Interpreting Abortion, to be a Constitutional Right or Historical Wrong Rationale?
In a shift momento, on the 24 June 2022, U.S. Supreme Court gave the verdict in the case of Dobbs v. Jackson that overturned the landmark precedent of Roe v Wade, a 1973 landmark decision that secured America’s women’s Abortion right before the viability of the foetus outside the womb before the 24–28 week mark.
The court held the decision to ban Abortion with a majority of 6–3. Justice Samuel Alito, a conservative judge on behalf of the majority, stated that “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision”.
The decision produced both cries and claps.
On the one hand, Opponents of Abortion cherish this decision celebrating the success of their decade-long efforts. And on the other, the proponents were criticizing and protesting the decision, which they perceived to be a blown over their right to liberty and bodily integrity. Even they appeal that the decision would inflate fascism and provide the government to regulate the rights of the women over their bodies.
Just like the citizens of the leaders of the two parties also cleared their stands. Republicans being the representative of the conservative approach and a pro-life saver, cherish the decisions, with the ruling parties in the various states initiating the process to make stringent abortion laws. And Democratic a comparatively more liberal and the people’s right propoter condemn it.
President Biden addressing the nation, called the decision to be “tragic error” and a “sad day” for the court and the country.
He proclaimed, “The court has done what it has never done before, expressly take away a constitutional right that is so fundamental to so many Americans”.
Certainly, there is some nexus and the cliff point that needs to know to shape the opinion as to support or criticize this discretion. And for that, one of the foremost questions to deal is.
What does the constitution say?
Would it provide the Right to Abortion? If no, then how 50 years ago court provided it? And if yes, then why the court, now after 50 years, denies its constitutionality?
To reach an appropriation point and understand the constitutionality, we first need to understand the case of Roe v. Wade.
Roe v. Wade case.
In this case, the Texas criminal abortion laws were challenged. This law forbids Abortion, except under medical emergency to save the mother’s life. A pregnant woman named Roe challenged the constitutionality of the law in a class action which was also joined by Hallford and other members. A three-judge District Court combining the cases ruled that the Texas abortion statutes were invalid because they were vague and overbroadly violated the women’s and other rights under the Ninth and Fourteenth Amendments and held that the declaratory remedy was necessary but not injunctive relief.
The court stresses that such actions of the State, though motivated to save lives, certainly be vindictive of the women’s rights and interests. Thus, has to analyze through the Due Process Clause of the Fourteenth Amendment, by virtue of which the women’s rights to privacy, including a woman’s qualified right to terminate her pregnancy, is protected. The court, in this case, tooks a more liberal approach to providing women right and freedom over the body.
However, one of the most important aspects of this case is that it does not give the absolute right to women to Abortion. Instead, it lays the decisive test of the foetus viability and segregates the Abortion into stages.
Thus it seems the judgement to be equally balanced than what comes to it contention for decades.
Constitutionality of the Abortional Laws and Rights.
In the light of the judgement, it is very clear that there is nowhere direct mention of the Right to Abortion. But the right forms an incumbent part of the right to liberty and thus has to be availed under it.
However, in the present case (of Dobbs v. Jackson) Justice Samuel Alito says,
“The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision,” He called Roe’s reasoning “exceptionally weak.”
The term ‘liberty’ and the ‘due process of law’.
The due process clause is present in the Fifth and the Fourteenth Amendments of the U.S. Constitution. The Fifth Amendment, which was ratified in 1791, asserts that no person shall “be deprived of life, liberty, or property, without due process of law.” Conjoint with the Due Process Clause of the Fourteenth Amendment, which was ratified in 1868, declares,” Nor shall any State deprive any person of life, liberty, or property, without due process of law”.
Due process of law is based on the natural law principle that empowers the court to have the judicial review and strike down a law which is unfair, unjust or unreasonable to the rights of the citizens, even if it is made in accordance with the constitution.
Fourteenth Amendment states that “nor shall any state deprive any person of life, liberty, or property, without due process of law”
The Casey Court grounded its decision solely on the theory that the right to obtain an abortion is part of the “liberty” protected by the Fourteenth Amendment’s Due Process Clause. But in this case, the court sub judicate that the extent of the term “liberty” has to be determined. And for determining the history of the country has to be seen and determined in accordance to the tradition and the historical significance.
