This article is written by Pujari Dharani, a B.A.LL.B. student at Pendekanti Law College, affiliated to Osmania University, Hyderabad. The article exhaustively talks about the current legal status of abortion in the United States, including abortion laws and various landmark judgments.

It has been published by Rachit Garg.

Introduction

Abortion is defined as the termination of a pregnancy by the removal or expulsion of the foetus. There are two kinds of abortions, namely, spontaneous abortion and induced abortion. Spontaneous abortions are also known as “miscarriages”, which occur naturally before the twentieth week of pregnancy without any human intervention. On the other hand, induced abortions are performed artificially, i.e., abortion takes place with human intervention and is also termed “intentional abortions”.

Generally, abortion laws are concerned with the latter type, i.e., induced abortions, not spontaneous abortions, which occur naturally without any medical process. Whether induced abortions are legal or not depends on the laws of the specific country, irrespective of what the United Nations Organisation (UNO) stipulates. Likewise, we have to check the laws of the United States of America (USA) to determine the legality of abortion in their nation.

On the question of abortion, public opinions are majorly divided into two categories. One is those people who prefer choice-based abortions and demand a similar policy from governments. These people are known as “pro-choice advocates”. Second, the people who stress the importance of the life of an unborn child and oppose abortions. These are known to be “pro-life advocates”. 

This article discusses one of the most controversial public policy issues that has lasted for many years in the United States, namely, abortion and its legality. It has become the most debatable issue among the public since the Roe v. Wade (1973) decision, where constitutional protection is provided for obtaining abortion. Presently, the abortion debate is again appearing on television and in newspapers due to the recent Dobbs v. Jackson Women’s Health Organization (2022) judgement.

Women’s abortion rights : an international human right

The right to obtain an abortion is given to a woman in recognition of her right to reproductive autonomy, which is inclusive of the broader “right to bodily autonomy”. Conferring this right to women also provided them with the freedom to determine how their lives should be carried forward. As per the abortion activists and a few legal experts, if the right to bodily autonomy is not given to women, it would be against their dignity because they deem that deciding on aspects relating to their lives, especially reproductive choices, is included under the “right to dignity”. Besides this, by providing a right to safe abortion, the state simultaneously also provides the right to health, the right to life, and the right to personal liberty. Therefore, abortion supporters demanded the state provide abortion rights to women and prevent such incidents by spreading awareness regarding safe sexual practices.

According to pro-choice advocates, a woman has the right to continue or terminate her pregnancy. Such a decision will not only affect the life of the unborn baby but also have a great impact on the rest of the woman’s life, including her education, career, personal life, and mental well-being. We also know childbearing and child-rearing are most likely performed by women themselves. And, hence, this decision to continue or terminate the womb shall be rightfully conferred on none other than women.

Furthermore, it is noteworthy to mention that continuing pregnancy in a few circumstances and delivering a disabled child will come with a lot of mental issues for women and their families. In the case of an unintended pregnancy before marriage, she has to face social ostracism throughout her life in some conservative societies. Because unwanted pregnancies and other serious cases, such as the child being born paralyzed or with any genetic disorder, involve psychological trauma, it is better to give women the right to choose abortion to save their mental health.

Whether a foetus has the ‘right to life’ 

Whether a foetus has the ‘right to life’ is vital to answer before determining whether an abortion can be considered murder and for various other legal purposes. The opinions held by political parties in the US are mainly divided into two types,  namely conservatism and liberalism, and both fundamentally differ in their opinions on this issue. 

Conservatives encourage conferring the right to life to a foetus from the very moment of conception, whereas liberals deny giving such a right to the foetus as it does not take the form of a human being. 

Now, the major question is when the foetus will attain the status of ‘personhood’ in the eyes of the law. If we look at the 1973 decision passed by the Supreme Court of the United States (SCOTUS), in Roe v. Wade, it held that a foetus, before becoming viable, will not be called a person and that the right to life cannot be given to a foetus as such a right can only be given to a ‘person’. Justice Blackmun, in the Roe case, did not answer when a foetus shall attain personhood due to the absence of a consensus in scientific and sociological ideology and stated: “When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” Instead, the Court said that ‘person’ as explained in the Fourteenth Amendment of the US Constitution, does not include unborn children and decided that constitutional protection is granted to the foetus’s right to life if personhood is established. 

However, in a recent case, Dobbs v. Jackson Women’s Health Organization (2022), foetal personhood was established by virtue of medical development and social understanding in these 49 years. This means that, at present, laws will provide all legal rights available to a person to a foetus even before its viability. Even before the Dobbs case, a federal foetal personhood law, i.e., the Life at Conception Act of 2021, which confers foetuses or embryos with the constitutional right to life from fertilisation, was presented before Congress.

Finally, to answer this important legal question, one will look at the Constitution of the US, which does not define the term ‘person’. Hence, the answer will be decided based on the structure of the Constitution, the jurisprudence of the Supreme Court, and, most importantly, historical understanding and practices. The legislature cannot be involved in this issue as the Constitution of the US does not empower it to grant personhood or not under the 14th Amendment, instead, the states have the power to decide upon the question of whether the foetus has the right to life. This sovereignty of the state is also recognized by the Supreme Court in various cases, including Roe and Dobbs.

Whether abortion is the murder of the foetus

There are two well-known positions on this question of whether abortion is considered the murder of the foetus. On the one hand, liberals believe that the value of the mother’s life is more important than the survival of the foetus after it attains viability. Before viability, the liberals accept the removal of the foetus in the interests of the mother who is bearing such a pregnancy. In the case of extreme liberals, the pregnancy can be terminated at any point in time before the delivery of a baby. On the other hand, conservatives accept abortion before the quickening, which happens around 16 to 20 weeks. After the quickening, abortions are supported by conservatives only in exceptional circumstances, like when the mother’s life is in serious danger. An extreme conservative outrightly opposes abortion once the foetus is conceived, unless and until it is conducted to save the life of the pregnant lady.

Besides these two stands, there is a middle way as well, i.e., the moderate view. In this view, it is justifiable to allow abortion if it is caused by a criminal act such as rape, if the mental or physical health of either the mother or unborn child or both will be disturbed, once the baby is delivered, or in any other similar cases.

Apart from all these different stands, current scientific understanding tells us that a foetus has been a human being since its existence, as elucidated by Robert L. Stenger. The same trend can be seen in the laws of various states as well. At present, around 38 states consider abortion a homicide due to the enforcement of “foetal homicide laws”. The murder statute of California is the best example which diverted from the decisions made in the Roe case and made the killing of a foetal person a murder. These criminal charges and prosecutions imply that there is a growing interest to protect foetuses.

An account for and against abortion

It is pertinent for a legal professional to learn various arguments on both sides of abortion before moving forward with US abortion laws.

Arguments against abortion

The following are arguments against the practice of abortion.

