U S Supreme Court: Derecognition Of The Constitutional Right To Abortion Is Feudalistic
Republican States wanting to ban abortions altogether or to impose severe restrictions on abortion were the ones who were pleading for reversal of Roe v Wade, a 7:2 judgement delivered 50 years ago. New laws made by some states banning abortions had been stayed by lower courts based on Roe. The previous Trump regime supporting orthodox Christian views had ensured a packed court for the reversal of Roe. At issue was whether the American women had a Constitutional right to seek abortion before foetal viability or even quickening, which had been affirmed as part of Liberty and Equality including autonomy and bodily rights in Roe and reaffirmed in Casey's case. The majority in Dobbs v. Jackson gripped by feudal retrogression answered in the negative and overruled both Roe and Casey. The 'pro abortionists' are told they should fight their battle in the legislature, even while telling them that legislative laws would upon challenge not be tested on the heightened scrutiny anvil.
Fundamental rights are stated in the Constitutions generally. The U.S. Constitution talks of liberty, equality and due process just as Article 21 of Constitution of India speaks of life and personal liberty and Article 14 speaks of equality with injection of "fair, just, and reasonable procedure" for their deprivation [Maneka Gandhi Gloss]. All courts recognise that these rights do have a penumbral sphere and courts have expanded the ambit of these rights from time to time. Kavanaugh J., speaking for the majority, agrees "that the Constitution does not freeze the American people's rights as of 1791 or 1868". I fully agree. And that "the Constitution authorises the creation of new rights…". But, he says the court cannot rewrite the Constitution to create new rights and liberties based on our moral or policy views. While he finds the US Constitution "neutral" regarding abortion, Alito J. speaking for the majority says "liberty" is a capacious term and new rights can be included only if they are such as are "deeply rooted in our history and traditions" or text. And since text was, before Roe, never understood as including right to abortion, the majority delved into history, as far back as 13th and 18th century referring to Coke, Blackstone and Hale, to hold that right to abortion was not deeply rooted in their history, and hence, could not be given recognition.
Alito J. criticised Roe for not adopting the historical approach, though the 3 dissenting judges disagreed on this. The real divergence was on whether the Constitutional approach has to be "Originalistic" or "Dynamic". Originalism implies acceptance of a construction which accords with the understanding of the framers of the Constitution. It means a static approach frozen in the past. On the other hand, a dynamic approach looks at the past but does not stop at that and proceeds to comprehend the developments and evolution of society wholesomely and envelopes all that is integral to the full and effective enjoyment of the given rights. It treats the rights as fundamental and State's power to restrict as secondary. It, in fact, imposes a positive duty on the States to protect the rights of individual in all its panoply. In Aadhar case [9 JJ] DY Chandrachud, J. and R. Nariman, J. have endorsed the above approach and have rejected "Originalism" and sanctified expansive and integral approach. But Alito J. deviating from past expansionist approach of US Supreme Court made a volte face and rooted out right to abortion from the ambit of "Liberty" saying it was concerned with "ordered liberty" and not "liberty" as such. Liberty he said meant different things for different persons. This was just a deceptive subterfuge. Ordered only meant regulated by law and contrasted with licence. Since Roe the right was part of "ordered liberty". Just because the feudal Lords of the dark medieval ages did not regard women as equals and had criminalised abortion after quickening it does not mean that the right could not be recognised even after women are recognised under the Constitution to being equal and to be possessing Liberty.
Justice Alito's historical approach is also faulty. He looks at position of right to abortion in the remote past, but does not examine what sort of society US and UK were in 13th to 18th century and what were the rights conceded to women then. We know US was then discovered by Columbus for the west and atrocities were committed by invaders on Red Indians and they were enslaved. Blacks and women had no rights. Women were given the right to vote in 1920. The slaves were then not regarded as citizens by US Supreme Court. And even when they were, they suffered racial segregation in education until 1964. And likewise, while referring to UK he overlooked its imperialist culture which did not regard women as equals. The majority ignores the dynamic spirit of US Constitution and the developments in society in consequence of it. The majority erred in adopting the feudal spirit instead.
No one says, and Roe/Casey did not, that State has no legitimate interest in regulating the exercise of right to abortion or that right is absolute. The dissent also does not deny legislatures the power to regulate. But when right to abortion is recognised, there is need to balance the right of women with the state interest in potential life of foetus in accordance with the doctrine of proportionality. There remains a space where women autonomy and choice are allowed to prevail. But if this right is derecognised then it is entirely up to the State to either ban it totally or to regulate stringently and courts become virtual bye standers. Notably, right to individual autonomy, choice and privacy have been recognised as part of liberty by Supreme Court of India in Aadhar case and even by the European Courts. US Supreme Court judgements expanded privacy in public sphere and their judgements were noted in the Aadhar case. The constriction of liberty has disastrous consequences for women who wish not to deliver an unwanted child due to therapeutic reasons or because the foetus is result of crime against her or because she is a minor or her own life is in danger if she delivers. Roe and Casey gave her a choice up to a particular stage. Justice Alito takes it away. And for what great gain? This cannot be a majoritarian issue.
Alito J. notes that the enquiry of Mississippi State legislature found that the foetus "takes human form in all respects in the 12th week, and most abortions after 15 weeks require evacuation procedures involving use of surgical instruments.." and concluded that "abortion for non-therapeutic and elective reasons is a barbaric practice, dangerous for maternal patient and demeaning to medical profession". Even so, though today abortions are safe up to 20 weeks as per medical science and some claim up to 24 weeks, there is no good reason for not recognising the right to abortion up to 15 weeks. That is how Roe balanced the women's right with State's interest in potential life. According to Roe the weight of State's interest grows with the growth of foetus and balance tilts against abortion after viability is attained by foetus. This line of balance gives enough time to women to decide if they want to deliver. Women can be trusted with proper exercise of choice. But Dobbs v Jackson destroys this balance and the right itself.
It is correct that LGBT rights, right to inter racial marriages, to Gay marriages, to marry in prison, to decide about child's education have been recognised on the strength of Roe by US Supreme Court and they likewise have no deep-rooted basis in history and traditions. But they do not involve destruction of 'potential rights ". Alito J is right there. But they do destroy the "Originalism" approach and accept dynamism in recognising new rights. Additionally, the fact that abortion destroys potential life only impels balancing scientifically and not destruction of a long prevailing Constitutional right. In Aadhar [5 JJ] Indian Supreme Court [AK Sikri, J.] affirmed the need to balance when two rights of same person clash or when two rights of different persons clash. Dobbs flows against the global drift. By looking backwards Dobbs' plurality has thrown back American women, nay society, into the feudal medieval social and juristic relations. States have forthwith imposed total bans on abortions by invoking trigger provisions. Others would follow soon. Women will not sit quietly. Dobbs will not be the last word spoken.
The author is a Senior Advocate in the Supreme Court Of India and views are personal.