Roe Versus Wade Fifty Years On: What Does its Fall Teach us About the Fragility of Democratic Institutions?

A politicised and polarised Supreme Court does not bode well for democracy. Polarisation of the Supreme Court is detrimental to its legitimacy.

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Few judgements pronounced by a Constitutional Court anywhere in the world have attained the prominence that Roe versus Wade (1973) has gained. It was a feminist institution in itself — a decision by the United States Supreme Court which established certain fundamental rights by reading privacy into the Fourteenth Amendment to the United States’ Constitution.

The judgment led to the recognition of a gamut of rights, and established critical protections against violations of rights to bodily autonomy, health and equality. But Roe was so much more than a mere judgment of a court. It was a beacon of hope for feminist movements across the world and a pathbreaker in its own right.

Despite repeated assaults on Roe since the day it was pronounced, it seemed insurmountable. Surely, no court would go so far as to strike at the core issues of private decision-making and liberty, it was thought. Alas, that was not to be. On June 24 last year, the U.S. Supreme Court in Dobbs versus Jackson Women’s Health Organisation overturned Roe, and since then it seems as if the floodgates of attacks on a wide range of rights have been opened in the United States.

India, of course, has a well-protected right to abortion — especially in light of the recent judgement in X versus The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi (2022) — that even the present Union Government, with its far-right politics, does not oppose.

What preceded Dobbs was decades-worth of focusing on judicial appointments, legislating to chip away at Roe as much as possible, and lobbying by the conservative right in the United States. Roe has been under attack from day one.

But access to abortion is a different ball game and remains a huge problem. Much has been written by feminist legal scholars and people with uteri who have lived experience on what happens when abortion is restricted in post Roe-America. I have highlighted some of these issues in my previous pieces for The Leaflet.

For the purposes of this piece, I do not want to reiterate what has been spoken about ad nauseum; what I want to draw attention to, however, is what the fall of Roe teaches us about democracy and judicial precedents, and some pertinent lessons that India can draw from it.

What has happened after Dobbs?

On June 24, 2022, Roe was overturned, to the dismay of progressive voices who saw time take a huge backward leap, and amidst joyous celebrations of a triumphant return for the conservative lobby. The U.S. Supreme Court held by a 6–3 majority that the American Constitution does not provide the right to an abortion, and thereby widely expanded the states’ authority to regulate or restrict abortion. In doing so, the court overruled Roe and Planned Parenthood of South-eastern Pennsylvania versus Casey (1992).

But what preceded the overturning was decades-worth of focusing on judicial appointments, legislating to chip away at Roe as much as possible, and lobbying by the conservative right in the United States. Roe had been under attack from day one. These attacks were of course rooted in Christian theology, and the adverse effects the attacks had on queer, black and disabled communities is well documented.

In a piece written 100 days after Dobbs, American journalist Errin Haines notes, “The early days of the Dobbs decision have unleashed a political energy around abortion not seen in decades. Will it be sustained into the midterm elections and beyond? How will lawmakers, medical providers and patients navigate the new and uncertain health care terrain created by the ruling and the state laws that continue to replace Roe? What we know is that our country has changed dramatically in the past 100 days. What we don’t know is what direction we go in from here.”

Since Dobbs was pronounced, 34 cases regarding the legality of abortion have been filed in state courts in 19 states in the U.S. There is also a dramatic increase in policing of bodies and sexualities of people since the right to privacy is under attack. Risks of data privacy, policing of books that are stocked in bookstores and in libraries, the right to self-determination of gender or to have oneself referred with one’s preferred pronouns, and bans on drag shows are just some of the freedoms under attack post Dobbs.

Since then, the Supreme Court of South Carolina has held that the state constitution’s guarantee against unreasonable invasions of privacy will extend to abortion. The Idaho Supreme Court has reached the opposite conclusion, and held that there is no fundamental right to abortion. According to the nonprofit law and public policy institute Brennan Centre for Justice’s Litigation Tracker on Abortion, “(Twenty-seven) [cases challenging abortion bans] remain pending at either the trial or appellate levels.” All of these trials adopt different strategies, and it is likely that the matter will reach the U.S. Supreme Court sooner or later. Thirteen states have trigger laws that ban abortion at any stage of pregnancy.

