A major blow to women’s right to equality

By Prof Satya Narayan Misra*

Following the second world war, the US anointed itself as the leader of free world and the leading cheer leader of liberal democracy. However, the judgement by the US supreme court on 24th June in Dobbs Vs Jackson Women’s Health organisation declaring that there is fundamental right in the constitution for the women to undergo abortion, overruling the Roe Vs Wade judgement 49 years back, is widely being viewed as undermining American record in liberal rights globally. In the RoeVs Wade case (1973) the supreme court on a 7:2 decision held that the due process clause of the 14th amendment to the US constitution provides a justification of right to privacy, which protects a woman right to abort. The right to abort, the court held, is not absolute but must be balanced against government’s interest in protecting women’s health and pre-natal life. The Roe case in view of both liberal and conservative legal scholars is considered as legally inelegant or down right shoddy. Yet when the judges have been called to review, they have upheld the Roe verdict under the doctrine of Stare decisis. As a matter of fact, various opinion polls have found that 58% women with children wanted the Roe judgement to be upheld and 62% of those without children have also supported the ruling.

The Roe verdict has been an inconvenient thorn in the flesh of the republican party which takes a very conservative view of society and promotes religious orthodoxy. When Trump became the president he picked up three judges who were all schooled in religion infused with right wing legal world. When the Mississippi law (2018) that banned abortion came for a challenge in the supreme court these newly-appointed judges nominated by Trump and two others overruled the Roe judgement by observing that no substantial right to abort was deeply rooted in the nation’s history or tradition nor considered a right when the due process document was ratified in 1869. The three dissenting judges have observed that “women’s status as equal and free citizens will be curtailed and diminish women’s opportunity to participate fully and equally in the nation’s political, social and economic life”. The dissenters have concluded that the majority judgement is “an extravagant exercise of the power of judicial review.”

Aristotle disliked abortion but considered it less cruel than letting unwanted babies born into neglect. Hippocrates was against it.  And for much of the ensuing millennia, philosophers and politicians have continued to argue over the legality and ethics of the unsavoury practice. For much of the western history, abortion was not considered criminal if carried out before quickening, that is the moment of foetus between 18 to 20 weeks. Many countries in modern time have reached a similar compromise. In Australia, Canada, Britain, France, India and Japan, the law makers have made abortion legal in the 1st few months. Most Americans consider that to be a sensible balance and the Roe and Wade judgement took this fine balance to a higher level by recognising abortion access as a fundamental right for woman. All the same issue, abortion presents a profound moral issue on which the Americans hold sharply conflicting views. Some believe fervently that a human person comes into being as a concept and that abortion ends an innocent life. Others feel that any regulation of abortion invades a woman’s right to control her own body and prevents women from achieving full equality. Still others in a third group think that abortion should be allowed under some circumstances. This has been the stance which the law makers have adopted in several counties. Gloria Steinem the famous woman activist had once famously observed “if men could pregnant, abortion would be a sacrament.”

The repercussions of the judgement, apart from its political implication, is going to affect the poor women the most who are most vulnerable to unwanted pregnancy. Their relatively lower level of education and health care make them more likely to have an unintended pregnancy. They are less able to undertake the onerous step that evading an abortion ban entails. Some obstetrician warn that the mess created by the recent judgement could also lead to increase America’s maternal mortality rate which is already the highest in the developed world. For instance, MMR in USA is 17 per lakh as against 1.8 in Norway, 1.7 in New Zealand and 3 in Germany. Interestingly, abortion rate has come down by almost 50% after 1980 largely due to widespread availability of abortion medicines.

The United States have witnessed decades of polarisation but the supreme court’s decision in Roe’s judgement has made it worst. Rarely has the court seen more politicised decision and the public trust in the supreme court has plummeted as only 25% approve of it. India’s record in terms of abortion jurisprudence has been rather edifying. Two years before the Roe judgement, India enacted the medical termination of pregnancy act as per which an abortion can be undertaken within 20 weeks. In the latest act 2021 the limit has been increased to 24 weeks with no upper limit if there is substantial foetal abnormality. The act shows rare empathy towards survivors of sexual assault and rape and for minors and women with disability. The Kerala high court decreed in a case of 24-year rape case that pregnancy of 24 weeks can be terminated as “right to make reproductive choice is a facet of personal liberty”. The Kolkata high court allowed similar abortion for a foetus of 35 weeks in view of severe abnormality and health hazard. However, the courts have been consistent in their judgement that the consent of women is mandatory before abortion.

It would thus be seen that the oldest democracy and upholder of free speech and equality need not be a lamp post for other countries in terms of gender justice & equality. Regressive political predilection coupled with conservative judges who believe in religious orthodoxy can play havoc to the notion of equality in a liberal democracy, as the Dobb judgement has shown. It has been aptly demonstrated that political choice has been at the root of such a repugnant judgement. However, it must be remembered that even laudable judgements like Sabarimallai case where right to equality of women to visit the deity was restored, a dicey political dispensation completely nullified the court verdict of right to equality. As the oldest democracy like America moves back in time, India can draw solace that it has a more robust architecture for women in terms of abortion rights buffeted by a vigilant court.


Prof. Misra is Professor Emeritus.


DISCLAIMER: The views expressed in the article are solely those of the author and do not in any way represent the views of Sambad English.

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