The Democrats further reoriented their campaign focus for the mid-term elections to make the Supreme Court judgment overturning Jane Roe Vs Henry Wade, the landmark 1973 decision that institutionalised the right to abortion nationwide, a primary issue of their campaign.

The US ruling has sparked off a serious debate on a woman’s right to abort, which the 1973 verdict linked to her right to bodily autonomy, privacy and liberty. A deep-dive into the controversial judgment becomes imperative to understand what’s at stake and the impact the ruling may have on the international jurisprudence on the right to abort.

What was the 1973 verdict

A pregnant single woman (Roe) brought a class action in 1970 against the district attorney, challenging the constitutionality of the Texas criminal abortion laws, which banished abortion except on medical advice for the purpose of saving the mother’s life. A licensed physician (Hallford), who had two state abortion prosecutions pending against him, was permitted to intervene. A childless married couple (the Does) separately attacked the laws on the grounds of future possibilities of contraceptive failure, pregnancy, unpreparedness for parenthood, and impairment of the wife’s health.

A three-judge district court held that the suits by Roe and Hallford, and members of their classes, were maintainable in law and presented justiciable controversies. The district court declared the Texas criminal abortion statutes void as vague and overbroadly infringing the Ninth and Fourteenth Amendment rights, which pertain to right to privacy, personal liberty and due process clause. The district court, however, dismissed the Does’ complaint, calling it speculative and not justiciable.

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But the district court declined to grant in favour of Roe an injunction against enforcement of the Texas statutes, prompting her to move the US Supreme Court. The district attorney also filed an appeal against declaring the abortion statutes as void by the district court.

On January 22, 1973, the US Supreme Court, by7-2 majority, accorded women the federal right to seek abortion, reading right to privacy and bodily autonomy into the choice of a woman to terminate her pregnancy up to the point of foetal viability, which is generally accepted to be around 24 weeks into pregnancy.

“This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy,” declared the US top court.

It ruled that the right of personal privacy includes the decision to abort although this right is not unqualified and will have certain limitations vis-a-vis protection of health, medical standards, and prenatal life.

Texas urged that life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception but the court rejected this contention. “We do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake... The statute makes no distinction between abortions performed early in pregnancy and those performed later, and it limits to a single reason, ‘saving’ the mother’s life, the legal justification for the procedure. The statute, therefore, cannot survive the constitutional attack made upon it here,” held the court.

It further ruled that the right of the individual, married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child would necessarily include the right of a woman to decide whether or not to terminate her pregnancy.

About the State’s legitimate interests in protecting both the pregnant woman’s health and the potentiality of human life, the Supreme Court prescribed a timeline. The decision to terminate a pregnancy during the first trimester was left to the medical decision of the doctor attending the woman. During the second trimester, governments could regulate the abortion procedure, but only for the purpose of protecting maternal health and not for protecting fetal life. For the stage subsequent to viability, the court said, governments could regulate or even prohibit termination except where there is a threat to the mother in carrying the child.

What did the 1992 judgment in Planned Parenthood Vs Casey change?

NGO Planned Parenthood, which led the fight for women’s access to reproductive care in the US, took on Pennsylvania Governor Robert Casey after the anti-abortion Democrat introduced new laws restricting a woman’s access to abortion. The nonprofit argued that the provisions in the Pennsylvania Abortion Control Act of 1982 violated the decision made in Roe Vs Wade that the right to an abortion was fundamental. One of the most contentious provisions of the law under challenge pertained to spousal notification, requiring a married woman to sign a statement indicating that she has notified her husband before going ahead with the termination of pregnancy.

The Supreme Court chose to follow the judicial principle of “stare decisis”, obligating the court to honour the previous ruling in Roe Vs Wade and make its decision in alignment with the 1973 judgment. “Application of the doctrine of stare decisis confirms that Roe’s essential holding should be reaffirmed... Although Roe has engendered opposition, it has in no sense proven unworkable, representing as it does a simple limitation beyond which a state law is unenforceable,” stated this ruling.

The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives, held the judgment. “The Constitution serves human values, and while the effect of reliance on Roe cannot be exactly measured, neither can certain costs of overruling Roe for people who have ordered their thinking and living around that case be dismissed,” it said.

Even as this judgment affirmed the central holding in Roe vs Wade, it rejected the “rigid trimester framework” as propounded in the 1973 verdict. The court introduced the “undue burden” principle, laying down that the State may come up with measures to persuade the woman to choose childbirth over abortion but these measures must not be an undue burden on the right.

“Adoption of the undue burden standard does not disturb Roe’s holding that regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability,” it added.

