The Interpretive Divide: An Analysis of Reproductive Autonomy in India and the US

Introduction

When borders of a State are drawn up and the legislature regulates the rights of their citizens, a State’s inherent interest on its citizens is created. This interest inevitably extends to the citizens of the State and the prospective life that would fall under the control of the State. Though it is humans reproducing, the freedom of having a choice in that regards, is somewhere always restricted by the political bounds of the State in the name of protecting its interests.¹

The ever-changing views on moral rights and wrongs, especially regarding abortion, makes regulation a debated topic of law. The same text is molded, broken, and sewn again under different lights depending on the political inclination at the time. In this regard, contextualism recognises that the meaning of the statute may evolve over time as the society changes and how the interpretation of the law should be flexible enough to adapt these changes. On the other hand, textualism emphasises the literal meaning of the words in the statute also looking at the meaning of the term at the time of adoption of the statute, rather than the broader meaning it warrants in the present time.

This paper aims to analyse the use of originalism in the American context which uses history to justify the terms of the Constitution and interpret the same according to their political bias. On the other hand, purposive interpretation is used by the Indian courts to give a wider meaning to the terms used. However, both the interpretative tools lead to a tussle between the interests of the State and that of the pregnant individual, which inevitably forces the Court to balance between the rights and chose which outweighs the other.

Originalism

The case of Dobbs v. Jackson² (Dobbs) overruled and reversed the findings of Roe v. Wade³ (Roe). The question in either of the cases surrounded the interpretation of the Constitution and whether the Constitution protected a woman’s right to abortion. In Roe case⁴, the Supreme Court of the United States (SCOTUS) held that a person’s decision to have an abortion is constitutionally protected liberty under the due process clause in the Fourteenth Amendment of the Constitution.⁵ However, the American Constitution follows the idea of categorical acceptance of rights. The SCOTUS in Dobbs case⁶, while revisiting the aspect of interpretating liberty, noted that the Court must not look at the rights which Americans should have but rather look at the recognised rights mentioned in the Constitution.⁷ However, that does not mean that there may not be implied rights. There may be fundamental rights that are not mentioned anywhere in the Constitution but are duly protected by the Constitution as they are deeply rooted in the history and tradition of the country or are implicit in the concept of ordered liberty.⁸ This clearly highlights the originalist view of interpretation for it looks at the history at the time of ratification of the provision to determine its scope or the drafters understanding at the time of drafting regarding the meaning of the term used.

Originalism, coined by J. Scalia, is a theory of interpretation that when the meaning expressed by the bare text is insufficient for interpretation or is ambiguous, the Judges look at the historical context of adoption and ratification of the text to interpret its language.⁹ While the same is purported as a neutral and objective form of interpretation¹⁰ and is professed as highly democratic (on the understanding that the legislature holds the competence to change the understanding if they so deem fit without an interference from the judiciary), the same is far from the truth in the present case. Thereby, scholars regard the interpretation in Dobbs case¹¹ as a “living constitutionalist decision”.¹² Academic originalism would, on one hand, consider original public meaning of the term interpretated.¹³ Dobbs case¹⁴, on the other hand, focused on the historical practice rather than the meaning of the Constitution’s text at the time of ratification.¹⁵ There are multiple aspects of history, however, the originalist approach allows the Court to cherry-pick aspects of history which the Court deems fit for their political inclination. In the present case, the SCOTUS looks at the State practice, at the time of the Fourteenth Amendment’s ratification in 1868 and that 28 out of 37 States, had enacted statutes making abortion a crime.¹⁶ However, the SCOTUS fails to see that the reason for the Fourteenth Amendment’s institution was to protect bodily integrity.¹⁷ Dobbs case¹⁸ provided no criteria for choosing what constitutes relevant history and tradition, thus, leaving it to the Court’s wisdom.¹⁹ Moreover, originalism does not consider the values, aims, and commitments of the Constitution.²⁰ Thus, it is not that originalist is a neutral form of interpretation but rather, allows for a convenient viewing of the history to suit the political requirements at the time.

In an inherently different basis of ruling, the Supreme Court of India (SC) in X v. State (NCT of Delhi)²¹ (X) upheld women’s right to safe abortions under the Medical Termination of Pregnancy Act, 1971²² (MTP). The judgment was penned down 2 weeks after the Dobbs judgment²³ and in a stark contrast, is a welcome step in recognising the reproductive rights of individuals.

