US Supreme Court demonstrates feudal retrogression

As I See It

“The constriction of liberty has disastrous consequences for women who wish not to deliver an unwanted child due to therapeutic reasons or because the fetus is the result of a crime against her or because she is a minor or her own life is in danger if she delivers. Roe and Casey judgments gave her a choice up to a particular stage. Justice Alito takes it away.”

America’s Republican states, keen to ban abortion or impose severe restrictions on it, were the ones pleading for the reversal of Roe vs Wade, a 7:2 judgment delivered back in 1973. Laws in some cases had been stayed by lower courts on the basis of this judgment. The Trump administration, supporting orthodox Christian views, had ensured a packed court for the reversal of Roe vs Wade. At issue was whether American women had the constitutional right to seek abortion before fetal viability, which had been affirmed as part of liberty and equality, including autonomy and bodily rights, in Roe vs Wade and reaffirmed in Planned Parenthood vs Casey (1992). The majority in Dobbs vs Jackson (2022), gripped by feudal retrogression, overruled both Roe and Casey judgments. The ‘pro-abortionists’ have been told that they should fight their battle in the legislature.

Some US states have forthwith imposed a ban on abortion by invoking trigger provisions. Others would follow soon. But women will not sit quietly.

Fundamental rights are stated generally in constitutions. The US Constitution talks of liberty, equality and due process, just as Article 21 of the Indian Constitution speaks of life and personal liberty and Article 14 talks of equality with the injection of ‘fair, just, and reasonable procedure’ for their deprivation. All courts recognize that these rights have a penumbral sphere; the courts have expanded the ambit of these rights from time to time. Justice Brett Kavanaugh, speaking for the majority, agrees ‘that the Constitution does not freeze the American people’s rights as of 1791 or 1868’. And that ‘the Constitution authorizes 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, Justice Samuel Alito, speaking for the majority, says ‘liberty’ is a capacious term and new rights can be included only if they are ‘deeply rooted in our history and traditions’ or text. And since the text was, before Roe vs Wade, never understood as including the right to abortion, the majority delved into history, as far back as the 13th and 18th centuries, to hold that the right to abortion was not rooted in their history, and hence, could not be given recognition. Justice Alito criticized the Roe judgment for not adopting the historical approach, though the three dissenting judges disagreed on this point. 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 and envelopes all that is integral to the full and effective enjoyment of the given rights. It treats the rights as fundamental and the State’s power to restrict as secondary. It imposes a positive duty on the State to protect the rights of individuals. In the Aadhaar case, Justices DY Chandrachud and R Nariman endorsed the dynamic approach and rejected ‘originalism’. But Justice Alito, deviating from the past approach of the US Supreme Court, made a volte face and rooted out the right to abortion from the ambit of ‘liberty’, saying that it was concerned with ‘ordered liberty’ and not ‘liberty’ as such. Liberty, he said, meant different things to different persons. This was just a deceptive subterfuge.

Justice Alito’s historical approach is also faulty. He looks at the position of the right to abortion in the remote past, but does not examine what sort of society the US and UK had in the 13th/18th centuries and what were the rights granted to women. The majority ignores the dynamic spirit of the US Constitution and the developments in society in consequence of it.

No one says, and Roe/Casey did not, that the State has no legitimate interest in regulating the exercise of the right to abortion or that the right is absolute. The dissent also does not deny the legislature the power to regulate. But when the right to abortion is recognized, there is a need to balance the right of women with the State’s interest in the potential life of a fetus in accordance with the doctrine of proportionality. There remains a space where women’s autonomy and choice are allowed to prevail. But if this right is derecognized, it is up to the State to either ban it or to regulate stringently and courts become virtual bystanders. Notably, the right to individual autonomy, choice and privacy have been recognized as part of liberty by the Supreme Court of India in the Aadhaar case, and even by European courts. US Supreme Court judgments expanded privacy in the public sphere and their judgments were noted in the Aadhaar 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 fetus is the result of a crime against her or because she is a minor or her own life is in danger if she delivers. Roe and Casey judgments gave her a choice up to a particular stage. Justice Alito takes it away.

According to the Roe judgment, the weight of the State’s interest grows with the growth of the fetus and the balance tilts against abortion after fetus viability (the ability of a fetus to survive outside the womb; generally considered to begin at 23 or 24 weeks’ gestational age). This line of balance gives enough time to women to decide if they want to deliver. But Dobbs vs Jackson destroys this balance and the right itself.

LGBT rights, the right to solemnize inter-racial and gay marriages, to marry in prison and to decide on a child’s education have been recognized on the strength of the Roe judgment and they too have no deep-rooted basis in history and traditions. But they do not involve the destruction of ‘potential rights’. But they do destroy the ‘originalism’ approach and accept dynamism in recognizing new rights. The Dobbs judgment goes against the global drift. By looking backwards, it has pushed back American women, nay society, into feudal, medieval times. Some states have forthwith imposed a ban on abortion by invoking trigger provisions. Others would follow soon. Women will not sit quietly. The Dobbs judgment will not be the last word on the matter.

(The author is a senior advocate, Supreme Court of India)