Although the decision in Roe vs Wade was ultimately reaffirmed, the 1992 judgment was perceived by many as a judicial verdict chipping away some of women’s reproductive rights.

The latest ruling that puts the clock back

In Dobbs Vs Jackson women Health Organisation, the US Supreme Court was called upon to decide the validity of a law framed by the state of Mississippi that generally prohibited an abortion after the 15th week of pregnancy — several weeks before the point at which a fetus is now regarded as “viable” outside the womb. The state of Mississippi implored the court to reconsider and overrule Roe and Casey and once again allow each state to regulate abortion as its citizens wish. US solicitor general and women rights groups contested the case, seeking affirmation of Roe and Casey.

By a5-4 decision on June 24, the US Supreme Court overruled Roe and Casey, holding that “the Constitution does not confer a right to abortion”; it makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.

On the “Due Process Clause” of the Fourteenth Amendment, which was central to the verdicts in Roe and Casey, the Supreme Court held that this could guarantee only such rights that must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty”.

“The right to abortion does not fall within this category,” declared the court, adding destruction of fetal life cannot be equated with matters such as intimate sexual relations, contraception, and marriage, which were found implicit within the right to liberty.

Striking down the findings in Roe and Casey that right to abort is a facet of right to privacy and central to personal dignity and autonomy of a woman, the court said that the right to obtain an abortion cannot be justified as a component of such a right. “Attempts to justify abortion though appeals to a broader right to autonomy and to define one’s ‘concept of existence’ prove too much. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like,” it emphasised.

“Abortion is different because it destroys what Roe termed ‘potential life’ and what the law challenged in this case calls an ‘unborn human being’. None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion,” it said.

The court declared that Roe was “egregiously wrong” and on a collision course with the Constitution from the day it was decided, for it did not have any grounding in the constitutional text, history, or precedent and ended up erroneously prescribing a trimester scheme that looked like legislation.

On the principle of “stare decisis” that was followed in Casey, the Supreme Court noted that judicial discipline does not compel unending adherence to Roe’s abuse of judicial authority. “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division,” it underlined.

“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting... Given that procuring an abortion is not a fundamental constitutional right, it follows that the states may regulate abortion for legitimate reasons,” ruled the court, upholding the Mississippi law.

Three dissenting judges on the bench said the decision took away the woman’s right to be an equal and free citizen in the country. “In overruling Roe and Casey, this court betrays its guiding principles. With sorrow — for this court, but more, for the many millions of American women who have today lost a fundamental constitutional protection — we dissent,” recorded the dissent.

Chief Justice John Roberts sided with his fellow conservative judges in favour of upholding the Mississippi law, but argued for judicial restraint and opposed the outright reversal of the right to abort and striking down of Roe v Wade.

The Indian context

Unlike in US, India has a central law called The Medical Termination of Pregnancy (MTP) Act, which permits licensed medical professionals to perform abortions in specific predetermined situations as provided under the legislation. The Act was passed in 1971 to give women access to safe and authorised abortion procedures until 20 weeks of pregnancy under certain specified situations, which included grave risk to mental or physical well-being of the mother or a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities to be seriously handicapped. The Act added that a married woman can terminate an unwanted pregnancy too but no such procedure shall be carried out on any woman without her consent. For those below 18, consent of guardian is a must.

In 1994, the Indian government brought in the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act with the objective of avoiding abuse of the MTP Act for sex selection and to prevent the misuse of pre-natal diagnostic techniques for sex determination leading to female foeticide, besides regulating pre-natal diagnostic techniques for detecting genetic abnormalities and other disorders. The violators can get up to five years in jail apart from monetary penalties under the PCPNDT Act.

The 1971 law was amended in March 2021, seeking “to expand the access to safe and legal abortion services on therapeutic, eugenic, humanitarian and social grounds to ensure universal access to comprehensive care.”

The 2021 amendment raised the upper gestation limit from 20 to 24 weeks for special categories of women, including survivors of rape, victims of incest and other vulnerable women (differently abled women, minors, among others). Significantly, the new law extended MTP services under the failure of contraceptive clause to unmarried women to provide access to safe abortion based on a woman’s choice, irrespective of marital status. It further added a confidentiality clause, stating that the name and other particulars of a woman whose pregnancy has been terminated cannot be revealed except to a person authorised by law.

While Section 312 in the Indian Penal Code makes intentionally causing a miscarriage a crime punishable with imprisonment up to seven years, medical professionals carrying out abortions in accordance with the law are exempt from prosecution.

The US Supreme Court verdict has put the reproductive rights of women at the centre of a public disputation all over again. These rights are intrinsically linked to a woman’s right to participate equally in the economic and social life of a nation.