By Rajesh Kumar
Well-known American jurist Ronald Dworkin about Roe v. Wade (in short Roe), one of the landmark decisions of the US Supreme Court that permitted abortion to American women up to 23rd week of their pregnancy, noted in his 1994 book: “Roe v. Wade is not yet wholly safe: if a single new justice is appointed who believes it should be overruled, it will fall. That would be a bleak day in American constitutional history.”
Unfortunately, that bleak day appears all set to fall in America’s constitutional history. The US Supreme Court consists of nine justices – currently six conservative and three liberal. Hence, with conservative supermajority, the country’s top court appears quite determined to strip women of their constitutional right to abortion granted by Roe V. Wade in 1973 and reaffirmed in Planned Parenthood v. Casey in 1992.
Because of this, the May 2 leak of the US Supreme Court’s draft decision that sought to overturn Roe V. Wade, sent shock waves across the country.
The news repealing the decision came as a thunderbolt. Everyone was caught off guard. The prospect of Roe V. Wade being overturned was seen in seismic terms. For instance, The New York Times likened it to “jurisprudential earthquake.” And BBC described it as “political earthquake” in its reportage.
The leaked opinion running into 98 pages, though not final as yet, and which was published by Politico, is by Justice Samuel Alito.
His draft opinion in no uncertain terms holds that the American “Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.”
This draft opinion followed in Dobbs v. Jackson Women’s Health Organization, where the State of Mississippi prayed to the American Supreme court to uphold the constitutionality of one of its laws – Mississippi’s Gestational Age Act – that sought to prohibit abortion after the 15th week of pregnancy, almost eight weeks before the current point of viability. The state wanted the Supreme Court to overrule the decision in Roe and Casey.
According to the Justice Alito’s draft decision, “Roe was egregiously wrong from the start.” The opinion cited the following reasons for being so. First, the American constitution does not make a mention of right to abortion in its text; second, the court invoked irrelevant history of abortion from antiquity to justify its decision; third, abortion was homicide at Common Law; fourth, the monolithic continuum of human life – from conception to natural death – was arbitrarily demarcated; fifth, reasoning applied in Roe is “exceptionally weak”; sixth, abortion is not rooted in America’s national history and tradition. Hence, Roe, according to the Draft, was never a constitutional law.
Why this backpedaling?
Abortion is an extremely controversial religio-ethical issue in the United States. The draft decision acknowledges it in the opening sentence when it notes: “Americans hold sharply conflicting views” about abortion. According to Dworkin, it is the “most savagely” debated moral issue in contemporary America and the issues related to reproduction, he claims, are “essentially religious issues.” Similarly, philosopher Peter Singer noted in Practical Ethics: “Few ethical issues have been as bitterly fought over during the past forty years as abortion, and neither side has had much success in altering the opinions of its opponents.”
The latest Pew Centre’s survey conducted in March well before the leak, however, found that 61 percent American citizens say that abortion should remain legal in the United States in “all or most circumstances”, while 37 percent say it should be illegal in “in all or most circumstances”. Nearly one-fifth Americans, 19 percent, favor abortion being permissible in all circumstances, while 8 percent say it should remain prohibited in all circumstances. One-thirds, 33 percent, who generally support abortion, say the statement “human life begins at conception” resonates with them as well in some measure. According to another survey done by CBS news post leak, 64 percent, as opposed to 36 percent, Americans say that abortion should remain legal. These surveys show that American popular opinion seems to be somewhat aligned in favor of letting abortion stay legal in the country.
Nonetheless, American opinion over the issue of abortion remains sharply divided. It is often seen in terms of pro-choice-and-pro-life binary. The pro-choice view supports, as the American Heritage Dictionary puts it, the “legal right of women and girls to choose whether or not to continue a pregnancy to term”, while the pro-life view advocates, again, as the American Heritage Dictionary puts it, the “legal protection of human embyos (sic) and fetuses, especially by favoring the outlawing of abortion on the ground that it is the taking of a human life.”
Her body and her right to choose
The pro-choice account is essentially anchored in letting women have right to make reproductive choices on their own. Psychologist Mary Crawford, for instance, explains in “Women, Gender, and Psychology”: “At the heart of the concept of reproductive freedom is the idea that all choices about reproduction should be made by the woman herself: It is her body and her right to choose.” Because of this, she adds: “feminist perspectives on reproductive freedom are often termed pro-choice.” Reproductive freedom encompasses women’s bodily autonomy, bodily integrity, access to birth control, access to abortion and so on. The United Nations Population Fund (UNPF) particularly explains “bodily autonomy” thus:
“Bodily autonomy means that we have the power and agency to make choices over our bodies and futures, without violence or coercion. This includes when, whether or with whom to have sex. It includes when, whether or with whom you want to become pregnant. It means the freedom to go to a doctor whenever you need one.”
The decision in Roe V. Wade allowed some form of this freedom to American women. It granted constitutional right of reproductive autonomy to pregnant women in the first trimester of their pregnancy. The American states during the period may not outlaw abortion on any ground they wished. During the second trimester, they may regulate it only out of the concern for the health of the mother. And in the third trimester, when fetus turned viable – could remain alive outside the womb – being, it was recognized that the states had power to outlaw abortion altogether. The framework appears quite reasonable with court taking into consideration the interests of pregnant women, states as well as fetus.
The draft opinion, however, rejected the trimester system: “This elaborate scheme was the Court’s own brainchild. Neither party advocated the trimester framework.” Secondly, the framework is quite arbitrary as the court did not provide answer to the questions such as: why is a mother’s health not concern in the first trimester? How does the health of the mother become compelling interest to regulate abortion in the second trimester? And, what is the rationale of keeping fetus viability line in the third trimester?
