Explained: The US Abortion Ruling That Centre Referred To During Same-Sex Hearings

As the apex court in the country continues to hear arguments seeking legal recognition for same-sex marriages in India, several important arguments, observations and comments have been made during the hearings. One such referral was to the 2022 Dobbs v Jackson, judgment, which held that the US Constitution does not confer a right to abortion.

While arguing on the point that the question of granting equal rights to marry should be left to Parliament to decide, the Solicitor General Tushar Mehta referred to the aforementioned case and said, "The US top court overturned it in the Dobbs case in 2022, citing incompetence of the judiciary to legislate and noting that “the authority to regulate abortion is returned to the people and their elected representatives”. 

The centre referred to the case in support of its contention that the judiciary should not venture into the domain of the legislature. However, the Supreme Court observed that it is a well-settled principle that “judges don’t legislate” and asked the Centre not to cite the US top court verdict denying any constitutional right to abortion in support of its argument.

In response, Chief Justice of India (CJI) Chandrachud told Mehta, "If you are relying on Dobbs to argue judicial restraint, then in India, we have gone far beyond that." 

"Dobbs represents a view of the American SC that a woman has no control over her bodily integrity. This theory has been debunked long back in our country."

What is the ruling that SG was referring to?

In 2022, the United States Supreme Court overturned the landmark 1973 Roe Vs Wade judgment that had made abortion a protected right under the American constitution. Following the judgment, women no longer had the right to abortion, as it was banned or limited within the first trimester or early in the second in up to 20 American states.

The case came to be known as Roe Vs Wade, as in 1970, a woman referred to as Jane Roe in court documents at the time (to protect her identity) filed a case challenging a law in Texas that disallowed abortions except in cases where it was required to save the pregnant woman’s life. The lawsuit was filed against Henry Wade, the district attorney representing Dallas County where the woman resided.

The Court had in 1970 concluded that the Due Process Clause of the Fourteenth Amendment protects the right to privacy from state action and a woman’s choice to have an abortion falls within that right to privacy. However, the Court ruled that states could regulate abortions in the second and third trimesters of pregnancies, as per The Oyez Project’s website.

Meanwhile, in the judgment in 2022, the conservative majority of the Supreme Court overturned the Roe Vs Wade and another verdict —Planned Parenthood Vs Casey, 1992— that reaffirmed the Roe verdict with a 5-4 majority. 

The Court observed that it should be states, not the judiciary, that should decide on abortions.

"The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. The Court overrules those decisions and returns that authority to the people and their elected representatives," said the Court's majority.

What happened after the ban?

According to a report by the New York Times, following the judgment, most abortions are now banned in 14 states. However, some like the South Carolina Supreme Court struck down the ban in January 2023, holding that the right to privacy in the state’s constitution includes the right to an abortion.

“Half of states are expected to try to enact bans on abortion or gestational limits on the procedure. In some of these states, abortion remains legal for now as courts determine whether bans can take effect. Abortion remains legal in the rest of the country, and many states have added new protections since Dobbs,” the NYT report said. 

More recently, the US Supreme Court temporarily preserved access to a widely used abortion pill -- mifepristone -- freezing rulings by lower courts that would have banned or severely restricted availability of the drug.

What do India’s laws on abortion say?

While abortion in India has been legal under various circumstances since the introduction of the Medical Termination of Pregnancy (MTP) Act in 1971, in a significant verdict, the Supreme Court of India last year declared that all women have the right to safe abortion, irrespective of their marital status. In fact, the verdict came in the same week as the controversial Dobbs judgment. 

To be eligible for seeking medical termination of pregnancy between 20 to 24 weeks, i.e. under Section 3(2)(b)t, it is required to meet the stipulations in the Medical Termination of Pregnancy Rules, 2003. It is pertinent to note that the Rules earlier did not permit abortion of 20-24 weeks' pregancy for unmarried women.

Striking down the validity of the exclusion of unmarried woman from Rule 3(b) of MTP Rules, Justice DY Chandrachud said, "The interpretation of MTP has to reflect the societal realities. The 2021 Statement of Objects doesn't differentiate between married and unmarried women."

Outlook had earlier reported on how despite progressive judgments on abortion, physical and mental trauma that an unwed woman goes through when she visits one of the country’s top hospitals for the procedure, still persists in India. 

Referring to the Dobbs case, the Solicitor General said he was not fond of citing foreign judgments and referred to it to support the contention that the issue of same-sex marriage is best left to Parliament. He said that he was not citing it for the facts of that case.

“Fair enough, But don’t cite Dobbs. Because, we have gone far beyond the Dobbs here. And, fortunately so. We can give credit to ourselves that we are far ahead of western countries,” the CJI said.

The bench, also comprising Justices S K Kaul, S R Bhat, Hima Kohli and P S Narasimha, referred to the recent apex court judgement where it granted the right to abortion to unmarried women also.

(With inputs from PTI)