Author: Riya Singh, II Year of B.A.,LL.B from National University of Study and Research in Law, Ranchi.
The entire USA, in fact the entire globe was taken aback when the infamous Roe v. Wade was overturned by the Supreme court of the USA. Ever since then there has been a humungous backlash by the American women regarding their bodily autonomy. The blog would entail the history as to how pregnancy became this democracy’s most religiously debated issue and how is the issue dealt in our nation. The laws that govern pregnancy in India and we would also see what could be the fate of the American women.
When a constitutional right existing since 4-5 decades is rolled back, it is the democracy which should consider itself in deep jeopardy. With the U.S Supreme Court overturning the 1973 ruling in Roe v. Wade, with 6-3 majority, the right to reproductive and bodily autonomy preciously, the right to abortion was snatched away from women in one go on 24 June, 2022. The US’s most passionately debatable issue came into picture once again.
Abortion, meaning there by the termination of pregnancy by the expulsion of the foetus or embryo prior to the viability has been the U.S’s most devotedly practised ideological battle. The question that do women have the right to choose abortion has always ignited sparks leading to a legal turmoil in the country. And now a similar outrage has been observed after the over turning of Roe v Wade.
The case has caught everyone’s eyes which had Jane Roe, pseudonym for Norman McCorvey, an unmarried, unemployed 22 year old. It was the third time she was pregnant in 1969 when she sought to have an abortion in the state of Texas. Herry Wade was the then district Attorney of Dallas country, Texas whose duty was to enforce a state law prohibiting abortion. He was the one who Roe sued when she sought abortion. Although by the time U.S SC ruled in favour of her, she had already given birth but as a result of her legal battle, others got the right to abortion.
Evolution of laws of abortion in USA.
The US has had a long journey from criminalization in the late 1800s to legalization in the early 1970s and the ongoing battle for the abortion access. A lot us would ask how did the USA actually arrive here? The answer to this question lies in the history of laws of abortion.
As per the historians, prior to 1850 abortion was a widespread phenomena that was stigma free for American women. It was so prevalent that the newspapers advertised abortion services to cure “obstructed means” with herbal remedies. The laws back then reflected a British common law and with respect to abortion, the legal system used “quickening” doctrine to decide the legality of abortion. Quickening is referred to as the time when the foetus’s movement can be detected which is usually around 20-24 weeks of pregnancy,. Abortion post quickening were illegal.
Later in 1847, the American Medical Association (AMA) was formed by a coalition of male doctors with the intention of separating themselves from the mid-wives and female healers. They believed that they must have the power to decide when an abortion could be legally performed. By the 1880s all the states had laws restricting abortion with the exception that the mother’s life was at risk. Post this, for several decades abortion was criminalised at any stage but the law went in vain as abortions continued to take place, just not explicitly. In the 1950s to 1960s about 2 lakhs to 2 million illegal abortions happened according to Guttmacher Institute.
A very crucial outrage came about in 1969 when National Association for the Repeal of Abortion Laws (NARAL) was established. It was the first national grouping created solely to campaign for legalization of abortion, initiating direct action to repeal the laws which banned abortion. Later in 1973, the question was raised before the US Supreme Court that does the American constitution recognise a women’s right to terminate her pregnancy? The court held that the choice of abortion lies with the women during the first 3 months of her pregnancy. And hence, all the other legal tangles were over ruled with this.
Today, after almost half century, the court with Roe v Wade as well as the 1992 decision in Planned Parenthood v. Casey which upheld the former has returned to the point that the “issue of abortion” will be passed to people’s elected representatives. This means there will be different laws across US. With this, at least 13 states have laws the permit them to ban abortion immediately or within 30 days and many other still coming up with their new ones.
What Indian law says about abortion?
Despite being the world’s most powerful nation, USA took away the right over bodily autonomy from women. Now let’s look at the Indian law on this subject. In India, abortion has been legal for almost 50 years now, it allows abortion if the pregnancy is fatal for the women or there is some grave medical issues with the unborn. Medical, termination of pregnancy act enacted in, 1971 to decrease in the number of maternal mortality rate, made abortion legal in India with effectively balancing the rights of the mother and the foetus with safeguarding women’s health. Initially, the act allowed medical termination of pregnancy till 20 weeks under the supervision of a registered medical practitioner but post the 2021 amendment it was extended up to 24 weeks. It allows abortion in certain cases well defined in the act like if the pregnancy is the result of rape or incest, failed contraception, medical diformities with the foetus or the mother and to unmarried women.
Effect On women’s health after overturning roe vs. wade
According to the centres of disease control and prevention, U.S has the highest maternal mortality rate amongst developed nations with almost 700 women dies out of some or other reasons related to pregnancy and the medical practitioners suggests that they are preventable if effective majors have been taken. The biggest and irrevocable damage this judgement is going to make is increase in the maternal mortality rate which is already high in the country. According to CDC, data they are doubled from 1987 to 2017. Some data suggests that the states which has less protective laws low maternal mortality as compared to the one which has high. Now as the abortions are banned there are high chances that women will go for unsafe abortion methods and that could be detrimental for their health. and these forced pregnancies would lead to mental health problems in many families and especially to women.
Putting a ban on anything or arbitrarily denying women their right over their body is not the quick fix of any of the concerns related to pregnancies. The US will certainly have to face certain repercussions regarding the same. Considering that it is one the few countries that has denied abortion previously too, for quite long, U.S would again be disbanded from the peer countries. Women might have to tussle for their reproductive rights, the life expectancy of the people will likely to go down and consequences will certainly impact globally.
The US, as witnessed by all has been targeting India on several issues of human rights and its recent affair exposes its hypocrisy. With the racial discrimination, gun violence, denied rights of pregnancy, the U.S seems to be standing at a shallow lead. The women of America have a long way to go to achieve what they struggling for currently.