Introduction
The Supreme Court of the United States is once more faced with the question involving abortion rights, the Supreme Court will in Dobbs v. Jackson Women’s Health Organisation[1] revisit the precedent set in Roe v. Wade[2] where the Court had upheld the concept that privacy encompasses the right of a woman to terminate her pregnancy. In Roe[3], the Supreme Court had also enunciated the principle that when the foetus is viable, that is, it can survive on its own outside the womb, abortion may be prohibited. This period of viability was considered to be 24 to 28 weeks. The position in India is similar and a woman may terminate her pregnancy with the opinion of a single medical practitioner up to twenty weeks and with the consultation of two medical practitioners up to 24 weeks. This position may be changed by the Supreme Court in June 2022, through its judgment in Dobbs v. Jackson Women’s Health Organisation[4] in light of recent medical and sociological advancements.
All of this has brought to the fore a question that should have been settled since long. The balance between a woman’s right to life and privacy vis-à-vis the right to life of the unborn child. This debate has an additional layer to it which adds to the urgent need to settle this jurisprudence. The question involves legal as well as medical attention, the right to life debate gains further traction based on the unborn child’s feasibility to survive outside the mother’s womb. Should we have a category conclusion on this (from the medical world), would we then be able to say that the right of the life of the unborn child should be paramount? This and more could be answered by the United States Supreme Court sometime in June 2022.
In January 1973, the Supreme Court of the United States of America in a 7:2 majority decision delivered its judgment in Roe v. Wade[5], holding a Texas statute unconstitutional which banned abortions except when necessary to save the life of the mother.
Jane Roe was the fictional name chosen by Norma McCorvey, petitioner, to protect her identity. McCorvey was an unmarried pregnant woman residing in Dallas County, Texas and wished to terminate her pregnancy by an abortion performed by a competent, licensed physician, under safe clinical conditions. She contended that the Texas laws were unconstitutional for being vague and infringed on her right to privacy. Roe wished to sue on behalf of herself and all women similarly situated, thereby making it a class action lawsuit.
Subsequently, Dr James Hubert Hallford, a physician who had previously been arrested in violation of the Texas statute and had two pending prosecutions, along with the Doe’s, a married couple whose wife was advised not to get pregnant due to medical reasons, also filed companion complaints against the constitutionality of the Texas statute. The impugned Texas statutes were Articles 1191-1194 and 1196 of the State’s Penal Code.
The District Court granted declaratory relief though not injunctive, and held that it is a person’s fundamental right to choose whether to have children and such right is protected by the Ninth and Fourteenth Amendment. The District Court held the Texas criminal abortion statutes to be void because they were both unconstitutionally vague and constituted an overbroad infringement of the plaintiffs’ Ninth Amendment rights. As per the Ninth Amendment,
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
The law, as it then stood, declared that if any person with the consent of the woman deliberately administers or knowingly procures to be administered any drug or medicine, or shall use towards her any violence or means whatever externally or internally applied, and thereby procure an abortion shall be confined to prison for not less than two up to five years. If such abortion was without her consent, the punishment was doubled.[6]
The term “abortion” was defined as the life of the foetus or embryo destroyed in the woman’s womb or that a premature birth thereof be caused.[7] To furnish the means for abortion and an attempt to abort were also punishable under the Code.[8] The exception to abortion which did not attract criminal liability was when the abortion was procured or attempted by medical advice for the purpose of saving the life of the mother.[9]
The Supreme Court also dealt with the compelling interest of the State in balancing the rights of the potential life and rights of the pregnant woman, the Court then brought to the front the concept of viability. Viability means when the foetus has the capability of meaningful life outside the mother’s womb. The Court held that, the regulation protective of foetal life will be logical and biological.
The Court also resolved certain vital questions in 1973 through this judgment including the standing of “right to privacy”. The Court held that while the right to privacy was not explicitly mentioned in the Constitution, the right finds its place in the Fourteenth Amendment. The scope of right to privacy was further widened to include the abortion decision, although not absolute and subject to limitations.
