New Delhi: On Friday, the Supreme Court of the United States (SCOTUS) overturned ‘Roe v Wade’, the 1973 landmark judgement that made abortion a constitutional right.
Examining a challenge to a 2018 Mississippi law that sought to effectively ban most abortions after 15 weeks of the pregnancy, the US Supreme Court – in a 6-3 majority ruling – upheld the contentious ban signed into law by a Republican-majority legislature in the state.
In the absence of a federal law safeguarding the right to abortion, the decision is expected to prompt near-total ‘trigger bans’ on abortion in over a dozen American states.
The majority opinion, authored by Justice Samuel Alito, was endorsed by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett with Chief Justice John G. Roberts Jr concurring. The three judges of the US Supreme Court appointed by Democratic presidents, namely Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, dissented.
“This judgement passed by the US Supreme Court is highly regressive and may impact judgments all over the world,” senior Advocate Rebecca John told ThePrint.
Here, ThePrint explains the SCOTUS judgement overturning ‘Roe v Wade’, what it means for women in the US, laws in India concerning pregnancy and the larger question of bodily autonomy.
What is ‘Roe v Wade’
In 1973, the US Supreme Court struck down a Texas law that banned abortions, except in cases where it was needed to save the mother’s life.
The court, in a 7-2 majority judgement, had held that the right of a woman to terminate her pregnancy was part of her “right to privacy” guaranteed under the Fourteenth Amendment to the United States Constitution.
The ruling paved the way for abortions to be allowed up to the point of foetal viability — in legal terms, this is seen as the point at which the rights of the woman can be separated from the rights of the unborn foetus.
At the time of the ruling in 1973, foetal viability was 28 weeks (7 months). Owing to advancements in medicine, foetal viability is now pegged at 23 or 24 weeks (6 months) in most countries.
Why is the ruling referred to as ‘Roe v Wade’? “Roe” was the listed name of Norma McCorvey, the plaintiff who had challenged the Texas law, while “Wade” is a reference to Henry Wade, the Dallas County (Texas) district attorney at the time who was the defendant in the case.
What majority, minority opinions said
Hearing the case ‘Dobbs v Jackson Women’s Health Organization’ that challenged the 2018 Mississippi law prohibiting abortions except under certain circumstances, SCOTUS has now held that the US Constitution makes no specific mention of a right to abortion.
In a draft opinion leaked to Politico in May this year, Justice Alito had opined that ‘Roe’ must be overruled because it was “egregiously wrong and damaging from the start” and amounted to “an abuse of judicial authority”.
Dissenting judges of the US Supreme Court, in their minority opinion, said that the decision “diminishes women’s opportunities to participate fully and equally in the nation’s political, social and economic life”.
“With sorrow – for this court, but more, for the many millions of American women who have today lost a fundamental constitutional protection – we dissent,” concluded the minority opinion.
The 6-3 majority ruling drew sharp reactions from women across the world, who termed it an attack on their bodily autonomy — the right to take decisions concerning one’s own body.
In a statement she issued on 24 June, former first lady Michelle Obama said: “I am heartbroken for people around the country who just lost the fundamental right to make informed decisions about their own bodies… for the teenage girl, full of zest and promise, won’t be able to live the life she wants because the state controls her reproductive decision.”
“Anyone who can get pregnant must now face the reality that half of the country is in the hands of legislators who believe that your personhood and autonomy are conditional,” said Jia Tolentino, writing on personhood and autonomy in The New Yorker.
Laws in India dealing with abortion
Courts in India have upheld bodily autonomy of women in numerous cases.
The Kerala High Court, for example, held in 2020 that the “right to make reproductive choices is also a facet of her personal liberty as understood under Article 21 of our Constitution”.
In India, the Medical Termination of Pregnancy Act, 1971, allows abortions until 20 weeks of pregnancy. This ceiling was extended to 24 weeks through an amendment last year, but only for certain categories of pregnant women, including rape or incest survivors, with the approval of “registered medical practitioners”.
But this upper limit does not apply if “substantial foetal abnormalities” are detected by a state medical board.
Senior Advocate Rebecca John told ThePrint that while India is better off in terms of laws concerning abortion, there is still a long way to go for Indian women to attain complete bodily autonomy.
“Even in Indian law, termination of pregnancy is not ordinarily permitted unless the woman can meet certain preconditions mentioned in the Act. You can be prosecuted for aborting a pregnancy. There is still a long way to go before women can claim complete autonomy over their own bodies,” she told ThePrint.
Indian courts & individual autonomy
In its 2018 watershed judgement decriminalising homosexuality as defined under Section 377 of the Indian Penal Code (IPC), the Supreme Court had reaffirmed individual autonomy and self-determination as a primary characteristic.
“Autonomy is individualistic. It is expressive of self-determination and such self-determination includes sexual orientation and declaration of sexual identity. Such an orientation or choice that reflects an individual’s autonomy is innate to him/her,” the Apex court had observed.
Another case in point is the SC’s 2018 judgement decriminalising adultery. In its ruling, a three-judge bench of the court had stated that a woman has the right to bodily integrity and individual choice not just against the State, but also within the “home and family”.
Just last month, a two-judge bench of the Delhi High Court delivered a split verdict about whether the exception to ‘marital rape’ in Section 375 of the IPC is constitutional. In his order, Justice Rajiv Shakdher had held the act as unconstitutional, stating that it violated a women’s right to her own bodily autonomy.
Ms. Rebecca John, who also happened to be the court appointed amicus curiae (friend of the court) in this case, reaffirmed the importance of one’s bodily autonomy which has been held to be indispensable by courts.
“Law has evolved and progressed to the extent that even in India, while overturning the law on adultery, the SC said that a man must not think that he is entitled to sexual benefits. It reaffirmed that a woman has complete bodily autonomy over her body and her reproductive organs,” she told ThePrint.
Like in the case of abortion, statutory exemption to rape remains an open question as courts across the world continue to deliberate on individual autonomy and reproductive choices.
(Edited by Amrtansh Arora)