An initial draft written by Justice Samuel Alito in Dobbs v. Jackson Women’s Health Organization appears to overturn the decision in the landmark case of Roe v. Wade. “Roe was egregiously wrong from the start,” Justice Alito writes in the draft document. Roe was a benchmark which was set to uphold the legal and bodily rights of women by giving abortion a legal status. Not only that, but the verdict of Roe was also a key precedent to identify the right to privacy of women.

Trade-off of Human Rights

Page 5 of the leaked Dobbs draft connotes that there is no constitutional provision to protect the right to abort. The Court failed to take in cognizance that this is the same reason the verdict of Roe was set as a precedent. The constitutional right to abortion was later confirmed in several decisions, including Webster v. Reproductive Health Services in 1989 and Planned Parenthood v. Casey in 1992.

General Comment No. 36 of UNHRC has already declared abortion as a human right, stating that “restrictions on the ability of women or girls to seek abortion must not, inter alia, jeopardize their lives, subject them to physical or mental pain or suffering…” Access to safe and lawful abortion services is deeply rooted in the rights to life, to be free from torture, to be free from cruel, inhuman, or degrading treatment, and to privacy, among others. These rights are recognized in international human rights treaties ratified by the United States. The Dobbs draft attempts to ‘prevent’ an unborn life while jeopardizing the legal and human rights of a living being. This goes beyond the scope of right to free life as enshrined in the Article 6 of the International Covenant on Civil and Political Rights which protects right to life for all human beings. Hence, there is a clear trade-off of human rights where the legal, private, and fundamental body rights of a woman are ignored.

The leaked Dobbs draft does talk about the unborn child and the state’s responsibility to protect them but fails to address the plight of women who are impregnated through rape, unprotected sexual intercourse or forced impregnation. The worst impact would be on marginalized groups, including people living in economic poverty, young people, and Black, Indigenous, and other people of color. These populations already face significant barriers accessing abortion care.

LGTBTQ+ Rights and Privacy Concerns

LGBTQ+ advocates fear that overturning Roe could open the door to legal challenges targeting gay marriage and other landmark civil rights rulings at the country’s top court, which holds a six-to-three conservative majority. Cases like Lawrence v. Texas, which struck down sodomy laws criminalizing same-sex intimacy, and Obergefell v. Hodges, which legalized gay marriage, are based at least in part on that same right to privacy.

The opinion also goes against the ruling of Griswold v. Connecticut which identified privacy with respect to one’s own body, established the right to access to contraceptives, and cemented the transformation from the right to privacy to being about people instead of property. However, the Dobbs draft argues that right is not explicitly mentioned in the Constitution. Privacy is not mentioned in the Constitution, but the Court has previously ruled that the right to due process covers rights otherwise not expressly covered. Right to privacy is a recognized human right under international law instruments like Article 12 of the Universal Declaration of Human Rights and Article 17 of International Covenant on Civil and Political Rights, both of which deal with arbitral interference with one’s privacy.

Such recognition extends to body autonomy as well, and the proposed Dobbs draft refuses women post-conception bodily autonomy. This not only invades the concept of free choice for women, but puts a fair amount of emotional, physical, and mental pressure on them, especially those who have a responsibility to carry on with an unwanted pregnancy.

Conclusion

The Dobbs draft is not final, and the votes can change in the next two months. But if the draft remains mostly unchanged and votes do not shift, the consequences of the Court’s ruling on the country will be tremendous. Dr. Alvaro Bermejo, Director General of the International Planned Parenthood Federation, said that: “If the reports are true….. they will rob millions of people of their liberty, bodily autonomy and their freedom—the very values the United States prides itself on.”

According to an article published in the Journal of the American Medical Association, the risk of death due to legal abortion in the United States of America has fallen considerably since legalization in 1973, due to increased physician skills, improved medical technology, and earlier termination of pregnancy.

“Bodily autonomy and integrity—the power to make our own choices about our own bodies—are grounded in gender equality and human rights, and are necessary for women’s empowerment and to achieve the Sustainable Development Goals,” noted Bjorn Andersson, UNFPA Asia-Pacific Regional Director. “Denying millions of people, including women and girls, their empowerment, compromises not only individual health and wellbeing but hinders the development of entire societies and countries.”

Overturning the landmark ruling would mean that the rights enshrined under international law and the constitutional realm for women can then be violated. It is necessary to uphold these rights in a developed country, especially when only half of women in a developing world have bodily autonomy.

“Two generations have now relied on this right, and 1 out of every 4 women makes a decision to end a pregnancy,” Center for Reproductive Rights Senior Director Julie Rikelman said. If Roe is overturned, these women will be stripped off their right to practice body autonomy, which will be a grave restriction of their basic human rights.

The opinionated Dobbs draft may be written in the fair faith to protect the rights of fetuses or unborn children, but it is one-dimensional and ignores the plight of aggrieved women, the transgender community, and activists for reproductive health community, who have been striving for abortion rights for decades.

Yash Bhatnagar is an undergraduate law student from Dr. Ram Manohar Lohiya National Law University, India. They hold interests in various fields of law including Intellectual Property, Cyber Security, Data Protection, and Fundamental human rights.

Suggested citation: Yash Bhatnagar, Roe v. Wade to Be Overruled: Ignorance of Human Rights or a Savior for Unborn Lives?, JURIST – Student Commentary, May 20, 2022, https://www.jurist.org/commentary/2022/05/yash-bhatnagar-abortion-rights-as-human-rights/.

This article was prepared for publication by Amanda March, a JURIST staff editor. Please direct any questions or comments to her at commentary@jurist.org