• According to the Society for the Protection of Unborn Children, the guiding principles of the UN Charter, the Universal Declaration of Human Rights (UDHR), the International Covenant for Civil and Political Rights (ICCPR) and other UN Treaty Documents uphold that every unborn child has the right to life.
• Legalising abortion would decrease birth rates as well as fertility rates which is not a good sign for an economy like the US, according to economists. This is also known as the ‘slippery slope argument’.
• Allowing abortion is against social norms and moral values, as per the United States Conference of Catholic Bishops. According to their opinion, legalising them would cause grave danger to mankind and the welfare of the community. Legalising abortions has terrible consequences, one of which is undermining other significant societal standards and values.
• Maintaining a stable population is essential for both social and economic concerns. Especially when the US is witnessing very low population growth, which is a bad sign for its economic progress, abortions should not be allowed. If allowed, it will also contribute an economic burden to the US, according to the National Center for Biotechnology Information.
• One argument from abortion opponents concerns the physical and mental well-being of the pregnant woman. According to a study that was published in the Scandinavian Journal of Public Health, a young adult woman generally may tend to experience subsequent depression after obtaining an abortion.

Arguments in favour of abortion

The following are arguments in favour of legalising abortion.

• The Committee on the Elimination of Discrimination against Women (CEDAW) deems the act of forcing a woman not to terminate her pregnancy a form of violence based on gender in certain scenarios. The UNO further asserts that not allowing a woman a reasonable opportunity to choose abortion is not just against her rights concerning her health, equality, autonomy, and dignity, but also violates an obligation of the State, that is, to stop instances of unwanted pregnancy.
• The UNO does not accept the ‘slippery slope argument’, which claims that an economy experiences more abortions when such states legalise them. Conversely, the UNO says the occurrences of unsafe abortion grow when it is criminalised or banned.
• The moral aspect of abortion is denied by women’s rights activists because the morality of abortion is not the same in every society, as contemplated by those who are against abortion. In a few societies, abortion is regarded as highly immoral, and in other societies, like ancient Greek and Roman societies, abortion due to medical emergencies is acceptable.
• Women, including minors, who were subjected to rape and became pregnant because of such sexual violence, generally chose to abort the child, which was conceived against their will, inhumanely. Most importantly, she will face severe mental problems if the pregnancy continues. In these cases, the woman should be provided with free and quality-based medical services, including access to abortion. The reason for the abortion in these scenarios is that such unwanted pregnancy and delivery involve psycho-social effects for a mother’s lifetime. In the case of a minor being pregnant, these also affect children due to the ignorance and immaturity of the minor mother.
• Supporters of abortion put forward a psychological argument. Unwanted children will likely receive negligent treatment by parents and have an unhealthy upbringing, which may lead to experiencing childhood trauma in some circumstances. In this regard, it is essential to differentiate the right to dignified life from the right to life.
• The American Psychological Association (APA) confirms that there is no proven relationship between abortion and a woman’s mental health from a medical perspective. Additionally, research by the University of California San Francisco (UCSF), which was published in the journal Obstetrics and Gynecology, estimated that less than one-fourth of one per cent of abortions happening in the US led to serious health issues.
• According to the data provided by the Pew Research Centre, it was evident that the demand for abortion will always exist in American society unless it is removed with the use of coercive and police-state techniques, which is not desirable for a democratic nation like the US. Hence, whether it is legalised or not, the abortion rate remains inelastic. If abortions are allowed, the report is sent to the authorities. If it is not legalised, then the abortions will be conducted illegally, and no reporting will be done.
• Due to prohibitive laws which ban the performance of abortions, the risks and complications during and after abortions are due to a lack of adequate medical facilities. According to a study published by the National Center for Biotechnology Information, the rate of mortality and associated diseases will increase if abortions are not legalised, which harms the welfare of society.
• If abortion is illegal in a country, the woman is indirectly forced to complete the process of pregnancy, deliver the child, and take up all parental obligations against her will and interests. This may be considered a form of punishment for a woman, as she is not able to exercise her liberty due to the restrictive abortion laws.

Statistical record on abortions in the US

Before moving on to the core topic, it is worth considering viewing the statistics about abortions happening in the US. The Centers for Disease Control and Prevention (CDC) is the authorised public health agency in the US to conduct research, collect data through survey systems, and provide information on various diseases. In this way, one of the functions of the CDC is to conduct Abortion Surveillance to record the number of pregnant women, who underwent the legally induced abortion process, and other demographic features like maternal age, gestational age, number of previous births, marital status, etc. Such data was documented from 48 reporting areas in the US during the period from 2007 to 2016, which is the most recent year in which surveillance was reviewed.

In those reporting areas, the total number of abortions conducted in 2016 was 6,23,471. The decreased percentage of reported abortions from 2007-2016 is 24%. Coming to the abortion rate, which was defined and calculated as the number of abortions per 1,000 women who are aged between 15–44 years, it was recorded to be 11.6 abortions per 1,000 women in 2016 in these areas, which is observed to be 2% fewer than the previous year’s rate, i.e., 11.8.

According to a study on the demographic features of the women who underwent abortions, they will most probably be white, young, unmarried, and residents of the US’s metropolitan cities. It is also reported that white-unmarried women are more likely to opt for abortion than their black counterparts.

Legal and illegal abortions

Legal abortions are abortions that are allowed or legalised by the government through legislation. Sometimes, the government may permit abortions only in exceptional cases. In that scenario, abortions in such exceptional cases are legal abortions, and the remaining abortions are deemed to be illegal abortions. Therefore, where there is a lack of reasonable justification for conducting an abortion, no legality will be attached to those abortions.

Mostly, legal abortion is backed by legal reasons, such as when the life and health of either the mother or the baby, or both, are at risk if the baby is delivered. Whereas illegal abortions are purely due to personal desires such as financial, unwillingness, or other unreasonable grounds.

Furthermore, legal abortions follow all the rules and regulations laid out by the government in legislation or statutes. For instance, legal abortions are openly conducted by the doctor who is authorised to perform the medical process, which is not the case with illegal abortions, which are often performed secretly and by quacks.

Reasons for legal abortions

In the above-stated CDC’s Abortion Surveillance System, it was found that 18% of pregnancies in the US were aborted in 2016. According to the CDC’s 2016 report, the following are the causes of abortions in the US.

• Lack of proper availability of healthcare services.
• Minimum access to contraceptive measures.
• Lack of awareness about birth control methods like contraceptives, etc.
• Lack of sex education, especially in developing countries.
• Lack of comprehensive family planning services.
• Increase in unwanted pregnancies.
• Impact of the economic change on family planning and fertility preferences.

Reasons for illegal abortion

Abortion is said to be illegal when the government does not permit it or when it is not performed as per the state’s laws. For example, if a licensed doctor did not perform the abortion, then such an abortion is deemed to be an illegal activity. These abortions go unreported and are performed in secrecy.

In the US, such incidences of illegal abortion were widespread, i.e., one million each year, before 1973. However, it has substantially declined since 1973, due to the landmark judgement given by the US Supreme Court in Roe v. Wade (1973). The causes of illegal abortions in the US are as follows:

• Minimal accessibility of legal abortion services due to long distances, heavy legal formalities, the low population of abortion providers, especially licensed doctors or clinicians, or any other reasons.
• Strict rules and regulations by the states, like mandatory waiting periods, parental consent laws, legal limitations and constraints on abortion providers, etc.
• Even if legal services are accessible, the charges are exorbitant, and, hence, the poor will choose illegal abortions.
• To maintain secrecy due to the moral and religious stigma attached to the issue of abortions. Thus, cultural and religious factors also influence women’s decisions to obtain abortions.
• Growth in unwanted pregnancies.

