By Aradhana & Mohd. Rameez Raza

On June 24, 2022, the Supreme Court of the United States (SCOTUS) ruled in favour of the strict Mississippi abortion law by overturning the 1973 landmark Roe vs. Wade decision that served as the foundation for legal and safe abortion across America for nearly 50 years. The Roe vs. Wade ruling legalized abortions 24 to 28 weeks of gestation, until the foetus was viable outside the womb.

But in Thomas E Dobbs vs. Jackson Women’s Health Organization, Justice Samuel Alito entirely rejected the Roe vs. Wade ruling with his four other supporters of conservative justices and stated:

“Roe vs. Wade was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”

In Roe vs. Wade, a woman’s right to abortion was protected by the guarantee of her right to personal privacy under the US Constitution. Later, the Supreme Court, in the Planned Parenthood of Southeastern Pennsylvania vs. Casey ruling upheld the abortion rights and barred the legislation that placed an “undue burden” on access to abortion.

Now, Thomas E Dobbs vs. Jackson Women’s Health Organisation ruling allows individual states to make laws on abortions for people of their respective states. And if this ruling is imposed, more than 24 states in the United States are already likely to ban abortions or make the abortion procedures more restrictive with immediate effect. There are 15 states and Washington DC that are protective of abortion rights, and hence have laws in place for the same. However, in anticipation, a limited number of states have established more extensive and comprehensive protections for abortions. Only a handful of states are hybrid states which are neither in the favour of banning abortion outrightly nor are they strongly protective of it. Many states had passed “pre-viability” abortion ban legislation even before the Dobbs case, and these are against the fundamental principles of Roe vs. Wade and many other abortion precedents. But these were restrained or kept from taking effect, because they were evidently unconstitutional.

Since Roe vs. Wade is now overruled by SCOTUS, what is more worrisome is its consequences on the lives of the pregnant persons who will be seeking abortion services. According to the Guttmacher Institute – “about 1 in 4 American women will have had an abortion by the age of 45, and 49% of people who have abortions are living below the poverty level”. These are the people who lack adequate sex education in school, and people who reside in areas where obtaining contraceptives is difficult. Those who have abortions are typically in dangerous, complicated, challenging, problematic, or unpleasant circumstances which are not suitable for birthing and raising a child. Overturning Roe vs. Wade directly violates human rights as it jeopardizes the privacy rights of those who have been sexually assaulted, the impoverished, people of color, those with health conditions and survivors of domestic abuse and incest. 

Millions of women in the United States and potentially anywhere else could have their bodily autonomy taken away by this conservative judgement in its current draft. The repercussions would be tragic and terrible – abortion would no longer be legal in as many as two dozen of the states in the United States, where it is currently lawful. In order to terminate a pregnancy, the majority of people would then have to travel to states where abortion is legal. In response to the SCOTUS decision, hospitals and medical associations across the nation have drawn attention to the effects and consequences it will have on vulnerable groups and abortion service providers in the states where it is still legal. 

Women get abortions for a variety of reasons, however, some of the common reasons are poverty, poor health, sexual assault, inability to raise or take care of a child, contraception failure, unintended pregnancy, lack of sex education, etc. When we debate over women’s Sexual and Reproductive Health and Rights (SRHR) in many forums and argue to preserve these rights, it should be kept in view that the right to abortion also falls within its ambit. Access to safe and legal abortion should be every individual’s right and it should not be compromised at any cost. 

Since this ruling allows each state, governed by the representative of the people, to formulate laws, policies, and regulations on abortions – individually and independently for the citizens, the legislature has to play its crucial role in upholding the women’s right to abortion in accordance with their needs. Banning or prohibiting abortions would not help people, rather it would rob them of their basic rights, especially the vulnerable and disadvantaged section of society. If abortion is criminalised in certain states, pregnant women not willing to keep the child would go to places where abortion is legal and accessible, only if they have sufficient resources to do so. These regulations will have a greater impact on women who have financial constraints, live in substandard conditions, or are vulnerable in any other manner. Additionally, this will eventually promote unlawful and unethical abortion practices. Women may tend to adopt harmful and unsafe methods to terminate their pregnancies, putting their lives at risk. States with “trigger laws” are expected to relax the restrictions on abortion by allowing some exceptions in cases of pregnancies among survivors of sexual assault and incest, teens, and the underprivileged. 

The effects of this ruling are not just confined to the United States, but will have a significant influence on the entire world. It might influence other countries’ judgments or amendments – those with a like-minded approach or similar viewpoint, or are likely to introduce similar laws or legislations. The larger impact will then be insurmountable on the people and the nation as well, if this occurs in almost every corner of the world. Women will lose their power and agency to make decisions about their lives and bodies, reducing them further to second-class citizens.

Aradhana is a Program Coordinator with Milaan Foundation, India, leading a gender justice program. Mohd. Rameez Raza is a lawyer based in Bahraich, India.

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