Open Access Research Article
THE REPEAL OF ROE V. WADE: UNVEILING THE CONSEQUENCES OF THE OVERTURN FOR WOMEN IN THE UNITED STATES
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THE REPEAL OF ROE V. WADE: UNVEILING
THE CONSEQUENCES OF THE OVERTURN FOR WOMEN IN THE UNITED STATES[1]
AUTHORED BY - PARIDHI JAIN
Abortion refers to the practice of
willful termination of pregnancy by the mother. The act of abortion was made a
matter of constitutional liberty by the historic judgement of Roe vs. Wade in
1973, which established that “the right to have abortion was a constitutional
liberty of fundamental importance” (Dellinger and Sperling, 83). This meant
that a woman could exercise her right to have an abortion up until fetal
viability is achieved, that is upon the commencement of the third trimester of
gestation whereupon a fetus is capable of surviving outside the womb. The
decree of Roe not only furnished women with access to legalized and safe
mechanisms of getting an abortion, but also provided safeguard to bodily
integrity and autonomy over their reproductive rights. However, this right was
curbed on 24th June 2022 when the United States’ supreme court
overturned the Roe decree with a 6-3 vote and thus corroborated that henceforth
there will state specific regulations on abortion practices instead of
standardized and uniform federal law on abortion. This bestowed immense power
into the hands of individual states to dictate the terms of abortion care and
created a disproportionate abortion care mechanism in the whole country. Texas
for instance has imposed austere regulations on abortion making it criminally
penalizing to get an abortion and simultaneously deeming it a felony to provide
abortion (Klibanoff, n.p.). in the absence of a uniform federal law on
abortion, women residing in different states of the country will be governed by
sets of laws that are different from other states. Under such circumstances, a
woman will be forced to either travel long distance to access safe and legal
abortions or will have to resort to illegal and often fatal means of getting an
abortion. Apart from the obvious physical and mental implications of this
overturn, there are a myriad of other problems that women currently residing in
USA will face. Moreover, while this
paper focuses mainly on the effects of abortion ban on women, it is obligatory
to address the effect it will have on people who capable of being pregnant
apart from the female population. People who identify as transgender or
non-binary, who are biologically capable of conceiving require both
representation and right in matters relating to abortion. Majority of
the anti-abortionist arguments stem from the premise that the fetus is a
citizen and has a right to live. This argument establishes that a woman’s
rights become less important the moment she conceives, and that all priority is
to be given to protection of the life of the fetus. This argument has
manifested itself in the form of the strict abortion laws prevalent in many
states of USA and has resulted in the mass support of the overturn of the Roe
judgement which will have repercussions on women in USA. The aim of this paper
is not to antagonize any of the stakeholders in this issue, but to simply lay
out the potential consequences the overturn can have for the women in the USA.
Thus while the anti abortionist, also termed as ‘pro-life’, proponents believe
that the annulment of Roe is a victory for the country, this paper argues that the repeal of Roe will cause gross
infringement of individual and reproductive liberty of women currently residing
in the USA, implying thereby that the rights of the unborn foetus supersede the
mother’s., further leading to increase in death rate in USA due to unsafe
abortions while bereaving victims of rape access to legalised and safe
abortion.
The USA constitution, via the
Fourteenth amendment’s Due Process Clause, guarantees 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” (Constitution annotated, n.p.). The Roe judgement
was in lieu of these rights and it’s overturn meant immediate infringement of
the same. The original judgement implied that restrictive abortion statutes
invade a pregnant woman’s right to terminate her pregnancy and are an attack on the woman’s bodily
integrity and reproductive liberty (Roe vs. Wade, 114). However, in Washington
vs. Glucksberg, it is argued that the fourteenth amendment only safeguards
rights that rooted in American history, which means that abortion is kept out
of the ambit of the liberties guaranteed by the amendment. A fundamental flaw
in this argument is the assumption that the circumstances of the American
society will remain constant throughout time and hence the society can properly
function with ideas that can be found only in history, at the time of making of
the constitution. Times change, and with them laws should and ought to change.
In today’s age, basing privileges of the citizens on historical notions and
subsequently denying women discretion over the matters of their body not only
infringes the aforementioned fundamental right of women as citizen but is also
discriminatory against women. It is equivalent to condescending women’s rights
on two levels first in comparison to men by treating women as “less” of a citizen
when they get pregnant, almost becoming detached from their own identity as a
person. And the second in comparison to the foetus which when conceived
supersedes the rights of the woman carrying it. A lot of importance is given to
the life of the unborn foetus and how abortion is deemed synonymous to ‘murder’
by pro-life activists, meanwhile the life and liberty of the mother is
forgotten or rather surpassed by the foetus.
There is
a dire need of access to safe and lawful means of abortion when pregnancy is
the result of rape, both within and outside of marriage, and especially when
the victim is a minor (Bhate-Deoshtali and Rege, 189). When pregnancy is a
consequence of sexual assault or coercion, it becomes a psychological and
emotional burden for the mother because it is unwanted or rather unpleasant.
