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The US Supreme Court Has Thus Abandoned Its Duty To Protect Fundamental Rights
The US Supreme Court Has Thus Abandoned Its Duty To Protect Fundamental Rights
The US Supreme Court Has Thus Abandoned Its Duty To Protect Fundamental Rights
and for the first time in history, it has taken away a fundamental right. One hopes
that the said decision is overturned sooner rather than later. The Court has in effect
ended the Constitutional right to abortion and held that the authority to regulate
abortion now vests with the individual states. In this article, we analyse the
judgment as well as the two landmark decisions it has overturned, and offer a
single woman, Norma McCorvey, using the pseudonym "Jane Roe", challenged the
criminal abortion laws in Texas. Roe, who was a resident of Texas, wanted to abort
her third child which was conceived through rape. At that time, Texas laws
prohibited abortion unless the women’s life was in danger. Roe sued the State.
Defending the anti-abortion law was Henry Wade, the District Attorney for Dallas
County. Roe's case was eventually rejected and she was forced to give birth.
Thereafter, in 1973, her appeal to the US Supreme Court was heard along with the
law in the State of Georgia. Both argued that abortion laws in Texas and Georgia
privacy. The US Supreme Court by a majority of 7:2 held against the State. It was
ruled that governments lacked the power to prohibit abortions and that a woman's
right to terminate her pregnancy was protected by the US Constitution. Planned
Parenthood of Southeastern Pa. v. Casey (505 US 833) The next major case heard
by the US Supreme Court on the issue of abortion law was in the year 1992, when
the right to abortion was reaffirmed. The US Supreme Court again spoke about the
importance of a women’s right to choose at least until the point of viability i.e. the
point at which the foetus can survive outside the womb, usually between 24 to 28
weeks after conception. The 1992 decision established the right of states to
regulate abortion services before viability as long as the regulation does not place
Health Organization The case arose in March 2018, when the Mississippi State
Legislature adopted the Gestational Age Act (HB 1510), which prohibited almost
all abortions after 15 weeks of pregnancy, well before the point of foetal viability,
which usually occurs at about 24 weeks. On the day that HB 1510 was to take
effect, the Jackson Women’s Health Organization, the only licensed abortion clinic
was later issued. The district court granted the clinic’s motion for summary
the Fifth Circuit upheld the district court’s ruling, reaffirming a woman’s right to
choose abortion before viability. It was held that states may regulate abortion
procedures prior to viability so long as they do not impose an undue burden on the
woman’s right, but they may not ban abortions. The Fifth Circuit’s ruling was then
appealed before the Supreme Court. The State of Mississippi contended that the
constitutionality of the state law that prohibits abortion after the 15th week of
pregnancy be upheld. In defending this law, the State’s primary argument was that
the Court should reconsider and overrule its earlier decisions of Roe and Case
arguing that both decisions were “egregiously wrong” in finding a right to pre-
respondents, on the other hand, argued that Roe and Casey be reaffirmed. It was
pregnancy, “would be no different than overruling Casey and Roe entirely.” The
abortion and that Roe and Casey must be overruled. Justice Samuel Alito delivered
the Court's majority opinion joined by Justices Clarence Thomas, Neil Gorsuch,
Brett Kavanaugh, and Amy Coney Barrett. Chief Justice John Roberts filed an
and Elena Kagan delivered a dissenting opinion. By the majority opinion, it was
held that Roe and Casey must be overruled. It was held that the Constitution makes
constitutional provision, including the one on which the defenders of Roe and
Casey now chiefly rely – the due process clause of the Fourteenth Amendment. It
was held that the said provision had been held to guarantee some rights that are not
mentioned in the Constitution, but any such right must be "deeply rooted in this
Nation's history and tradition" and "implicit in the concept of ordered liberty." It
was held that it was time to heed the Constitution and return the issue of abortion
to the people's elected representatives. The Court also held that Roe was
egregiously wrong from the start. Its reasoning was exceptionally weak, and the
settlement of the abortion issue, Roe and Casey had "enflamed the debate and
deepened division," the majority held. Justices Breyer, Sotomayor, and Kagan, in
their blistering dissent, noted the feelings of many as under: "With sorrow—for
this Court, but more, for the many millions of American women who have today
relevant passages from the dissenting opinion are as under: “In overruling Roe and
Casey, this Court betrays its guiding principles.” “The majority has overruled Roe
and Casey for one and only one reason: because it has always despised them, and
now it has the votes to discard them. The majority thereby substitutes a rule by
judges for the rule of law.” “No language in today’s decision stops the Federal
Government from prohibiting abortions nationwide, once again from the moment
of conception and without exceptions for rape or incest. If that happens, the views
of [an individual State’s] citizens will not matter.” “Whatever the exact scope of
the coming laws, one result of today’s decision is certain: the curtailment of
women’s rights, and their status as free and equal citizens” Reflecting on the
that safeguards women’s freedom and equal station. It breaches a core rule-of-law
principle, designed to promote constancy in the law. In doing all of that, it places
And finally, it undermines the Court’s legitimacy." The dissenting judges further
recorded the following: “Power, not reason, is the new currency of this Court’s
decision making.” Payne, 501 U. S., at 844 (Marshall, J., dissenting). Roe has
stood for fifty years. Casey, a precedent about precedent specifically confirming
Roe, has stood for thirty. And the doctrine of stare decisis—a critical element of
the rule of law—stands foursquare behind their continued existence. The right
both originating in and leading to other rights protecting bodily integrity, personal
autonomy, and family relationships. The abortion right is also embedded in the
relationships and work, supporting (as all reproductive rights do) their social and
economic equality. Since the right’s recognition (and affirmation), nothing has
changed to support what the majority does today. Neither law nor facts nor
