Roe’s absence vs. Wade won’t just impact USA
The leak of a majority first draft opinion from the United States Supreme Court voting to overturn the Roe v Wade decision sent shockwaves through liberal and conservative circles around the world. Written by Judge Samuel Alito, the draft decision appears to assert that “Roe was gravely mistaken from the outset” and proposes to “respect the Constitution and refer the issue of abortion to the elected representatives of the people”, leaving the state legislatures to criminalize or legalize abortion as they see fit.
Roe, the 1973 result of a single woman’s crusade for bodily autonomy, had declared too broad, and therefore unconstitutional, a provision of the Texas Penal Code that only allowed abortions “induced or attempted upon medical opinion to save the life of the mother”. ”. The decision simultaneously recognized the state’s interest in protecting the life of the fetus as well as the life of the mother. In devising a quarterly framework for legally permitted abortions, Roe argued that as the pregnancy progressed and the fetus became increasingly viable, the state interest in protecting potential life became compelling. Later, in 1992, the United States Supreme Court in Planned Parenthood v Casey reaffirmed a woman’s right to terminate her pregnancy before viability as Roe’s “most central principle”. While situating the right to privacy within the guarantee of personal liberty enshrined in the Fourteenth Amendment to the US Constitution, Roe embodies a constitutional right to abortion that arises from and emanates from that right to privacy.
Roe’s reversal is more than a simple abdication of judicial responsibility to protect individual rights — it signals a dangerous tendency for courts to make longstanding decisions about legal rights based on passing political considerations. It would also mean legitimizing state inroads into women’s right to abortion and, therefore, their right to bodily autonomy and liberty, in addition to forcing them to move to states with enabling laws. to procure abortions, which would lead to problems with access and affordability of abortions.
Roe is not only relevant as a progressive pioneer of reproductive rights in the United States, but he is also fundamental to constitutional jurisprudence globally for the interpretative tools he employed. For example, the U.S. Supreme Court has recognized that although there is no explicit mention of the right to privacy in the U.S. Constitution, it has ruled that certain “privacy zones” were guaranteed in the first and Fourteenth Amendments. As such, the right to abortion was considered a constitutionally protected right under the right to privacy.
This approach is reflected in the Indian Supreme Court’s decision in KS Puttaswamy v. Union of India, in which Justice Chandrachud referenced Roe and Planned Parenthood while enshrining the right to privacy within the existing framework of fundamental rights protected by the Constitution, subject to “just, reasonable and fair”. ” Restrictions. During the lifetime of India’s Supreme Court, the recognition of derivative rights within the existing framework of fundamental rights has been regularly noted – whether it concerns rights during arrest and detention, the right to express one’s sexual identity and rights, or rights against harassment in the workplace, to name a few.
While the impact of Roe’s absence would be felt most deeply in the United States, it is likely to embolden conservative anti-abortion voices around the world. It will also inevitably raise fundamental questions about the limits of judicial activism aimed at protecting individual and class rights, which find no explicit mention in a country’s constitutional framework. For example, in the Indian context, the reversal could be seen as a setback for the famous doctrine of transformative constitutionalism, which views the Indian Constitution as a “living document” that shapes, adapts and responds to changing times and circumstances. However, although Roe was arguably the originator of the case law on a constitutional right to abortion, particularly the fetal “viability” test, it is no longer the solitary basis of this guarantee in India. India’s reproductive rights legal framework has developed, both judicially and legislatively, in such a way that the reversal of the US locus classicus alone would not warrant a review of India’s abortion laws.
In 2021, abortion laws in India underwent substantial changes, with the introduction of the Medical Termination of Pregnancy (Amendment) Act 2021 which, in addition to destigmatizing out-of-wedlock pregnancies by introducing the nomenclature of “any woman or her partner”, increased the upper limits of gestation within which pregnancies can legally be terminated. The law, however, contains ambiguities and leaves room for judicial and executive interpretation and only authorizes the termination of pregnancy subject to the opinion of the doctor(s), which retains the condescending tenor of the law, although with some incremental changes. As cases of subjective determination arise, the Indian judiciary will be called upon to reconcile the right to privacy recognized in Puttaswamy with the legal limits on abortion. The likelihood that Roe’s reversal will lead to more conservative approaches to judicial interpretation in abortion rights cases cannot be ruled out. However, with Puttaswamy crystallizing the contours of the right to privacy, an optimistic view would suggest that abortion rights and issues of bodily autonomy would be determined within this same legal framework.
This column first appeared in the print edition of May 6, 2022, under the title “Roe v Wade beyond the United States”. The writers are lawyers practicing in New Delhi