The US Supreme Court on Friday overturned the landmark 1973 legal ruling called Roe v. Wade, which recognized a woman’s constitutional right to an abortion and legalized it nationwide, triggering global outrage and condemnation.
Describing the SC decision as “tragic”, Anand Grover, a senior Supreme Court lawyer, told Outlook, “It is a grave and retrogressive step as far as human rights are concerned. It will impact not only women’s right to abortion and health but the same-sex marriages and relationships are also under threat.”
As the Republican-run US states gear up to bring in anti-abortion laws, experts feel, the states where anti-abortion legislation had been blocked by the courts previously are also now expected to activate their dormant legislation.
“This is happening because political biases have started to seep into the judiciary all over the world. Otherwise, the law had been there for more than 50 years without any problem,” added Grover, a United Nations Special Rapporteur on the right to the highest attainable standard of physical and mental health.
In 2011, Grover submitted a report to the UN General Assembly, underscoring the right to sexual and reproductive health as a fundamental part of the right to health. While the report stressed that the States must ensure that this aspect of the right to health is fully realized, it concluded that restrictions on abortion and contraception, the criminalization of pregnant women’s conduct such as making drug use when pregnant a criminal offence, as well as restrictions on access to information on sexual and reproductive health violated girls’ and women’s rights to sexual and reproductive health.
Grover said that the US top court’s decision is inconsistent with the international human rights obligations. “While some states will still allow the abortion, so people will be running from here to there for legal abortions,” he remarked, adding that the criminalization of abortion would affect the poor and the marginalized the most.
The 1973 judgment expanded rights which otherwise were not there in the constitution explicitly. “Right to abortion till the fetal is viable is granted to women on the grounds of privacy, right to good health etc. Under the international law, the right to privacy is an entrenched and non-retrogressive law.” A non-retrogression principle holds that the government may extend protection beyond what the Constitution requires, but it cannot retreat from that extension once made.
About the argument that these rights are not written in the Constitution, Grover said, “The real struggle in the legal world is about whether the written word of the Constitution counts. On considering the modern developments, you can build a new right. In the Indian Constitution, for example, Article 21 has the right to the environment and other things. That is not in the Constitution but it has been developed by the courts.”
Asked if the US decision could impact discourse around abortion in India, Grover said, “We have a right to health, which is not an explicit right in the Constitution, but it has been developed through the court interpretations. We can’t go back on this because too many rights will get affected then.”