Unsafe abortions

Access to safe abortion is a well-established and well-recognized human right in various international legal frameworks. A few among them are the United Nations, the African Commission on Human and People’s Rights, and the European Court of Human Rights. It is noteworthy to mention that unsafe abortions occur not only in states where abortion is criminalised or prohibited but also in states where it is legal and allowed. Moreover, these unsafe abortions are the major cause of maternal deaths, according to the United Nations Population Fund (UNFPA)’s State of the World Population Report 2022.

Reasons for unsafe abortions

The reasons for unsafe abortions are as follows:

• Lack of registered healthcare professionals who will be trained to perform abortions.
• Lack of medical equipment and other necessary medical facilities for conducting abortions.
• Lack of sufficient resources, especially financial resources, for poor women.
• Lack of awareness among uninformed people about unsafe abortion practices, especially their implications.
• Abortion practices come with a lot of social and economic costs.

Why are abortion laws necessary in the US 

For American society and, for that matter, in any other society, laws were formulated to put forth a particular pattern of human behaviour as a guide that is imposed on people to comply or not behave in a way contrary to those. In a well-organised democratic society, laws are made to protect both the welfare of the community and individual liberty. Here, restricting the public from exercising their liberty is allowed even in democratic societies, but the rationale should be a strong argument for the greater good.

The legislature, while drafting laws, will also consider whether a state can intervene in individual liberty and, under which scenarios, whether it is legally acceptable. It is said that the legal perspective and functions of the law are more considered in these issues than social considerations. The same formula applies to the concept of abortion. Abortion laws were formed to permit abortion or not and, if permitted, under what circumstances, and to regulate such activity.

Good abortion-permissive laws should be multi-dimensional and consider to include the following:

1. Abortion shall be conducted only by eligible and trained medical professionals.
2. An abortion shall only be conducted on a woman when she consents to such a medical process, and, most importantly, to the risk involved in it.
3. The State should keep an eye on the impact of abortion laws on people, especially whether the laws are practical and beneficial regarding psycho-physical effects on patients and population size, among other aspects.
4. Provision of better medical services and facilities during and after the abortion of the foetus from the womb.

US abortion laws

There is no particular federal law that governs and regulates the abortions that occur throughout the US. Rather, different states have their own independent statutes that govern the performance of abortions and other related aspects that apply only to the extent of their jurisdiction. And the number of enactments increased after the final judgement in Roe v. Wade (1973). For example, in 1972, 134 abortion bills were passed, and four of them were enacted. In 1973, when the ruling was given in Roe v. Wade, 260 bills were introduced, and 39 of them were enacted.

These laws passed by the respective states deal with numerous aspects of abortion so that the performance of abortions in their states is fully regulated and controlled. The said few aspects are provisions regulating hospitals that are permitted to undertake the task of abortions; guiding the government about the funding for medical insurance for abortions; inserting rules and regulations regarding the abortion reporting system that has to be followed mandatorily or voluntarily; incorporating obligatory conditions like consent of the woman, spouse, and parents; among other aspects.

US gag rule

Origin of the gag rule

In 1984, US President Ronald Reagan announced his new international family planning policy at the international population conference that happened in Mexico City and, hence, became popularly known as the “Mexico City policy”. This policy prohibited all kinds of funding from the US government to any Non-Governmental Organisations (NGOs)  that functioned for or promoted abortion-related activities, either directly or indirectly, even though the US then allowed abortions. This policy is said to be the first incarnation of the gag rule. It continued to be implemented in the US even without the approval of Congress until Bill Clinton assumed the office of president in 1993 and did away with the policy, which was his first official activity as president of the US.

One of the major objectives of Bill Clinton’s administration during his initial years was to create huge amounts of funds for international family planning. The same was also evident in 1994, from the statements made by US officials at the International Conference on Population and Development (ICPD) in Cairo. During this period, the US made its highest contribution to global population aid, i.e., $585 million.

Again, in 1995, when the Republican Party came into power, the US government prioritised the Mexico City policy once again. Finally, in 1999, the bill regarding the global gag rule was passed by the US Congress.

What does the law of gag rule stipulate

The law regarding the gag rule stipulates that non-American groups or organisations should not involve themselves in funding the abortion-related activities of US citizens. It also prohibited them from making efforts or engaging in any other activities with the intention of altering the foreign countries’ governmental policies about abortion.

The United States Agency for International Development (USAID) defined the above-stated second stipulation. It stated the following activities as ‘altering’ an abortion law or policy.

1. Negotiating with politicians or government officials regarding their abortion laws or policies, either in favour of or against.
2. Making efforts to influence public opinion regarding such abortion policies with the help of mass media and any other means. This is done with the intention to change those laws through public pressure and demands.
3. Conducting any other similar media programs and demonstrations for such purposes.

However, the following activities by an organisation are permitted.

• Supporting amendments to the present policies for better medical treatment for the injuries caused due to abortions, either legal or illegal.
• Expressing views against abortions that are performed without the consent of the woman undergoing it or obtained consent by employing coercive methods.
• Demanding to remove or mitigate legal consequences suffered by women and seeking decriminalisation of abortions.
• Encouraging agencies to carry out research in order to gather factual information and acquire scientific data regarding the incidence of abortions in the US. Once, the relevant knowledge is collected, engage in activities of transferring them to the appropriate authorities for better use.
• Funding and participating in seminars for conducting a discussion on abortion laws or policies, but the agenda should not be to alter the laws.

US laws regarding abortion reporting

Having statistics is very essential when the disputed issue is part of public policy, such as abortion. Hence, as previously stated, the Centers for Disease Control and Prevention (CDC) work to collect data about various aspects of abortions occurring in the US. The CDC collects data voluntarily provided, i.e., there is no mandate to submit all records for every medical facility. Therefore, voluntary reporting is very important to secure complete data about the occurrence of abortions in the country and other related aspects.

Because of the recognised importance of abortion reporting, various states in the US came up with laws that require the submission of reports about abortions conducted in every hospital or other medical facility, including attending physicians.

40 states mandate that medical facilities issue abortion data. Although each state has its own separate statute specifically dealing with abortion, its provisions are more or less similar to one another. However, states like New York, Rhode Island, Hawaii, Colorado, and Virginia are legally responsible for collecting and reporting abortion under broader statutes that deal with foetal death reporting or death certification rather than enacting exclusive statutes only for abortion.

Usually, such laws mandate medical facilities to file a report on each abortion conducted and submit it to the state department of health, state registrar, or state vital statistics office on a regular basis, such as a few days after the abortion or once every month. After this, the agency that collected such abortion data publishes it in the public domain regularly.

Furthermore, 19 states have regulations that put forth guidelines for the implementation of the provisions of abortion statutes and also ensure the smooth functioning of the reporting system.

Landmark judgments : US judiciary on abortion

The US abortion laws experienced major twists and turns because of the following three landmark judgments.

Roe v. Wade (1973)

Background

Until 1973, undergoing the process of abortion was considered illegal, irrespective of how justifiable it was. For example, even in the case of a pregnancy caused by rape, giving birth would result in the death of either the mother or child or the child being born with physical disabilities.

It was recorded that thousands of children were born with serious disabilities during the late 1950s. The drug named ‘thalidomide’, which was consumed by pregnant ladies to cure sickness during pregnancy, was blamed for such physical disabilities.