The Fourteenth Amendment[10] to the US Constitution reads:
- … 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;
The Court concluded by creating distinction based on the term of the pregnancy, trimester wise. For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation was to be left to the medical judgment of the pregnant woman’s attending physician. After the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
Law in various States
In Texas, the Senate Bill No. 8[11] was signed into law on 19-5-2021. The Texas law is one of the most significant anti-abortion laws in force in the country. As per the law, also sometimes referred to as the “heartbeat law”, abortions after 6 weeks are banned. The law provides no exception to horrendous situations like rape and incest, which cause extreme psychological suffering to the woman. Even though, cases of incest may lead to abnormalities in the child so conceived, however, the law makes all such abortions also unconstitutional and makes no special exceptions in these cases either. This Act goes a step further by implementing a “sue thy neighbour policy”[12], wherein the Act provides that any person, other than an officer or employee of the State or local Government entity in the State may bring a civil suit against another where he is of the opinion that abortion has been undertaken in contravention of the Act.If he succeeds in the suit, he shall be awarded injunctive relief and also statutory damages of not less than $10,000 for each abortion that the defendant performed or induced in violation of the sub-chapter.[13]
Various other States in the United States of America have what are called trigger bills which would go into effect, and substantially regulate or completely prohibit abortions if the Supreme Court overrules Roe v. Wade[14]. One such State is Utah, Senate Bill 174[15] was signed into law by Utah Governor Gary Herbert in 2020. S.B. 174 prohibits all abortions except in cases of certain exceptions. A woman can receive an abortion if the pregnancy poses a life-threatening risk to the woman or has a serious risk of substantial and irreversible impairment of a major bodily function. It also grants exemption if the foetus has a defect that is uniformly diagnosable and uniformly lethal or has a severe brain abnormality that is uniformly diagnosable.
However, rape and incest exceptions are only granted in situations of a reported crime, hence the woman must have necessarily reported the crime to the law enforcement in order to get an abortion arising out of the same. This is extremely burdensome as this would often put the life of the woman at risk or cause her even more mental trauma and agony.
An Idaho trigger law, Senate Bill No. 1385,[16] also criminalises abortions. Criminal abortion attracts a sentence of imprisonment of no less than two (2) years and no more than (5) years in prison. Further the law imposes sanctions on the medical professionals performing, attempting or assisting in performing abortions. As per the statute, if convicted, their professional licence may be suspended by the appropriate licensing board for a minimum of six (6) months upon a first offence and shall be permanently revoked upon a subsequent offence.
There are various States in the United States of America which have abortion laws influenced by religious and conservative opinions, which will be in force if the precedent set by the Supreme Court is overruled. Various pro-choice organisations such as Planned Parenthood[17] are fighting to challenge these laws and are continuing to offer support in States with statutes criminalising abortions.
Present dispute before the Supreme Court
On 19-3-2018 the State of Mississippi enacted a new law named “Gestational Age Act”[18] which provided that in most cases an abortion cannot be performed after 15 weeks. As per the legislature “most abortions performed after 15 weeks’ gestation are dilation and evacuation procedures and that “the intentional commitment of such acts … is a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profession.”[19] While noting that the State has a legitimate interest in protecting the life of the unborn[20] the legislature was of the opinion that at 12 weeks’ gestation, an unborn human being can open and close his or her fingers, starts to make sucking motions, and senses stimulation from the world outside the womb. Importantly, he or she has taken on “the human form” in all relevant aspects[21]. Thus, the reasoning supported for the Gestational Age Act was that after the completion of 15 weeks the abortion procedure is merely ripping apart the child and removing the dead child from the womb, a child who can sense simulations of outside world’s right to life is taken away by the abortion procedure. Additionally, they also noted various risks to the health of the woman carrying the child including physical as well as psychological effects.
The Gestational Age Act was in conflict with the decisions of the Supreme Court of the United States in Roe v. Wade[22]and Planned Parenthood of Southeastern Pennsylvania v. Casey[23], where abortions before the point of viability were held to be allowed and the State could regulate abortions thereafter, however the Gestational Age Act implicitly banned all abortions after 15 weeks.
When the Act was signed into law, Jackson Women’s Health Organisation filed a suit challenging the Act and prayed for a temporary restraining order before the District Court. The Court granted temporary restraining order and in a summary judgment held that the Act was unconstitutional. The Court noted that “viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on non-therapeutic abortions[24]”.The States shall not ban abortions prior to viability, which the State of Mississippi through the Gestational Age Act was seeking to do. The decision of the District Court was appealed to the United States Court of Appeals for the Fifth Circuit, which affirmed the decision of the District Court.
The State has appealed to the Supreme Court of the United States of America against the decision of the Court of Appeals, the oral arguments for the same were concluded in December 2021 and the Court is expected to pronounce the judgment in June 2022.
This decision is anxiously awaited since a decision in favour of the appellants would effectively overturn Roe v. Wade[25] and Casey[26], overturning fifty years of precedent in the country. It is estimated that the judgment in Dobbs v. Jackson Women’s health Organisation[27], will be delivered by the Supreme Court in June 2022, the Supreme Court may decide in favour of the rights of the unborn child. Noting the medical advancements in the 21st century, the Court may decide that an unborn child will be able to survive earlier than the “viability condition” of the foetus, as the Court has previously discussed. The chances of the foetus surviving with the help of medical facilities such as new age life support and advancements could possibly help the Court in ruling for a shorter period acceptable for abortion. The point in time where “life” began for a foetus in 1973 may well differ from that in 2022.