Thou shall not kill
On the contrary, according to the account of pro-life people, god created man in his own image and the Bible dictates in the sixth commandment: “thou shall not kill.” Pope John Paul II had issued the following declaration in 1980:
“It is necessary to state firmly once more that nothing and no one can in any way permit the killing of an innocent human being, whether a fetus or an embryo, an infant or an adult, an old person, or one suffering from an incurable disease, or a person who is dying.” In 1991, he wrote to the bishops across the world: “the new evangelization, which is a fundamental pastoral necessity in today’s world, cannot neglect the proclamation of the inviolable right to life which belongs to every person from the moment of conception until life’s natural end.”
What follows from this is that since human life has been created by god in his own image, it is sacred and imbued with inviolable sanctity. It is so at all stages of life – from conception to natural death. Hence, cutting it short deliberately at any stage must remain prohibited. Second, pro-life people refuse to acknowledge demarcation between pre-viability and post-viability or prenatal and postnatal life. For them, human life, which begins at conception and ends at natural death, is a monolithic sanctimonious continuum. The attempt to create arbitrary distinctions across this sacred continuum makes little sense.
In fact, when the draft opinion of the American Supreme court reaches the conclusion that Roe’s reasoning was “exceptionally” or “exceedingly” weak, it does so largely because The Roe had envisioned and espoused the distinctions across the sacred continuum of human life in terms of prenatal-postnatal life, trimester system and pre-post viability criterion to permit abortion. According to the draft decision, these distinctions are arbitrary on various grounds.
Third significant aspect which is quite evident is that pro-life people assert that embryo is human person with having legal rights including constitutional ones such as right to life.
Prenatal life and personhood
Pursuant to this view, essentially anchored in theology, pro-lifers mounted relentless campaign to seek moral personhood for embryo and fetus with right to life. This campaign is underway nearly for past five decades. The first attempt was made by the National Right to Life in 1975 to pass personhood amendment at federal level. In 2011, Mississippi put personhood amendment – which if passed would have bestowed personhood upon fertilized eggs, embryos, and fetuses – on ballot. Earlier in 2010, Alabama, California, Colorado, Florida, Michigan, Missouri, Montana, Nevada, and Virginia had also made unsuccessful attempts to pass personhood amendments.
However, Nebraska in 2010 succeeded in enacting “Pain-Capable Unborn Child Protection Act”. The law prohibited abortion after 20 weeks of pregnancy on the ground that, as Bertha Manninen in “Pro-Life, Pro-Choice” put it, “after this point in pregnancy a fetus is capable of feeling pain and would, therefore, suffer immensely if aborted.”
The point that appears to become vivid is that pro-lifers, along with having the all out demand for recognition of moral personhood of embryo and fetus, pursue the same goal doggedly in two other ways. First, they strive to push the line of fetus viability as low as they could. The Mississippi law (supra), for instance, seeks to keep it after the 15th week of the pregnancy, which is nearly eight weeks earlier what it happens to be. The line of fetus viability, when Roe was decided in 1973, was nearly 28 weeks.
Second, on scholarly plane, personhood is understood in terms of living up to certain criteria. Entity being considered for personhood should have self-consciousness, reasoning abilities, autonomy, moral agency, capacity to make rational choices and the capacity to feel pain and pleasure.
Given this, pro-lifers, adopting piecemeal approach, undertake campaign to get recognized any of the attributes associated with prenatal human life on their understanding. The Nebraska law (supra) is a case in point. The law recognizes fetus’s capacity to feel pain after 20th week. Hence the viability line was lowered to the 20th week with abortion going banned thereafter.
Torpedoing women’s reproductive freedom
The idea behind this concerted campaign to achieve personhood for embryo and fetus – prenatal human life – is to torpedo women’s reproductive freedom. At the heart of this campaign is the idea to elevate embryo and fetus morally equivalent to women. Recognition of moral status of prenatal human life would then clear way for constitutionally available right to life for embryo and fetus. Eventually, embryo and fetus’s right to life would trump mother’s right to decide, something which lies at the heart of reproductive freedom, for, as, Lisa Smyth in her article “Feminism AND and Abortion Politics: Choice, Rights and Reproductive Freedom” put it: “The claim to a right to choice carries less moral weight than the claim to a right to life.”
Even philosopher Judith Thomson in her much commented article titled “A Defense of Abortion” (1971) also points towards this aspect: “A person’s right to life is stronger and more stringent than the mother’s right to decide what happens in and to her body, and so outweighs it. So the fetus may not be killed; an abortion may not be performed.”
The draft decision does not portend well for women. The US Supreme Court appears determined to take away women’s pivotal right in order to bestow rights upon the unborn. It appears quite bizarre. Dworkin in his aforementioned book further noted about Roe’s precarious future that conservative majority of justices in the US Supreme Court would “make the famous decision only history.” Would it? Hope it doesn’t. Otherwise, as The Lancet says: “Alito and his supporters will have women’s blood on their hands.”
Dr. Rajesh Kumar practices law in Delhi. He holds doctoral degree in gender equality and constitutional law. He wrote his dissertation on euthanasia and right to life at predoctoral level. He may be contacted at email@example.com
Cafe Dissensus Everyday is the blog of Cafe Dissensus magazine, born in New York City and currently based in India. All materials on the site are protected under Creative Commons License.
Read the latest issue of Cafe Dissensus Magazine, “Fantasy”, edited by Atreyee Majumder, National Law School of India University, Bangalore.