Open Access Research Article
The Collapse of ROE v WADE: The abolition of Right to Abortion in United States(By: Parkhi Agarwal & Harshit Gupta)
Published Paper
Article Details
The Collapse of ROE v WADE: The
abolition of Right to Abortion in United States
Authored By: Parkhi Agarwal,
Student of MBA (Law) at NMIMS, Mumbai
Co-Authored By: Harshit Gupta
Student of MBA (Law) at NMIMS, Mumbai
Abstract
Globally 1 in 4
pregnancies are terminated via abortion either medically or through use of
drugs available in the market. There are various reasons for which people opt
to terminate their pregnancy. This particular procedure shall be done in
presence of a specialized medical practitioner but now-a-days people are
resorting to unsafe methods as there are countries wherein the abortion itself
is not legal. This in fact has a huge impact on the lives of the person opting
unsafe method to abort the pregnancy.
A person shall have a
right over their body and reproductive parts. Right to abort is directly linked
to human rights to live life safely and in a free environment. But this basic
right is not available to the people. Recently U.S Supreme court has raised
questions over this very essential right of a person whereby taking a step
backwards the U.S Supreme court has held that the Constitution of United States
does not guarantees a right to abortion and thereby overturning half a century
old precedent set in ROE v WADE. This decision has raised several protests
throughout the country. This article talks about the need of decriminalizing
abortion, timeline of the right to abortion in United states and international
position of abortion laws.
Keywords: Abortion, ROE v WADE, Human right, United States, Pregnancy
Introduction
The term abortion is a
medical procedure to terminate a pregnancy. Such termination of pregnancy is an
induced one with the help of either clinical surgical procedure or drug induced,
through the combination of mifepristone and prostaglandin. Right to
abortion is a subject of human right which is commonly adopted by millions of
females across the world. International Human right laws guarantees a basic
right to humans to live life with dignity, right to have a healthy life, right
to live freely and in a safe environment. It clearly implies that a humans have
a right over their own body which implies a right to abort an unwanted
pregnancy. Abortions are one of the safest medical procedures when executed
under hygienic settings by a competent healthcare expert. There are various
reasons for which females adopt abortion and compelling them to take forward an
unwanted pregnancy is against their life to have a healthy life and more
importantly it is against right on their own body.
There are various reasons
as to why females opt abortion which may include the following:
1.
40%
people were not financially prepared
2.
12%
people had Concern for their own health and Concern for the foetus' health
3.
19%
people were not mentally and emotionally prepared
4.
12%
people wants a better life for a baby than they could provide
5.
36%
people felt its unplanned pregnancy for them
6.
7%
people are not independent or mature enough [1]
The above listed reasons compel people
to resort to abortion. While many countries are changing their legal regime in
order to decriminalize the termination of pregnancy through abortion, United
states have recently overturned 1973 landmark judgement abolishing 50-year-old
constitutional right provided to women to terminate their unwanted pregnancy
via abortion.
Timeline Of
Abortions Laws And Rights In The United States
1.1
Pre ROE v WADE era
Before this most
remarkable precedent abortion was mostly illegal in almost all the states across
U.S. Irrespective of the illegality of the abortion there were many illegals
abortions that used to happen putting the life of the women getting abortion in
a great risk. But this whole system of abortion laws saw a revolution in the
year 1973.
1.2
About ROE v WADE
This particular case is
one of the most controversial cases of its time. This particular decision was a
precedent in the terms of constitutional right to abort. The facts of the case
are: Jane Roe (fictitious name) became pregnant in 1969 bearing her 3rd
child. She was a resident of Texas in United states and wanted to resort to
abortion. According to the laws in Texas abortion is an illegal act except in
scenarios where there is a threat to mother’s life and it is necessary to
resort to abortion to save her life. She files a lawsuit before US federal
court against the district attorney claiming that such laws are
unconstitutional in nature. A 3-judge bench struck down Texas Abortion laws
holding that such laws are unconstitutional and giving a judgement in the
favour of Jane Roe. The defendants filed an appeal before the U.S Supreme
court.
With a majority of 7:2,
US Supreme court on 22nd January 1973 held that the rudimentary
"right to privacy" is guaranteed by the United States Constitution's
14th Amendment's Due Process provision which impliedly safeguards a
pregnant woman's right to an abortion in her first 3 trimesters of her
pregnancy. The Court held that the abortion laws shall be governed with the
help of women’s trimester table and hence a female has a right to opt abortion
during first two trimesters of her pregnancy period.
1.3
Planned Parenthood v. Danforth
In 1976 the restriction
requiring the permission of a parent or a spouse to get an abortion was struck
down stating that such a restriction provides absolute veto power to the third
unrelated party.
1.4
Hyde amendment
This amendment entered in
1976 which
targeted to limit federal backing for abortions under Medicaid provision. This
amendment was upheld in a case of 1980 where it was held that even though a
woman has a right to get abortion but that does not imply that she a right to
get paid for the procedure of the abortion to be done.