Rubella, or German measles, an epidemic, was outbroken in the entire US after the thalidomide scandal. Due to this epidemic, pregnant women and their unborn foetuses suffered a lot. Children born after surviving rubella were mostly born with a variety of disabilities, like being born with heart issues, liver damage, or being deaf.

The first popular incident happened in 1962. At that time, abortions were illegal, but a television host in Arizona named Sherri Finkbine travelled to Sweden to abort her fifth pregnancy, not with the intention to kill her baby but rather to save the child from a miserable life, as she found out from doctors that her baby was going to be born without a limb. She was further informed about the reason behind it, i.e., a harmful drug she was consuming during her pregnancy as a part of medication without knowing that the consumption would lead to physical disabilities in her child. Sherri was widely criticised for her actions at that time and even lost her job.

Due to the above-stated and unstated problems that were faced by mothers and babies, many medical experts, one among them being Alan Guttmacher, advocated abortion and urged the government to treat it as another medical process that was to be decided between a patient and doctor.

Above all, before Roe v. Wade, women who sought abortions for their unintended pregnancies were forced to choose illegal abortions due to the prohibition of abortions in the US at that time. Such women suffered both medically and emotionally because of the low-quality medical facilities. Those illegal abortions are costly as well as risky.

Importance of Roe v. Wade

Through its judgement in Roe v. Wade, the US Judiciary intervened in the name of judicial review and judged upon the controversial public policy issue of the legality of Texas abortion law. This landmark decision by the Supreme Court of the United States (SCOTUS) did away with various states’ legislation that made abortions illegal and removed legal restrictions on migrating from one state to another for abortion. The case may also be called just “Roe”.

This is the case through which the right to abortion of American women is recognized as a fundamental right under the right to personal privacy as conveyed in the 14th Amendment to the US Constitution, which was enacted in 1868. In this case, constitutional protection is, finally, given to the woman’s limited abortion rights under the 14th Amendment.

This case is exemplified by exercising the theory of judicial review for the result of social change, which is essential for the progress and development of American society.

Facts of the case

In this case, the plaintiff was Texan Norma McCorvey. But the title of the case contained the word ‘Roe’ because she filed this suit under the pseudonym of ‘Jane Roe’ to protect her identity. The defendant was Henry Wade, who was a legendary attorney in the Dallas County (Texas) District at that time. In 1969, the plaintiff became pregnant at the age of 21 and decided to abort for the third time. Her first two pregnancies were also discarded due to her struggle with drug and alcohol use. But now, the reason for the termination of the third pregnancy is the fear of losing her job as a waitress at a local hotel. However, as per the laws in Texas, abortions are legal only when they are performed to save the life of the mother. Nevertheless, the plaintiff went on to file a class action lawsuit, representing herself and other women who are suffering from the same problem, through Sarah Weddington and Linda Coffee, attorneys who represented Norma McCorvey in federal court. She submitted before the court that the Texas law is unconstitutional due to its uncertainty and violation of privacy rights.

Decision at the District Court

In the Northern District of Texas, the District Court, which was presided over by a three-judge bench, quashed the afore-stated Texas law, which abolished abortions unless the life of the mother is in danger. The Court interpreted the law as unreasonable and unconstitutional. It further ruled that the right to reproductive choice was implicitly included in the 9th and 14th Amendments. In this respect, the Court went on to quote a few statements from a famous case of abortion, i.e., Griswold v. Connecticut (1965), which states: “The Constitution guaranteed the right of choice over events which, by their character and consequences, bear in a fundamental manner on the privacy of individuals.”

Later, to stay the implementation of the federal District Court judgement, the case was put on the fast track to the Supreme Court. A few days before the issue of the said judgement, a girl was born to McCorvey but adopted by unknown adoptive parents.

Final judgement in Roe v. Wade

The central ruling of this case is allowing abortions throughout the US until the moment when the foetus is capable of living, widely known as “foetal viability”, as per the wording of the 7:2 majority judgement. Usually, foetal viability is reached around 23 or 24 weeks of pregnancy. The rationale behind such language in the judgement rather than fixing a particular number is that the rights of the unborn foetus and the mother are separated at this moment. Many nations in the world that allow abortions fix a similar time limit. Once the foetus is said to probably survive at some point, abortion is commonly not permitted except in rare situations.

The ruling stated that the termination of pregnancy is allowed not only because the woman’s or child’s life and health are in danger but also because legal permission is extended to the case of unwanted pregnancies as well. But the only condition put forth by the Supreme Court is that the foetus should not be viable. Furthermore, the Supreme Court held that it is a constitutional and fundamental right for every woman in the US to choose to obtain an abortion. To be more clear, the final judgement by the Supreme Court can be divided into the following three parts.

1. The Court explicitly gave constitutional recognition to the right to obtain an abortion for every US woman. However, such a right can be exercised by a woman without any involvement of the state but only before her foetal viability because, after the foetus is capable of surviving outside the womb of the mother and can become a contributing member of society, the state will have a strong argument to prevent women from using their right to elect the medical process of abortion.
2. The general rule, as said earlier, is to prohibit the medical process of abortion after foetal viability. Nevertheless, the state has the authority to lay out a few exceptions to the above general rule. That means the state will allow abortion even after foetal viability, but only under a few exceptional circumstances, such as when the delivery of a child may endanger the life and health of the mother or other similar circumstances. Thus, the decision to conduct an abortion rests mostly on the approval of the physician and the woman.
3. Protection of both the health of the mother and the life of the baby is equivalent and is also an obligation of the state. Also, the state shall always have an interest in this respect.

Thus, the judgement laid down the above principles, which shall have to be followed by the US federal government, both central and state, and can never be contrary to each other; indeed, these principles shall complement one another. After this, the Court allowed the privately-owned hospitals to refuse to engage in such abortions, which are criticised by abortion supporters.

Impact of Judgment of Roe

• After the issue of the final verdict in Roe v. Wade which legalised induced abortions in the entire US, the number of abortions conducted, both legal and illegal, increased substantially to almost 1.6 million in 1980 from 0.6 million in 1972 and continued the same trend till the 1990s. The rise in the availability of abortion services is one of the reasons for such an increase in abortions in the US.
• The positive effect of the Roe verdict is a greater reduction in illegal abortions in the US. This effect may also be one of the reasons for the increase in legal abortions due to the availability of such services.
• The legalisation of abortion mitigated the expenses caused by a woman obtaining an abortion because 90% of the abortions were performed in women’s houses during 1980-1999, as compared to 56% in 1972.
• As abortions in the US became legal, women underwent the medical process of abortion even earlier. For example, in 1980, more than 50% of the women terminated their pregnancy before the 8th-week gestation. In this way, obtaining abortions at the initial gestational age is devoid of complications and safer for the health of the women. Hence, this is a positive impact.
• The replacement of illegal and unsafe abortions with legal and safe abortions led to a decline in medical issues for women, and subsequently, their admission to hospitals was reduced gradually. According to the estimates from the National Hospital Discharge Survey, between 1970 and 1977, there was also a decrease in the number of women hospitalised due to the complications of illegal abortions. In addition, individual hospitals on the East and West Coasts reported the same trend, which is again beneficial for public health.
• In the aftermath of the Roe v. Wade judgement, the government encouraged scientific research on what method or procedure is much safer for abortion. One such study is the Joint Program for the Study of Abortion (JPSA). As a result, abortions conducted in the first trimester were considered safe.
• Another advancement in the field of education after the Roe judgement is to facilitate the necessary training for all physicians or other medical professionals to acquire the requisite skills to perform an abortion as well as to be able to treat subsequent medical complications.
• Due to the improved efficiency among doctors who conduct abortions, abortion-related morbidity, and mortality also dropped drastically. The number of deaths due to abortion per million live births decreased from nearly 40 in 1970 to eight in 1976.
• Even poor women have access to safe and better abortion facilities, whereas, in the past, only the privileged had access to those.
• The cost that may be incurred for obtaining an abortion is reduced due to healthy competition between private hospitals which have attempted to render better medical services. Thus, abortions are financially accessible too.

