A 21st Century Battle For The Right To Abortion

By Amisha Tiwari, B.A. LL.B. (Hons.) from UPES School of Law in Dehradun.

The deplorable situation in the United States leaves the women bereft of the power to make decisions about their own bodies. Abortion rights have always mired in controversy and opposition from the conservatives, who usually advocate for the ‘Pro-life’ stance. One might think that the dust has been settled between the debate of Pro-life and Pro-choice; nevertheless, the decision of the United States (“U.S”) Supreme Court on June 24 keeps the controversy alive. The Supreme Court has, with a 5-4 majority, overturned the 1973 Supreme Court decision of Roe v. Wade, while stating that the U.S Constitution does not provide for the right to abortion to women. This regressive stance, coming from a country which boasts of the ‘oldest surviving democracy’, needs to be condemned. 

Fifty Years Of Federal Right To Abortion Snatched-Away

An unmarried pregnant woman named Norma McCorvey (with the pseudonym ‘Jane Roe’) had filed a case against the Texas abortion law at the time, which famously led to the 1973 Roe v. Wade decision of the Supreme Court. The ruling stated that abortion rights find their relevance in the Due Process Clause of the 14th Amendment to the U.S Constitution. The Court did not give an absolute right to abortion to women; they created the ‘trimester rule’, according to which, the States could not impose restrictions in the first trimester, however they could impose restrictions during the third trimester when the viability of the fetus is established. This way, Roe v. Wade materialized the federal right to abortion in the U.S. 

It is noteworthy to mention that before Roe v. Wade, over one million illegal abortions were performed annually. However, after the ruling, these abortions were legalized, which led to the plummeting of botched abortions, thereby resulting in fewer abortion-related deaths. Till fifty years, women had the federal right to abortion, which has now been snatched away by the U.S Supreme Court with the reasoning that “right to abortion is not rooted in the nation’s history and traditions… that the U.S Constitution does not mention the right to abortion.” — This argument simply does not hold water. By this logic, the U.S Supreme Court must also curtail the rights of the black people (due to the nation’s inherent history of racism) or snatch away the rights of the homosexuals (because homosexuality is not rooted in the nation’s history and traditions). Women in the U.S got the right to vote only in the 1920s; extending the same argument here, can the voting rights of women be curtailed because it was not originally mentioned in the U.S Constitution? 

Not only is the argument untenable, it fails to take into account cases of abortion due to rape, incest etc. Recently, a 10 year-old girl who was raped, and was six-weeks pregnant, was denied to have abortion in Ohio. She was forced to travel to Indiana to seek abortion services. How is the state-intervention, to expect from a 10 year-old child to beget a child, ‘reasonable’? Where is the line between individual rights and state intervention? 

It Is Not Only About ‘the Moral Obligation’

There are so many considerations a woman needs to take into account while deciding whether or not she wants to have a child— does she have the financial capacity to look after a child, whether she wants to pursue her career for the time-being without having to look after a child, whether the pregnancy was accidental (even after taking due precautions), whether the pregnancy was due to rape, incest etc., or simply because the woman does not want to have children. 

What’s interesting is that the abortion debate revolves around the moral obligation to keep the child, but practically speaking, it is not the only consideration which dictates the decision of whether or not one should get an abortion. Why should a woman be forced to beget a child if she doesn’t have the financial capacity to look after the child? Why should a woman be forced to beget a child if she was raped? Hasn’t she already gone through a traumatic experience? Why should any woman be forced to have a child, when she simply does not want to? How can the State make such personal decisions, which have life-altering consequences, for the women? 

Going Against The Democracy

The U.S Supreme Court has stated in its ruling that “the authority to regulate abortions is returned to the people and their elected representatives.” But is it really the case? Whether the people of U.S indeed have the decision-making power with respect to abortions? According to the survey conducted by the Pew Research Centre, 61% of U.S Adults believe that abortion should be legal in all or most cases. Despite that, abortion rights are being curtailed by the State Authorities in the U.S. Hours after the U.S Supreme Court gave its verdict, many States including Utah, Ohio, Alabama, Arkansas and West Virginia, banned abortions. Some States have also imposed harsh penalties for performing an abortion— 10 years of imprisonment with fine up to $100,000. Four days ago, the Texas Supreme Court overturned the order of a lower court, effectively allowing a 1925 Texas law which bans abortions.

Then how is the power to regulate abortions with ‘the people’? The power is with the so-called ‘elected representatives’ who take decisions premised on their ideologies— the Republicans enforcing the ban on abortions, the Democrats siding with the access to abortions. The whole scenario reeks of democratic backsliding. The Supreme Court’s ruling does not only overturn Roe v. Wade, it also overturns years of progress made by women for their rights. The ruling should be expressly condemned by the international community as a regressive step in the history of women’s rights. 

We should ask ourselves the very question that was once asked by Kamala Harris in a conversation with Brett Kavanaugh, (Associate Justice of the Supreme Court of the U.S)

“Can you think of any laws which give the government the power to make decisions about the male body?”

Views expressed are the author’s own, 

Law Daily neither endorses nor is responsible for them.

Post a Comment