Further, when the child is born he/she is subject to social stigmatization and
exile which will cause psychological trauma and emotional turmoil. This means
that both the mother and child will be subjected all types of anguishes because
the pregnancy is unwanted as the victim is practically being forced to borne a
foetus that is not a result of love or marriage. According to a report by ACLU,
almost 350,000 US teenagers become pregnant each year, 82% of which are
accidental pregnancies. Abortion becomes key when a minor is pregnant. This is
because there are different connotations to legal age to consent and actual age
to consent. Often, teenagers get pregnant out of a consensual act which in
legal terms cannot be considered to be consensual because at the time of
consent the individual is a minor by law and hence their consent is invalid.
Moreover, the minor is, more often than not, incapable of sustaining oneself on
their own and hence cannot be expected to bear an offspring physically,
emotional and financially. Moreover, having to continue a pregnancy during
teenage will have detrimental effects on the person’s body, education and
future career prospects. Under such circumstance the person should be given
access to safe and legal methods of abortion, that is not barred by time as
sometimes pregnancies are not detected until later stages, because of two main
reasons. First to ensure that termination of pregnancy does not have an effect
on future chances of getting pregnant, and second to save the individual from
the guilt, shame and social exclusion. Withholding the right to abortion will
not only affect individuals that choose to terminate their pregnancy, it will
also affect individuals who need to get their pregnancy terminated by dint of
their predicament.
Banning
abortion or imposing stringent abortion policies will not suffice in decreasing
abortion from being performed, it will only decrease the number of safe
abortions being performed (Falcon n.p). This is because in absence of legally
mandated mechanisms of getting an abortion, pregnant women will be forced to
resort of illegal and often septic means of abortion or sometimes try to
terminate their pregnancy by themselves, a practice referred to as
self-abortion. Self-abortions are currently prevalent in the American society
as a way of terminating pregnancy and they pose serious threat to both the
mother and foetus because women who indulge in self abortion opt for practices
that make them vulnerable to septic shocks, sepsis, infertility and even death (Alford,
1013). Criminalisation of abortions will not only increase maternal mortality
in USA, it will also incentivise an increase in such fatal abortion practices.
Such practices might eventually lead to criminal proceedings against the mother
or an increase in medical expenditure because more often than not, the mother
has to get treatment for the complications that arise out of the unsafe
abortion. International Human Rights Law recognises that being forced to travel
long distances to access abortion, or being compelled to resort to alternate
means of abortion constitutes to torture, inhuman and degrading treatment
(Londras and Enright, 46). This is because unsafe abortions are a threat to the
woman’s life and are also the cause of mental and emotional distraught because
of the persecution that comes along with it.
Roe vs.
Wade paved way for women in USA to get access to constitutionally mandated
means of abortion but it’s overturn will have multitudinous impact on the lives
of the women currently residing in USA. Denying women the right to choose
whether or not to continue their pregnancy is an outright infringement of their
fundamental rights and puts into question the position of the mother as a
citizen of USA. Not only that, it serves as basis for reducing women’s rights
due to the presence of the foetus in comparison to men who cannot conceive a
baby. It implies that when the woman becomes pregnant, her whole being is
confined into survival of the foetus and that the rights of the foetus as a
person supersede the mother’s. This problematic because often, abortion is not
a choice but a surrender to circumstances, for instance in the unfortunate
cases of rape survivors. Abortion becomes key when it comes to women who have
been subjected to sexual assault and as a result of which have undergone
unwanted impregnation. Forcing the woman to continue said unwanted pregnancy
will be a mental burden on the mother, and upon birth a social burden on the
child. Moreover, when the person is a minor, abortion is indispensable because
a child (in layman terms) cannot be expected to carry another because they
themselves are reliant on others for survival. It is imperative to establish
that denying access to abortion will not decrease the number of pregnancies
being terminated because due to lack of safe and hygienic means of abortion,
the mother will be forced to resort to unsafe and usually lethal means of
getting an abortion. So abortions will continue to occur, legally or illegally.
This not only poses a threat to the woman’s physical and mental health, it also
affects the maternal mortality rate of USA. Terminating a pregnancy is a huge
step a woman takes and it can transpire because of myriad reasons best known to
the woman herself, but it is the duty of the state to guarantee autonomy to the
woman in making this decision, just like Roe did. Scrapping of the precedent
set by Roe will create moral, legal, psychological, physical and constitutional
dilemmas for the women currently residing in USA.
BIBLIOGRAPHY
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Article Information
THE REPEAL OF ROE V. WADE: UNVEILING THE CONSEQUENCES OF THE OVERTURN FOR WOMEN IN THE UNITED STATES
Authors: PARIDHI JAIN
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/06/14
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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