Author: Sankalp Pissay
In my last blogpost, I had written about the evolution of the law on abortion in the United States, and I had also speculated about the possibility that John Roberts, the Chief Justice of the United States, would break from his past views on this subject to invalidate restrictions placed on abortion providers in the State of Louisiana. In this article, I’ll discuss the salient features of the judgment in June Medical Services v. Russo (Russo, hereinafter), and then move on to discuss the impact Roe had on Privacy Laws in the U.S. and in India. I will also discuss the impact of Roe and Russo on the principle of Separation of Powers, in general.
June Medical Services v. Russo (2020)
On 29th June, 2020, the United States Supreme Court delivered a fractured ruling, in a vote which can only be described as 4-1-4, invalidating a Louisiana Law which had placed various restrictions on abortion providers, such as requiring them to have active admitting privileges in hospitals in a 30-mile radius. These restrictions were nearly identical to those imposed by a Texas Law, which had been struck down by the Supreme Court in 2016.
In the present case, four justices voted to strike the Louisiana Law down, by applying the ‘balancing test’ evolved in Hellerstedt, which they claimed was a part of the ‘Undue Burden Standard’ evolved in Casey. (For elaboration on what the Undue Burden Standard involves, please refer to my previous post from 28th June.) This required them to weigh the law’s asserted benefits against the burdens it imposes on abortion access. Because the burdens imposed by this law outweighed the benefits, it was deemed unconstitutional. Chief Justice John Roberts wrote a narrow concurring opinion, in which he said that under their precedents (Roe, Casey & Hellerstedt), the law at issue was clearly unconstitutional. Although he believed that Hellerstedt was wrongly decided (he had dissented in that case from the majority’s ruling), he accepted its force as a precedent in the instant case, as neither party had asked the court to reconsider its previous decision. He also asserted that the balancing test evolved in Hellerstedt was not in consonance with the law laid down in Casey, which instead required the courts to only see if the law imposed ‘Substantial Obstacles’ on the right to access abortion.
Four dissenting opinions were filed, and three dissents largely stated that abortion providers could not validly bring this case to a court because they lacked ‘standing’ (locus standi, or the right to sue), and that the law was in any case constitutional as it did not place any substantial obstacle on a woman’s right to get an abortion. None of these three argued that Roe or Casey were wrongly decided.
But the dissent filed by Justice Thomas went the farthest. He first cast doubt on precedents going back to 1915 (calling them “deviations”), which allowed third parties to sue in cases where their own private rights were not directly impaired. Even under the existing precedents, he claimed that the June Medical Services had no right to sue in the present case.
Secondly, he impeached the validity of the substantive due process doctrine (see, our post on this doctrine), and termed as “baseless” the decision in Griswold v. Connecticut (1965), which had held that right to privacy was a constitutionally protected right. Roe, which relied on Griswold, was similarly baseless, and unworkable, in his opinion, and ought to be overruled. He further cast doubt on the current conception of due process itself, and explained that “due process” can be seen either as “forbidding only deprivations not authorized by legislation or common law”, or as a doctrine which mandates that “statutes that purported to empower the other branches to deprive persons of rights without adequate procedural guarantees [be] subject to judicial review.” (A position even narrower than the one adopted by the Indian Supreme Court in A.K. Gopalan.)
He was alone in his dissent, which means that on the core question of the existence of a constitutional right to abortion, the decision can be characterized as an 8-1 judgment, in favour of that right.
Roe’s conception of privacy and Indian Law
In my previous post, I had written about how Roe had failed to identify the specific source of the right to privacy. In Griswold, the majority had opined that the right “emanated” from the “penumbras” between the rights mentioned in the U.S. Constitution. In Kharak Singh v. State of U.P. (1962), three years prior to Griswold, the Indian Supreme Court, by a majority of 4-2, had held that the Indian Constitution contained no such guarantee of right to privacy. Thirteen years later, in Gobind v. State of M.P. (1975), a 3-judge bench observed that the law in the United States had undergone great changes in the interim, and took note of the decision in Roe to conclude that if a right to privacy existed under the Constitution, only a compelling government interest would justify its violation.
