Revati Chandrashekhar Sohoni
INTRODUCTION
On June 24, 2022, the Supreme Court of the United States (SCOTUS) in Dobbs v. Jackson Women’s Health Organization [hereinafter “Dobbs”] [i] overruled the cases of Roe v. Wade [hereinafter “Roe”] [ii] and Planned Parenthood of South-eastern Pennsylvania v. Casey [hereinafter “Casey”], [iii] undoing nearly half a century of federal protection for the constitutional right to abortion and paving the way for individual states to impose restrictions on abortion, even extending to bans with no exceptions for rape or incest.
The ruling in Dobbs led to international outrage, with world leaders from Canada’s Justin Trudeau to New Zealand’s Jacinda Ardern condemning the move. Activists are also raising concerns about the deteriorating state of reproductive rights in the United States, and possible ripple effects across the world – and with good reason. In the six months since the ruling, nearly half the states have subjected their residents to abortion restrictions of varying severity, through new legislations, trigger laws that came into force when Roe was struck down, and pre-existing laws that were never repealed following Roe. The reversal is even more concerning as it represents the first time the SCOTUS has taken away a fundamental right. This article seeks to examine the constitutionality of the United States’ retreat from previously established rights keeping in mind the country’s obligations in the context of non-retrogression as a principle of constitutional law.
ROE, CASEY AND DOBBS: HISTORY OF ABORTION LAWS
Prior to Roe, nearly all states had abortion bans in place, with few exceptions. Significantly, the restrictions disproportionately affected racial minorities and low-income women. In contrast, white and high-income American women suffered fewer unintended pregnancies, and therefore, fewer childbirth-related deaths; and were also able to travel, domestically and internationally, to obtain abortions.
In the landmark case of Roe in 1973, the SCOTUS, in a 7-2 majority, established a constitutional right to undergo an abortion up until foetal viability (also known as the ‘quickening’). In doing so, the case introduced the trimester system, where an absolute right to an abortion existed in the first trimester, and certain restrictions could be imposed in the second trimester, prior to foetal viability. The controversial and highly divisive nature of the abortion debate in the United States ensured that Roe was subject to many challenges, and a significant blow to Roe came in the case of Casey, where the SCOTUS held that restrictions may be imposed even in the first trimester for non-medical reasons, so long as it did not constitute an ‘undue burden’ or ‘substantial obstacle’ on the ability of a woman to undergo an abortion – a narrowing of the standard laid down in Roe. Other restrictions too, were imposed on the right granted by Roe – for example, through the Hyde Amendment, which disallowed federal funding for abortions. As a result, even prior to the ruling in Dobbs, there existed limitations to the full realization of women’s reproductive and privacy rights.
Dobbs was the final nail in the coffin of American women’s right to abortion. The SCOTUS, in ruling that Mississippi’s Gestational Age Act –banned most abortions post fifteen weeks of pregnancy, with exceptions only for medical emergencies or foetal abnormalities, but not rape or incest–was constitutional and effectively reversed the status of the right to abortion as a constitutional right. Holding that abortion was “not deeply rooted in the Nation’s history and tradition,” and not referenced in the Constitution, the majority in Dobbs called Roe “egregiously wrong” and “on a collision course with the Constitution from the day it was decided”.
Dobbs is nothing if not discordant with the current political climate, and the United States’ international law obligations. Notably, since the 1990s, more than sixty countries across the world have liberalized their abortion laws, with India following suit with its recent Supreme Court ruling on the Medical Termination of Pregnancy Act, 1971. In contrast, Dobbs places the United States in the unenviable position of being one among the only four countries that have done away with legal grounds for abortion in recent decades. This raises the question – does American constitutional law permit such an action?
ANALYZING THE PRINCIPLE OF NON-RETROGRESSION
In its purest form, non-retrogression may be compared to a ratchet, one that allows a state to extend protection to individuals beyond what is required by the Constitution, while disallowing any retreat from this protection once made. [iv] However, the interpretation of the SCOTUS does not follow this simplistic understanding of non-retrogression, instead requiring the fulfilment of a dual criteria. The mere repeal of an action protecting minorities (particularly, racial minorities, for they were the primary subjects of the cases on which the court’s jurisprudence on non-retrogression is built) is not enough; additionally, the repeal must create an additional, higher level of difficulty in the political process for the minority groups likely to support such a measure. [v]
The first criterion to constitute non-retrogression, the repeal of an action protecting minorities does not require much deliberation. Women of colour go through abortions disproportionally; by way of illustration, blacks constitute 13.6% of the population of the United States, and yet, they constitute nearly 40% of the reported abortions – a figure that is nearly five times the abortion rate for white women. The rate among Hispanic women is twice that of white women. Thus, the right to abortion may be considered a protection extended to minorities, and its repeal satisfies the first criterion.
The second criterion requires a little more consideration. As previously mentioned, the SCOTUS’s ruling allowed individual states to enact their own laws on abortion. An analysis of the impact on minorities’ engagement with the political process would require an understanding of the concerned states’ demographic composition – which would point to the minority group’s ability to re-enact measures to protect the right to abortion. Let us look to Alabama, for example – a state that almost entirely bans abortion, with very limited medical exceptions. Even a cursory overview of the demographic make-up of the population and Legislature (over 70% and 75% white, respectively, and majority conservative) points to the additional difficulty that will be faced by minorities seeking to re-establish protection for abortion through legitimate political process – i.e., through elections. Similar patterns are observed in the other conservative states that rushed to enact laws against abortion following Dobbs.
Evidently, in backtracking from the constitutional right granted in Roe, the SCOTUS has not only repealed a measure that protected the rights of women and non-binary individuals, it has ensured that these minorities would find it exceptionally difficult to revive any protections for abortion through the political process. Thus, the ruling in Dobbs runs contrary to the SCOTUS’s own standards on non-retrogression; and this is beyond the many substantive objections to abolishing a federal right to abortion.
CONCLUSION
The retreat from the constitutional protection which was extended to abortion is expected to have devastating impacts on the sexual and reproductive health of women and non-binary individuals. But even beyond the unconscionable effects of the overturning of Roe on human rights, the ruling represents far more than just state-wise restrictions and bans on abortions. To be clear, this attack on women’s reproductive rights will not stop here if nothing is done; Justice Thomas’ concurring opinion in Dobbs [vi] indicates the SCOTUS may, in the future, relook other rights, such as the right to contraception, [vii] the right to same-sex marriage, [viii] and the ban against laws regulating private sexual acts. [ix] The Biden Administration’s Executive Order (EO) titled “Protecting Access to Reproductive Health Care Services,” is a step in attempting to circumvent state abortion laws, but it is, by itself, insufficient. The power handed to states to determine the futures of millions of women, has made abortion an election issue, and the citizens of the United States must utilize their vote to further an agenda that protects women – legally, politically, or otherwise.
[i] No. 19-1392, 597 U.S. ___ (2022).
[ii] 410 U.S. 113 (1973).
[iii] 505 U.S. 833 (1992).
[iv] John C. Jr. Jeffries & Daryl J. Levinson, The Non-Retrogression Principle in Constitutional Law, 86 Cal. L. Rev. 1211, 1250 (1998).
[v] Id.
[vi]Dobbs v. Jackson Women’s Health Organization, No. 19-1392, 597 U.S. (2022), (Thomas, J., concurring).
[vii] Griswold v. Connecticut, 381 U.S. 479 (1965).
[viii] Obergefell v. Hodges, 576 U.S. 644 (2015).
[ix] Lawrence v. Texas, 539 U.S. 558 (2003).
The author is a third-year student at National Law University, Jodhpur
Image Credits: BBC News
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