New Delhi: The Supreme Court of the United States of America (SCOTUS) Friday overturned with a 6:3 majority the landmark 1973 judgement in ‘Roe v. Wade’, that made abortion a constitutional right in the US.
While the majority opinion asserted that the “right to abortion is not deeply rooted in the Nation’s history and tradition”, the dissenting judges lamented that the decision would result in “the curtailment of women’s rights, and of their status as free and equal citizens”.
The decision gives individual states the choice of banning or allowing abortions. It is estimated that legislatures in 22 states would “almost certainly” move to ban or substantially restrict access to abortion.
Thirteen US states also have “trigger laws”, which were implemented in anticipation of Friday’s ruling. These were designed to automatically go into effect on overturning Roe v. Wade, and all of these greatly restrict access to abortion.
But, let’s look back and find out who was Roe and who was Wade in the case that has now been overturned. What did the verdict say and how its overturning will affect women across the US.
The ‘Jane Roe’ in Jane Roe, et al., v. Henry Wade, was reportedly the pseudonym used by a Dallas waitress named Norma McCorvey who filed a lawsuit challenging a Texas law that prohibited abortions except to save the mother’s life. When she first filed a case at a federal district courthouse in Dallas in March 1970, she was 22, and five months pregnant. The case named Henry Wade, the district attorney charged with enforcing Texas’ abortion laws, as the defendant.
As per reports, when McCorvey filed the case, she was just hoping for a quick abortion and had no inkling that she was lending her pseudonym to a case that would be debated and discussed across the world for decades to come. By the time she won her case in 1973, she had already given birth and given her child up for adoption.
However, McCorvey is also often considered an enigma and a “complicated protagonist” in a landmark case. While she kept her identity a secret for a few years, she began publicising her story in the 1980s and advocated for the right to choose for about 15 years.
But sometime around 1994-1995, she had taken an abrupt about turn, claiming to have become a born-again Christian and campaigned fiercely against abortions.
Months before her death in February 2017, she yet again changed her mind and claimed that she was paid to switch sides. In a documentary released in 2020, she was quoted as saying, “I took their [anti-abortion advocates’] money and they put me out in front of the cameras and [told] me what to say.”
Also read: What US Supreme Court’s decision to overturn ‘Roe v Wade’ means for ‘bodily autonomy’ of women
What did the Roe v. Wade judgment say?
The judgment, pronounced on 22 January 1973, ruled that abortion should be allowed up to the point of foetal viability — i.e., the time after which a foetus can survive outside the womb. At the time of the judgment, foetal viability was around 28 weeks (7 months). However, with advances in medicine, this threshold has come down to about 23 weeks (about 6 months or less), and even 22 weeks, as per newer studies.
Abortion laws in several countries rely on this metric, as foetal viability is usually viewed as a workable position between the demands of the anti-choice and the pro-choice campaigners, and is viewed as the point at which rights of the woman can be separated from the rights of an unborn foetus.
The judgment said that state abortion laws, that make it a crime to abort a foetus at any stage of the pregnancy, violates the “due process clause” of the Fourteenth Amendment to the US Constitution. The amendment includes several rights of US citizens, including equal protection of laws, and figures prominently in several landmark cases including ‘Brown v. Board of Education’, which outlawed racial segregation in public schools.
In Roe v. Wade, the court ruled that the Fourteenth Amendment also includes the “right to privacy, including a woman’s qualified right to terminate her pregnancy”. It then asserted that states could regulate or ban abortion after a fetus becomes viable.
However, the decision has remained a bone of contention among conservatives and liberals in the US for decades. While there have been several calls for its overturning, the appointments of conservative Justices Neil M. Gorsuch, Brett M. Kavanaugh, and Amy Coney Barrett during the Donald Trump presidency gave a fresh boost to such demands.
‘Not deeply rooted in nation’s history and tradition’
The settled law in Roe v. Wade reached the SCOTUS once again in a dispute over a 2018 law passed by Mississippi’s Republican-controlled Legislature that banned abortions after 15 weeks — much sooner than what was allowed by Roe.
In response, the Supreme Court, with a 6-3 majority, upheld the Mississippi law and overturned two key decisions protecting access to abortion: 1973 Roe v. Wade and 1992 Planned Parenthood v. Casey.
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.
It said that the Constitution does not mention abortion and that its provisions do not guarantee abortion rights under the liberty guaranteed in the Fourteenth Amendment. It also asserted that the “right to abortion is not deeply rooted in the Nation’s history and tradition”.
The three judges of the Supreme Court appointed by Democratic presidents — Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan — dissented.
The dissenting opinion responded to the majority’s legal argument that we should read the Fourteenth Amendment as the Constitution makers did. The three judges pointed out that the ratifiers of the Constitution “did not understand women as full members of the community embraced by the phrase ‘We the People’.”
But, of course, ‘people’ did not ratify the Fourteenth Amendment. Men did. So, it is perhaps not so surprising that the ratifiers were not perfectly attuned to the importance of reproductive rights for women’s liberty, or for their capacity to participate as equal members of our Nation,” the dissent said.
Also read: Roe v Wade overturned — What abortion access looks like around the world
‘Women now have fewer rights than their mothers, grandmothers’
The ruling does not mean that abortion would immediately be banned throughout the US. Instead, experts have pointed out that the legality of abortion will now play out in state legislatures. States are now allowed to regulate or prohibit abortion, subject only to a ‘rational basis review’. This means that if such state abortion regulations are challenged constitutionally, abortion bans will be presumed to be legal as long as there is a “rational basis” for the legislature to believe the law serves legitimate state interests. This review standard is much weaker than what existed while Roe and Casey were in place.
The dissenting opinion also spoke about the possible effects of the decision. It said, “After today, young women will come of age with fewer rights than their mothers and grandmothers had.” It also highlighted how “women lacking financial resources will suffer from today’s decision”, as “the poor woman…cannot get the money to fly to a distant State for a procedure”.
The dissenting judges have also offered another warning. They said that the majority opinion “places in jeopardy other rights, from contraception to same-sex intimacy and marriage”.
“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 added.
What does the Indian law on abortion say?
In India, abortions are regulated by the Medical Termination of Pregnancy Act, 1971, which allows an abortion up till 20 weeks of pregnancy.
Before an amendment in 2021, the law required the opinion of one doctor if the abortion is done within 12 weeks of conception and two doctors if it is done between 12 and 20 weeks.
After the 2021 amendment, the law now allows abortion to be done on the advice of one doctor up to 20 weeks, and two doctors if it is done between 20 and 24 weeks. However, the extended ceiling of 24 weeks is applicable only to certain special categories of pregnant women, including survivors of rape or incest or minors.
In case of foetal disabilities, an abortion can be allowed even after 24 weeks, but this can be done only by a medical board of specialist doctors set up by the governments of states and Union Territories.
(Edited by Zinnia Ray Chaudhuri)
Also read: Why challenge to 1 US state’s law has cast shadow on 50-yr-old order on women’s abortion rights