By: Akash Mukherjee
On June 4, 1919, women in the United States were granted the right to vote under the 19th Amendment. This year would mark the 100th anniversary of this watershed moment. It was a momentous day for women around the world as it enabled them to participate in the public sphere on equal terms with men. Control over one’s own fertility is a necessary prerequisite for such full participation. However, after almost a century, this aspect of a woman’s life is still governed by the social dogmas in some states of the US. The recent Alabama legislation proscribing abortion presents this disregard for the autonomy of women.
The Alabama Human Life Protection Act makes performing an abortion a felony. It permits abortion in only two cases — if the fetus has a “lethal anomaly” which would cause death soon after birth or a stillbirth, or if it would “prevent a serious health risk” to the mother. The regressive law makes no exception for victims of rape or incest.
The law has received severe criticism and protests on ground and on various social media platforms. The debate around the legislation is centred on the theme of life against autonomy.
LEGAL JURISPRUDENCE ON THE AUTONOMY OF WOMEN
The Supreme Court of US has decisively recognised the right to abortion of women in Roe v. Wade as a fundamental liberty safeguarded by the Fourteenth Amendment of the US Constitution. The arguments against legalising abortion were based on the State’s obligation to protect human life which, as it was contended, begins from the moment of conception. On the other hand, it was claimed that a woman must have complete autonomy with respect to her choice to procreate. Building upon several cases which upheld that the reproductive autonomy of an individual is secured by the constitutional right to privacy, the Court affirmed the right to abortion of women but it did not confer upon them an absolute right. It was held that any legislation infringing the right to abortion would be constitutional if it is narrowly tailored to serve ‘compelling state interest’. The ‘compelling’ point would be, after the first trimester, subsequent to which the State was allowed to impose increasing restrictions to the extent of proscribing abortion to protect fetal life after its viability. Viability is the time after which the fetus has the capability to survive outside the mother’s womb. Thus, the autonomy of a woman was absolute only to the end of the first trimester.
The next significant judgment came in Planned Parenthood v. Casey, where the Court upheld Roe v. Wade and gave recognition to the autonomy of women in making their medical decisions. However, it diluted the trimester framework propounded in Roe v. Wade and permitted the State to take measures and make regulations which express opposition to choices of abortion and impose increased costs and barriers on abortion so long as these restrictions do not place an ‘undue burden’ upon a woman exercising her right to abort. An ‘undue burden’ has the effect of imposing a substantial obstacle on a woman seeking an abortion. The Court used Planned Parenthood of Missouri v. Danforth, where the requirement of spousal notification was ruled invalid on the basis that in a dependent or abusive relationship such a requirement would tantamount to a criminal prohibition on abortion, as an illustration of ‘undue burden’. It can, therefore, be construed from the above example that only total barriers are, in fact, undue. These restrictions could be imposed from the time of conception. It was stated that these constraints were meant to allow the women opting for abortion to make an informed decision as the state had a legitimate interest in protecting prenatal life.
The ‘undue burden’ test was elucidated in Whole Woman’s Health v. Hellerstedt, where it was stated that the Court must inquire whether the abortion restriction actually furthers the asserted state interest. Such a determination must be based on a meaningful review of the said restriction. The Court, while citing Gonzales v. Carhart, stated that it holds an independent constitutional duty to look into the factual findings where constitutional rights are involved.
THE CASEY FALLOUT
The Casey judgment had sapped the autonomy of women to a large extent by allowing the State to put constraints on their choice to abort and such constraints would be constitutional as long as they do not act as total barriers to their choice. The States, under the garb of having a legitimate interest in the protection of potential life, have passed several restrictive laws on abortion, making it difficult for a women to exercise her autonomy, such as preventing access to state funds, limiting coverage of abortion in private insurance plans, imposing mandatory counselling and waiting periods and so on. States like Kentucky and Georgia have passed heartbeat bills which forbid abortion after a fetal heartbeat is detected. Also, some states have passed laws which shall come into effect only if Roe v. Wade is overruled. These laws have been termed as trigger laws. These legislations have had a debilitating effect on the autonomy of women in exercising their constitutionally guaranteed choice to abort.
NEED TO PRESERVE THE AUTONOMY OF WOMEN
The historical perspective to the present debate on abortion clarifies that the restrictions on abortion are based on the traditional mode of regulating the conduct of women with the object of obliging them to carry out the work that has traditionally defined their subordinate social role and their conception as mothers. The Court has acknowledged the long and unfortunate history of the society assigning the role of a wife and mother on women. The abortion restrictions are also based on such sex-based distinctions. These restrictions directly militate against the equal protection doctrine which is the only principle of constitutional jurisprudence dealing with the rationality of gender-based impositions. Thus, the constitution requires the protection of the interests of women against such restraints which can only be ensured by safeguarding the autonomy of women with regard to their reproductive health.
Ronald Dworkin in his work ‘Life’s Dominion: An Argument about Abortion, Euthanasia, and Individual Freedom’ stated that the moral concern about abortion stems from the ‘detached objection’ that human life has intrinsic and sacred value independent of their rights and interest. He states that the debate on abortion between the conservatives and liberals germinates from the different positions taken by them with regard to the relative importance of this value which is acknowledged by both as profound and fundamental. Therefore, he argues that the decision of abortion based on such detached valuation of human life must be assigned to individuals whose lives are most directly influenced by such choices. He propounds that the constitutional principles require the protection of a women’s right to abort.
Another argument which can be offered for protecting abortion rights is that anti-abortion laws impose obligations on a woman that the law otherwise would not impose on people who are in a position to help their fellow humans. The American law adheres to a deeply engraved principle that a person is not obliged to provide aid to another in danger, i.e., a person is not required to be a Good Samaritan. An unwilling pregnant woman is, therefore, asked to endure significant pain and risk for the life of another rather unconstitutionally. The health hazards to a woman, even during a normal and healthy pregnancy, can be unpleasant and daunting. Such consequences include the tendency to vomit, the tendency to faint, insomnia, high blood pressure, anaemia, depression etc.
The anti-abortion laws in the United States provide evidence that even in this age of women empowerment, the choice of a woman to bear a child is bent in accordance with social perception. It is ironical that a fundamentalist regime, like the Taliban regime in Afghanistan, is condemned for compelling the women under their authority to wear a veil while there is such a lack of empathy shown by the authorities in the US towards the women subjected to abortion restrictions the consequences of which could be much more intimate and long-lasting. Both the situations showcase the impositions of the visions of certain sections of the society on all women. The autonomy of a woman is vital to the realisation of conception of life especially when it concerns her reproductive health. It has been recognised by the law, but only partially with respect to abortion. The failure to reach a clear decision in such cases lies in the fact that the constitutional issue in question in such cases is, “When does life begin?” The focus needs to be on the protection of the liberty guaranteed to women by the Constitution of the United States.
(Akash is currently a law undergraduate at the National Law University, Jodhpur.)