From the above-stated impact, we can conclude that Roe v. Wade provided safe abortions to all women in the US.

Public opinion on the Roe judgement

Public opinion is very significant on political issues, especially sensitive and controversial topics like abortion. Hence, public opinion is also worth considering when analysing the legal perspective of this issue.

Most women applauded the Roe judgement for its bold move. Many women were relieved from the mental and psychological trauma they suffered when undergoing abortion procedures for legitimate and justifiable reasons. Even legal and medical experts appreciated such judgement for various reasonable effects, which are discussed above.

On the other hand, after the Roe judgement, the public protested to stop governmental funding for the purposes of abortions and, in furtherance of this object, make amendments to the US Constitution. Many states introduced legislation that curtailed Medicaid reimbursements for abortions or limited them only to the extent of medical emergencies. Such demands and statutes will go against the constitutional right to abortion and make it more difficult to get better access to abortions.

Despite the widespread protest against the laws, it has legal effect. That is, in most of the states in the US, Medicaid reimbursements are not available, and even if they were provided in a few states, they were backed by innumerable legal formalities.

Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)

The case, Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), shortly known as ‘Casey’, directly dealt with the question of the continuing relevance of Roe’s judgement. At that time, there were many rumours about overriding the ruling of Roe v. Wade, and the abortion question was transferred to Congress and legislated upon. But most of the judges in the present case decided not to reverse the Roe ruling, which provides an effective right for a woman to choose the termination of her pregnancy.

Importance of Casey

The case is famous and vital on several fronts. One of them is that many theories and concepts were taken into account while deciding upon the main question in Casey. Even though the Roe decision is narrowed down in this case, the judges of the present case, namely, Justice O’Connor, Justice Kennedy, Justice Souter, Justice Stevens, and Justice Blackmun, preserved the qualified right to abortion and its constitutional status by relying on the concepts of “substantive due process”, “principles of institutional integrity,” and “the rule of stare decisis”. It further went on to explore the essence of adolescents’ and women’s rights.

This way, these are just a few of the various other topics that were dealt with by the Court. The most noteworthy and significant topic is the interpretation and acceptance of “legitimacy theory” or “principles of institutional integrity,” based upon which the Court refused to overturn the Roe decision.

Legitimacy theory

The legitimacy theory describes that a state shall abide by democratic principles so that the subjects of that country will voluntarily be obedient to such authorities and their directives. Such “legitimacy” may also be called “institutional virtue”, not “institutional power”.

It explains that authoritativeness will automatically be attached to the state when the people will naturally believe that they have a moral duty to comply with the judicial interpretation and decision, not because of its correct interpretation but because of its being an authority or part of the state.

Here, it is important to consider that a state cannot always employ coercion or spend money to secure obedience to the court’s decisions from the people, and, at the same time, it cannot exist in the absence of authoritativeness. That is where legitimacy comes into the picture, which is deemed to be the best method through which voluntary acceptance of the court’s interpretation by the people is possible, especially when it is dealing with the most controversial and widely-discussed public policy issues such as abortion rights.

Thus, the Court can obtain support and compliance from people with its decisions when it upholds its legitimacy, but not through using force. This conveys that people automatically accept the decisions of the courts when the ruling is based upon legitimate principles; if it is the other way around, they refuse to obey the same.

Maintaining the legitimacy of the court is, therefore, the reason the Supreme Court did not overrule the Roe Judgment in the Casey case because if overruled, it would be termed unjustifiable, undermining the court’s power, and making it difficult to function in the name of ‘Supreme Court of the Nation’.

The Supreme Court rightly emphasised the importance of public views and acceptance as a means to uphold its power. In this aspect, we can say that the US courts usually take public views into account while deciding a case.

Dobbs v. Jackson Women’s Health Organization (2022)

Unexpectedly, the decision that was supposed to be taken by the US Supreme Court in the case of Dobbs v. Jackson Women’s Health Organization (2022) was leaked way before. In responding to this leak, the Secretary General of Amnesty International said, “Any regression in protection of the right to abortion would not only stand to damage the global perception of the United States; it would also set a terrible example that other governments and anti-rights groups could seize upon around the world.”

Finally, on June 24, 2022, the US Supreme Court delivered its final judgement, through which the decision taken in the cases of Roe, which conferred the right to abortion on all women in the US, and Casey, which maintained the legal validity of this right, was overturned by a 6-3 majority and gave effect to prohibiting abortions in all states of the US. Such a decision was taken to safeguard the right to life of the unborn baby, which is one of the state’s obligations. 

Facts of the case

The Gestational Age Act, which applies to the extent of the territory of Mississippi State, prohibits abortions for women whose gestational age is more than 15 weeks. The law also provides exceptions, such as if the case involves a severe foetal abnormality or any other medical emergency, where abortions are allowed.

Jackson Women’s Health Organization challenged this statute in the federal District Court of the US, contending that the statute is not in adherence to the decision of Roe. The 15-week stipulation violates the Roe judgement, which permitted abortions before foetal viability, which probably occurs around 24 weeks. The District Court decided in favour of the respondents, Jackson Women’s Health Organization, and ordered the restraint of the enforcement of the Mississippi law.

Later, petitioners appealed to the Supreme Court and argued that the statute is backed by constitutional validity and that it is the decisions of Roe and Casey that are made with flaws and an illogical basis.

Observations of the Supreme Court

As per the US Constitution, rights that are mentioned in the Constitution and other legitimate rights will be protected by the courts. In this regard, legitimate rights are those that are “firmly established in the history and tradition of the country” and “underlying in the concept of ordered liberty.” But the majority opinion, in this case, is that the right to abortion is not protected as a constitutional right, and there is no ground to establish the same. Justice Samuel Alito, one of the judges who presided over the present case, said that the right to abortion is neither a constitutionally guaranteed right nor a legitimate right because it was not recognized in the US Constitution and did not fulfil the conditions to fall under the category of legitimate right. The Court thus held that the Constitution of the US did not confer abortion rights to American women.

Moreover, the majority of the judges termed the cases of Roe and Casey “egregiously wrong” and opined that the judges in the Roe case erroneously stated that the right to abortion has constitutional validity. When the 14th Amendment to the US Constitution came into force in 1868, three-fourths of the US considered the medical process of abortion at any phase of pregnancy a criminal offence without any exceptions. But this history was not taken into consideration while granting constitutional validity to abortions in the case of Roe. The Court observed in this way: “Roe either ignored or misstated this history, and Casey declined to reconsider Roe’s faulty historical analysis.” The Supreme Court, indeed, took that history, which was dominated by a patriarchal mindset, in which there were no abortion rights for women.

