PRO-LIFE VERSUS PRO-CHOICE? THROUGH THE DOBBS CASE

AUTHORED BY - ADITI SINGH

 

 

Introduction

Women’s rights campaigning began in the 14th century, although reproductive rights were neglected for the longest time. Reproductive rights had never received government intervention since women were considered as “life-bearing machines”. The “taboo” of sexuality, as well as the ways in which religion and morality compete, had resulted in a complete disregard for various aspects of women’s reproductive health, leaving women with only limited access to healthcare. The freedom to choose whether or not to use contraception, and adequate healthcare facilities are all now recognized reproductive rights and are considered to be important human rights. Abortion has been an issue of controversy for decades, which has made rise to the “pro-life” and “pro-choice” debate.

 

The “pro-life” versus “pro-choice” debate

These “pro-life” and “pro-choice” concepts encapsulate the prevailing ideas about abortion rights. Abortion should be prohibited, according to pro-life advocates, a label that others argue is inherently prejudiced because it implies the opposition’s disregard of human life. Proponents of the pro-choice perspective, on the other hand, push for the preservation of lawful and easily accessible abortion procedures.

 

The pro-life movement adamantly believes that even nonviable and underdeveloped human life is precious and deserves government protection. Abortion is judged impermissible under this paradigm and should not be conducted even if it is legitimate. Proponents of the pro-choice, on the other hand, argue that individuals have unrestricted autonomy over their reproductive systems, as long as such autonomy does not impinge on the autonomy of others. (Destro, September 1975) The basic premise of the pro-choice argument is to make sure there is no government interference in the decision of an individual’s decision regarding their pregnancy, particularly before the fetus reaches viability. Pro-life activists discourage women from exercising their right to abortion.

Dobbs Case: Downfall of gender equality and individual’s right

There are now significant worries about human rights breaches as a result of the controversial and profound change in reproductive rights brought about by the overturning of Roe v. Wade. With this landmark ruling in 1973, the Court believed the value of women’s reproductive rights by recognizing their right to an abortion. However, in the case of Dobbs v. Jackson Women’s Health Organization, in 2022 by the US Supreme Court. The Mississippi Gestational Age Act, which forbids abortions beyond 15 weeks of pregnancy with some exceptions such as fatal abnormalities, was up for constitutional review by the Supreme Court. The Court reversed 1973 Roe v. Wade (1973) and maintained the Act, holding that the Constitution does not protect the right to an abortion. 

 

The judge’s for this judgement relied on the determination that access to abortion was a “fundamental right” deriving would mean intervening in an individual’s privacy. (Roe v. Wade 1973) Even though the Constitution has nowhere mentioned “privacy”, the court concluded that it is a broader term. This fundamental private right served as the foundation for numerous landmark decisions in the courts recognizing individual rights, such as access to contraception, and same-sex marriage etc. (Wald, 2022) And so overruling of this case, will have implications not only on women’s human rights but also on others.

 

In Dobbs v. Jackson Women’s Health Organization (2022) has been viewed as a crucial act of antidemocratic backsliding in the decades-long progress of women’s rights. A high court of three women and six men, representing a small percentage of United State of America’s intellectual, moral, and gender diversity, decided in favour of overturning fifty years of women’s rising power over their bodies, identities, and life decisions. (Jasanoff, 2022) It overlooks scientific and technological advances that have radically altered our view of reproduction.

 

Women’s lives and health are impacted after this decision in many ways. These legal limits imposed by the US on abortion has not only diminished the concepts of equality, independence, and dignity by also human rights. They have denied “right to bodily autonomy” and decision-making power of women. This has destroyed the years of fights on gender equality and again taken a downward turn. (Human Rights Crisis: Abortion in the United States After Dobbs, 2023)

 

The Dobbs ruling emphasises that it is up to the states to decide on abortion laws. More direct democracy comes about through allowing local and state governments to decide these issues rather than the federal government. Delegating abortion policy choices to various states presents considerable issues, notably in terms of accessibility and equality injustices. Different state rules can result in significant disparities in reproductive healthcare access. Women in jurisdictions with restrictive abortion laws might encounter additional challenges in accessing their reproductive rights, increasing pre-existing socioeconomic and territorial inequalities in healthcare access.

 

Others are concerned about the possibility of reproductive rights being completely neglected and destroyed if abortion policy is handed over to the states. States with conservative majorities will be more inclined to implement restrictive laws, jeopardising the rights protected by the landmark Roe v. Wade decision.

 

Flawed Arguments in Dobbs v Jackson

It is necessary to delve into the arguments adopted by the majority bench, which was led by Justice Samuel Alito, to understand the criticism lingering behind this flawed judgement.