1.5
Akron v Akron
This 1978
case struck down the restriction regarding a consent to be given by parents in
case a patient below the age of 15 years wants to get abortion with 24 hours
waiting period. The court held that these restrictions if implemented would
make it difficult for the patients to get abortion.
1.6
Planned Parenthood v. Casey
The state of Pennsylvania
approved certain abortion laws wherein specific restrictions were put in order
to get an abortion procedure including 24 hour wait line, information to the
spouse regarding the procedure and etc. These restrictions were ultimately
creating sprints for the patients to get an abortion done. These were
challenged by Planned Parenthood in 1980 stating that such laws violate the
precedents set by ROE v WADE in 1973. The court upheld the ruling of ROE v WADE
by reaffirming the right to get an abortion but the court also upheld some of
the provisions of the laws stating that it should be looked with a view whether
the law is causes any undue burden on the patients or not.
1.7
The 2022 controversy
Dobbs v. Jackson Women's
Health Organization in 2022 overturned 50-year-old precedent set by ROE v WADE.
In 2018, state legislature of Mississippi enacted Gestational Age Act banning
abortion procedure after 15th week of the pregnancy with no
exclusions for situations of rape or crimes against women in Incest situation,
but only in circumstances of medicinal emergencies or severe terminal
abnormalities. The lawmakers used the arguments that abortions were "a
brutal procedure, risky for the mothers, and such a practice is degrading
medical occupation”. The lower courts ruled against such laws stating that they
violate the precedents set by ROE v WADE in 1973.
The state of Mississippi
aggrieved by such decision appealed to the 5th circuit court which
confirmed the lower court decision and then the matter was taken to supreme
court stating that the decision given in 1973 case was egregiously wrong. The
matter was taken in the Supreme court stating that the court should consider the
abortion as inhuman procedure. The state argued that such a legislation is
required to save the life of a potential human being. whether with a majority
of 6:3 reversed the decision given by 5th circuit court and held
that right to abortion is not guaranteed by the constitution of U.S overturning
Roe V Wade case and Casey case.
The
Aftermath Of The 2022 Controversial Case: Dobbs V. Jackson Women's Health
Organization
U.S is one of the most
developed countries in the world and with its judgement it has taken away the
autonomy of women on their body. All the 50 states did not make abortion
procedure illegal but the states which implemented trigger legislation to
restrict abortion re-implemented them after the decision of the Supreme court.
With the decision of the Supreme court over 40 million people will be directly
impacted in states where abortion is expected to be banned or criminalized[2].
States like Texas, Mississippi, South Dakota will implement all the trigger
laws that were hauled sue to Roe case ultimately Banning abortion.
While 68% of Americans believe that abortion should remain legal
nationwide, at least 26 states are likely to implement total or
near-total bans on abortion in the wake of the decision.[3]
Approximately more than 13 states have put trigger abortion laws. Even abortion
allowed within early gestational period say up to 8 weeks still reduces the
access for people to opt for abortion.
With the overturning of
the Roe case, now the states are free to put restriction on the procedure of abortion
and frame laws accordingly. According to President Joe Biden, his government is
considering taking unilateral action to lessen the effects of the decision
given by the Supreme
court. Biden said it was
a "sad day" and that overturning of Roe had put "the well-being
and lives of women at jeopardy." According to him this judgement has taken
U.S 150 years back.
Legal
Analysis Of Overturning Of ROE V WADE
During the time period of
Trump government there was a Gag rule which restricted state funding for any
type of abortion procedure which was later overturned embarking upon a new way
to reproduction right but due to current decision taken by the Supreme court
the country has taken a back seat to 1900s.
Many legal experts opined
that overturning of Roe V Wade will have an effect on states of U.S i.e.,
states now will have the authority to make their own independent abortion
regulations. They will establish a separate legal framework. Some experts
claimed that the fact that so many states have laws criminalising abortions,
even when they occur outside of their borders, creates a legally induced
environment that allows states in United States to operate to act more
independently by bringing cases against those who violate federal law.
It has been questioned if
such a judgement is realistic and enforceable. The decision has been viewed in
light of the nation's growing divisiveness and political polarisation.
The decision also
effected the reproductive rights severely. Thus, this ruling has taken away
federal protection for abortion and cuts off access to abortion for 36 million
US women[4].
Criminalizing
Abortion Doesn't Prevent It; It Merely Makes It Riskier
The decision of the
Supreme court overturning Roe case in U.S triggered many protests across the
state. Where many countries are decriminalising abortion in order to promote
safe a health environment for the patients, United States is taking a step
backward by holding abortion as unconstitutional. Its not only females who are
in need to opt for abortion but also the transgender males, intersex people and
people having female reproductive organ capable of conceiving who may need an
abortion in case of unwanted or unsafe pregnancy. Mere
criminalizing the
pregnancy will not stop the act of pregnancy at all. In case of no option available to them people
will opt for unsafe and illegal ways to abort their unborn child which will put
the life of such patients at a greater risk. Around 73 million induced
abortions take place worldwide each year[5].