attitudes have provided any new reasons to reach a different result than Roe and
Casey did. All that has changed is this Court.” Abortion law in India Before 1971,
abortion was criminalized under Section 312 of the Indian Penal Code, 1860, and
abortion was carried out to save the life of the woman, it was a punishable offence
with child to miscarry facing three years in prison and/or a fine, and the woman
availing of the service facing seven years in prison and/or a fine. Abortion has been
legal in India for more than 50 years with the introduction of Medical Termination
of Pregnancy (MTP) Act in the year 1971. The MTP Act was recently amended in
the year 2021 to facilitate the termination of pregnancies beyond the period of 20
weeks, up until 24 weeks; and in the case of substantial foetal abnormalities, even
beyond the 24 weeks period. Who may terminate a pregnancy? Section 3(2) the
MTP Act provides that pregnancy can be terminated only by a registered medical
practitioner (RMP) as defined under Section 2(d) of the MTP Act. Such RMP must
meet the following requirements: (i) has a recognized medical qualification under
the Indian Medical Council Act; (ii) whose name is entered in the State Medical
Register; (iii) who has such experience or training in gynaecology and obstetrics as
per the MTP Rules. When can the pregnancy be terminated? Section 3 of the MTP
Act provides for the circumstances under which termination of pregnancy may be
permitted. Situation 1: Where the length of pregnancy does not exceed 20 weeks
single registered medical practitioner: i. That the pregnancy would cause risk to the
life of the pregnant woman or grave injury to her physical or mental health; or ii. If
there is a risk that upon birth of the child, it would suffer from serious physical or
weeks but not 24 weeks In these cases, the same opinion is to be garnered, but by
the anguish caused by any pregnancy which occurs on account of a failure of any
mental health of the woman. Explanation 2 states that the anguish caused by any
pregnancy effected by rape will also be deemed as grave injury to the mental
diagnosis by the Medical Board that the foetus suffers from substantial foetal
immediately necessary to save the life of the pregnant woman. Decisions of the
while dealing with the case of termination of pregnancy of a rape victim, it was
aforesaid view was reiterated by the Supreme Court in the case of Mrs. X and Ors
weeks of gestation was allowed on account of the fact that the foetus was
diagnosed with the serious medical conditions of bilateral renal agenesis and
anhydramnios. 3. In Tapasya Umesh Pisal v. Union of India & Ors, the petitioner,
who was 24 years of age, had approached the Supreme Court seeking permission
weeks, as the foetus had been diagnosed with tricuspid and pulmonary atresia, a
to examine the medical condition of the petitioner. The Board reported that the
treatment of the abnormality in the foetus would require foetal surgery, which
carried the risk of high mortality and that even if the surgery were to be successful,
such children usually remain physically incapacitated and have a limited life span.
The Supreme Court observed that, except for the time period i.e. the duration for
which the pregnancy had continued, the case would fall within Section 3(2)(b) of
the MTP Act. 4. In Sarmishtha Chakrabortty v. Union of India, the pregnancy had
reached 25 weeks, and based on the report of the Medical Board which recorded
that even if the child would be born, it would have to undergo complex cardiac
surgery stage by stage and there was high morbidity, the petitioner’s prayer for
UOI, the Supreme Court considered allowing the medical termination of pregnancy
in the 28th week of pregnancy. As per the medical report placed before the Court,
the foetus was said to be suffering from multiple serious neurological and skeletal
anomalies. The Supreme Court allowed the medical termination of the pregnancy,
placing reliance on the medical report which opined that while the termination of
the pregnancy at that stage would not be more hazardous than spontaneous
delivery at term, the continuation of the pregnancy would cause mental anguish to
the petitioners. Conclusion It would be relevant to note that though the decision in
Dobbs v. Jackson Women’s Health Organization has not banned abortion and has
left it to the individual states to regulate abortion, the dissenting opinion has further
noticed the fear in the minds of the people in the following words: “A State will be
able to impose its moral choice on a woman and coerce her to give berth to a
Mississippi law was enacted in 2018 and the other states quickly followed suit.
Between 2019 and 2021, eight other states banned abortion procedures after six to
eight weeks of pregnancy, and three states enacted all-out bans. The 1973
judgment in Roe v Wade was considered a watershed moment in the fight for
abortion rights in the United States of America. However, the US Supreme Court,
in reversing 50 years of precedent, has discarded the balance struck for half a
the life of a foetus”. The US Supreme Court has decided that the government and
not the person who is pregnant should make a private health decision and has
denied women the right to control their own bodies and futures. The US Supreme
Court has thus abandoned its duty to protect fundamental rights, and for the first
time in history, it has taken away a fundamental right. One hopes that the said
decision is overturned sooner rather than later. The World Health Organisation has
amendment to the MTP Act, which makes abortions even safer. But before we pat
ourselves on the back too hard, we must remember some frightening statistics as to
the reality of pregnancy and abortion in India. A study of pregnancy and abortion
in six of our largest states - Assam, Bihar, Gujarat, Madhya Pradesh, Tamil Nadu
and Uttar Pradesh - using data from 2015 found that “about half of all pregnancies
(43–55%; Figure 5.1) in the six states are unintended.” Shockingly, many primary
care centres and even higher level facilities do not offer abortion after as little as 12
weeks - way below the legal limit. Well over half the abortions in these states are
conducted in an unsafe manner. Amongst the many factors that deter Indian
women from getting an abortion are societal disapproval, lack of pre and post
abortion facilities at the primary healthcare centre (where most rural and lower-
income women get their health care) and lack of access to proper contraception.
This pushes women to seek out quacks, home remedies and generally unsafe
methods to get an abortion. Therefore, while our laws are certainly laudable, their