 

It is necessary to understand that the ideology adhered to by Justice Alito played a major role in this decision. There has been a consistency in his judgements due to the Originalist perspective he has adopted. He is a keen believer in interpreting the Constitutional in a literal sense, by refusing to go beyond what is written. Due to this, he refused to extend the right to abortion as a fundamental right guaranteed by the Fourteenth Amendment Clause that highlights substantive due process of the law. (Johnson, 2022). He refused this due to two reasons. The first justification given by Justice Alito was that it would pose a threat to another “potential life.” (Dobbs v. Jackson Women's Health Organization, 2022). This would seem suggestive of the fact that the court refuses to consider the numerous situations that arise which call for an abortion and, implies that abortions are not justified. This is a problematic consideration made by the Justice. The second justification goes against the principle of stare decisis, which has been previously upheld in Casey v Planned Parenthood (1992) as well. He reiterated that for extension of rights like this, it must be “deeply rooted in this Nation's history and tradition.” (Dobbs v. Jackson Women's Health Organization, 2022). Abortion has always been a part of the United States’ tradition and history. The sources utilised to negate this point of contention were not from the recent past, instead, mediaeval, and ancient sources of literature were used. Experts and scholars have argued that the judgement has “selectively cited” laws related to anti-abortion whilst not considering the accurate picture at hand (Hurley, 2022).  It is important to take the present situation into account as our society is constantly growing and developing.

 

While Justice Alito acknowledges that innate fundamental rights, such as right to privacy for the media, are a result of an extension through due process protected by the Fourteenth Amendment, he did not expand upon the same any further. An exclusion or reading down of the right to abortion from the status of a fundamental right puts other such derivative rights in danger as the same logic can be applied to negate their status.

 

The judgement has also failed to take the international laws revolving around abortion law into account. The Convention on the Elimination of All Forms of Discrimination Against Women has codified that “special measures protecting pregnancy shall not be considered to be discriminatory” in Article 4. The Montevideo Consensus on Population and Development, 2013 progressed this fight further by urging every country to reconsider their laws on abortion and legalise the same. The Committee on Economic, Social and Cultural Rights General Comment No. 22 (2016) passed a recommendation where they said the following: "to repeal or eliminate laws, policies and practices that criminalise, obstruct or undermine access by individuals or a particular group to sexual and reproductive health facilities, services, goods and information.” These provisions can be interpreted in a way where abortion rights should be protected.

 

Furthermore, Justice Amy Coney Barrett highlighted certain problematic arguments as well. She proceeded to say that if there is someone who wants an abortion, they should just carry out the whole gestational period and give birth after waiting it out. She described adoption is the solution to not having an abortion and parenting "take[s] care of the problem." (Dobbs v. Jackson Women's Health Organization, 2022). This very statement harms and reduces the emotional turmoil suffered by a woman who might not want to give her baby away and of someone who has suffered an unwanted pregnancy, by forcing them to give birth. Justice Alito proceeds to expand on this notion by suggesting that there is a reduction in the “domestic supply” (Dobbs v. Jackson Women's Health Organization, 2022) of infants and new-borns which can be countered by the argument made by Justice Barrett.

 

 

Consequences

It is also crucial to delve into the consequences arising out of such a decision, whose impact can not only be felt on the reproductive rights of women, but also on the federal law due to the Supreme Court overruling a judicial precedent which leads to a setback on the democracy as a whole.

 

The judgement in Dobbs has sparked controversy among US political parties, with both taking opposite positions on the ruling's implications for the authority it confers to state legislators and raising doubts about what rights the Supreme Court may adjudicate upon (Hodge, Graith & Krumholz, 2022). There has also been an impact on the authority of states to regulate abortion, substantial social and legal implications, as well as questions about the judicial and political stability of the nation (Harle 2023), all of which will be discussed in the following paragraphs.

 

As previously stated, Justice Alito contended that abortion is not a part of American history and, as such, this issue should only be decided by the states. Many republican politicians celebrated this judgement, arguing that the “inherent authority of states” had been greatly restricted by the judgements of Roe v Wade and Planned Parenthood v Casey (Hodge et al., 2022, p. 849). Justice Kavanaugh further concurred in the Dobbs judgement that abortion is an “issue for the people and their elected representatives to resolve through the democratic process in the States” (Dobbs v. Jackson Women's Health Organization 2022, p. 2), bowing to the autonomy of states. They failed to recognize, however, that federalism is designed to defend people's liberty and provide varied protections for individual rights. The Court's decision to restore regulatory authority over abortion based on states' interests is contradictory to the fundamental principle of federalism, which aims to protect and strengthen individual liberties. The fundamental freedoms of Americans, established by the Supreme Court more than fifty years ago, need ongoing deference for the granted rights even when they are hastily taken away (Harle 2023). There have been numerous cases that the Supreme Court has adjudicated upon that have had significant effects on individual liberties of the people of America. These include cases on gun possession, gambling and numerous other issues (Hodge et al., 2022). These issues are also related to individual liberties of the people, however, the Supreme Court had upheld its authority in deciding upon these matters.