Guided by the history and tradition that map the essential components of the Nation’s concept of ordered liberty, the Court finds the Fourteenth Amendment clearly does not protect the right to an abortion. Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right.
Instead of seriously pressing the argument that the abortion right itself has deep roots, supporters of Roe and Casey contend that the abortion right is an integral part of a broader entrenched right. Roe termed this a right to privacy (410 U. S., at 154), and Casey described it as the freedom to make “intimate and personal choices” that are “central to personal dignity and autonomy,”
The court decided the right to obtain an abortion cannot be justified as a component of such a right.
The court said that Attempts to justify Abortion through appeals to a broader right to autonomy and to define one’s “concept of existence” prove too much. The rationale provided by the court is that Abortion is different because it destroys what Roe termed “potential life” and what the law challenged, in this case, calls an “unborn human being.” None of the other decisions cited by Roe and Casey involved the critical moral question posed by Abortion.
Thus, the court ruled against the Right to Abortion, overruling the decision.
Conservative v. Liberal
In 2020, under the presidential tenure of Donald Trump appointed, the three federal judges, i.e. Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, that possess a more conservative approach in their tenure. With the appointment of the three judges by former president Donald Trump, the Supreme Court’s constitutional bench looks more conservative than it has to be. The conservatives put the weightage more on the right of the human life and as the child can not speak for this right, law has to stand for it. Also, they are motivated by the religious and sanctity beliefs of Christianity as ‘the life is the divine gift of good, that does not have to be taken up. Thus, sided more with the women’s right to liberty and the freedom to choose.
Critical Appraisal
It is opinionated that by virtue of the fact, the bench constitutes a more conservative approach. The contention put forth on the ground of “broader entrenched right” was a solidified point that restarted the historic tradition test as the only basis and put forth before the court the natural and necessary right. But the court seems to protect the unborn life over the born one.
Progressive v. Restrictive — It is a very progressive step to think about the rights of an unborn child, but at the same time, assuring him the rights sacrificing with the natural rights of the women’s right of bodily integrity and health seems to be more restrictive then progressive.
The right of a person to the possession of their own body forms an important part of the common law tradition and the natural rights, safeguard of which is essential to bring the constitutionalism and the preservation of the rule of law.
Thus, it is opinionated that U.S. Constitutional provides the right to the court to make the mandatory decisive to protect the people’s rights and establish the right to Abortion as a constitutional right, provided with the certain restriction.
How Roe v. Wade Balance the Beam
The decision of the case of Roe v. Wade does not provide the absolute right of Abortion to the women. Instead, it balances the bodily right of the women with the right of the unborn child, just the difference that the approach of the court was more liberal and rational, and by the fact the court balanced the two rights, instead of absolving the one completely for the other.
(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician. (Pp. 163–164. Of the Roe v. Wade judgement)
(b) For the stage subsequent to approximately 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. (Pp. 163–164. Of the Roe v. Wade judgement)
(c )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 necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. (Pp. 163–164. Of the Roe v. Wade judgement)
So understanding this division, the court divided the whole period of the pregnancy into three parts (referred to as trimester), which means an approximate period of three months. The court, in the first trimester, provides the sole right to the woman to have over her body to decide the fate of the pregnancy and to choose whether she wants to or not have the baby.
In the third trimester, the court provides the leverage to the right of the unborn child on the basis of the viability that the child had the ability to live outside the mother’s womb, thus being essential to preserve the right of the divine child.
The second trimester is somewhat circumstantial that provides the power to the state to decide their policy in the interest of the people.
Also, the division in the line between the second and the third trimester is based more on viability than the absolute time period. Viability, as defined by Merriam Webster, means the ability to live, grow, and develop. The court enhancing the meaning, held it as the ability to live, grow and develop outside the mother’s womb. Thus, recognition of the right of the unborn child when it can be said to be a child.
CONCLUDING
The court needs to reconsider the decision and provide the balance of the rights and recognize the right to Abortion as being a part of the right to liberty under the fourteenth amendment.
References
https://www.law.cornell.edu/supremecourt/text/410/113
