November 14, 2016
1971, Austin, Texas. Norma McCorvey, (under the pseudonym of Jane Roe to protect her identity) a 21-year old pregnant woman filed a case against the District Attorney of Dallas County – Henry Wade – who had worked towards the enforcement of a law rendering abortions unconstitutional in United States v. Vuitch.[1]The abovementioned could be held unless the mother’s life or health was in danger. The issue that arose in Roe v. Wade[2] was whether the United States Constitution embraces the private right of a woman to obtain an abortion, nullifying the Texas statute.
The United States Supreme Court of Texas in a 7-2 decision expounded by Blackmun J., concluded the case of Roe v. Wade on January 22, 1973. The court held that women had the right to abortion under the 14th Amendment[3] of the United States Constitution, which stated that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”, rather than the 9th Amendment – as propounded as rationale by the district court which – which Douglas J., in his concurring opinion in the companion case of Doe v. Bolton[4] believed, did not create federally enforceable rights.
The Court provided, that under the due process clause of the 14th Amendment that women’s right to privacy included their “familial privacy” and thus interpreted it as a personal matter leaving it to the discretion of the expectant woman. Similar observations pertaining privacy were made in Loving v. Virginia[5] and Skinner v. Oklahoma.[6] Blackmun J. also emphasised that the right to abortion was not without reasonable restrictions and fashioned a ‘trimester system’ of when and how abortions were legally permissible. The “zone of privacy” extended only to the first trimester wherein the decision was left to the woman and her doctor. In the first trimester, the foetus isn’t considered to have individualistic attributes, making it out of the reach of the law. After the first trimester, it is said to develop individualistic attributes and the state now has an interest in the unborn foetus through its prospective life.
It is the duty of the Court to decide on the distinctiveness of a foetus in its different stages and its mother; and their rights as individuals. The mother can exercise her individualistic rights through abortion when the baby is in the first trimester, while on the other hand, the State has an interest in protecting the foetus as soon as it reaches ‘prenatal viability’. This decision involved the countless physical, psychological and economic distresses a pregnant woman might face.
Roe v. Wade continued to influence the rulings of many cases thereafter[7] (until the change made in Planned Parenthood v. Casey)[8] and is still considered an issue of upmost national importance in the United States and the decision might stand to change post the United States Election on the 7th of November as Roe. v. Wade is on the ballot[9] with the democrats supporting a pro-life choice and the Republicans hinting towards a pro-life choice.
Keeping in mind the abovementioned line of reasoning, The Supreme Court of Austin, Texas articulated privacy as an individual’s right which they can exercise while not infringing upon the rights of others. In this case, the court brings out privacy enjoyed by the woman as to her decision making in terms of bearing the foetus and giving birth to it in the different stages of pregnancy.
All abortion laws in India are governed by the Medical Termination of Pregnancy Act, 1971. However, had Roe v. Wade been tried in India without the Medical Termination of Pregnancy Act, 1971, Section 312 of the Indian Penal Code, Article 21 – The Right to Life and the interpretation of what constitutes to be “personal liberty” will be applied.
The pre-independence British laws would be in force and abortion was illegal per these in lieu of only one situation wherein the mother’s life was in danger or when there is sufficient evidence that the child to be born would suffer from abnormalities – both mental or physical which may “handicap” that person’s life.
Section 312 of The Indian Penal Code explicitly states that it is unlawful to abet miscarriage until and unless it is for a good cause and to save the mother’s life. Thus, the Indian laws other than the 1971 Act of Medical Termination of Pregnancy suggest that the laws in India do not promote abortion until and unless it is for the abovementioned reasons.
Given a situation of Roe v. Wade coming into substance in India and being put into question with respect to the constitution, we would find the laws to be apt because the abovementioned IPC laws do not deem lawful any other reason for termination of pregnancy other than saving the mother’s life. Yet, Article 21 of the Indian Constitution provides for the privacy of an individual. The law might take into consideration other reasons for an abortion subjective to certain cases such as Suchita Srivastava v. Chandigarh Association[10] where the psychological and physiological health of the mother was taken into consideration. Moreover, the court will treat such a case with suspicion and extreme scrutiny in our country due to our extremely high rates of female foeticide, especially in the north.
That is why an Indian court – without the existence of the Medical Termination of Pregnancy Act, 1971 – is likely to rule the case against the petitioner – Roe and deny unconstitutionality of the law pertaining termination of pregnancy.
[1] United States v. Vuitch 402 U.S. 62 (1971)
[2] Roe v. Wade 410 U.S. 113 (1973)
[3] U.S. Const. am. 14, § 1, cl. 1.
[4] Doe v. Bolton 410 U.S. 179 (1973)
[5] Loving v. Virginia 388 U.S. 1 (1967)
[6] Skinner v. Oklahoma 316 U.S. 535 (1942)
[7] Webster v. Reproductive Health Services 492 U.S. 490 (1989)
[8] Planned Parenthood v. Casey 505 U.S. 833 (1992)
[9]http://www.slate.com/articles/news_and_politics/jurisprudence/2016/11/roe_v_wade_is_on_the_ballot_this_election_day.htmlaccessed 6 November,2016
[10] Suchita Srivastava v. Chandigarh Association AIR 2010 SC 235
Bhrigu A. Pamidighantam 
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