 

After the Dobbs decision, there was a rush by numerous states to enact their own abortion laws, which caused a major shift in power between federal and state level players (Hodge et al., 2022). Due to this, the rules about reproductive rights would also vary from state to state if the law is so fragmented and the authority of the Supreme Court is threatened. The right to an abortion is mostly unrestricted in many states. Indeed, the right to abortion is explicitly guaranteed in the constitutions of several states or has been upheld by state supreme courts in rulings that interpret such constitutions. A number of states have made it very difficult, if not illegal, to obtain an abortion, and several of these states have explicitly stated this in their constitutions (Smith et al., 2023).

 

Such a fragmented landscape would cause issues between state and federal governments. For states that have not adhered to the Dobbs ruling and have instead expanded the scope of the right to abortion through state laws, federal policies may be enacted “punish states that fail to conform to federal rulings" (Mayer et al., 2023, p. 394). The relationship between the federal government and individual municipalities is intricate and differs from one state to the next. On the other hand, we can identify a potential source of contention: cities that lean more liberal in states that lean more conservative. (Mayer et al., 2023).

 

All things considered, the Dobbs judgement has laid to rest a significant judicial precedent in the United States. The decision has further polarised opinion on the subject of abortion by shifting the focus from the federal government to the individual states. In order to protect democracy and provide power to elected officials to decide on abortion, the court ruled that the procedure should be illegal. But by doing so, the Supreme Court has shirked from its duty to protect the American people’s rights and dignity.

 

The Way Forward

The Dobbs (Dobbs v. Jackson Women's Health Organization, 597 US (2022) judgement is a major setback not only to the United States but also to the changing world at large. The citizens of the United States are going through a human crisis after the Roe v Wade judgement was overturned.  Through this appeal we are approaching the United Nations Human Rights Council to take action for the breach of international human rights law committed by overturning Roe v Wade (1973) and giving the flawed judgement in Dobbs v Jackson Women’s Health (2022).

 

The fundamental right to live with dignity and with freedom is enshrined in the US constitution. The argument that a foetus is already a human person right from the moment of conception is someone’s personal belief and not an actual argument. You cannot establish personhood until birth. One should not confuse an opinion with a 50 year old established law. A democratic state like the USA cannot impose someone's personal belief through the legal system.

 

The Supreme Court clearly disregarded its legal mandates under the International Human Rights Law. The ICCPR clearly mentions that a woman needs to be protected from the harmful scenarios that come with the restrictions on abortion. This position was also reminded to the Court and judges but they turned a blind eye towards it.

 

In countries with legal restrictions or systemic barriers, safe abortion becomes a luxury for the wealthy, while women with limited resources are forced to rely on unsafe providers and methods. This court ruling makes possible "structural discrimination", which has already become a common practice in the US. The pre-existing discrimination of women of color (primarily women of color and indigenous women) of lower socioeconomic status and other vulnerable situations, such as migrant women, people with disabilities, and victims of sexual violence and prostitution, face additional barriers in the way of reproductive health services. Denial of legal and professional procedural abortion and safe post traumatic abortion care leads to torture, and various inhumane treatment of pregnant women. America's abortion laws and regulations threaten the lives and health of ones getting it aborted and ones who are in urgent reproductive assistance. This has violated the basic human rights of the citizens of the United States.

 

By overturning Roe v Wade, the United States has clearly dismissed right under the International Human Rights law. The US has ratified ICCPR, ICERD and CAT. It has also signed but not ratified, ICESCR, CEDAW, CRC and CRPD. As a signatory and ratified member of these treaties, the US needs to act in accordance with these conventions instead of passing judgements that go against the sole idea of signing these treaties. Even the Human Rights Committee has said that countries that have signed the ICCPR should not enact anti-abortion laws because they are contrary to the “right to life of a pregnant woman or girl”.

 

We request the UNHRC to take all the steps to mitigate the potential challenges caused by the Dobbs judgement. A few things that can be done is by releasing funds to states for creating a safe place for abortion for the marginalised community. The state has the power to provide access to abortion and the best example for this is the State of New York. Other states should also try to learn and follow the practice that is used by New York. It's the state's duty to make the process of abortion accessible so that the pregnant woman does not have to travel to another state for abortion and pay a hefty fee on travel. The removal of Roe v. Wade abortion rights is a massive setback that would cement systemic discrimination and violence against women and girls, as well as to anyone who is capable of becoming pregnant. What happened in America today is a serious setback on gender equality and basic rule of law. Abusing legislative, executive, and judicial power to restrict and punish abortion, rather than expanding abortion and ensuring equitable access to safe abortion services, represents a fundamental deterioration of democratic ideals and processes.

 

Bibliography

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Human Rights Crisis: Abortion in the United States After Dobbs. (2023, April 18). Retrieved from Human Rights Watch: https://www.hrw.org/news/2023/04/18/human-rights-crisis-abortion-united-states-after-dobbs#_ftn13

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