Returning to a Pre-Roe World Threatens More than Abortion Rights

Sarthak Gupta and Pruthvirajsinh Zala

In May 2022, an initial draft opinion written by Justice Samuel Alito of the Supreme Court of the United States (SCOTUS) in Dobbs v. Jackson Women’s Health Organization was leaked forewarning an overturn of the decision in Roe v. Wade. Justice Alito writes in the draft opinion, that the rationale of Roe was egregiously wrong from the beginning, although SCOTUS in a press release said that the draft opinion doesn’t represent the final decision. The impact of overruling Roe would be to end a half-century guarantee of federal constitutional protection of abortion rights and empower every state to determine abortion rights.

In Dobbs, the constitutionality of Mississippi’s prohibition on abortion after 15 weeks is challenged. Justice Alito in his draft opinion holds that there is no constitutional right to abortion. The rationale of Justice Alito’s draft opinion jeopardises the right to abortion recognised here and here by describing it as an unenumerated right which is not ‘deeply rooted in the history and tradition of the nation’. The right to same-sex marriage or the right to contraception is also not explicitly mentioned in the constitutional text and is not supported by historical precedents. Yet, these rights indubitably flow from the constitutional promise of autonomy, dignity, privacy, and due process. By terming this reasoning as a criterion with a ‘high level of generality’, Justice Alito lays the ground to challenge these rights in the future. Such a narrow and strictly history-oriented approach to interpreting human rights would have a ripple effect on other long-fought human rights including parenting, procreation, extended family, medical autonomy, marriage equality, and sexual orientation.

The right to access abortion is not only a constitutional right flowing from Roe and Casey, it is also an international human right. Access to safe abortion is protected under the right to life, right to privacy, right against discrimination, and to be free from torture, cruel, and degrading treatment. These rights are recognised by ICCPR, ICERD, and the Torture Convention. Restricting abortion leads to more unsafe abortion, which disproportionality impacts  marginalised groups and rural women. Justice Alito’s opinion focusing on the right to life of an unborn child endangers the living person’s rights and goes against the understanding of Article 6 of the ICCPR which protects the right to life for all human beings.

Women’s right to privacy includes the right to bodily autonomy and the freedom to make decisions over reproductive functions. Justice Alito’s refusal to recognise reproductive rights and bodily autonomy denies  privacy rights putting an emotional, physical, and mental burden on people facing unwanted pregnancies. This refusal violates Article 12 of UDHR and Article 17 of ICCPR which protects against arbitrary interference with an individual’s privacy. It also violates Article 7 of the ICCPR by endangering their lives or exposing them to bodily or mental anguish or suffering.

Keeping human rights like access to abortion at the altar of majoritarian governments raises an important question as to whether human rights are inalienable or can they be taken away with the change of party in power. Texas fetal heartbeat abortion law and Oklahoma abortion bill can be seen as prime illustrations of the status of women’s rights and privacy in the post-Roe handmaid’s tale.

If SCOTUS issues a final decision akin to Justice Alito’s draft opinion it will lead to the implementation of trigger laws prohibiting abortion in 13 states. Such a ruling would have glaring effects on maternal health and pregnancy-related deaths. By paving the way to restrict access to abortion, SCOTUS will sow the seeds of damaging economic and social impact. The effect of Roe’s overruling would not only be restricted to the United States but will impact women across the globe.

Sarthak Gupta is an undergraduate law student at the Institute of Law, Nirma University, India. He is a staff writer and assistant editor at JURIST, University of Pittsburg, Pennsylvania.

Pruthvirajsinh Zala is a final year undergraduate law student at the Institute of Law Nirma University, India. He is currently interning at the National Human Rights Commission, India.