Roe v. Wade: The Abortion Divide

By Neera Kuckreja Sohoni

In his 2021 book ‘The Authority of the Court and the Peril of Politics’, Justice Breyer makes a distinction between deliberations made by political officials or ordinary people, and by judges. The first “concerns an action to be undertaken, the second concerns the justice of an action that already has been undertaken”.  This tidy distinction he suggests is less helpful when applied to the Supreme Court’s decisions on complex issues like the lawfulness of abortion, which have more to do with the future than with the past.

When the court takes future consequences into account, Breyer warns, “Opponents of its decision may argue that it is acting like a legislature, not a court”. In such cases, how the court rules “will help determine the confidence that the public has, or will maintain, in the judicial institution itself.”

Breyer could not have been more prescient. The overturning of the Roe v. Wade ruling reflects the formidable challenge as well as hopelessness of the court issuing any possible ruling which would not be found incendiary by one group or the other.

The Supreme Court in its 1973 Roe v. Wade ruling acknowledged abortion as a fundamental right giving women the power to exercise control over their bodies. In its present ruling, the Court has struck down Roe v. Wade, holding that “the Constitution does not confer a right to abortion”, and stated that abortion is a matter to be decided and acted upon by states and the voters in the states. Such action is valid if it is serving “legitimate state interests,” including “respect for and preservation of prenatal life at all stages of development.”

States are now entitled to regulate abortion to eliminate “gruesome and barbaric” medical procedures; “preserve the integrity of the medical profession”; and prevent discrimination on the basis of race, sex, or disability, including barring abortion in cases of fetal abnormality.

Pro-abortionists perceive the ruling as a direct affront to women’s dignity, privacy, and bodily autonomy. They feel it disempowers women, and threatens their survival by imposing on them undue medical risks of carrying a pregnancy to term, thereby impairing the mother’s right to life.

The ruling has spawned angry protests from pro-abortionists across the nation, while also drawing hearty cheers from pro-life anti-abortionists. Democrats and Republicans are all set to make abortion a life and death issue for the coming mid-term elections, and for the next presidential election.

With Republican-led states moving to restrict abortion, Democrats at the state and federal levels are rushing to protect abortion amenities. Offering abortion facilities on federal land and via clinics on boats are measures being considered to expand access to abortion services without breaching state laws prohibiting abortion.

The above suggests that our polity will remain divided and vulnerable to breakdown from the outraged and destructive forces ready to blow up not just this democracy but this country. Not only abortion but the Supreme Court itself will become a focal point and firing ground in the forthcoming elections.

Ethnicity and racism are always handy in mobilizing dissent and inflaming disaffection. Expectedly, those mourning the end of women’s reproductive rights are highlighting how the court’s ruling is especially deleterious to the health of minority women, and among them, especially those who are poor and cannot afford to travel to other states to access abortion services.

In response, pro-abortion non-profits and corporate leaders have announced they will cover the costs of abortion-seeking travel by women. Pro-life charities likewise are offering assistance for care during pregnancy and delivery, and for the adoption of babies.

Either way, it is disconcerting to see abortion becoming the focal point of agitation and amelioration efforts rather than the overall health of women.

For decades, America has carried the disgrace of having one of the highest maternal mortality rates in the ‘developed’ world. We have also always known that minority women have borne the brunt of maternal mortality. Even among ethnicities where out-of-wedlock sex and conception are taboo, women’s survival is at greater risk from botched back-alley abortions and untested home-based remedies.

Among ethnic groups, black women consistently account for the highest maternal mortality as well as the highest share of abortion. Poverty heightens their risk of dying. Those disparities have led some to suspect an element of genocide in the larger push to legalize and universalize abortion. In such settings and also where religious beliefs forbid aborting or killing a life – is it fair to consider freedom to have sex and the right to abort the fetus as truly liberating?

The reasons for much higher abortion rates among minority women are systemic, driven by a lack of access to and effective use of contraceptives, and to preventive healthcare services generally. Similar to Covid-19, those with pre-existing conditions and poor health experienced higher mortality. Better care at delivery does not make up sufficiently for the lack of universal healthcare during the nine months of pregnancy. That is how, despite spending more than twice per person on health than the average of high-income nations, the US female mortality and abortion rates are among the highest in the developed world.

Merely making abortion easy, affordable, and free does not take away the potential of lasting injury to women’s physical and mental health. Forced pregnancy is as harmful to the female’s health as is forced termination of pregnancy. And merely declaring it as a human right does not make abortion righteous. Certainly not for those who uphold life’s sanctity for whom the right to abortion is uniquely linked to the ethics of killing.

Other than the right to self-defense, the right to abort is the only right where another’s life is involved and directly impacted by one’s action. But whereas the right to self-defense is exercised against someone who is threatening your life, abortion entails an innocent entity that did not attack you in the first place, and which is unable to defend itself against being attacked and extinguished by you.

Opponents of abortion increasingly argue that ridding oneself of a fetus is not the key to women’s empowerment. Patriarchy which is universal trumps women’s human rights in many more ways than restricting their ability to abort.

Abortion’s personal cost to women goes beyond the material expense it entails. Ask any woman how much she recalls her failed pregnancies whether intended or unintended with a sense of loss or incompletion, and you will know her anguish does not end with the removal of her fetus.

Except for rape, incest, and coerced or unwanted intercourse, or when it directly endangers her life, the option of abortion cannot seriously be presented as a source of joy. It is in fact death by a thousand cuts.

The dilemma of abortion clearly has to be settled at the most personal and immediate level, and not in a standard straightjacket way by law, or by a court ruling one way or the other. In that sense, one can view the overturning of Roe as a step forward in women’s empowerment. It can lead us and our male partners towards greater responsibility and accountability in our sexual interface and reproductive decision-making. For the fetus, it offers and can deliver the constitutionally guaranteed right to life.

Disclaimer: The views expressed are not necessarily those of The South Asian Times 

Image courtesy of (Image Courtesy: BBC)

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