This post is authored by Shrutanjaya Bhardwaj
On 25 June 2022, in Dobbs v. Jackson, the U.S. Supreme Court (“SCOTUS”) declared that the U.S. Constitution does not guarantee a right to abortion. SCOTUS thus overturned the celebrated 1973 judgment titled Roe v. Wade which had held the right to abortion to be constitutionally protected. This post analyses Roe and Dobbs, examining how and why they treated the term “liberty” differently. It then contrasts these definitions with the Indian understanding of “liberty”.
“Liberty” and “tradition”: A brief overview of Roe and Dobbs
The legal issue on which Roe and Dobbs disagree concerns the word “liberty” in the Fourteenth Amendment to the U.S. Constitution. The Amendment states that the State shall not “deprive any person of life, liberty, or property, without due process of law”. SCOTUS decisions prior to 1973 interpreted the word “liberty” narrowly . They held that the word does not include all kinds of liberties; it refers to those liberties which were historically and traditionally considered fundamental in the U.S. For example, Palko (1937) held that the Fourteenth Amendment only protects liberties “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Similarly, Snyder (1934) held that the words “due process” imply the processes traditionally guaranteed in the U.S.
The Court in Roe (1973) was aware of these precedents. However, the majority ultimately held that the Fourteenth Amendment protects “personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty’.” Conspicuously, the reference to history and tradition was omitted, presumably implying that history and tradition are not essential to the analysis. Hence, while narrating the history of abortion, the majority did not deem it necessary to locate a right to abortion in American tradition. It merely found that “at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect” (emphasis supplied). It then proceeded to hold that the right to abortion was protected under the Fourteenth Amendment as a facet of the right to privacy. Roe’s treatment of history and tradition would eventually become the main reason for its overturning in Dobbs.
But Roe was not alone in treating history and tradition as inconclusive. SCOTUS has generally wavered on this issue. E.g., in Obergefell (the 2015 decision affirming a right to same-sex marriages), SCOTUS held that while history and tradition “guide and discipline this inquiry”, they “do not set its outer boundaries”. Contrast this with Glucksberg (the 1997 decision rejecting a right to assisted suicide) which held that the “outlines” of the word “liberty” are to be “carefully refined by concrete examples involving fundamental rights found to be deeply rooted in our legal tradition,” indicating a conclusive reliance on tradition. Thus, the question of whether “liberty” is to be interpreted purely normatively (‘implicit to ordered liberty’), or must also be grounded in historical experience is itself contested in SCOTUS jurisprudence and has changed over time – often based on the composition of the court on a given day and case.
In attacking Roe’s conclusion, then, the main objection taken by the Dobbs Court — composed of a 6-3 conservative majority — was a historical one. The majority re-examined historical evidence and found that abortion has been traditionally criminalised, or at least negatively treated, in most states: “By the time the Fourteenth Amendment was adopted, three-quarters of the States had made abortion a crime at any stage of pregnancy. This consensus endured until the day Roe was decided. Roe either ignored or misstated this history….” Citing Palko (1937) and Glucksberg (1997) for the necessity to ground liberty in historical practice, the majority rejected the idea that an abortion right was “deep-rooted” in American history and tradition. Thus, it found, the word “liberty” in the Fourteenth Amendment did not protect a woman’s right to medically terminate her pregnancy.
The implication is this. After Dobbs, the 14th amendment itself does not include a right to medically terminate a pregnancy because the right is not “deeply rooted” in American history and tradition. Thus, there exists no need to examine whether there exists a countervailing right of the woman which must be “balanced” against the State’s interest in protecting prenatal life. As described by the dissent: “The constitutional regime we have lived in for the last 50 years recognized competing interests, and sought a balance between them. The constitutional regime we enter today erases the woman’s interest and recognizes only the State’s….”
It is easy to see why SCOTUS’ reliance on history and tradition is problematic. The point of a Bill of Rights is to insulate freedom and equality from majority control. It is hence paradoxical that the meaning of liberty turns on popular tradition. Relying on a male political majority’s treatment over a period of time of women (at a time when the latter were denied political representation – women were not allowed to vote when the 14th amendment was passed – and equal standing in society) to determine the liberties afforded to women today risks codifying past injustices into modern rights law. The Dobbs dissent rightly argues, quoting Obergefell, that “[i]f rights were defined by who exercised them in the past, then received practices could serve as their own continued justification.” This circular test—which sees the Constitution as a tool to cement tradition rather than challenge it—allows all kinds of regressive, liberty-restricting practices to be upheld so long as they are rooted in American history and tradition. Finally, history itself may be contested and heterogeneous, and the Court’s approach provides few safeguards against the selective reliance and interpretation of “history” by the majority.
Yet, the dissent struggles—and so does an amicus brief —to articulate an alternative test to define “liberty”. The dissent argues, rightly, that history and tradition are not captured “in a single moment” and should be understood with reference to “the longsweep of our history and from successive judicial precedents”. But this does not take us very far. Is tradition relevant at all? How relevant? When can you overlook it? Is it possible to ensure that judges will not start interpreting the word “liberty” based on their own personal biases, in ways completely disconnected from American tradition? The dissent does not argue that tradition is irrelevant, and does not provide any principled test to determine when its relevance is reduced.
