Context

With the US Supreme Court’s overturning of abortion as a constitutionally guaranteed right, America has taken another step towards democratic backsliding.

Background of the Roe v Wade case

• Bodily autonomy: Roe, the 1973 outcome of an unmarried woman’s crusade for bodily autonomy, had declared overbroad, and consequently unconstitutional, a provision of the Texas Penal Code which permitted only those abortions that were “procured or attempted by medical advice to save the life of the mother”.
• Right to abortion: While locating the right of privacy within the guarantee of personal liberty enshrined in the fourteenth amendment of the American constitution, Roe embodies a supervening constitutional right to abortion emanating from this right of privacy.
• The right to abort was held to be a constitutionally protected right within the right of privacy.
• Recognition of states’ rights: The decision simultaneously recognised the state’s interest in protecting the life of the foetus as also the life of the mother. 
• Roe is not only relevant as a progressive trailblazer for reproductive rights in the United States but is also fundamental to constitutional jurisprudence globally for the interpretative tools it employed.

Overturning of Roe Vs Wade case

• The US Supreme Court on June 24 overturned a half-century-old right to abortion, granted by a 1973 Supreme Court decision in the Roe vs Wade case.
• No nationwide right to abortion: With a 5-4 majority, the court has said that American women have no nationwide right to abortion.
• Rather, state legislatures should decide whether women can have that right in their respective states.
• Concerns about the life of the unbors: In the court’s opinion, the right to privacy stemming from the 14th Amendment is not relevant, for abortion concerns not only the pregnant woman but also the life of the unborn.
• Not mentioned in the 1787 constitution: Moreover, the court said, abortion is neither “enumerated” as a right in the original 1787 constitution nor is it consistent with American history and tradition.
• Taking away the right once granted: In a democracy, can a right once granted be taken away?
• As the world’s oldest surviving democracy, the United States has figured prominently in this debate.
• With the overturning of Roe vs Wade, this debate has now become wider.

Was the right to abortion constitutionally justified?

• Protection of liberty and privacy: The 1973 court decision allowing the right to abortion was based on the 14th Constitutional Amendment (1868).
• Even though abortion was not mentioned in the 1787 US Constitution, abortion’s defence was derived from the 1868 Amendment
• This Amendment, the court said, allowed protection of liberty and privacy, something the state could not impinge upon.
• Not absolute right: The 1973 court also argued that this right was not absolute, limited as it would be by considerations of “protecting potential life”.

Issues with the overturning of Roe Vs. Wade case

• 1] No constitution can anticipate the evolution of rights:  Abortion was not mentioned in the 1787 constitution, nor explicitly in the 1868 amendment.
• That is because women were not autonomous political agents at that time.
• Until they were given the right to vote in 1920, they were not a constitutional category in the US, as was true virtually everywhere in the world.
• Women are autonomous agents today. Norms change; rights evolve.
• 2] Ignores rape and incest:  As the court’s dissent note puts it, this majority decision ignore rape and incest.
• If abortion as a right is dissolved, women can be forced to give such unwanted births.
• The majority decision of the court is silent on this important matter.
• 3] Against the right to participate equally in economic and social life: Having a child is not simply a deeply moral obligation to the unborn.
• It is also a decision that affects “the ability of women to participate equally in (the nation’s) economic and social life”.
• These words are from a later decision, known as Casey (1992), when the US Supreme Court added the concept of “undue burdens” to support the idea of abortion.
• 4] Right over body ignored: Men don’t have to deal physically with pregnancy, whereas the foetus grows inside a woman’s body for nine months.
•  If men have the right over their bodies, which can’t be taken away by the government,then women should also have autonomy over their bodies as well.
•  Maternity must be a voluntary choice.
• There is no going back to the notion of rights as they were viewed in the 18th century — unequal, unneutral, unbalanced.

Conclusion

Typically, as they evolve and deepen, democracies allow the arc of rights to broaden further, not retreat. After this judgment in the US, the stakes have become much higher and the democratic challenges bigger.

UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)

Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024

Attend Now