In a democracy, can a right once granted be taken away? In the current international debate, this question has become part of the rising intellectual and political concern over “democratic backsliding”, a concept that depicts how democracies weaken and decline without collapsing fully.
As the world’s oldest surviving democracy, the United States has figured prominently in this debate, especially since Donald Trump rose to the presidency in 2016, engaged in a lot of anti-minority politics, and finally sought to overturn his 2020 election defeat. But after all is said and done, the American debate thus far has been about whether it is legitimate to put some restrictions on the exercise of franchise by racial minorities, who vote markedly less for the Republican party and considerably more for the Democrats. Strictly speaking, the debate has not been about the right to vote per se.
With the US Supreme Court’s decision on June 24 to overturn a half-century-old right to abortion, granted by a 1973 Supreme Court decision in the Roe vs Wade case, the debate has now become wider, as it moves from how to engineer voter suppression to the larger realm of rights. With a 5-4 majority, the court has said that American women have no nationwide right to abortion. Rather, state legislatures should decide whether women can have that right in their respective states. In several states, within hours of the court’s decision, abortion was banned, for prior legislation existed. Though Democratic states would steadfastly protect the right to abortion, nearly half of the 50 states are likely to go the other way. In the new field of democratic backsliding, comprising the retraction of rights, the floodgates have opened up.
In poll after poll, a majority of Americans, bordering sometimes on three-fourths of the population, support women’s right to abortion. So, what the court has done is against popular will. But that cannot be the principal criticism against the decision. Courts are not fundamentally governed by popular passion or will, which can fluctuate from election to election, but by constitutional propriety. The key question is whether the right to abortion was constitutionally justified.
The 1973 court decision allowing the right to abortion was based on the 14th Constitutional Amendment (1868). This Amendment, the court said, allowed protection of liberty and privacy, something the state could not impinge upon.
Thus, even though abortion was not mentioned in the 1787 US Constitution, abortion’s defence was derived from the 1868 Amendment — via its protection of citizens’ liberty about matters as intimate as a decision to have a child.
The 1973 court also argued that this right was not absolute, limited as it would be by considerations of “protecting potential life”. This line of reasoning led to a trimester-based court ruling, which more or less forbade the government from interfering in the first trimester of pregnancy but the state could ban abortions in the third trimester, when “the viability of the fetus” was beyond doubt.
This whole structure of judicial reasoning has now collapsed. In the court’s opinion, the right to privacy stemming from the 14th Amendment is not relevant, for abortion concerns not only the pregnant woman but also the life of the unborn. Moreover, the court said, abortion is neither “enumerated” as a right in the original 1787 constitution nor is it consistent with American history and tradition. In short, it is a political and legislative, not a constitutional, matter. State legislatures should decide what is permissible.
How should a political analyst comment on this tussle? Hard as we might wish otherwise, constitutional decisions areinevitably tied up with politics. There is no escape from political reasoning.
First of all, no constitution can fully anticipate how the arc of rights would bend in the future. Abortion was not mentioned in the 1787 constitution, nor explicitly in the 1868 amendment. That is because women were not autonomous political agents at that time. Until they were given the right to vote in 1920, they were not a constitutional category in the US, as was true virtually everywhere in the world. Women are autonomous agents today. Norms change; rights evolve.
Second, as the court’s dissent note puts it, how can this majority decision ignore rape and incest? Why should women carry the child of a rapist, a father or an uncle? If abortion as a right is dissolved, women can be forced to give such unwanted births. The majority decision of the court is silent on this important matter.
Also In Express Opinion | Overturning of Roe vs Wade: America has taken another step towards democratic backsliding
Third, having a child is not simply a deeply moral obligation to the unborn. It is also a decision that affects “the ability of women to participate equally in (the nation’s) economic and social life”. These words are from a later decision, known as Casey (1992), when the US Supreme Court added the concept of “undue burdens” to support the idea of abortion. As more and more women become scientists, professors, journalists, lawyers, managers, executives, politicians and sportspersons, these considerations cannot simply be brushed aside. If a woman chooses to terminate a pregnancy now but has a child later, that may be more consistent with her dreams and desires, to which she has a rightful claim.
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Finally, men don’t have to deal physically with pregnancy, whereas the foetus grows inside a woman’s body for nine months. If men have the right over their bodies, which can’t be taken away by the government, why can’t women have autonomy over their bodies as well? Why should they be subjected to the government’s authority and supervision any more than men’s bodies? That men are free, but women must forcibly be chained to maternity, is an idea whose time surely has gone. Maternity must be a voluntary choice. There is no going back to the notion of rights as they were viewed in the 18th century — unequal, unneutral, unbalanced.
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With the Supreme Court’s overturning of abortion as a constitutionally guaranteed right, America has taken another step towards democratic backsliding. Now, democratic renewal not only means fighting for more easily accessible voting procedures but also a push for a legislative codification of the right to abortion. Typically, as they evolve and deepen, democracies allow the arc of rights to broaden further, not retreat. After this judgment in the US, the stakes have become much higher and the democratic challenges bigger.
This column first appeared in the print edition on June 27, 2022, under the title, ‘Backsliding in America’.
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The writer is Sol Goldman Professor of International Studies and the Social Sciences at Brown University