Roe v Wade - The Good and the Bad
Roe v Wade - The Good and the Bad
The US Supreme Court set aside the decision in Roe V Wade ending the Constitutional right of abortion. The decision is both good and bad and exposes weakness in legal philosophy.
The decision in Roe v Wade has riled up the left. It has also riled up the feminists, and rightly so. But, like many issues we discuss here, it is not a case of black and white. It is a multifaceted issue.
Supreme Court is a keeper of the Constitution.
It is true for all major democratic countries that the apex court of the country has the power to interpret the Constitution of that country. What and how the apex court can interpret, depends on the Constitution itself.
The Indian Constitution is conceived as a flexible Constitution. The Indian Supreme Court has often read into the Constitution certain commitments made by various India to international fora such as the UN etc. For example, the Supreme Court of India has read into Constitution, environmental rights, child rights, abortion rights, etc. It has also created laws, (under the name “guidelines” till Parliament passes those laws), superseding the Parliament of India.
However, this flexibility allows for some mischief too. It allows the Supreme Court to impose the values of its judges on the country. The Supreme Court of India was quick to endorse the amendment of the Indian Constitution adding the word “secular” to the preamble without following the due process required for amending the Constitution. This is not a good practice that can protect the sanctity of the Constitution.
In the same vein, Roe v Wade imposed the values of the Supreme Court of the US on the entire United States itself. This was not proper.
US Constitution is not flexible.
Simply speaking, the US Constitution is a contract between the various states of the United States of America. The States carve out some of their own power to Federal Government. Any power that accrues, accrues first to the States of the US. They have to actively give it to the Federal Government. Each state of the US has a separate Constitution and a Supreme Court to protect that state’s Constitution.
In the US, the Constitution as a document, both Federal and those of States, are designed to limit the powers of the governments. Therefore, Federal and State Supreme Courts cannot read rights into the respective constitutions. This is very different to that from the Indian case.
When a new right is discovered, that right falls upon the individual. The State has the power to regulate that right. However, the Constitution prevents the State from regulating certain rights. If a right falls into this special group, then it severely limits the government to control of the rights. In the US, gun ownership is clearly stated as a protected right. Abortion is not.
In Roe v Wade, the Supreme Court of the US read the Abortion right into this special group. It did not have the power to read a “new” right of abortion into the rights protected by the Constitution. Therefore, the decision in Roe v Wade was not in line with what the US Supreme Court can do.
Then why was it tolerated for so long?
THIS is the central question.
A Christian Constitutional structure was unable to accept the freedom of choice to abort. Certain other states like Oklahoma, Missouri, Arkansaw, Louisiana, Kentucky, Alabama and South Dakota have banned it altogether. There is another group led by Texas, which has severely restrictive abortion laws. The limit for abortion is kept at 6 weeks or less. It is difficult to be aware of pregnancy itself within 6 weeks. Yet, this freedom was required to deal with unintended pregnancy. It was a reasonable demand of citizens.
Some of the states too wanted people to have the choice, though not quite for reasons stated explicitly. The abhorrent reality is that the freedom to abort comes from the difficulty of the State in protecting the right to have safe sex of voters vs the right of maintenance of non-voting infants. The State does not want to be saddled with abandoned infant citizens and dependent mothers. It has no capacity to deal with them.
So while Roe v Wade was wrong in procedural aspects, it did deliver protection to individuals’ choices to a degree while giving the States the freedom to regulate it in the second and the third trimester.
But there is no “Right to Abortion”.
Certain states in the US namely Oregon, Alaska, New Mexico, Colorado, Vermont and New York have recognised a “right to abortion”. They allow abortion at any stage. The State also extends financial support to women for abortions. This position too is not correct.
When people talk of “my body, my choice”, the choice is for action, i.e. having sex. Pregnancy is a consequence, not an action. Law does not allow you to choose consequences, it only allows you to choose your actions. There are many legal instances where personal choice results in an injury for which there is no remedy or compensation.
Abortion, therefore, is a compromise and not a casual choice. It comes with great responsibility. Across the world, this is the accepted norm.
Hence there are restrictions after 24 weeks in ALL countries including so-called developed countries in Europe, Nordics, and even the most liberal states i.e. California etc. The acceptable limit of 24 weeks is quite an advanced stage of pregnancy - 6 months.
In India, for example, the opinion of one medical practitioner is required till 20 weeks. The concurring opinion of two medical practitioners is required between 20 and 24 weeks. After 24 weeks permission of State level medical board is required.
In Sum
Once we accept the fact that Abortion is necessary as an option, we must defer to the medical opinion and leave morality out of it.
The rule of thumb is that in the first trimester, abortion is a choice. In the second-trimester medical opinion is required and there is scope for some state regulation. In the third trimester, it is allowed only as an exception and State control is severe.
And there the matter should rest.