Author : Akanksha Khullar

Expert Speak Raisina Debates
Published on Jul 21, 2022 Updated 5 Days ago
The recent decision of the US Supreme Court with respect to the abortion rights of women has led critics to call for reconsideration
Roe vs Wade Judgement overturned: A setback for women and the American democracy The United States (US) Supreme Court on 24 June overturned with a 6:3 majority the landmark 1973 Roe vs Wade decision, which made abortion a constitutional right up until the point that a foetus could live outside the womb, typically set at 22 or 24 weeks of pregnancy. This ruling has come at a point when significant progress has already been achieved in guaranteeing women’s access to abortion with approximately 50 countries liberalising their abortion laws, thereby, placing the US amongst the few dozen countries that have severely restricted access to the procedure, depriving women of her rights to govern her body.

While the decision

While the decision does not mean that abortion would immediately be banned throughout the country, it does give the individual US states the power to regulate or prohibit abortion subject to a rational basis review. This means that if state abortion regulations are challenged constitutionally, abortion bans will presume to be legal as long as there is a “rational basis” for the legislature to believe that the law serves the legitimate interests of their states.

One of the most immediate consequences of this decision is that people seeking an abortion will now need to travel significant distances to reach their nearest abortion provider and receive abortion care.

Estimates provided by the Guttmacher Institute—a research organisation that supports abortion rights—suggest that legislatures in 26 states are likely to ban or substantially restrict access to abortion. Of those, 13 US states had already designed and implemented ‘trigger laws’ in anticipation of the recent ruling that will go in into effect immediately or by quick state action. It is, therefore, safe to say that the apex court’s decision has created a treacherous pathway to abortion bans that could reinforce social, economic, and political inequalities, stripping women of their status as free and equal citizens. It is also important to remember that coercive abortion laws not only go against women’s rights but also against other universally acknowledged rights such as the rights to equality, health, and the independent choice of how many children to have. One of the most immediate consequences of this decision is that people seeking an abortion will now need to travel significant distances to reach their nearest abortion provider and receive abortion care. And while some of these women will manage to reach a provider, there will be about a quarter of pregnant women who won’t. As a result, some women might resort to self-manage abortions through medications or other means, thereby, ending their pregnancies without clinical supervision and proper care. This is concerning since not many people have adequate information about abortion medications. According to Ibis Reproductive Health—a global research institution—one in five people who had ever been pregnant tried to self-manage an abortion, but no one ever reported using medication for the purpose. They instead reported things like suffering through “physical trauma, inserting objects into the vagina and ingesting substances that are harmful.” A combination of these factors could thus, place women at an increased risk of physical and mental health issues, which could in turn lead to higher rates of maternal mortality.

The 14th Amendment states that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

In addition, with an enormous outflow of thousands of women from the states that ban, it to the states where the provision of abortion is still legal, the healthcare systems will be severely impacted as not all providers are currently prepared to fully absorb the huge increase in demand. The decision will, therefore, only end putting additional pressure on hospitals and health centres that are still trying to grapple with the aftermath of the COVID-19 pandemic. Besides, a significant portion of people who want, but don’t have access to abortion, especially poor women will be forced to carry their pregnancies to term. This could negatively impact their financial holdings, making it more and more difficult for them to cover living expenses after giving birth, pushing them further into poverty, and being forced to take up petty jobs, which provide them with little to no security. But apart from having negative repercussions for women’s rights and health, this altered scenario also comes with far-reaching implications for the American judiciary and democracy. According to the US Constitution, the 14th Amendment states that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” And it was this 14th Amendment that was originally invoked to justify Roe vs Wade in 1973. In the aftermath of this, the Supreme Court has utilised the 14th Amendment to justify other rights as well as prevent individual states from enforcing laws that violate an individual’s freedom or rights, including those that might not be directly spelt out in the Constitution such as the right to privacy. However, Justice Alito has ended up using the same amendment to overturn Roe vs Wade in the present judgement. Justice Alito in fact, stated, “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right 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. Until the latter part of the 20th century, such a right was entirely unknown in American law.”

Justice Alito has ended up using the same amendment to overturn Roe vs Wade in the present judgement.

This has clearly shown us how an amendment that was originally put in place to protect the US citizens can simply be twisted, turned and reduced as a politicized tool to serve the interest of one community while overlooking the needs and concerns of the other, stripping them of their universal rights. Owing to these concerns, the apex court’s decision has drawn a spate of sharp criticism from health researchers, politicians, and economists across the world. And with the US now being the most influential and wealthiest nation to roll back abortion rights, many activists stand worried that the judgement could threaten the recent advancements that have been made towards the legalisation of abortion in their own respective countries, thereby, bringing to the spotlight the glaring deficiencies in their democracies. The underlying issues of this decision, therefore, urgently need to be taken into consideration.
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Author

Akanksha Khullar

Akanksha Khullar

Akanksha Khullar is a Visiting Fellow with the ORFs Strategic Studies Programme where her work focuses on the intersection of policy advice and academic research ...

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