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Mainstream, VOL LX No 28, New Delhi, July 2, 2022

Overturning Roe Vs. Wade: Grave Implications For Women’s Rights | Vijay Kumar

Friday 1 July 2022, by Vijay Kumar


The widely anticipated judgment of the American Supreme Court after the Politico published the Leaked Draft opinion on 2nd May, 2022 in Dobbs v. Jackson overturning 50 years old glorious legacy of the Roe v. Wade judgment is revolting in the extreme. This regressive judgment has baleful impact on constitutionalism, democracy and women’s right. With the appointment of three Conservative Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett by Donald Trump, the Supreme Court has returned to the dark days of Dred Scott (1854) and Plessy vs. Ferguson (1896) in the nineteenth century. In former case, the Supreme Court justified slavery, and it is this notorious judgment, that triggered the civil war and assassination of one of the greatest President of the US, Abraham Lincoln. The Plessy judgment produced the dubious doctrine ‘equal but separate’ and it took more than 50 years to overturn this in cause célèbre Brown v. Board of Education (1954). With the three Conservative Justices appointed by Donald Trump, the balance got heavily tilted in favour of Republican appointed reactionary justices, perhaps, with the sole exception of Chief John Robert.

The Dobbs judgment has also come closely on the heel of another notorious judgment handed down a week back when New York law regulating the use of gun was quashed by the Supreme Court by 6 to 3, paradoxically, at a time when menace of gun has become the source of widespread nuisance in the US.

Ever since the suffragate movement in early decades of the last century, the gender right has been slowly but inexorably expanding and Dobbs judgment set the clock back by repudiating the progressive march of constitutionalism and women right movement in last hundred years.

The judgment in Dobbs case represents humongous setback for the women’s right, particularly over their bodies. In the process, the agency and choice, exercised through autonomy, by the women has completely been subverted. So is the dignity of the woman.

The Constitutional Court, specially the highest court of the land is always expected to expand the frontier of rights by infusing it with liberating meaning and creating ancillary rights. The Roe v. Wade judgment was the watershed moment for this kind of emancipatory judicial process. When the Constitutional court restricts the rights, which happened with notorious judgments of Indian Supreme Court in Habeas Corpus case during the dark days of emergency, and which exactly is the consequence of overruling Roe v. Wade legacy, widespread hues and cries is inevitable. It is noteworthy that even conservative demagogue like Borris Johnson, the Prime Minister of England, has joined the progressive comments of the Prime Ministers of Canada and New Zeeland and the President of France. This reaction from the leaders of advanced liberal democracy underscores the menacing rise of right wing reactionary politics in the US and its deep penetration into its highest court, especially after three appointments by Trump.

Most distressing aspect is the celebration of this hideous judgment by Trump and his supporters. In his rally, the slogan ‘Victory for white life’ with distinct racial overtone rented the air. Overthrowing Roe v. Wade legacy will sharpen the already polarized politics of US.

The Dobbs judgment is also notorious for thrashing the precedent and marked by unmistakable bad faith on the part of three appointees of Trump, who testified in course of their confirmations in Senate that they would respect the precedent. Justice Frankfurter, another great justice, wrote that ‘there is great deal of shallow thought that judicial robe does not change the person beneath; upto the great extent it does’. Sadly, the conception of Justice Frankfurter is rudely shaken as the Republican appointees remained hostage to their individual conservative view and preferred them to Women’s right and respect for precedent.

The only heartening feature is that Democrats, right from the President Joe Widen and speaker of the Congress Nancy Pelosi to the Senators and almost all ranks and files have condemned the judgment and vowed to neutralize it through legislation. This is in complete contrast to equally dubious judgment handed down by Indian Supreme Court in Ayodhya case, the effect of which was the complete destruction of secularism, despite being basic structure of the Constitution, and the Opposition Parties were completely paralyzed in articulating their comments.

Judicial review is counter-majoritarian, but, paradoxically, it’s legitimacy is derived from wide public support. When seventy percent of American population supports Roe v. Wade legacy and the leaders of all liberal and advanced democracy are articulating their concerns over annihilation of Women’s right, overturning the Roe v. Wade would render the exercise of judicial review wholly illegitimate, and it is incumbent upon the Legislators as a people representatives to nullify the Dobbs judgment, as, in Indian context, 44th Amendment passed during Janta Government did by nullifying Habeas Corpus judgment by amending Article 359 of the Constitution to the effect that right to life and liberty could not be suspended even during Emergency. The time has come for people and their representatives to live up to their basic and inalienable democratic duty.

(Author: Vijay Kumar is Senior Advocate, Supreme Court of India)

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