The Defeat of Choice: Reflections on the abortion laws

This post is written by Bilal Khan, a student at Christ University, Bengaluru.

In today’s cosmopolitan world, it is almost impossible to not register even slight changes in other countries. But the Supreme Court of the USA’s decision was anything but unnoticeable. On 24 June 2022 Roe Vs Wade ruling was overruled. But what does it mean to overrule Roe Vs Wade, and what is Roe Vs Wade to begin with? Read on to understand these headers appearing on your Instagram since last week.

It was Jane Roe in the year 1970 that decided to go to court for Texas’ abortion law that would criminalise abortion procedures by a trained physician except in “emergency medical cases” that are life-threatening for the mother. It is crucial to notice that Roe herself was unmarried and pregnant when the law was questioned. The case was fought against Henry Wade, the district attorney where Roe lived. It was 22 January 1973 that marks the date when it was determined that the abortion law was unconstitutional. Since then, it has become acceptable for “elective” abortions to be carried out by legalised and trained physicians.

The law has been under contestation since 1973. Dr Deborah R. McFarlane wrote a whole history of cases from 1973 to publishing her papers in 1998. McFarlane also wrote about The Parenthood of South-eastern Pennsylvania Vs Casey. The case is significant when it comes to Roe Vs Wade as it was this law that saw overruling of multiple details of the original law. The four of nine judges voted for the complete overruling of Roe (McFarlane 21).

The contestation makes it clear that the law has been in discussion for quite a long time and has also been subject to change. Within this change, the question of life has often come into question. In this debate, people have fought for the life of the mother while others fought against the Right of the mother. In this law debate, even the idea of a foetus has changed multiple times. “Foetus” is a term that has roots in biology and is often absent from case files. The usage of the term foetus exempts it from other biased words. The term seen so often in Justice Alito’s first draft of the Court opinion is “unborn human being”.

What more regards than a human being? Do we need to discuss Heidegger and the complex definition of the Being to discuss this philosophical question? Even Justice Alito discussing his opinion, writes that “Some [people in opposition of pro-choice] believe fervently that a human person comes into being at conception and that abortion ends an innocent life” (1). An innocent life here refers to a foetus. An unborn human being then amounts to a sinless life. In this discussion, the impure and criminalised mother is what the public forgets to see or chooses not to notice. The mother who bears this innocent life then amounts to a sinful life. A life who would elect or choose to get rid of this innocent life of an unborn human being. Taking the life of an unborn human being is justified as it bears no form of consent, but paradoxically, it also takes away the consent from the mother.

Justice Blackmun, the person responsible for the Court opinion that overruled Texas’ abortion law back in 1973, wrote:

One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion. (116)

We see a call to subjective experiences that deem abortion morally right or wrong for a person. When Justice Alito called abortion a “profound moral issue”, he also defined its subjective nature. But as we have discussed in the prior paragraph, abortion is looked at as murder. Hence, this personal moral code dies out for a universal axiom that murder is morally wrong. Other than that, there is also the subjectivity of the justices themselves.

Justice Blackmun follows up on the same page, “Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection.” Does this mean justices are free from human subjectivity? And if not, do we include the subjectivity of the Supreme Justices of the USA? We ask why not? As Sriram Lakshman writes in his article, the overruling that Justice Alito majorly supported was appointed by the former President of America, George W. Bush, a known conservative. Four other justices joined Justice Alito. Of these four, Justice Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett were appointed by another former President, Donald Trump. Lakshman also added Trump’s ardent appointment of justices who oppose abortion. We are not suggesting Justice Blackmun was free from his moral convictions, but his subjectivity acknowledged the diversity of experiences of every individual by giving that individual a choice.

The Supreme Court does not directly strangle the choice available to women of the USA, but it is the act that follows. As soon as the law was overruled, states started triggering a ban on abortions. Justice Blackmun wrote how the Texas Law violated the Ninth and Fourteenth Amendments of the Constitution of America (113). Justice Alito referred to this issue by calling Roe Vs Wade a loose reading of the Constitution (9). He asserted that the Right to abortion was never a right to be protected by the Constitution to begin with. The absence of that right never violated any amendments listed in Roe and Casey. Hence, after the overruling of Roe Vs Wade, any state can vote to ban abortion as it is not referred to in the Constitution. In Justice Alito’s view, this ban would be democracy in effect in the particular states that Roe Vs Wade previously prohibited.

But how democratic is this supposed democratic bill? Invoked in one of our older blogs, Michel Foucault’s understanding of this ruling can help us look at this overruling from another angle. Discussing the forms of powers, Foucault discusses Biopower:

The second, formed somewhat later, focused on the species body, the body imbued with the mechanics of life and serving as the basis of the biological processes: propagation, births and mortality, the level of health, life expectancy and longevity, with all the conditions that can cause these to vary. Their supervision was effected through an entire series of interventions and regulatory controls: a biopolitics of the population. (qtd. in Adams)

This reductionist view of the human body also contains the idea of “birth”. The human body, in Foucauldian terms, becomes a site of political dispute where power is employed. In the context of “birth,” the female body or the mother becomes the one where the ruling occurs. What the overruling of Dobbs Vs Jackson does is to allow Biopower to be maintained on the mother’s body without her consent. The situation is flabbergasting as it directly employs this kind of power. Now the “level of health” of a mother is also controlled by the law as the new overruling suggests no solution for cases where the removal of the foetus is not physically harmful to the mother. An example can be pregnancies caused by rapes can have mentally traumatising effects on the mother.

The Right to privacy and the violation of liberty have been ruled as non-violation by the Supreme Court of the USA. But does this pose a question here in India? Yes, it does. If any law is changed in countries visible on the Global Cosmopolitan map, it is at least noted and analysed by other countries. After World War II, the United States of America established its position as one of those visible countries. As Amirthalakshmi R and Srikant Parthasarathy have written in their article, India references many cases that come under America’s jurisdiction. Fortunately, India just amended its Medical Termination of Pregnancy Act in 2021; the ripples of American conservatism should not reach our doorsteps. What India faces is a cultural difference in context to America, as women are stuck in bureaucratic, medical and socio-patriarchal systems when faced with the Right to abort a child. Here, another form of abuse occurs where abortion is done without the mother’s consent.

In the quest to save a life that is contestable to be viable— the ability to have psychological processes—America is on its way to hindering multiple mental and physical processes of already viable beings. Under the law, it is Rights that are asserted and retracted. Hence, the Constitution becomes a body that reflects the abstract formation of law. But if this body excludes an individual’s fundamental right under the forces of law, then the lines between legal and illegal are also made abstract.

Also read: Let’s make some space for gender and sexuality