Indian perspective
The abortion laws in India are governed by the Medical Termination of Pregnancy Act[28] (hereinafter referred to as “the MTP Act”), and the Penal Code, 1860[29]. The Penal Code criminalises voluntarily causing miscarriage to a woman (or done by the woman herself) except in cases where it is necessary to save the life of the woman.[30]
However, when the termination of pregnancy is carried out by a registered medical practitioner, the liability is saved by MTP Act. The MTP Act provides for termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto.[31]
As per the MTP Act, 1971 a pregnancy may be terminated on the opinion of a single registered medical practitioner if the period of pregnancy didnot exceed 12 weeks, and on the opinion of two registered medical practitioners if the period exceeded 12 weeks but didnot exceed 20 weeks. If they were of the opinion that the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury physical or mental health or there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.[32] There was an amendment brought about to the abovementioned Section 3 in 2021 vide the Medical Termination of Pregnancy (Amendment) Act.[33] As per the Amendment Act, the gestational period has been increased, in light of medical advancements, from 12 weeks to 20 weeks where the pregnancy may be terminated on the opinion of one registered medical practitioner and from 20 weeks to 24 weeks, in case of such category of woman as may be prescribed by rules made under the Act, if not less than two registered medical practitioners are of the opinion that the termination is advisable in view of the provisions of the MTP Act.
The 2021 Amendment brought the MTP Act, 1971 in sync with the requirements of the present times. The MTP Act provided for situations where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman. Understanding the changing times and to bring the law in sync with these times, the 2021 Amendment Act has amended the provision and in place of married woman or her husband the words “any woman or her partner” have been used. This Amendment now makes the provision applicable to an unmarried as well as a married woman, thus substantially helping a woman regain her reproductive autonomy.
Most importantly a new section[34] has been added to the MTP Act by the 2021 Amendment, which puts the right to privacy of the woman undergoing the abortion in the forefront. It mandates that no registered medical practitioner shall reveal the name and other particulars of a woman whose pregnancy has been terminated under this Act except to a person authorised by any law for the time being in force. Whoever contravenes this shall be punishable with imprisonment which may extend to one year, or with fine, or with both.
As per the Statements and Objects of the Bill[35], the legislators understood that with the passage of time and advancement of medical technology for safe abortion there was a possibility of increasing the period of gestation. It was also felt that there was a need to make legal and safe abortion more accessible which would in reduce maternal mortality and morbidity caused by unsafe abortion and its complications. It was also noted that several writ petitions praying for permission for aborting pregnancies at gestational age beyond the permissible limit as per the MTP Act on the grounds of foetal abnormalities or pregnancies due to sexual violence faced by women. A nine-Judge Bench of the Supreme Court in 2017 has held that “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21”, the right to privacy is now a fundamental right of the people.[36]
Right to life
The main contention that has divided the people, the country and the courts for years is: What takes precedence, a woman’s right to have an abortion and have the last word over her reproductive autonomy or an unborn child’s right to life.
As per legal precedent, the courts have time and again tried to balance the rights of the two and the legal jurisprudence that has developed is simple, pre viability the State has practically no interference in the decision of the woman to abort a child however post viability regulations are necessary but prohibitions are not favourable. The medical community is as divided in their opinion of abortion as the rest of the world.
The Supreme Court of the United States through O’Connor, Kennedy, and Souter, JJ. delivered the judgment in Planned Parenthood of Southeastern Pennsylvania v. Casey[37], strongly noted that even after 19 years of the Supreme Court pronouncing that the Constitution protects a woman’s right to terminate her pregnancy in its early stages[38] the definition of liberty is still questioned. The right of liberty flows through the Fourteenth Amendment and the constitutional protection of a woman to terminate her pregnancy is derived from the due process clause of the Fourteenth Amendment.[39]
The main argument for right to life that the Supreme Court in Dobbs v. Jackson Women’s Health Organisation[40] heard is that the viability rule must be rejected. While the Court has previously determined that a foetus is at most the potentiality of life[41], it has since agreed that a foetus is a living organism while within the womb, whether or not it is viable outside the womb[42]. Certainly, the Court has a duty to protect the right to life inside the woman, and they may do so by regulation. However, they cannot do so by completely prohibiting a woman from taking the ultimate decision to terminate the pregnancy before viability. The Court has instead noted that any decision made by the woman should be fully informed of all consequences including consequences she may face physically and emotionally, and the State must help in this regard.
Further, advocates favouring right to life of unborn child argue that the Fourteenth Amendment to the American Constitution uses the language “person” and extends to an unborn person, even though this argument was not accepted in Roe v. Wade[43]. Interestingly, even while rejecting the argument and in cases since, the Supreme Court has not delved into the argument – “When exactly does life begin”, as they stated in Roe v. Wade[44],
- … We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.
