11 Dec 2021 12:56 PM GMT
"Men, their rights, and nothing more; women, their rights, and nothing less." -Susan B Anthony, American social reformer and women's rights activist. It is a well- known fact that laws on abortions in the US have historically been an issue of immense debates and contestations. Before...
"Men, their rights, and nothing more; women, their rights, and nothing less."
-Susan B Anthony, American social reformer and women's rights activist.
It is a well- known fact that laws on abortions in the US have historically been an issue of immense debates and contestations. Before the landmark decision of the Supreme Court of United States (hereinafter as "Supreme Court") in Roe v. Wade (hereinafter as "Roe"), abortion laws were caught in the legal limbo between the extension of right to life to an unborn child, the right to liberty of a woman as a progenitor and the ambit of intrusion of the State in private affairs. However, with the dust of contestations settling in Roe, the same legal controversy has once again come to knock the doors of the Supreme Court as the State of Texas has enforced a law proscribing abortion, in substance, vitiating and nullifying the mandate of the Supreme Court in Roe.
Before diving straight to the Texas Heartbeat Act (hereinafter as "the Act") enacted by the State of Texas prohibiting abortions, it is important to understand that what was held by the Supreme Court in Roe.
The Decision In Roe
In Roe, Norma McCorvey (pseudonym Jane Roe) petitioned the Supreme Court challenging the constitutionality of the 1854 statute of the State of Texas that proscribed abortions within the territory of the state. Statutory exception was granted to cases where there was a threat to the life of the mother; however, such exception didn't cover cases of incest or rape. The main thrust of the argument presented by the petitioner rested on the two essential points. First, that the Texas statute criminalising abortion is vague and second, that it violates her rights protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments to the Constitution. It is relevant to point out that privacy at the time was a constitutionally recognised right in Botsford, and most recently reiterated in Griswold via penumbras of rights in the Bill of Rights. Further, the argument advanced by the State alluded to its interest in the health of the mother and the constitutional duty to protect life including that of an unborn child as a foetus is a person with its own interests and rights.
The legal issues before the Supreme Court can be summed up in the following points:-
After considering the medical- legal history of abortions and related laws, the Supreme Court rendered an opinion striking down the penal provisions of the State of Texas proscribing abortions, and devised a new set of legal framework to regulate abortion laws throughout the country that came to be known as the 'trimester system' in which during the first trimester of the pregnancy the State had no right to intervene in the private affairs of an individual. The legitimate intervention of the State was held to be only permissible after the lapse of the first trimester, for which, the medical rationale on which the court proceeded was that at later stage of the pregnancy the risk of health hazard is exponentially high for a woman as compared to, with the advancement of medical science, at an early stage, and it is the duty of the State to protect the life of every human being. The court also interpolated that the right to privacy as under the First, Fourth, Fifth, Ninth, and Fourteenth Amendments and the concept of liberty will entail a woman's right seek to abortion, however, such right, it concluded, not being absolute (i.e. right without limitations) is amenable to legislative control in 'compelling state interest'. Further, a woman right to privacy has to be measured according to the state's interest in the prenatal life
The Heartbeat Act
The Texas Heartbeat Act is termed by many as a 'pro-life statute' because it, in effect, prohibits abortions through private civil action in the State. For a comprehensive analysis of the Act it is essential to understand it as follows:-
Backdrop of the Act- The primary backdrop of the law can be noticed and encapsulated in the words of Bryan Hughes, Republican Senator from the State of Texas, and also the author of the bill. He says "If a Texan's heartbeat is detected, his or her life will beprotected." Examining it from a broader perspective, the thematic substance of the law largely emanates from cultural and religious moorings to protect life. The trajectory of the discourse on laws banning abortion can also be traced to the constitutionally recognised doctrine of right to life with its extension to prenatal life.
Objective of the Act- The legislature through the objective of the Act claims that it since Roe many laws in the State were abrogated or remodelled in order to meet the new test of legality, as per the then- dictum of the Supreme Court, abortions laws were never repealed from the books and they continued to existed as they did in pre- Roe realm. The primary and only objective postulated by the Act is to regulate "abortion, including abortions after detection of an unborn child's heartbeat; authorizing a private civil right of action".
Erring Provisions- According to sections 171.203, 171.204 and 171.205 of the Act, the central requirement for a legitimate abortion entirely depends upon the detectability of the heartbeat of an unborn child, meaning, that when a heartbeat is detectable, an abortion cannot be legally procured, barring the cases where there is a threat to mother's life, not even in instances of incest or rape. At this point, it is important to appreciate the recent stand taken by the higher Indian judiciary.