Another major observation by the Supreme Court is that there is no evidence value to the fixation of the 24th week as a foetal viability age because no medical study has proved the same. Even the World Health Organization (WHO) could not find the exact week in which the foetus would be capable of surviving. No scientific basis for such fixation is another reason for considering the Roe judgement as illogical in the majority opinion of the judges. In this respect, Chief Justice Roberts accepted the reasoning of the majority opinion and dispensed with the rule of foetal viability.

The current legal status of abortion in various states in the US

Women enjoyed the right to abortion for more than half a century until the Dobbs case in 2022. Now, through Dobbs, the Supreme Court has restored the public and their representatives to their previous status by giving them regulatory powers regarding the issue of abortion because of its association with ethical questions. Hence, it is for the US Congress or legislatures of states to decide upon the legal status of abortion by following a democratic procedure.

Though the judgement is not obligatory in the US states, it resulted in legal debates between states on the question of whether the 2022 SC judgement enforces the prosecution of abortion providers and others who render such services to women. However, on the basis of the federal system they follow, it is up to individual states to make decisions on the legality of abortions under their jurisdiction. In this regard, presently, 14 states, i.e., half of the US, gave effect to this SC ruling and prohibited abortions; among them, a few states have implemented such harsh laws that stipulate no exceptions for victims of rape and incest. Such laws that are aimed at prohibiting abortion are known as “Abortion trigger laws”. Conversely, the New York Times said, in other states, abortions continued to be legal under certain conditions, and the Supreme Court has laid down a few new legal safeguards since the SC decision. Let us look into the legal status of abortion in each state.

Alabama

In the state of Alabama, through the Alabama Human Life Protection Act, abortion is prohibited as well as seriously punished as its performance is criminalised as a Class A felony. Even the attempt to commit abortion is deemed a Class C felony. It does not provide a right to abortion and fund them. Thus, the Code of Alabama regards an unborn child as a person without considering the viability principle.

However, there is an exception under which the medical process of abortion is allowed. That is when a serious health problem for the pregnant lady is predicted by a licensed physician in Alabama. The additional requirement for those cases where there is no medical emergency is the decision of the said physician has to be written by another physician which will be prime facie evidence that the abortion is allowed. Additionally, the woman who underwent the procedure is exempted from criminal or civil liabilities.

Arizona

The Criminal Code of Arizona punishes doctors who perform a partial-birth abortion and subsequently murdered a human foetus by classifying this offence under a Class 6 felony. The punishment may be imprisonment for up to two years, or a fine, or both. But, this law exempts the cases where abortion is necessary to protect the life of a mother who is suffering from a physical disorder, illness or injury due to such pregnancy. In case of commission of this felony, the woman is not liable, either in criminal prosecution or civil action.

With regard to the performance of abortion solely because of the foetus’s sex or race, or parent’s race, or the child’s genetic abnormality, the persons who knowingly use force or threat for such performance will be punished. Such sex-selection or race-selection abortions or abortions based on the genetic disability of the unborn child are criminalised as a Class 3 felony. Even advertising to provide abortion services is termed as an offence of misdemeanour.

Abortion Fund of Arizona, a programme of pro-choice, is functioning to ensure that abortion services and other medical care are available to those women in Arizona who seek it. The restrictions on availing abortions in Arizona are provided here.

Arkansas

According to the Arkansas Unborn Child Protection Act, knowingly aborting a foetus is prohibited except in situations like medical emergencies or saving the life of the woman. The commission of abortion is not categorised in this Act. The punishment prescribed is a jail term of a maximum of 10 years or a fine minimum of $10,000 or both. In this state too, the mother will not be guilty even if she undergoes the process of abortion. However, if the abortion is caused due to the medical treatment by the licensed physician which accidentally or unintentionally led to the physical injury or death to the foetus. Furthermore, the Act allowed dealing, trading or consuming contraceptive measures.

Kentucky

Kentucky’s Human Life Protection Act categorised the following intentional acts as Class D felonies. 

• Administering, prescribing, procuring, or selling any medicine, drug or other similar things to a pregnant woman to cause an abortion; or 
• Performing any procedure by use of any instrument upon a pregnant woman to cause an abortion.

Here too, there are a few exceptions where abortion is not a felony. The Act permitted licensed physicians to make a reasonable medical practice for protecting both mother and the unborn child and, in cases where the abortion is required to save the mother from dying or permanent physical damage to a mother’s life-sustaining organ. It is not a felony if the abortion is the result of medical treatment by a licensed doctor.

Louisiana

The performance of the abortion either by the physician or any other person is held unlawful by Louisiana Senate Bill 342, irrespective of the consent given by the pregnant lady. The punishment for abortion is imprisonment at hard labour, above one year and below ten years, and penalty, greater than $10,000 and lesser than $100,000. Furthermore, late-term abortion is punished more severely. The pregnant lady will not be subject to the punishment for abortion. Contraceptives or emergency contraceptives are allowed.

Oklahoma

As per the Oklahoma Senate Bill 612, intentionally conducting or attempting an abortion on a mother is prohibited except to save her life. The punishment for this felony is either confinement in the custody of the Department of Corrections for up to a period of ten years, a penalty of not more than $10,000, or both. The mother will be excluded from the charges of felony. Contraceptive measures are not made illegal.

Texas

Texas’s health and safety code prohibited abortion. Inducing or performing an abortion is a felony of the second degree and is punished with a minimum civil penalty of $100,000 except in the following cases.

• If it is done unintentionally;
• If it is done by a licensed physician;
• Because of a medical emergency to save the mother from death or any physical impairment which is caused due to the pregnancy, the doctor performed it. Provided it is made out of reasonable judgement and made all attempts to save the unborn child’s life;
• If it is caused due to the medical treatment by the licensed doctor.

 The code stated that the mother who obtained an abortion is not made responsible either criminally or civilly.

Utah

The abortion law of Utah is elaborately and clearly elucidated under various provisions of Title 76 Chapter 7 Part 3 Utah Code. According to this code, abortion is allowed in the state of Utah by fulfilling the below requirements.

• The medical procedure of abortion has to be conducted by a physician; 
• The physician whose duty is to abortion has to report the same to the concerned law enforcement agency;
• The medical process shall be performed in the hospital unless any medical emergency compelled the doctors to perform in some other place.
• Gestational age should be below 18 weeks.

If the gestational age is above 18 weeks, still it is legal under a medical emergency which is as follows:

• Women may die if abortion is not performed;
• Serious bodily harm like permanent impairment of an important organ of the woman;
• The foetus may not have compatibility of life due to the foetal abnormality as per the two physician’s reasonable judgement expressed in their medical records.

Unlike other states, the pregnancy caused to a child under the age of 14 years due to rape or incest is allowed to abort. The only condition is that the gestational age should not cross 18 weeks.

