By Ojasvi Agarwal

This article dwells into the ongoing ‘pro-choice’ and ‘anti-choice’ debate while laying special emphasis on the draft opinion belonging to the American Supreme Court which was leaked. Even though the judgement overturning the ‘Roe v Wade’ has been passed, it might have serious effects on the right to abortion which is the basic reproductive right given to women. The draft opinion which is now the law overturning the ‘Roe v Wade’ judgement it would have negative repercussions for women all around the world especially on the American women setting the feminist movement back by decades. Reproductive rights are basic human rights. Women should be given the freedom to practice their own bodily autonomy free from any coercion, discrimination, or violence. The right to equality extends to women’s right to have equal sexual relationships- including collective responsibility in practicing sexual behavior and its repercussions.

A draft opinion written by Justice Samuel Alito and subsequently affirmed by other judges of the Supreme Court of The United States of America was leaked. A draft opinion is a document written by the assigned justice as part of a larger internal procedure outlining the reasoning employed by the justice in reaching the decision. This document revealed the possibility of the Supreme Court of the United States wanting to soon overturn the iconic case of ‘Roe v Wade’ which legalized abortions in the United States and ‘Planned Parenthood Southeastern Pennsylvania V. Casey’ which subsequently upheld the verdict. The US Constitution doesn’t directly recognize the right to abortion and it’s only ‘Roe v Wade’ that conferred this right on the women of the USA in 1973. Before ‘Roe v Wade’ was brought into effect, each state was given the leeway to choose if it wanted to give this right to its citizens. The states made this decision based on the opinions held by its constituents. The Roe v Wade judgement, however, neutralised this. The question put forth before the Supreme Court of America is whether the Constitution of America recognizes women’s right to terminate their pregnancy through abortion. The Supreme Court in the Roe v Wade judgement had allowed and given full freedom to women to retain their right to terminate the pregnancy in the initial three months. The women could now choose to access abortions on request, after being subject to a few restrictions. Moreover, the same judgement prevented states from banning abortions as they were declared to be legal and constitutional by the apex court of the U.S. The initial leaked draft being converted into law, would mean that millions of women in the USA would no longer have the right to control their own reproductive health.  

The consequence of the ‘Roe v Wade judgement being overturned would be that it will push back the decades of activism advocating women’s rights to equality, bodily autonomy and integrity, reproductive health, and privacy. More problematically, it would take away the constitutional protection given to them right to choose if they wish to have an abortion as it would no longer be protected by the Constitution of America. Amidst all this, many conservative states like South Dakota, Texas, etc. have already  put very rigid abortion laws in place which would allow the states to immediately ban the right to  abortions within 15-30 days if they wish to do so except in cases where there’s a danger to the life of the mother. Some of these don’t include pregnancies that are a result of rape or incest.

At the very core of this deeply controversial yet important ‘pro-choice and anti-choice’ debate is conservatives arguing on one side that life begins at the time of conception and liberals arguing  that women have a right to choose whether they want to remain pregnant on the other. Now, if the opinion of Justice Alito is adopted and passed by the SC of America, it would have catastrophic effects on women all around the globe but especially the women of America. The laws that are currently in place by different states on this matter are already quite complex and restrictive. This reversal of the judgement might result in an increased number of different and more regressive abortion laws in America. There is low evidentiary value in the argument that the adapting laws that would take away the right of the women to choose would also lower the number of abortions that take place. For instance, the argument is based on it being against religious practices. However, abortion is treated differently under different religions across the world. Religion is used as a pretext to prevent women the freedom to choose their reproductive rights. This seems to be yet another method to assert control over women undermining their autonomy. 

This is also a direct act of discrimination against women, taking away their freedom to choose and their right to bodily autonomy which is a fundamental right  given to all human beings. This deprivation leads to women being given an unequal stance in society. It is largely their lives being affected when it comes to choosing if they wish to continue with the pregnancy or not.

The pro-life argument neglects that there are several instances where a woman or a couple is not at a stage of in their lives that they can raise a child properly. They might lack the physical, financial, or mental capacity to rear a child. Forcing such people to have a child after an unwanted pregnancy adds undue pressure in the personal lives of these people. As a result, the quality of life of the parent/parents as well as the new-born child is negatively impacted, oftentimes to a great extent. Unintended pregnancies including mistimed and unwanted pregnancies which decrease academic achievements since many times women may be forced to drop out or give up their professional goals and commitments to bring the pregnancy to a completion. Forced pregnancies by denying the right to abortion when women are not economically ready to see them through would also lead to further degradation of their economic and health care standards. All this leads to decreased participation of women in the labour force, lower economic outputs, and lower health care. Sometimes, to avoid these adverse consequences which forced pregnancies may bring out, women may resort to unsafe and illegal methods of terminating pregnancies which can lead to permanent damages to their body and may even result in death. 

Multiple organisations working towards increasing the accessibility of safe abortions argue that restricting the right to abortion is discriminatory in nature and goes against the foundations of equality and non-discrimination of the International Human Rights. For instance,  The Committee on the Elimination of Discrimination Against Women (CEDAW) promulgated that imposing restrictions on the right to abortion and denying  access to safe abortions is  a way of channelling gender-based violence towards women. Criminalizing abortions, in general, doesn’t prevent abortions from occurring they just make them less safe.  The importance of a more liberal set of laws regarding the right to abortion can be further understood through the impact the same has on the crime rate of any country.  John Donohue and Steven Levvit in their book “Freakonomics” established a direct nexus between legalising abortions and drop in the crime rate. After observing the effect of Roe v. Wade, they concluded that there was a sharp decline of around 20% in violent crime only 18 years after the judgement. This is because many of these pregnant women who are seeking an abortion, cannot afford an adequate upbringing for their children. When they do not have access to a legalised, cheap option to exercise the abortion, the children grow up without resources or proper education. This leads to them engaging in criminal activities. Hence, it is likely that the crimes will increase down the line once the judgement comes about.  Even if the impact legalising abortions has on the crime rate isn’t immediate, it is evident through the data collected. This goes on to suggest that the legalisation of abortions doesn’t only impact the reproductive rights of women but also have a positive impact on society as a whole.

For bringing about social and gender equality it is important to allow women the right to their bodily autonomy through the law. It becomes even more important to make sure that they are not forced to seek unsafe methods of terminating pregnancies. Criminalizing abortions and restricting the right to abortion for women is discriminatory and results in infringement of the right of women to control their own reproductive health. This can be considered a violation of their human rights as well. The leaked draft that threatens to take away the constitutional protection provided to women through Roe v Wade would result in putting women in vulnerable positions. This anti-abortionist ideology would increase crime rates and death rates. This would be the result of unsafe abortions and poor healthcare standards which are preventable. When America should be moving one step closer to making laws that make safe abortions more accessible this document fuels stigmatization of women. The effect of this draft being imposed would also slow down the progress to providing this right to women in other developing and under-developed countries like Africa by further deepening their anti-choice movement.

Ojasvi Agarwal is a fourth-year law student pursuing BBA LLB from OP Jindal Global University, Sonipat.

Image credits – BBC