The SC in adopting a purposive approach stated that a statutory text which weighs in significantly on right to life and enhances access to reproductive rights must be given the widest possible interpretation.²⁴ In extending access to safe abortion to all women, irrespective of their marital status, the SC assessed how sourcing right to abortion from the idea of “marriage” would be averse to the mandate of the MTP Act itself. Furthering such an argument, the Court noted how the society and its values have changed and individuals often do not view the idea of pre-marital sex as a taboo. The reliance on society and conditioning in both Dobbs case²⁵ and X case²⁶ depict how an “individual right” is intrinsically linked to values of the society at large. Interestingly, as stated before, when the text of a constitutional mandate is unclear, J. Scalia’s approach to interpretation has been to rely on the long-standing values of the American Society which leaves it on the Judge to choose to define these “values”.²⁷ X case²⁸ by using the purposive tool of interpretation, thereby, considered the rights and experiences of women who had to carry a pregnancy against their consent. The SC decided to look at the amended Preamble to cull out the intention of the legislature. The SC noted how the Preamble used the word “partner”, instead of husband and inferred that the legislature intended for the abortion to apply to both married and unmarried women.

Continuing the usage of purposive interpretation, not only did the SC interpret the definition of women widely, to include unmarried women but also included queer persons. It also gave regard to novel familial relationships in society²⁹ (relying on Deepika v. Central Administrative Tribunal³⁰). It further went into the exception under Section 3(b)(2) of the MTP Act³¹, to broaden the contours of mental health³² of the mother as an exception. Another notable mention by the SC was the recognition of marital rape³³ and the need for abortion even if the couple is married. Thereby, the SC gave a much wider scope to the Act.

Balancing of rights

While individuals have rights, the State has powers to ensure that these rights are restricted to function from a nationwide point of view. Thus, courts use the balancing of rights approach in order to harmoniously interpret the rights of individuals with the communal interests.³⁴

American jurisprudence on balancing

The SCOTUS in Roe case³⁵ also undertook the balancing of rights of approach and stated that, the State has two constitutionally relevant interests — one, was the State’s interest in protection of health of pregnant persons and second was the State’s interest in the potentiality of human life.³⁶ Roe case³⁷ stated that at the early stages of pregnancy, neither of the State’s interest was sufficiently overbearing to justify abortion regulations.³⁸ Hence, the rights of the pregnant person’s to abort outweighed the State’s interest. Before the end of the first trimester, the State’s interest in protecting pregnant person’s health takes over and regulations pertaining to procedure must be allowed.³⁹ The State’s interest in protecting potentiality of human life only overweighs at the stage of fetal viability.⁴⁰ However, the contention was that the method of balancing of rights works only when one of the right is justifiably overweighing the other.⁴¹ Thus, the conclusion adopted by Roe case⁴² was criticised in Dobbs case⁴³, which stated that, no persuasive or even colourable argument was made as to why the time for terminating a pregnancy must extend to viability.⁴⁴ Roe stated that viability is the point when a child can survive outside the womb.⁴⁵ In Planned Parenthood of Southeastern Pennsylvania v. Casey⁴⁶, the SCOTUS justified the workability argument that a pregnant person who failed to act before viability has consented to the State’s intervention on behalf of the developing child.⁴⁷ The same was rejected by Dobbs case⁴⁸ on the grounds that there is no justifiable tipping point which would lead to the change in protection of right.⁴⁹

However, the balancing of rights method adopted by Dobbs case⁵⁰ is ex ante, thereby, not truly adopting a balancing of rights approach. In Roe case⁵¹, we see that the SCOTUS first, balances the interests of both sides and then determines the constitutionality of the law.⁵² However, in Dobbs case⁵³, the SCOTUS held that the State’s interest in protecting pre-natal life is so significant and is so compromised by the decision to have an abortion that the State’s interest renders the equality and liberty of pregnant individuals constitutionally irrelevant.⁵⁴ Thus, the constitutionality of the law was determined first and then the balancing took place to state that owing to the lack of constitutional relevancy, the interests of the pregnant person in aborting is overshadowed. The same renders balancing of rights meaningless because constitutionality would itself become a weight in the analyses which tips the scale to the side of the State.