Tabular representation of the current legal status of abortion in other states

State	Legality of abortion	Classified as	Exceptions	Punishment
Alaska	Legal
California	Legal
Colorado	Legal
Connecticut	Legal
Delaware	Legal
Florida	Illegal after 6 weeks of pregnancy	Felony of the third degree	When the mother has a risk of permanent impairment of her major organ; when two doctors certified in writing that the unborn child has a fatal fetal anomaly; if the woman is a victim of rape, incest or human trafficking, provided the gestational age should be less than 15 weeks and submit a police report to the physician.	Punished as provided in s. 775.082, s. 775.083, or s. 775.084
Hawaii	Illegal after 15 weeks of gestational age	Class C felony	To save the life of the pregnant lady, to prevent irreversible physical impairment; when pregnancy is the result of rape, in the case of an adult woman, and incest, in the case of a minor girl.	Imprisonment of up to 5 years or a penalty of up to $1,000 or both.
Idaho	Illegal	Felony	To preserve the life of the mother in case of medical complications or emergencies; provided it should be performed in a properly maintained and equipped hospital.	A penalty of up to $5,000 or imprisonment between 2 years to 5 years or both.
Illinois	Legal
Indiana	Illegal	Level 5 felony	To save the life or physical health of the mother; when the pregnancy is caused due to rape and incest; when there is a lethal fetal anomaly.	Imprisonment for a minimum period of 1 year to a maximum period of 6 years with an advisory sentence of 3 years, or a fine not exceeding $10,000.
Iowa	Illegal after 20 weeks of gestational age	This area of law is still evolving.	Medical emergency
Kansas	Illegal after 22 weeks of gestational age	Class A person misdemeanour	To preserve the life of the mother; To prevent permanent physical impairment.
Maine	Legal before viability		After viability, abortion is allowed to protect the life or health of the woman.
Maryland	Legal up to the foetal viability
Massachusetts	Illegal before 24 weeks		To preserve the life, or physical or mental health, of the pregnant lady; If a lethal foetal anomaly is diagnosed; If there is a foetal anomaly of such seriousness that the unborn child does not have compatibility of life outside the uterus.
Michigan	Legal
Minnesota	Legal
Mississippi	Illegal		To save the life of the mother; if the pregnancy is caused due to the rape	The medical professional who commits will be punished by taking his or her licence.
Missouri	Illegal	Class B felony	To save the woman from dying.	Imprisonment will be in the range of 5 to 15 years.
Montana	Illegal	Felony	When the medical risk to the woman arises out of such pregnancy;	Imprisonment of the period between 5 to 10 years, or penalty of not exceeding $50,000, or both.
Nebraska	Illegal after 12 weeks		To save mother’s life; caused because of rape or incest; fetal anomaly is detected.
Nevada	Legal within 24 weeks of pregnancy
New Hampshire	Legal before 24 weeks of pregnancy		After the limit, abortions are allowed only in case of lethal foetal anomaly and to preserve the life of the woman.
New Jersey	Legal
New Mexico	Legal
New York	Legal
North Carolina	Illegal	Class D felony	Medical emergency, provided it should be performed before 20 weeks of pregnancy by a licensed doctor and in a certified hospital.	Fine up to $250,000.
North Dakota	Illegal	Class C felony	To preserve the life and health of the woman; in cases of rape and incest, provided it should be performed during the initial six weeks of pregnancy.	Imprisonment for a period not less than 5 years or a fine of $10,000 or both.
Ohio	The state is still deliberating on the legality of abortion
Oregon	Legal
Pennsylvania	Legal
Rhode Island	Legal
South Carolina	Legal if performed before 22 weeks of pregnancy
South Dakota	Illegal	Class 6 felony	To safeguard the pregnant lady’s life with an appropriate medical decision by a physician.	Either imprisonment up to two years or a fine or both.
Tennessee	Illegal	Class C felony	To prevent the death of the pregnant lady, irreversible impairment of her major organ	Imprisonment for a period up to 5 years or a fine of $10,000 or both.
Vermont	Legal
Virginia	Illegal	Class 4 felony	To prevent the death of the mother.
Washington	Legal before foetal viability		After foetal viability, abortion can be conducted to protect the life or health of the mother.
West Virginia	Illegal	Felony	Licensed medical professionals find there is a non-medically viable foetus, ectopic or medical pregnancy.	Imprisonment in a state correctional facility for a period ranging between 3 years and 10 years.
Wisconsin	Illegal	Class H felony	Therapeutic abortion performed by a physician in a licensed maternity hospital provided it should be necessary to save the mother’s life.	Imprisonment of a period not exceeding 15 years.
Wyoming	Banned, but it was blocked temporarily by a court order.	Felony	To prevent the death of the woman; risk of death due to the serious impairment of the life-sustaining organ of the woman; the unborn child suffered from an accidental or unintentional injury or died due to medical treatment; when pregnancy is caused out of incest or sexual assault, provided the victim should be a minor girl and reported to the concerned law enforcement agency; when the unborn child has a lethal fetal anomaly or if it is a molar pregnancy.	Imprisonment of up to 5 years or a penalty of not more than $20,000 or both.

The aftermath of overturning Roe v. Wade

Widespread criticism of Dobbs

The supporters of the Roe judgement blamed the overrule in the Dobbs case. They praise the Roe decision for its right and stable decision, which allowed women to obtain an abortion before foetal viability and, at the same time, strongly prohibited them from post-fetal viability. Alongside this, it also ordered the US government to regulate the medical process of abortions by imposing numerous rules and regulations and enacting statutes. Allowing abortions then protected the lives and health of many American women. But, now, this is not possible as many states are following Dobbs’ judgement.

In a time where many nations are moving towards the legalisation of abortion, a well-developed nation like the US taking such a U-turn by overriding Roe is not appreciable by women’s rights advocates.

A few judges, namely Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor, harshly criticised the judgement of Dobbs and said that the rule of law is replaced with Judges’ rule. These judges believed that the decision was delivered merely out of wrath and termed it disastrous. Many other abortion activists, journalists, and other experts condemned the Dobbs decision for removing women’s right to make their most crucial life decision. Further, the dissenting judges said this judgement will curtail the rights of women and their status as free citizens.

Additionally, taking such a decision on the most important public policy issue solely based on a historical approach seems unreasonable to many Americans. Also, it did not confirm the basic principle, i.e., that change of law shall happen with changing times.

Finally, the dissenting opinion of the judges was expressed in the following way:

“With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.”

Impact on in vitro fertilisation

The effect of this US ruling, which overturned Roe v. Wade, is extended to fertility treatment, including IVF (in vitro fertilisation), as well.

IVF is a process in which mature eggs are extracted from a woman’s ovaries and are fertilised by sperm in the laboratory itself. After fertilisation, eggs, known as “embryos”, are relocated to the uterus of the woman. In this process, to ensure the accomplishment of the object of the IVF treatment, doctors often retrieve more than one egg for the process of fertilisation so that if either of them is fertilised, the object is fulfilled. However, in the case of both eggs being fertilised, only one egg is transferred to the woman’s womb. The remaining fertilised eggs are commonly not used.

Coming to the ratio of babies born out of IVF, according to data from the US Center for Disease Control and Prevention (CDC), more than 2% of the children born in the US were conceived through the process of IVF.

Many fertility doctors are concerned about the wording of a few states’ laws that broadly ban abortions. Most states describe that the ‘life’ of a human begins at the moment of fertilisation itself, and ‘embryos’ are considered children. Unused and discarded embryos in IVF are, therefore, legally categorised as abortions and are regarded as illegal. Thus, it was said that the impact of the US judgement goes beyond womb abortion.

