth at all implicates a woman's rights to equality and freedom. Today's Court, that is, does not think there is anything of constitutional significance attached to a woman's control of her body and the path of her life.”
It has also been observed in the dissenting opinion that the right to terminate pregnancy arises out of the right to obtain contraception. Hence, after Dobbs v. Jackson, the extent of State interference in laws governing obtaining contraception methods also remains to be seen.
It has been made apparent that by overruling the judgment in Roe v. Wade, it is the intrinsic right of a woman to choose that has been impacted. Arguably, Dobbs v. Jackson has propounded that instead of being guided by the autonomy, health, quality of life, legislations should be guided by the historical considerations and importance given to the above by erstwhile legislations. The decision would have a far-reaching impact on the legislations which the Federal States would be at liberty to pass without being curtailed by the considerations laid down in Roe v. Wade.
Nevertheless, it is pertinent to take note of the concluding remarks in the dissenting opinion. The purport of the decision in Roe v. Wade was for all intents and purposes way beyond the ‘right to terminate pregnancy', which was that autonomy to take decisions pertaining to your own body is embedded in the Constitution of the United States. The SCOTUS had interpreted the Constitution in a manner which encompassed elements of such autonomy and right to choose within its fold, which is a plea that the dissenting opinion has resounded. It has been held that:
“The Framers (both in 1788 and 1868) understood that the world changes. So they did not define rights by reference to the specific practices existing at the time...…. Whatever was true in 1868, “[i]t is settled now, as it was when the Court heard arguments in Roe v. Wade, that the Constitution places limits on a State's right to interfere with a person's most basic decisions about family and parenthood. And that conclusion still held good, until the Court's intervention here… The Court's precedents about bodily autonomy, sexual and familial relations, and procreation are all interwoven—all part of the fabric of our constitutional law, and because that is so, of our lives. Especially women's lives, where they safeguard a right to self-determination… the Court held, those choices belong to the individual, and not the government. That is the essence of what liberty requires.”
Therefore, while the constitutional protection to the ‘right to terminate pregnancy' has been revoked and the issue has been left to federal stage legislature, the constitutional protection to bodily autonomy and the unfettered right granted to a woman to choose what happens to their body, should still continue to be a guiding consideration for any proposed legislations.
Footnotes
1 Dobbs, State Health Officer Of The Mississippi Department Of Health, Et Al. V. Jackson Women's Health Organization Et Al.19-1392, 597 U.S. ___ (2022)
2 410 U.S. 113 (1973)
3 2018 Mississippi Code.
4 https://edition.cnn.com/2019/12/13/politics/mississippi-15-week-abortion-ban-struck-down/index.html
5 (1975) 2 SCC 148
6 (1994) 6 SCC 632
7 (2017) 7 SCC 59
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