Indian jurisprudence on balancing

The SC in X case⁵⁵ noted that constitutional principles should be guiding the MTP Act. In the landmark case of K.S. Puttaswamy (Privacy 9-J.) v. Union of India (Puttaswamy)⁵⁶, a mother’s right to procreate or abstain from procreating is recognised as a part of the constitutional right to life and personal liberty as enshrined under Article 21⁵⁷ of the Constitution of India. The SC further affirmed Suchitra Srivasatava case⁵⁸, a Delhi High Court judgment which read the right of a woman to undergo termination of pregnancy as a constitutional right.

While the SC delved into the privacy of pregnant persons, their mental health, novel familial relationships and their constitutional right under Article 21, they did not make the right to abortion an absolute right. However, the progressive ratio of the judgment makes us blind to its realities.

The author of this essay wants to piece together the conflicts of reading the MTP Act as a purposive legislation giving individuals reproductive autonomy and right to privacy through Puttaswamy case⁵⁹. However, in the same breath also giving the Registered Medical Practitioners (RMPs) a final say in the matter. The legislation instructs Registered Medical practitioners to decide the matter in good faith.⁶⁰ Further, it requires abortion to happen only in a government hospital or one mandated by the MTP Act. ⁶¹

As author of this piece, we are cognizant of the fact that any right, including a constitutional right cannot be absolute. Reasonable restrictions are necessary in every right granted to us by the Constitution. We recognise the value pluralism the Court in X case⁶² dealt with while supporting different views on life and liberty to reach a consensus to aligning with the Constitution.

As the question of law before the Court in X case⁶³ was limited, we understand how the Court could not delve into the constitutionality of the legislations but widened the ambit of the legislation itself to reach an aesthetic hypothesis.

While we have given due credit to X case⁶⁴ for its value pluralism, and the attempt they have made at balancing we also understand how inaccessible the law is. Being constrained by legislative exceptions on abortion puts the pregnant persons right to life health in the hands of the State, stripping away of their constitutionally protected autonomy. We concur with Andrew Morisson who noted down how law is a fractal.⁶⁵ When a law is made it is a general framework for general reasoning. An overburdened law with too many exceptions becomes inaccessible to those who need it the most. Good legal drafting is when an exception is made from the absolute right and not when the right itself becomes an exception to the legislation.

The SC in X case⁶⁶ itself states that — Sections 314-316⁶⁷ IPC which criminalises abortion is a mischief legislation and Section 3(2)(b)⁶⁸ of the MTP Act was made to remedy the mischief.⁶⁹ The Court in this case, instead of making the constitutional right absolute and carving out exceptions from it — made the exception of criminalising abortion the primary legislation. We argue that a constitutional right should never be a remedy to a mischief, rather it should be an inherent right exercisable at the ease of the legal person.

We believe the presence of RMPs is based on the same patriarchal notions of “State’s interest” that we see in Dobbs case⁷⁰. The balancing of interests between the legislature and the constitutional right to bodily autonomy as mentioned in Dobbs case⁷¹ is also relied on here. While the opinion in Dobbs case⁷² leans more on one side, X attempts to place itself in between and has rather led to a conundrum.

Therefore, our takeaway from this piece would be the prompt need for the legislature to deliberate the fallacy of the MTP Act in light of the IPC and come up with exercisable legislation decriminalising abortion and making it an inherent right, with exceptions as necessary.

Conclusion

Two questions of law, one regarding constitutional interpretation and the other regarding legislative interpretation, on the same subject-matter penned down across different jurisdictions depicted how the idea of “individual rights”, of pregnant persons are never their own.

In Dobbs case⁷³, we saw how a sea of change in political situation brought in a change in the law. Unlike in X case⁷⁴, the SCOTUS did not successfully balance the two perspectives of States interest and reproductive autonomy. While the idea of value pluralism is that we commit to different values at the same time, the SCOTUS’s cherry-picking of history gave primacy to the State’s interest and the originalist perspective.

Further, in X case⁷⁵, Justice Chandrachud placed reliance on the landmark cases of Puttaswamy case⁷⁶ and Navtej Johar case⁷⁷, both also authored by him. We could see through the precedents and the interpretative approach how the personal inclination of the Justice shone through in his analysis. This gets even more fascinating as the Justice would be deciding on the matters of same-sex petition⁷⁸ and marital rape⁷⁹ — issues he has deliberated in X case⁸⁰.

To conclude, the author of this essay has attempted to analyse both judgments through the same tools of interpretation and realised that seemingly different ratios are based on the same general principles and tools of interpretation. We further recognised how the inclination of Judges has played a role in reaching the ratios of the case.