Recently, the Telangana High Court adopting a liberal pro-choice outlook, adjudicating on the plea of a sixteen year old minor girl seeking abortion because her pregnancy was the result of rape, held that the life of the unborn cannot be place above the life of the mother, 'dignity, self- respect and healthy living' all elements of Article 21 of the Indian Constitution are paramount and include the right of a woman to make a choice over her pregnancy even after the lapse of 24 weeks into her pregnancy because it is a result of a sexual assault and rape.
Coming back to the Act, the rationale explicitly emphasised for the above erring provisions is that- first, that 'fetal heartbeat has become a key medical predictor that an unborn child will reach live birth, where fetal heartbeat means 'cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac' and second, that "cardiac activity begins at a biologically identifiable moment in time, normally when the fetal heart is formed in the gestational sac."  These claims can be singularly attributed to the lack of scientific knowledge and evidence on which the legislature has acted upon as experts call it 'misleading'.  Doctors ratiocinate that the valves responsible for the rhythmic sound of the heartbeat are not formed as early as six weeks. Therefore, it can be correctly concluded that the very foundation on which the law is build is unfound and implausible. At this point, it essential to reproduce the words of (then- Chief Justice of India) Justice Misra from the Sabrimala verdict that aptly describes this legislative predicament. He says "the irony that is nurtured by the society is to impose a rule,however unjustified, and proffer explanation or justification to substantiatethe substratum of the said rule. Mankind, since time immemorial, has beensearching for explanation or justification to substantiate a point of view thathurts humanity."
Private Civil Action- It is also surprising to find that the State that happens to claim interest in the life of an unborn child does not happens to take the pains to prosecute and punish offender(s) for the act it seeks to preclude. According to section 171.207(a), the enforcement of the Act is left to the impulse of private individuals through civil action (barring government employees) and successful actions being rewarded with a statutory amount of not less than $10,000. In effect, it means that any private citizen can intrude in the private affairs and private spaces of any other citizen without having justiciable interest or cause. In essence, the reason for such provision is to cleverly circumvent the dictum of Roe as any state intervention will attract the flouting of constitutionally guarded rights. In short, this provision offends the very basic and substantive nature of any democracy as a group of citizenry is armed to stifle the liberty of the other.
Decision In Roe And The Act
First, in Roe, the Supreme Court being in tune with its line of precedents upheld that regulations on fundamental rights are justiciable only when 'compelling state interest' takes the front seat. Further, in cases of abortions, the 'compelling state interest' grows substantially, and as per the present medical knowledge it is at the end of the first trimester. Therefore, in effect, the Supreme Court meant that the spectre of 'compelling state interest' could only be legitimately raised at the end of the first trimester, whereas, according to the Act the 'compelling state interest' in the pre- natal life begins after the detection of a heartbeat i.e. six weeks from conception which is in direct contradiction to Roe.
Second, the 'compelling state interest' in the pre- natal is enforced through the impulse of private individuals. In all possibility, the legislature has left the implementation of the Act in the hands of private individuals who may or may not choose to chastise abortion clinics carrying out abortions after six weeks that may definitely defeat the purpose of the Act. Therefore, an important question that emerges is that whether private action can be appropriately called state intervention or the enforcing of a law that confers right on private individuals to file civil action can be termed as legitimate state intervention in exercise of 'compelling state interest'. However, in any case, the theory of Roe that state intervention is permissible after the first trimester is turned into a paper parchment.
One of the major issues that crops up is the wording of the Supreme Court in Roe particularly relating to 'compelling state interest' for which fundamental rights are assigned inferior rank. What constitutes 'compelling state interest' is enveloped in vagueness because the justification for limiting the exercise of fundamental rights in the name of 'compelling state interest' is a feeble restriction on the state's power to transgress fundamental rights because a state can normally find some legitimate goal that the law might be thought to serve; it can usually claim that a given restriction will promote safety or security, for example, or public convenience, or the community's health or economy. The rationality test does not permit the Supreme Court to ask whether it was necessary or even wise, for the state to limit its citizen's liberty in order to gain the claimed advantage. For this reason, the framework of the Proportionality Doctrine needs to be understood, and implemented in constitutional adjudication.
