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Mainstream, VOL LIX No 39, New Delhi, Sept 11, 2021

Texas Anti Abortion Bill: Blow To Women’s Right And Great Legacy of Roe Vs Wade | Vijay Kumar

Saturday 11 September 2021, by Vijay Kumar

by Vijay Kumar*

The Texas Anti Abortion Bill imposing nearly – absolute ban on the abortion beyond six weeks pregnancy marks the beginning of well-orchestrated machination by right-wing religious groups represented by the Republican Party to overturn the most liberating, indeed epochal legacy, of the judgment of the US Supreme Court in Roe vs. Wade in 1973 by Warren Berger Court. The Texas bill is intended to perpetuate the stranglehold of patriarchy in 21st century by controlling the women’s body and subversive to women’s right. The emergency refusal to block the Texas Bill by the wafer-thin majority 5 to 4 of the US Supreme Court portends the shape of thing to come.

The threat to the legacy of the Roe vs. Wade has been looming large on the horizon ever since the filling of three vacancies in the US Supreme Court in one term of four years of Donald Trump, a rare opportunity for any president. In fact, this opportunity cropped up for the President Obama,as the first vacancy filled up by Trump arose during his presidency, but his attempt to appoint was forestalled by the republican. The last appointee in the court, Amy Coney Barrett was appointed just on the eve of presidential election in the wake of death of liberal lion,Justice Ruth Bader Ginsburg. In a quirky turn of irony, the woman Justice, known for expanding the frontier of liberalism and feminism, was replaced by another woman, publicly recognised for conservatism and visceral aversion to abortion and the judgment in Roe vs. Wade. All the three conservative justices, namely justice Neil Gorsuch,Brett Kavanaugh and Amy Coney Barrett appointed by Trump along with the oldest member of the bench, Justice Clarence Thomas, who is the only black , and Justice Samuel Alito refused to block the Texas bill, whereas three liberal judges appointed by the Democrat Presidents dissented, and most trenchant dissent that “it is breathtaking act of defiance the constitution--- and of the right of women” came from Sonia Sotomayor. This cleavage took place on expected line and Chief Justice John Roberts sided with liberal judges by deferring to the precedent.

Ever since the appointment of Amy Coney Barrett, dyed-in-the-wool conservative, the legacy of Roe vs. Wade became shaky. As Michel Rosenfeld and Adras Sajo, in their magisterial tome, COMPARATIVE CONSTITUTIONAL LAW wrote, “ The Constitution is endowed with meaning and at the same time has capacity to create meaning”. Two glorious examples for infusing new meaning in the Constitution and thereby altering the very identity have been the formulation of the basic structure doctrine by the Supreme Court of India and granting new right to women to terminate her pregnancy by the American counterpart in Roe vs. Wade, coincidently, in the year 1973. The judgment of Roe vs. Wade was the culmination of the raging wave of feminism witnessed in the US in 1960s, particularly, during the presidency of Kennedy and Johnson. The Roe vs. Wade judgment was subsequently emulated by the many constitutional courts in different jurisdiction.

I have always put Roe vs. Wade on higher constitutional pedestal than Brown vs. Board of Education, another cause celebre handed down by Earl Warren court in 1954. The 14th Amendment was already in existence for a long time, and Brown vs. Board of Education judgment overturned horribly pernicious doctrine of “equal but separate” propounded in infamous Plessy vs. Ferguson in 1896. The hideous doctrine of “equal but separate” segregated the black and white children in the schools. Apart from shocking the conscience, and, therefore, extremely repulsive, the “equal but separate” doctrine was in flagrant negation of guarantee of equality flowing from 14th Amendment. The Brown vs. Board of Education judgment was revolutionary, as it outlawed the segregation in schools on the basis of race. But Brown vs. Board of Education judgment did not impart drastically new meaning in the constitutional text. On the other hand, Roe vs. Wade judgment injected a new meaning and, in the process, altered the very identity of the constitutional text and, therefore, must be reckoned as most evolutionary phenomenon in growth of constitutionalism. It has only one parallel and that is the enunciation of the basic structure doctrine by Supreme Court of India.

The threat to the great legacy of Roe vs. Wade was foretold by me when Amy Coney Barrett was appointed just on the eve of presidential election in 2020 by unethically departing from the precedent set up by Republican itself that vacancy in Supreme Court should not be filled up in election year (Barrett Confirmation : Heralding Dangerous Turn to Right in U.S. Supreme Court, Mainstream dated 31.10.2020). When the arch conservative member of the Bench Antonin Scalia died in Jan. 2016, full ten months before election, the attempt of then President Barrack Obama to fill up the vacancy through nomination of Merrick Garland (present Attorney General, nominated by present President Joe Biden) was blocked by Republican on the ground that vacancy occurring in election year must await election.

The Roe vs. Wade judgment unleashed the forces of feminism in all liberal parts of the world and has provided springboard for the women’s right and the movement of feminism. Any attack on the legacy of Roe vs. Wade would be extremely regressive and turn the clock back. The Texas Bill has grave implications not only for women’s rights and the march of feminism, but also for the very foundation of liberal political structure.

The Supreme Court’s refusal to block the Texas Legislation through emergency hearing only means that the women groups have to approach the Supreme Court only after exhausting the procedural drill of litigation starting from the local court. Eventually, the matter is bound to come up again in the Supreme Court for full-fledged adjudication. But the ominous sign is the sharp cleavage among the justices on the basis of ideology and also on the political line. Since the days of Ronald Reagan, the Republicans have been consistently trying to undo the judgment of Roe vs. Wade. But one Justice, Anthony Kennedy, though appointed by Reagan, moved from right to centre and extricated himself from “pigeonholed ideology” and, on many occasions, sided with liberal and earned the sobriquet of “swing vote”. Justice Anthony Kennedy retired in 2018, and with his retirement, one of the most important voices of moderation, departed from the Bench. The present Chief Justice, John Roberts, an appointee of The president Bush Jr., though has not moved from right to centre, but has evinced a healthy respect for the precedent. Even in emergency ruling on last Wednesday, he sided with the liberals, not on the ground of ideological affinity, but because of his respect for the precedent.

The most disturbing aspect is lack of good faith on the part of any of the conservative justices barring Chief Justice John Robert. Here again, the experience from the Indian Supreme Court is instructive. The judges, particularly Justice Mathew and Justice Chandrachud, who opposed Basic Structure Doctrine in Kesavananda Bharati case, showed good faith and invalidated notorious 39th Amendment through which the Allahabad High Court judgment quashing Indira Gandhi election was nullified.

Subsequently, the Chief Justice Chandrachud further knocked down another infamous 42nd Amendment passed during Emergency in Minerva Mill case in 1980. The lived experience of supersession of judges and imposition of fraudulent emergency proved to be cathartic for Justice Mathew and Justice Chandrachud, who showed good faith and invoked the basic structure doctrine which was opposed by them at the time of its formulation. Such a good faith is lacking on the part of the conservative members of the US Supreme Court except Chief Justice John Roberts. The legacy of Roe vs. Wade has been of enduring value and, it can endure in future only when Chief Justice John Roberts succeeds in persuading the conservative justices to restrain theirs, what is pejoratively known in American Constitution literature ‘Precedent-thrashing impulses’.

* (Author: Vijay Kumar is Advocate, Supreme Court Of India)

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