Thus, it is essential to provide access to safe abortion environment to each
patient in order to provide the risk posed by unsafe abortion procedure where
an abortion is induced with the use of drugs or without healthcare experts.
Unsafe abortion may have deadly result for the patient. Thus, it is about time
that the countries shall legalize abortion. Right to abortion is directly
linked to protecting human rights and upholding gender justice across the
world. People shall have autonomy to exercise their bodily rights and shall be
able to make a sound decision for their body parts including reproductive
organs as well. Forbidding abortion is discrimination, and it feeds the stigma.
International
Position Of Abortion Laws
The Abortion laws around
the world various according to the region. A lot of international frameworks
have included abortion as a basic human right that should be available without
discrimination. World Health
Organisation (WHO) in 1967 first recognised the problem of unsafe abortion
as public safety issue, in 2003 developed certain guidelines with respect to
the same and in 2020 have issued a list with respect to essential health care
services which also included broad abortion care services as well.
International Conference on Population and Development in 1994 issued an action
plan which includes a pledge to prevent unsafe abortion. In 2005 United Nation
Human rights committee made Peru liable for not allowing a woman to have a
medically induced abortion. This was the first UN committee to recognise the
problem of abortion.
In past 25 years many
countries have liberalised abortion laws thereby proving access to safe
abortion to the people. In 2018, Ireland
repealed all their abortion banning laws thereby making abortion
constitutional. In India, the Medical Termination of Pregnancy Act, 1971, allows for
legal abortions under specific circumstances.
According to the Ministry of Health and Family
Welfare, an abortion in India is lawful under this act if it is terminated
within 20 weeks, has the sanction of a doctor, and is performed by a medical
professional at a recognised medical institution. An amendment to this act has
been made in The Medical Termination of
Pregnancy (Amendment)
Bill, 2020 which was passed to change the time period of termination to 24
weeks. In 2020, Argentina and Thailand have also legalised right to abortion. New Zealand, South Korea, Mexico also
legalised Abortion. Although a lot of countries have legalised Abortion but
there are some countries like Honduras,
El Salvador and United States that have put ban on Abortion in their
territories.
Conclusion
More than anything a
right to abortion is a person’s own independent right. It is a right over one’s
own body, health, mind, privacy, and reproductive organs. The right to abortion
shoots from a person’s right to privacy which was established by Roe V Wade.
But the controversial 2022 case changed the whole interpretation of right to
Abortion. It is stated by Justice Samuel Alito that the constitution of United
states does not expressly guarantees right to Abortion and no provision in the
constitution impliedly protects this right.
This conservative approach has led to the destruction of right of a
person over their own body.
People will ultimately
opt for unsafe abortion methods in order to terminate their pregnancies. Giving
access to safe medical abortion procedure will help a country to achieve social
as well as gender equality. It was reported that post Roe decision, the death
rate due to unsafe abortion has declined tremendously. Abortion is not just a
right but a matter of public safety. In the era where a lot of countries are
changing their legal framework with respect to abortion, U.S have taken a back
seat in this matter. This is 21st century where almost half of the
world follows democracy. People are becoming more radical with respect to their
mind-set as we are moving forward in the future. We require more liberal
abortion supporting laws. The Dobbs case has set a bad precedent and will take
away women’s right over her own body. This will burn the right to privacy thus
affecting over millions of people directly. Thus, people will either have to
continue with their pregnancies or get it terminated illegally which poses
various life threats. Abortion is safe when done under the surveillance of a
medical expert as it requires post procedure intensive care as well which is
done given when done illegally. Also, people can opt
to go to another state
where they do not have tigger laws w.r.t abortion and where abortion is still
valid.
In the consequence of
Dobbs V Jacksons case, numerous people are trying to evade the situation of
pregnancy by resorting to medical procedures like vasectomy and plan B pills.
All these efforts will directly affect the health and mental well being of the
people. It high time that we realize that we rare living in 21st
century where everything is accessible and available. Even though abortion is
no more legal in several states of U.S there are way to get it done. At time is
important for rape survivors or people with life risks to get abortion done.
This is not only affecting the health physically but, in some context, it is
also affecting the mental health and the relations as well. Thus, it’s time to
change the laws and prioritise health over conservatism. There is high need to
establish proper laws safeguarding right to abortion, proper medical assistance
procedure manual and training systems for the medical staff. There is a need to
create a better world with any discrimination. Political influencers around the
world have called the Dobbs decision as egregiously wrong, a huge setback and
loss for people around the world especially women.
Article Information
The Collapse of ROE v WADE: The abolition of Right to Abortion in United States(By: Parkhi Agarwal & Harshit Gupta)
Authors: Parkhi Agarwal, Harshit Gupta
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/07/15
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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