In 2017, a 9-judge bench of the Indian Supreme Court, in K.S. Puttaswamy v. Union of India, ruled that the right to privacy was intrinsic to the right to life and personal liberty protected under Article 21, thereby overruling Kharak Singh. It approved the decision in Gobind, and observed that it had been treated as though it had held that the right to privacy was indeed protected under the Indian Constitution.
Both the petitioners and respondents in Puttaswamy placed reliance on Roe in their arguments, and the respondents took great efforts prove that all Roe did was classify abortion as a ‘liberty’, and had not connected it to a right to privacy. The court unanimously rejected the respondent’s claims.
But when it came to the test which would be employed to review restrictions on the right to privacy, the justices differed. The plurality opinion authored by Justice Chandrachud stated that a proportionality standard would be employed, which would require a law, pursuing a legitimate state aim, to have a rational nexus between the objects and the means adopted to achieve them. Justice Kaul added to Justice Chandrachud’s test and stated that the law should also have procedural guarantees against the abuse of such state interference. This test can generally be traced back to European Law.
Justice Chelameswar, on the other hand, made specific reference to the ‘Strict Scrutiny Standard’ (discussed in my last post), and said that any restriction on the right to privacy must be narrowly tailored to achieve a compelling governmental interest. Justices Bobde, Nariman and Sapre held that the tests would differ on a case-to-case basis, as restrictions on the right to privacy would not always violate Article 21, but could violate other Articles which implicitly recognise and protect privacy. But Justice Sapre also endorsed the compelling state interest test as acceptable in Indian Law.
Thus, while Roe has played an important role in informing the substantive content of the right to privacy in India, the test enunciated by Justice Blackmun (which was incidentally overruled in Casey) has found support only in the concurring opinions of Justices Chelameswar and Sapre. In the Aadhar Case (2018), a Constitution Bench adopted the proportionality test, and rejected the compelling state interest requirement, which would have heightened the level of scrutiny of impugned laws.
In the specific field of abortion in India, which is governed by the Medical Termination of Pregnancy Act, 1971, Roe continues to inform the issue of protecting the health of the mother, and the viability of the foetus (see, Suchita Srivastava v. Chandigarh Administration).
It would be safe to conclude that while Roe has played an important role in shaping the contours of Indian Privacy Law and Reproductive Rights, the Indian position on these issues has transcended it, and if Roe is overruled, such a reversal will carry little to no persuasive value for the Indian Judiciary.
On Separation of Powers
The Conservative Legal Project, to pack the judiciary with judges who would overrule Roe, has suffered a temporary setback with the decision in Russo. Chief Justice Roberts has come under intense scrutiny, and is being severely criticized for joining the liberal wing in invalidating the Louisiana Law by Right-Wing commentators. This raises some deep questions which address the principle of Separation of Powers, which many claim was violated by the Court in Roe by insulating abortion from being legislatively restricted. In the words of Justice Scalia, “by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.” (Casey, 505 U. S. 833, 1002)
In his concurring opinion, Chief Justice Roberts indicated that he would be open to reconsidering the abortion precedents in a future case, if the issue so arises. And it is unlikely that this issue will be put to rest by the evangelicals and the conservatives. In Alabama, a law was passed in 2019, which prohibited abortion in all situations, except when the mother’s life is threatened. The Bill’s sponsor, Terry Collins, expected that it would go up to the Supreme Court, and because of the law’s extreme nature, it is clear that it would bring up Roe’s validity as an issue. She hopes that the Court will finally overturn Roe in such a scenario.
Realizing the threat to Roe, Senator Richard Blumenthal, of the Democratic Party, has proposed that the U.S. Congress pass the Women’s Health Protection Act, which would prohibit medically unnecessary laws from imposing burdens on abortions, which are not imposed on comparable medical procedures. He believes that Courts today are not reliable as the sole defenders of women’s reproductive rights, and believes that legislative protections at the Federal level are necessary to protect them.
Thus, this issue has come a full circle, and is likely to go back to the people, acting through their legislators, who can be expected to reach a fair compromise which will be a much more enduring safeguard for individual rights and freedoms, than a judicial decision which can be overturned at any time, if one judge (in this case, Chief Justice Roberts), decides to change his mind.
About The Law 