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Mainstream, VOL LX No 22, New Delhi, May 21, 2022

Overthrowing Roe V Wade Texas Legacy : Crushing Blow To Women’s Rights, Right To Privacy & Human Dignity | Vijay Kumar

Saturday 21 May 2022

by Vijay Kumar

The Leaked draft opinion, penned by arch conservative Justice, Samuel Alito, observed that landmark judgment in Roe v Wade was “egregiously wrong” is shocking but not surprising, as the US Supreme Court is packed with conservative judges. The Leaked judgment marks the decisive forward momentum to dogged effort by right-wing religious groups represented by the Republican Party to overturn the most liberating, indeed epochal, legacy of the US Supreme Court in Roe v Wade in 1973 by Warren Berger Court. Overturning the Roe v Wade judgment amounts to egregious take back to fundamental human, cultural, women and constitutional rights. The reversal of Roe v Wade legacy would perpetuate the stranglehold of patriarchy in 21st Century by controlling the women’s body and their reproductive right.

The threat to the legacy of the Roe v Wade had 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. 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, the author of Leaked draft, are die-hard orthodox and appointee of Republican President.

Ever since the appointment of Amy Coney Barrett, dyed-in-the-wool conservative, the legacy of Roe v Wade became shaky. Since the days of Ronald Reagan, the Republicans have been persistently trying to undo the judgment of Roe v 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, in the process, 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.

The threat to the great legacy of Roe v Wade was foretold by me when nomination of Amy Coney Barrett was confirmed 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 v Wade judgment unleashed the forces of feminism in all liberal parts of the world and provided springboard for the women’s right and the movement of feminism. The end of Roe v Wade regime would be extremely regressive and turn the clock back. The Leaked opinion has grave implications not only for women’s rights and the march of feminism, but also for the second generation rights such as right to privacy,gay’s right and other emerging rights.

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 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 v Wade, coincidently, in the year 1973. The judgment of Roe v 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 v Wade judgment was subsequently emulated by the many constitutional courts in different jurisdictions.

I have always put Roe v Wade on constitutional pedestal higher than ‘Brown v 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 v Board of Education judgment overturned horribly pernicious doctrine of “equal but separate” propounded in infamous ‘Plessy v Ferguson’ in 1896. The abhorrent 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 flagrant negation of guarantee of equality flowing from 14th Amendment. The ‘Brown v Board of Education’ judgment was revolutionary, as it outlawed the segregation in schools on the basis of race. But ‘Brown v Board of Education’ judgment did not impart drastically new meaning in the constitutional text. On the other hand, Roe v Wade judgment was rendered on tabula rasa and, in the process, infused new meaning in the constitutional text by reading new right to privacy, 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 undoing of Roe v Wade judgment would be annihilative of women’s agency and autonomy, and thus represents a terrible setback for liberalism in general and women’s right in particular. The overturning of Roe v Wade legacy, which is a distinct possibility now, marks the triumph of the most hideous nature of right-wing obscurantism. More shockingly,the end of the Roe v Wade legacy signifies crushing blow to women’s right, right to privacy and human dignity. The concerted effort to negate the jurisprudence flowing from Roe v Wade will take away the right of women over her body. The element of ‘pro-choice’ is inherent in the very concept of autonomy of women, and any negation of the same through the bogey of ‘pro-life’ crusade unleashed by right—wing religious fundamentalism, backed to the hilt by Republican Party, is subversive to the very idea of autonomy. This show that ‘Trumpism’, and the toxic phenomenon of post-truth associated with him. is kicking even after his defeat.

Enforced child-birth is slavery, as argued powerfully by celebrated novelist Margret Atwood in her piece in ‘The Guardian’. ‘The Guardian’ was equally withering in its editorial by commenting that “overturning Roe v Wade would be human rights’s catastrophe”. The looming end of the glorious legacy of Roe v Wade would push the poor women and their children into poverty by forcing them to go to other places for abortion. The Leaked Opinion, if culminates in the final judgment, would polarize the American society sharply into ‘pro-choice’ and ‘pro-life’ groups. Conversely, if Roe v Wade is upheld, even though in diluted form, may result in violence, as happened on the 6th January, 2021 when right-wing rabble-rousers stormed into the Capitol Hills, the very citadel of US democracy. The social regression of reversal of Roe v Wade would further be evident from its repudiation of history of women ’emancipation starting with the movement of suffragette.

Both the context as well as personality of justices who would decide against the Roe v Wade judgment would be of great interest for court-watchers. Two of the conservative justices, the senior-most, and only black Judge, Clarence Thomas, and Brett Kavanaugh, the second last appointee during presidency of Trump were accused of indulging in debauchery, and their confirmation hearing in Senate in 1991 and 2018 turned out to be scurrilous spectacle. By upholding the Roe v Wade judgment, these two Justices could effectively counter the allegation of sexual advancement made by them against the female colleague. On the flipside, if they go with Justice Samuel Alito, the lecherous image imputed against them will gain credence.

Judicial review is, no doubt, counter-majoritarian, but, ironically, it’s legitimacy is derived from popular support. Once the public confidence in judicial review is dented, the very exercise of judicial review would become illegitimate, as happened with Indian Supreme Court’s notorious judgment in habeas Corpus during dark days of emergency. Judicial review in order to be legitimate must be underpinned in constitutional principle rather than political expediency.

Jurisprudentially speaking, the attempt to overthrow the Roe v Wade legacy is an unmistakable pointer to unedifying situation of Republican-appointee justices embarking on what is pejoratively termed as ‘precedent-thrashing impulse’ in American constitutional literature. The Leaked draft judgment has the potential to erode the trust reposed by the people in the judicial review. If the Leaked Draft opinion becomes the ex cathedra pronouncement, the credibility of the US Supreme Court would reach at nadir with grave repercussion for constitutional democracy. The legacy of Roe v Wade has been of enduring value for the progressive and liberating march of constitutionalism, and sacrificing it on the altar of atavistic passion of right-wingers would be tragedy of unmitigated proportion, and, therefore, attempt to dismantle it must be resisted by left and liberals through exceptional commitment and global solidarity.

(Author is Senior Advocate, Supreme Court of India)

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