But all is not bad. Some states like Delaware, Massachusetts, New York and New Jersey have extended protections for providers and patients who perform, assist, or receive legal abortion care services in the U.S. through legislation. These laws establish a cause of action for these individuals and even allow them to recover costs. In a respite to providers, some of these laws also limit or prohibit interstate extraditions related to the provision of legal reproductive care services.

But one thing that emerges out of all of these issues is that the U.S. is at war with itself about abortion — state against state, Republicans versus Democrats, the U.S. Supreme Court versus the Legislature, and neighbour against neighbour.

What Dobbs laid threadbare was that politicisation and polarisation of the U.S. Supreme Court worked adversely for its legitimacy.

What Dobbs laid threadbare was that politicisation and polarisation of the U.S. Supreme Court worked adversely for its legitimacy. Indeed, the judges of the U.S. Supreme Court have themselves gone out and talked about how the decision of the court has eroded its legitimacy in extra-judicial pronouncements. A Pew Survey found that for the first time since 1987, 49 percent of Americans viewed the Supreme Court unfavourably and only 48 percent favourably. At present, citizens of the U.S. seemingly do not repose much faith in the Constitution of the country.

Appointment and polarisation of judges

A major sign of polarisation of judges became apparent with the latest addition to the U.S. Supreme Court, Justice Ketanji Brown Jackson. Judges of the U.S. Supreme Court are nominated by the U.S. President, and subjected to a Senate judiciary committee hearing, which has now turned into a media spectacle.

The Republican questioning of Justice Jackson included questions about her views on whether “babies are racist”, to speculate about whether a senator could sue Harvard if he were to “decide I was an Asian man”; and, most of all, to claim that a Republican had discerned a disturbing “pattern” in the sentences that Jackson pronounced in cases involving child pornography.

Judges in India are appointed through an opaque process in which a Collegium’s recommendations are accepted or rejected by the government. This is of course, a simplistic view of the process. But the point that I wish to make is that unlike in the U.S., the public at large here does not know a judge’s judicial philosophy, their stances on legal issues and their politics. As a result, what we are seeing in India is that a judge’s conduct only comes to the fore after they have been appointed.

The judiciary and the Union Government in India are now at loggerheads about the procedure for appointment of judges, with the Union Government demanding a greater say in the appointment procedures. It is, by now, no secret that the government wants to permeate all institutions and hollow them out. The judiciary is the last bastion of civil liberties.

Idiomatically speaking, all the diseases and the malaises have been let loose from Pandora’s Box, and the judiciary is the hope that comes out last. If Greek mythology is to be believed, humans have been able to hold onto this hope in order to survive the wickedness that Pandora had let out. Similarly, the judiciary is the hope that citizens and lawyers like I have been able to hold on to.

Polarisation of judges and legitimacy of institutions

A logical sequitur of the aftermath of Roe and Dobbs is that a politicised and polarised Supreme Court does not bode well for democracy. Polarisation of the Supreme Court is detrimental to its legitimacy for a few reasons.

Let us extrapolate what has happened to the legitimacy of the U.S. Supreme Court to India. What lessons does this have for us here in India, where we are currently in the midst of a scuffle between the Supreme Court and the Executive on the issue of appointment of judges?

First, it leads to a perception that the court is making decisions based on a political ideology rather than on legality. This muddies the court’s public image, which should be as an impartial arbiter of the law. Consequently, such a perception undermines the court’s ability to act as a check on the executive and thus, the court fails in its fundamental job, which is to uphold the rule of law.