“Liberty” in the Indian Constitution
While the Indian Supreme Court often discusses the history of the issue before it (very common in reservation cases, e.g.), history and tradition have never been the determining factors to define “liberty” in Art.21 of the Indian Constitution. The meaning of “liberty” has been determined by other considerations.
Art.21 prohibits the State from depriving any person of “personal liberty” except as per procedure established by law. Separately, Art.19 lists six (originally seven) freedoms: speech, assembly, association, movement, residence and trade. In its early years, the Supreme Court was called upon to decide if the “liberty” contemplated by Art.21 was broad enough to include the six freedoms listed in Art.19. This question was first answered in Gopalan (1950). By a 5-1 majority, the Court held that since Art.21 spoke only of “personal” liberty—i.e., liberty of one’s person—it had to be interpreted narrowly to mean freedom from bodily restraint. As Das J. put it, liberty is the “antithesis of physical restraint or coercion”. The majority viewed Art.19 and Art.21 as distinct rights having no overlapping content. In other words, the content of “liberty” in Art. 21 was not informed by the rights enumerated in Art. 19
In the Gopalan era, therefore, Art.21 had a narrow scope. It did not, e.g., include the right to privacy, as held in M.P. Sharma (1954) and Kharak Singh (1964). But Gopalan was overturned after the Emergency. In Maneka (1978), the Supreme Court held that fundamental rights are not siloed; they are overlapping in terms of their content. Accordingly, the meaning of “personal liberty” in Art.21 was held to include and be informed by the six enumerated freedoms of Art.19 and other constitutional sources.
Since Maneka, the meaning of “personal liberty” has been continuously expanded. Now, Art.21 includes, inter alia, the rights to legal aid and speedy trial, the right to shelter, workers’ right to health and medical aid, a woman’s right to make free choices regarding sterilization procedures, the right to privacy, and indeed, a qualified right to have an abortion subject to reasonable restrictions imposed by the Medical Termination of Pregnancy Act, 1971.
But none of these activities or rights have had to pass a historical test before being recognised. The term “personal liberty” has been understood as being “of the widest amplitude” (Maneka 1978) and defined as “a power of acting according to the determinations of the will” (Mhetre 2011). These holdings imply that the words “personal liberty” encompass the freedom to do whatever one wants, although the freedom is not absolute and is subject to any fair, just and reasonable law made by the State (such as criminal legislations which identify and punish certain acts like murder, theft etc.) on legitimate grounds. In other words, the idea of “liberty” does not depend on the act being performed or its historical acceptance. In contrast with the SCOTUS, Indian courts have called the Constitution a “transformative” document, emphasizing its role as a revolutionary instrument that appropriately challenges tradition rather than protect it.
In one sense, this is a much neater test as compared to the one followed by SCOTUS. In context of abortion, because the interpretation of “liberty” does not presumptively exclude the right to terminate a pregnancy (Dobbs) it means that the Court must recognise two competing rights—the woman’s right to have an abortion and the fetal right (if it is shown to exist) to life—and resolve the conflict by evaluating the necessity and proportionality of the restrictions placed by the State.
This is not to say that the test under Art.21 has no flaws. The flexibility of the “fair, just and reasonable” standard also means that it is vague, and a restriction deemed to be reasonable by one bench or court could well be deemed unreasonable by another. Yet, the advantage of the Maneka test is that it does not allow the Court to outrightly reject either competing right on the ground that it does not comport with historical practices and popular traditions. The Court must at least enter the balancing exercise and explain why particular restrictions on rights are proportionate or disproportionate.
“Liberty” under the Indian Constitution is substantially different from that under the U.S. Constitution. The SCOTUS test is problematic; tradition and history are not objective and using them to define “liberty” is not wise. In contrast, Art.21 protects all liberty, and is open to recognising competing rights within the constitutional scheme. A woman’s right to abortion is hence recognised, but is to be ‘balanced’ against the right to life of the fetus (if such a competing right is shown to exist). This allows for a much more principled inquiry into the competing interests and for testing the necessity and proportionality of the State measure in question.
The Dobbs ruling has serious implications for privacy rights. The immediate implications are on pregnancy and reproductive autonomy: 11 states in the U.S. already have laws criminalizing abortions, while 13 more states are speculated to pass such laws in the near future. The de-recognition of the right to abortion as a fundamental right also poses dangers of surveillance and sensitive data collection by law enforcement agencies by piggy-backing on the data stored with financial companies and even mentruation-tracking apps in an effort to track individuals who may have had an abortion in a state where it is illegal. Looking beyond pregnancy, the Dobbs decision might imply—as both the concurrence (by Justice Thomas) and the dissent suggest—a threat to other rights which were recognized by SCOTUS as flowing from the right to privacy, including the right to contraception, the right to same-sex marriage, homosexuality rights, etc. The majority rejects this suggestion because “none of these decisions involved what is distinctive about abortion: its effect on what Roe termed ‘potential life’”. However, as the dissent notes, other rights based on the 14th amendment’s guarantee of autonomy and privacy may also fail the test of being “deeply rooted” in tradition. The effect of Dobbs on those other rights may be more complex than what the various Justices suggest. These and other aspects of the Dobbs fallout will be discussed in a future post.
This blog was written with the support of the Friedrich Naumann Foundation for Freedom.