The Proportionality Doctrine
The Proportionality doctrine emanates from the two key elements of a constitutional structure i.e. democracy and rule of law. Where democracy entails rights and liberties, the rule of law empowers the state to sanction limitation on them to maintain order. From the tension between these concepts of the Constitution, the Proportionality doctrine emerges. In the simplest of terms, this doctrine means that the ambit of limitation on any right must be proportional to the purpose/objective sought to be achieved through the limiting law. It ensures that the encroachment on any right is not disproportionate to the objective of the law. This doctrine is meticulously defined by Aharon Barak, Former President of the Supreme Court of Israel, in his book titled "Proportionality: Constitutional Rights and their Limitation" where he proposes that the central philosophy that governs the proportionality doctrine is to shield the individual and their rights from the arbitrary brute force of the state, and conceives of the doctrine as having four components- namely- proper purpose, rationale connection, necessity and balancing. Where the chief focus of proper purpose is to look at the purpose for which the limitation on rights is brought, meaning that in a given constitutional setup the legislative intended purpose is rational or not. Similarly, rationale connection focuses on means and ends of the limitation, necessity component focuses on the appropriate requirement of a particular set of limitations, whether or not such degree of limitation required for the purpose intended to achieve. The last component balancing is the core of it, also known as 'the proportional result', as it looks into the overall harm/injury caused to rights, and what is actually is gained out of such harm/injury.
Despite being adopted by the various judicial systems of countries like Canada, Germany, New Zealand, India, South Africa, Israel and many more, the American judicial system still remains sceptical about it. Competing concepts of constitutional rights like right to privacy and right to life of an unborn against compelling state interest that form the thrust of the enigmatic arguments on the laws of abortion can be aptly resolved through deployment of the proportionality doctrine in constitutional adjudication. Justice Breyer in District of Columbia v. Heller refuted the claim of the majority court that the use of the proportionality doctrine in United States framework is unprecedented and stated that 'balancing' is a part of the constitutional framework to protect competing state interests and individual rights. The excessive dependence on the balancing doctrines like the strict scrutiny, for example in Tennessee v. Garner,suggests the conspicuous presence of the proportionality doctrine. But, Proportionality doctrine is yet to receive the stamp of constitutional approval from the Supreme Court.
If we look the Texas Heartbeat Act from the lenses of proportionality, it can be found that where the objective of the law is to regulate abortions and authorize private civil action for it, an inherent dichotomy is manifestly visible as interest of the state is enforceable only through the impulse of private individuals. If the Act does not fit the bill of compelling state interest, it simply, on the anvil of proper purpose cannot intrude into the sphere of constitutionally guarded right to privacy. On the rationale test, it is found that the end purpose of the Act is to regulate abortion by protecting the health of woman and prenatal life on the detectability of a heartbeat for which the means are devoid of state intervention and are based only on state rewards does not explains the rationale nexus between the two. The Act, also fails to pass necessity test as there are already present less severe restriction as expounded in Roe. The Balancing test proves that injury on rights outweigh the benefit gained by such limitation simply because private causes may dictate constitutional rights.
As the Supreme Court sits to hear the challenge to the Texas Heartbeat Law in Dobbs v. Jacksons Women's Health Organisation, the validation for excessive intrusion of state, floating in the garb of pro- life postulations, anticipates its vindication by the end of Roe. At this crossroad, the words of James Madison are to be remembered as gospel truth, "If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."
The author is an Advocate practising at Delhi. Views are personal.
 410 U.S. 113 (1973).
 Union Pacific R. Co. v. Botsford, 141 U. S. 250, 251 (1891).
 Griswold v. Connecticut, 381 U.S. 479 (1965).
 Supra note 1 at 153.
 Ibid at 154.
 Available at https://www.texastribune.org/2021/09/02/texas-abortion-heartbeat-bill/.
 Section 2, Texas Heartbeat Act, 2021.
 Section 171.202 (1), Ibid.
 Section 171.201 (1), Ibid.
 Section 171.202 (2), Ibid.
 Available at https://www.npr.org/sections/health-shots/2021/09/02/1033727679/fetal-heartbeat-isnt-a-medical-term-but-its-still-used-in-laws-on-abortion.
 Indian Young Lawyer Association v. State of Kerala, 2018 SCC OnLine SC 1690.
 Supra note 2, section 171.207.
 Ibid, section 171.208.
 Supra note 1 at 162- 163
 Aharon Barak, Proportionality: Constitutional Rights and Their Limitation (Cambridge University Press, New York, 2012).
 554 U.S. 570 (2008).
 471 U.S. 1 (1985).
 Federalist Paper 51.