Roe vs Wade no more………

By- Madhura Mandlik

Imagine being a 21 year old woman , pregnant for the third time and wanting an abortion. What ? An abortion ? Do you have the right to that ? Would have been the questions being thrown at you ? 

In Texas, in 1973 abortion was illegal and what began as a quest for not wanting to give birth to a baby would change the course of abortion laws in the United States of America. On January 27, 1973 the supreme court of USA held  7–2 decision holding that the Due Process Clause of the Fourteenth Amendment to the United States Constitution . This provides a fundamental “right to privacy,” which protects a pregnant woman’s right to an abortion. This law also put forth a pregnancy trimester timetable that governed the regulation of abortion in various states.

Over the years multiple changes and amendments were made. One such significant amendment was made in 1992. In 1992, by putting forth the rulings Planned parenthood vs Casey , the Supreme court abolished the trimester timetable of Roe but holds the core of Roe vs Wade. It also put forth the undue burden test. This meant that abortion restrictions would be unconstitutional if ‘the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable foetus.’ 

But throughout the years , the main core of Roe vs Wade , that abortion is a constitutional right stayed in the USA. Right from the beginning of the abortion debate there were two factions who majorly argued. They were the Pro-Life and Pro-Choice. The Pro-life also called the right-to-life movement or the anti-abortion movement believe that the human life begins at conception. They belive that the zygote , the embryo and foetus have life and they have a right to life too! Some of these beliefs are driven by religion and some by politics. These pro life beliefs also extend to the use of hormonal contraceptives or even  emergency contraceptives as they are deemed abortifacients since they lead to failure of fertilization.

The other end of the spectrum is the pro-choice movement. They believe that a woman should have autonomy over her body and it should be her choice of giving birth to an offspring. They believe in individual liberty, reproductive freedom, and reproductive rights. Pro-choice activists argue that the embryo is not viable and just has the potential to be viable. Such an embryo should not take away the right of a woman to choose her life.  One important organisation in the USA is Planned Parenthood. Planned Parenthood was setup in New York and it aims to provide reproductive health services which includes safe abortions, sex education and easy access to contraception.

Dobbs v. Jackson Women’s Health Organization 2022 was a monumental hearing given by the supreme court in June 2022. It overthrew Roe vs Wade which stated that abortion was a constitutional right. This ruling repealed the federal control over abortion and gave each state autonomy to frame it’s own abortion laws. This case came into being when Jackson Women’s Health Organization sued sued Thomas E. Dobbs, state health officer with the Mississippi State Department of Health, in March 2018 over the constitutionality of a Mississippi State Law which did not allow abortion after 15 weeks of gestational age. The Majority decision was written mainly by Justice Alito stating ‘What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion destroys what those decisions call ‘potential life’ and what the law at issue in this case regards as the life of an ‘unborn human being’.

After Dobbs was passed , it is imperative to know that abortion is not completely banned in the 

USA. In most states abortion is still legal , but now every state has their own laws with regard to gestational age , pregnancy by rape , incest and pregnancy which can cause harm to life of a pregnant woman. Abortion laws in some states have become more permissive like those in California, Oregon, and Washington state. The congress has proposed two bills to protect the abortion rights Ensuring Access to Abortion Act of 2022, and the Women’s Health Protection Act of 2022. Both these acts are yet to pass the senate.

One theme that persisted throughout the hearings was a difference between the public opinion and that of the court. Around 60% of the folk were pro a legalised abortion system. The General Social Survey, a five-decade sociological research initiative out of the University of Chicago, highlights that around 35 and 40% of Americans support all abortion rights, regardless of the reason, and around 25% of Americans oppose legal access to abortion for any reason, with the rest of them opining somewhere in the middle. Issues have been raised that post passage if the law, the marginalised community , the LGBTQ+, women of colour and people who are incarcerated would be affected with further hinderance to their access to healthcare. In addition , women would have to traverse state boundaries at times to get an abortion which would be lifesaving. The main sentiment remains that ‘people do not want to go back to times where abortions and reproductive care were things done in the shadows’

A look within our borders……… 

The Medical Termination of Pregnancy Act 1971 put for rules to be followed for termination of pregnancy in India. It allows termination of pregnancy on grounds of failure of contraception , pregnancy out of rape , if continuation of pregnancy poses risk to health of mother , substantial risk that if the child were born, it would suffer from such physical or mental abnormalities. Till 2021 it included abortions till 20 weeks of gestation. 

In the 2021 amendment, the upper limit if permissible gestational age for abortion for victims of rape and abuse was increased to 20-24 weeks. Above 24 weeks malformed foetuses diagnosed by a medical board are allowed to be terminated. Till 20 weeks only one doctor’s opinion is allowed while 20-24 weeks opinion of two doctors opinion is mandatory.

In 2022 Supreme court of India allowed an unmarried woman of 24 weeks of gestation to terminate her pregnancy and thus widened the scope of the law by  including unmarried women. As a country we are moving towards better and more liberal times by giving women the autonomy of their body and a right to choice. 

References :

1. https://en.wikipedia.org/wiki/Dobbs_v._Jackson_Women%27s_Health_Organization
2. https://www.ndtv.com/india-news/supreme-court-to-tweak-abortion-law-to-make-it-same-for-unmarried-women-3229037
3. https://en.wikipedia.org/wiki/Roe_v._Wade
4. https://www.penncapital-star.com/blog/a-timeline-of-abortion-law-in-the-united-states/
5. https://news.syr.edu/blog/2022/07/13/maxwell-faculty-experts-discuss-future-implications-and-historical-context-of-dobbs-v-jackson-ruling/
6. https://www.who.int/india/news/detail/13-04-2021-india-s-amended-law-makes-abortion-safer-and-more-accessible 
7. https://main.mohfw.gov.in/acts-rules-and-standards-health-sector/acts/mtp-act-1971