Conclusion
Till date there is no sufficient jurisprudence to determine when exactly in the process starting from fertilisation and ending in the birth of human child does life really begin. This is the most important question which must be determined in order to finally conclude the debate surrounding abortions, it is undoubtedly the State’s duty to balance the rights of both the potential life and the woman birthing the child. If the Supreme Court of the United States in Dobbs v. Jackson Women’s Health Organisation[45], overrules the nearly five decades old case of Roe v. Wade[46], it would cause immense fetters on the reproductive rights of the woman. Many trigger laws will come into force which will immensely regulate the lives of women wishing to have an abortion. The current position taken by the Supreme Court in 1973, and reiterated ever since is that undue regulations must not be put on a woman’s choice to terminate her pregnancy. In this judgment[47] abortion may be allowed up to 24 weeks, with regulations, if required, this position is also in sync with the Indian position after the 2021 Amendment to the Medical Termination of Pregnancy Act, 1971.
In light of medical advancements over the past five decades, we are now in a better position to determine when the foetus can be considered alive and till what time is it safe for a woman to undergo abortion. This must not be standardised since medical advancements in different countries are at different stages and thus the safety of the woman must be considered priority.
*Partner, L&L Partners, New Delhi.
**Final year law student at Amity Law School, Guru Gobind Singh Indraprastha University, Delhi. Author can be reached at <shaaivishukla999@gmail.com>.
[1] Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women’s Health Organisation, et al., No. 19-1392.
[2]1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).
[3]1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).
[4] Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women’s Health Organisation, et al., No. 19-1392.
[5]1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).
[6]Texas Penal Code, Art. 1191.
[7]Texas Penal Code, Art. 1191.
[8]Texas Penal Code, Arts. 1192-1193.
[9]Texas Penal Code, Art. 1196.
[10]US Constitutional Amendment 14 (adopted 9-7-1868).
[11]https://capitol.texas.gov/tlodocs/87R/billtext/pdf/SB00008F.pdf.
[12] S.B. No. 8, S. 171.208(a).
[13]S.B. No. 8, S. 171.208(b).
[14]1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).
[15]https://le.utah.gov/~2020/bills/static/SB0174.html.
[16] https://legislature.idaho.gov/wp-content/uploads/sessioninfo/2020/legislation/S1385.pdf.
[17]https://www.plannedparenthood.org/planned-parenthood-center-for-choice/texas-abortion-laws.
[18]House Bill No. 1510.
[19]House Bill No. 1510, found at: http://billstatus.ls.state.ms.us/documents/2018/pdf/HB/1500-1599/HB1510SG.pdf.
[20]Planned Parenthood of Southeastern Pennsylvania v. Casey, 1992 SCC OnLine US SC 102 : 505 US 833, 873 (1992).
[21]House Bill No. 1510; Gonzales v. Carhart, 2007 SCC OnLine US SC 25 : 550 US 124, 160 (2007).
[22]1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).
[23]1992 SCC OnLine US SC 102 : 505 US 833 (1992).
[24]Jackson Women’s Health Organisation v. Currier, 349 F Supp 3d 536, 539 (S.D. Miss. 2018) [quoting Planned Parenthood of Southeastern Pennsylvania v. Casey, 1992 SCC OnLine US SC 102 : 505 US 833, 860 (1992) (plurality opinion)].
[25]1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).
[26]1992 SCC OnLine US SC 102 : 505 US 833 (1992).
[27] No. 19-1392.
[28]Medical Termination of Pregnancy Act, 1971.
[31]Medical Termination of Pregnancy Act, 1971, Preamble.
[32]Medical Termination of Pregnancy Act 1971, S. 3 (unamended).
[33]Medical Termination of Pregnancy (Amendment) Act, 2021.
[34]Medical Termination of Pregnancy (Amendment) Act, 2021, S. 5-A.
[35]Medical Termination of Pregnancy (Amendment) Bill, 2020.
[36]K.S. Puttaswamyv. Union of India, (2017) 10 SCC 1, 637, para 652.3.
[37]1992 SCC OnLine US SC 102 : 505 US 833 (1992).
[38]Roe v. Wade, 1973 SCC OnLine US SC 20 : 35 LEd2d 147 : 410 US 113 (1973)..
[39]Planned Parenthood of Southeastern Pennsylvania v. Casey, 1992 SCC OnLine US SC 102 : 505 US 833, 873 (1992).
[40]Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women’s Health Organisation, et al., No. No. 19-1392.
[41]Roe v. Wade, 1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).
[42]Gonzales v. Carhart,2007 SCC OnLine US SC 25 : 550 US 124 (2007).
[43]1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).
[44]1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).
[45]Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women’s Health Organisation, et al., No. 19-1392.
[46]1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).
[47]Roe v. Wade, 1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).
