View: Is the US Supreme Court using ‘federal overreach over rights of states’ to make abortion illegal?

As a parent of two daughters who will spend their adult life in the US, the recent draft opinion of the US Supreme Court authored by Justice Samuel Alito (in 'Dobbs vs Jackson Women's Health Organisation'), leaked in the public space and published by Politico last week, causes me concern. The draft overturns the decades-old legal access to abortion in the US, and introduces huge legal uncertainty in such a major healthcare decision.

Prior to the 1973 Roe vs Wade case, abortion was governed by individual states, and was largely restricted. The Roe judgment articulated that even though the right to abortion was not explicitly mentioned in the US Constitution, it could be inferred from certain amendments to the constitution and prior opinions of the court. Thereby, it became a fundamental right protected at a federal level and the states could not pass any legislation overriding it. A subsequent case - Planned Parenthood vs Casey (1992) - affirmed most of Roe's verdict.

A reading of the two opinions, even as a lay person, reveals some insights. First, there is no mention of any current statistics in the draft opinion. An easily accessed statistic is that in 2015-19, on an annual average, about 19% of pregnancies were aborted in the US (about 890,000). This is in comparison to about 23% in Britain. For India, one estimate puts it around 39% in 2015.

The draft opinion goes to great lengths to explain how the original opinion wrongly asserted that the right to abortion can be 'found' in the Constitution. It takes a historical tour of abortion and its mostly criminal status in common law and in many US states in 1973. It rejects some facts stated in the 1973 opinion while dismissing the original opinion's logic almost entirely. Yet, it doesn't acknowledge the sheer number of women - and their families - that will be affected as a result of this decision.

Almost contrary to the data, the draft opinion mentions: 'The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation's history and traditions.' Perhaps it meant 'was not deeply rooted...' at the time of Roe vs Wade. Because, since then, as the numbers highlight, it has become a part of a near-50-year history.

Divided State of Abortion
It is disturbing that a wide use of abortion does not bother the justices concurring with the opinion as they obsess about the trampling of states' rights. Legal analysis, understandably, must shy away from passionate pleas. But overlooking the impact of the decision on a major swathe of population comes across as callous.

A second standout aspect of the opinions is a near-total lack of discussion about the beginning of life. A social debate on abortion almost inevitably ends up in hyperbolic characterisations along the lines of either 'regression to the misogynistic past' or 'baby killers'. This hyperbole results because the topic is inextricably linked with potential life. The original 1973 opinion and the current draft actively stay away from this topic.

The 1973 opinion has language such as, 'We need not resolve the difficult question of when life begins.' But it wades into whether the then-accepted legal precedent gave guidance about rights to the unborn, and concludes that it didn't: 'In short, the unborn have never been recognised in the law as persons in the whole sense.' The draft opinion dodges this topic altogether with the language: '...our decision is not based on any view about when a state should regard prenatal life as having legally cognisable interests.'

This sidestepping of the definition of beginning of life is even more interesting when juxtaposed with the fervour of denouncing the original opinion. My initial expectation (prior to reading the opinions) was that the 2022 draft opinion would reverse the primacy of the 'rights of the woman' given in the 1973 decision by deeming the 'rights of the foetus'. But the draft opinion avoids this altogether and maintains the overarching theme that the right to abortion is not a constitutional right and, therefore, it has to be adjudicated within individual states.

Normally, this debate is framed as pro-life vs pro-choice. This divide is a central feature of American political life. It has, for decades, dictated the nomination of justices, and it may have even swayed the 2016 election towards Donald Trump.

The Ball is in the Court
Reading the draft opinion and its silence around the beginning of life, one wonders if there was another axis to this debate - states' rights vs federal overreach? So, could one be pro-choice and yet believe intensely in the rights of the individual state to see this issue as one in which the states' rights were made to ride roughshod over by an overreaching judiciary?

Or, perhaps, as some believe, is restricting the language in the draft opinion around the rights of the state being 'returned' a camouflage for the Supreme Court justices to disguise their real motive: an entrenchment of anti-abortion views into the system? Could this lead to a federal law banning abortion across the US, cleared by a Republican legislative majority and signed into law by a Republican president in the future? And, to top it all, will it be upheld by these same justices, who, at that time, could suddenly see a role for the federal government to dictate abortion laws to the states?