Secondly, polarisation can lead to the court becoming more politicised and a perception that the court is tied to the political branches of government. This weakens the court’s independence and makes it highly susceptible to the other branches of the government. This leads to the court being seen as an extension of the political arm, rather than as a separate and independent institution that is the guardian of the fundamental rights of the people. For it to derive legitimacy from the people, it is essential that the court is seen as an impartial and independent institution that makes decisions based on the law and the Constitution.

Let us extrapolate what has happened to the legitimacy of the U.S. Supreme Court to India. What lessons does this have for us here in India, where we are currently in the midst of a scuffle between the Supreme Court and the Executive on the issue of appointment of judges? Does it augur well for the court, and consequently, for democracy at large?

In a previous piece for The India Forum, I wrote, “Faith in the Constitution is central to the functioning of the legal system in India. That faith, just like the Constitution, has three arms to uphold it — the judicial, the executive and the legislative. With Prime Minister Narendra Modi’s authoritarian government leading to a virtual redundancy of Parliament, the judiciary remained the last bastion of hope for those of us who believe that the Constitution of India is essential to holding together an otherwise diverse set of people who dress differently, speak different languages, eat different foods, and worship different gods (or even the same gods in different ways).”

With the government seemingly attacking the method of appointment of judges, the legitimacy of the court is threatened by the executive. The bar will have to stand up for the judges and by extension, judicial independence. The Supreme Court has survived multiple attacks before — the Emergency, the supersession of judges, and the Chief Justice Ranjan Gogoi sexual harassment scandal, to name a few. But none of them were this severe, with ministers and high functionaries like the Vice President attacking the Collegium, and wanting to appoint yes-men to the collegium.

In The Anatomy of Fascism (2011), the American political scientist and historian Robert O. Paxton writes, “Although very few judges were Nazi Party members in 1933, the German magistracy was already overwhelmingly conservative. It had established a solid track record of harsher penalties against communists than against Nazis during the 1920s. In exchange for a relatively limited invasion of their professional sphere by the party’s Special Courts and People’s Court, the judges willingly submerged their associations in a Nazi organisation and happily accepted the powerful role the new regime gave them.”

The Supreme Court of the U.S. failed. Will the Indian Supreme Court stand up for itself? Will the bar stand up for the independence of judges?

Sounds vaguely familiar to what is happening in India? Last month, Justice Hemant Gupta was appointed the Chairperson of the New Delhi International Arbitration Centre. In 2021, Justice Arun Mishra was appointed the Chairperson of the National Human Rights Commission and Justice Gogoi was nominated as a member of the Rajya Sabha. All three appointments occurred within a few months of the respective judges’ retirement from the Supreme Court. During their tenure, all of these judges were seen to be pro-government and thus as political actors rather than legal and neutral arbiters of disputes. As a consequence, the legitimacy of the court took a serious hit, much like the post-Dobbs United States Supreme Court.

Lesson for India

There is one lesson in the fall of Roe for us. Judicial precedents are not infallible. They can be overturned over time. They can be chipped away at, attacked, and finally overruled. What happened to Roe is happening to the Four Judges cases and to Kesavananda Bharati in India.

In the 78th Federalist Paper, the U.S. Founding Father Alexander Hamilton notes that the Supreme Court supports the people’s will even if it means pushing back at the legislature. There are times when people are overwhelmingly in favour of unconstitutional acts; a case in point being the Ram Mandir issue in India. It is at moments like that when courts need to demonstrate fortitude to stand up for the rule of law and for the Constitution, even against the people and their representatives. Those are the times that test the soul of the judiciary and its judges.

Hamilton wrote, “That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. If the power of making them was committed either to the Executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws.” This is what was needed in the U.S. when the court decided Dobbs, and what will be required in India when the tensions between the judiciary and executive will be litigated.

The Supreme Court of the U.S. failed. Will the Indian Supreme Court stand up for itself? Will the bar stand up for the independence of judges? Only time will tell.

Rohin Bhatt is a queer lawyer and a queer rights activist from India. He is currently working at the Chambers of Ms. Indira Jaising, Sr. Advocate.