Besides this, a few legal experts anticipate that lawmakers might bring ‘personhood bills’ which consider embryos as persons, in the eyes of the law, and put IVF at risk by criminalising the practice of discarding embryos.

Comparative analysis between Indian and American abortion laws

Indian abortion laws

Before the enactment of the Medical Termination of Pregnancy Act, 1971 (hereinafter referred to as the “MTP Act”), abortion was a crime in India under Section 312 of the Indian Penal Code, 1860. The rationale behind the criminalization of abortion is to eliminate instances of female feticide.

In the most recent case, X v. The Principal Secretary, Health and Family Welfare Department and Anr. (2022), the Supreme Court of India approved an abortion of an unwanted pregnancy of an unmarried woman in her 22-week gestational period. In this way, India is going towards international human rights standards by adopting liberal abortion laws.

Although the MTP Act allowed abortion, it inflicted many restrictions on women who sought an abortion, especially unmarried women. According to the MTP (Amendment) Act, 2021, a pregnant woman undergoes an abortion under the following conditions:

• During the first 20 weeks, if a medical practitioner gave assent to it.
• Between 20 to 24 weeks, if two medical practitioners gave assent for it.
• After 24 weeks, if a medical board of three specialist doctors makes a decision resting with a judge in favour of abortion, after examining the woman’s diagnosis report. This is a rare situation and applies only when a woman has a severe foetal abnormality, which is mostly not detected before 20 weeks.

Sadly, despite legalising abortions, there is still a social stigma attached to it in Indian society.

Click here to learn more about the MTP (Amendment) Act, 2021.

Difference between Indian and American abortion laws

Basis of differentiation	Indian abortion laws	American abortion laws
The current legal status of abortion	Obtaining abortions in India is legal under a few circumstances.	Obtaining abortions in the US is illegal.
Case laws in which abortion is legalised	Such legalisation of abortion is possible mainly due to the case, K.S. Puttaswamy v. Union of India.	Roe v. Wade is the case due to which abortions were legal in the US for almost half a century until the Dobbs case.
Central law governing abortions in their country	The Medical Termination of Pregnancy Act, 1971 is the central law that has to be followed by all Indian states.	There is no central law regulating abortions. It is the public and their elective representatives in the states who have to enact separate statutes for their states.
The gestational period limit for abortion	Until the 24th week, aborting pregnancies with the approval of a doctor is allowed. Abortion after the 24th week is also legalised under medical emergencies.	Previously, the Roe decision legalised abortions until foetal viability. But now, the Dobbs judgement has altogether banned abortions.

To learn more about the comparative study of abortion in India and the USA, click here.

Conclusion

After the Dobbs case, the legal right to abortion conferred in the case of Roe was overturned by the Supreme Court of the United States. The Court further authorised governments in the states to decide on the abortion question. Therefore, the legal position on abortion in the US varies and depends on the individual states’ decisions.

Due to the non-compliance of the guidelines and recommendations by various international organisations by the US Supreme Court in the Dobbs case by delivering such harsh decisions prohibiting abortions, the US is receiving wide criticism from around the world.

However, almost all states provided a few exceptions like extraordinary medical circumstances, even if they banned abortion practices in their states. A few states among them allowed abortion in cases of rape or incest, recognising the psychological trauma the pregnant lady would face. A very few states, contrary to the Dobbs judgement, did not ban abortion and continued to consider it legal medical practice.

Frequently Asked Questions (FAQs)

What are the measures, other than legal sanctions, that help to reduce abortions in the US?

One of the major reasons for illegal abortions is unwanted pregnancies. Approximately 84% of teenage pregnancies are caused without an intention or desire to conceive. Most of these pregnancies will be terminated either legally or through illegal means. So, to reduce abortions, unwanted pregnancies should be avoided, which is possible with the help of contraceptive measures. Such a decrease in the proportion of unintended abortions was witnessed by the US during 2011-13 i.e., a reduction from 51% in 2008 to 45% during 2011-13. Such mitigation is assumed to be due to the use of contraceptives among adolescents before any physical activity.

Therefore, awareness and use of contraceptives will contribute a lot to the reduction of abortions in the US, or, for that matter, in any other country. Such contraception methods should be easily accessible to people of all ages and be available at no cost, or at least be cheaper in price. Additionally, barriers to access to contraception, such as lack of awareness, lack of youth-friendly services, and inadequacy in client-centred counselling, among other things, should be prevented. Only when these measures are taken by the government will the use of contraception methods increase, along with a reduction in unwanted or unplanned pregnancies and, subsequently, low abortion rates.

What is the present legal status of abortion in the US?

In Dobbs v. Jackson Women’s Health Organization (2022), abortion was made illegal and unconstitutional, which empowered the states to regulate abortions in their respective states. Hence, there is no single and uniform legal position in the US on the abortion question. Since the Dobbs case, the legality of abortion has varied from state to state. A few states followed this Supreme Court judgement and banned abortions, whereas other states continued to allow the termination of pregnancies under certain conditions. However, the common point in almost all states is that abortion is prohibited after the 24th week unless the life of the mother is under threat. Before the 24th week, to obtain an abortion, many states imposed a few legal procedures, such as following waiting periods, undergoing the counselling process, imposing legal rules on abortion providers and clinics, and any other requirements pertaining to the health of the pregnant woman.

As per the US Constitution, what are the rights available to an unborn child?

Constitutional rights are given only to “persons”, not to a foetus or embryo. Hence, a foetus will acquire rights, as provided by the Constitution, at the moment when it obtains personhood. However, when a foetus transforms into a person is still an unsolved medical question. Presently, there is an argument that life starts at conception, based on which a few states have enacted foetal personhood laws. However, as the US Constitution does not define the word “person”, the states have the sovereignty to decide upon the same. 

How can the gestational weeks of a pregnant woman be estimated?

There is no perfect machine that can calculate the gestational weeks of pregnancy. provided that many women do not know about their pregnancy on the first day itself. Hence, doctors take the first day of a woman’s last period as the first day of her pregnancy to approximately calculate the gestational week. This method is called Naegele’s Rule among the medical community and is 200 years old. This method is also criticised for its flaws. Despite its criticism, the method is still widely used by doctors and courts because there is no other proper rule to calculate a pregnant woman’s gestational weeks.

Can an American woman who seeks an abortion go outside the US to legally undergo such a medical process?

According to a study published by the National Center for Biotechnology Information, it was found that many women who want to abort their pregnancy but, at the same time, the laws to which they are subject prohibit the same, generally take recourse to go outside the US, where obtaining an abortion is legal. Presently, such practices by American women are not illegal, but they will always be associated with legal risk by an aggressive prosecutor. Hence, one should consult a good attorney before travelling to a neighbouring state for an abortion.

References

• https://www.jstor.org/stable/26858247
• https://www.jstor.org/stable/1971759?read-now=1#page_scan_tab_contents
• https://indianexpress.com/article/world/where-in-us-is-abortion-illegal-now-7993333/
• https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html
• https://www.guttmacher.org/state-policy/explore/overview-abortion-laws
• https://www.washingtonpost.com/politics/2022/06/24/abortion-state-laws-criminalization-roe/

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