A REFLECTION OF AMERICAN JURISPRUDENCE ON THE INDIAN MILIEU OF LIBERALISED ABORTION POLICIES
Abortion laws originated in the United Kingdom as early as 1803, but the credit of revolutionizing abortion laws and recognizing the inherent, perhaps inextricable right and liberty of women over their bodies can only be given to the United States—more specifically to the American Judiciary. From as early as Roe v. Wade, the American Judiciary has been reiterating women’s rights as constitutional persons to terminate her pregnancy in the earlier stages and thereafter the State being given a role to play; hence making abortion legal for the first time in the Unites States in 1973. Even though senators and other policy-makers in several, if not all, states of the United States have tried to whittle down the basic premise of Roe v. Wade, it had been emphatically upheld in subsequent cases. After more than thirty years of taking firm root of the pro-abortion movement in the West, anti-abortion groups have again taken a radical stand by trying to control abortions through the introduction of the Unborn Child Pain Awareness Bill of 2005(commonly known as Fetal Pain Legislation) and as many as twenty-three states in the USA have passed it to be an Act, which would require that abortionists disclose to women the reality that killing an unborn baby by abortion causes pain to the child. It would also require that women who were pregnant for more than twenty weeks would be given the choice of adopting anesthesia for their fetuses. Interestingly this move by the legislatures was said to find its basis on the judgments in Gonzales v. Carhart whereby the Supreme Court had held that the federal legislation banning partial-birth abortion was constitutional on its face. The issue of fetal pain arose amidst the partial-birth abortion debate. Supporters of the federal legislation argued that partial-birth abortion was excruciatingly painful for the fetus and that banning this abortion procedure would further the State’s legitimate interest in protecting the unborn child. Opponents of the federal ban argued that there was no conclusive scientific evidence to support the hypothesis that a fetus is even capable of feeling pain. As a result of this partial-birth abortion controversy, legislations aimed at acknowledging and assuaging fetal pain during abortion came into being. In India, the debate on abortion laws as embodied in the Medical Termination of Pregnancy Act, 1971 has been swirling since the Bombay High Court’s decision in Dr. Nikhil Dattar & Ors. v. Union of India, whereby the Court going by a strict interpretation of the provisions in the Statute, refused to give a lady pregnant with a malformed fetus to abort since she was already in her twenty-fourth week of pregnancy as mandated by the Statute. Since then there have been urgent calls to amend the Statute as long-standing critiques of the policy were brought to the fore-front again. It has become critical at this juncture to look at the development of abortion law and policies in the West, particularly in the United States, to gauge where India stands at this moment and whether, if at all, India should be inspired from the western counterpoint or take caution from the developments therein to better further its own interests in striking the perfect balance between liberty, autonomy and freedom of the individual versus the State’s right to interfere.
The issue of abortion presents itself to the modern sensibility and understanding as a perplexing cocktail of moral, spiritual and legal questions. Indeed, the problem of regulating abortion is inherently an exercise in seeking out the equilibrium between an ever-increasing degree of medical empiricism that time and technology continually bring into the fluid domains of moral, religious and legal normativeness. Some of the several facets of the question, by their very nature, would fail to turn up with any one answer under the scrutiny of any court—normative questions of when life truly begins, whose life is more valuable and the relative “sanctity” of human life, potential and existing, are, as the courts themselves have recognized —complex considerations of such a personal nature that courts had better leave them off their consideration list and if absolutely required to deal with such questions, then exercise the highest possible degree of sensitivity in dealing with them. The application of lenses as varied as the feminist, the medical, the bioethical and moral, the religious and the legal (and more specifically constitutional) yield many resultant views to the issue. Any lasting resolution, legal or otherwise, then must come from a nuanced, holistic view of the multiple facets of the problem. Indeed, the founding notions of the larger abortion debate, personhood, bodily integrity and autonomy, and the relative significance of rights (individual, fetal and of the putative father) and their holders, are issues of interdisciplinary concern.
On the central issue of personhood, for instance, which has found resonance in the Courts specifically in context of the fetal status, it has been remarked that the law and indeed society ignores the personhood of the woman, who in that regard at least should have been granted full and unquestioned constitutional standing at par with other women and men. Conversely, when the question of fetal personhood is detached from a moral or spiritual context and is viewed under the medical and bioethical lens in measurable and empirical terms, it is defeated. While the debate rages on with passionate voices and legitimate concerns on either side of the divide, and the groundswell of reason and rhetoric shows no sign of ebbing, it has been recognized that the entire compass of the debate boils down to only the lesser of two difficult tragedies. In this article we shall seek to address the extensive analysis and documentation of the evolution of the abortion jurisprudence as has evolved in the United States of America and then compare as to where India with its fledgling abortion laws stands in perspective. Above all, however, even as we take reader through the rhetoric as it deepens into more and more specific concerns, such as those dealt with in the latter part of this article, the exercise brings home the sobering realization that the law, as a tool, can take us only so far in settling the fundamentals of and the issues surrounding the abortion debate.
II. ABORTION: THE PAST AND THE PRESENT
A. THE PRE-ROE LANDSCAPE
Attitudes towards abortion in the ancient world were, in the whole, accepting of abortion, with few qualms about its practice. Ancient religion placed no bar on abortion and fetal rights were largely unrecognized. Interestingly, however, one of the basic requirements of the Hippocratic Oaths is a categorical one to refrain from the practice of abortion in any form. Early common law, influenced as it was by the philosophic and theological debates of its own of when the fetus was to be considered “alive”, recognized abortion as a crime only after “quickening”, that is the point in time at which the fetus becomes capable of discernable and independent movement in utero. This was usually considered to occur between the time frame of 16 and 18 weeks into pregnancy, although no entirely empirical basis for this was offered. When England adopted its first legislation in 1803—Lord Ellenborough’s Act—as it was known, it retained the notion of “quickening”; using it to mark the distinction between a simple felony, before the incidence of quickening and a capital offence once the fetus is quick.
Compare this with the scenario eighteen years after the passage of Ellenborough’s Act. Across the Atlantic in 1821, the US state of Connecticut became the first to adopt an abortion legislation which read much like Ellenborough’s Act. Meanwhile, the state of New York in 1828 passed laws recognizing abortion as an offence (which were to become the prototypical model for early legislation across the United States), albeit of different degrees, both before and after quickening. Further, it recognized and included “therapeutic abortion” as valid and excusable, thereby guaranteeing some safety measures to expectant mothers in cases where their physicians had reason to believe the mother’s own life was at risk. Within the span of a hundred years, however, by the middle of the 20th century, the majority of US States had enacted a complete ban on abortion, save for cases in which the mother’s life was at risk. The notion of quickening, a pervasive concept forming the fundamental basis for abortion laws in the not very distant past, came to vanish entirely from the rulebook.
In the 1960’s and 70s, many US States were beginning to adopt some version or variation of the American Law Institute’s Model Penal Code, (hereinafter referred to the A.L.I. Model) in which the abortion laws were decisively less stringent than before. In a very broad sense and in only very small measure, women’s right to abortion began to reclaim some of its early efficacy. The laws, however, despite their new form, allowed far less opportunity to procure a medical termination of pregnancy than in the past. It was only in 1967 that Colorado became the first state to legalize abortion.  This movement towards the A.L.I. Model and more liberalized laws in general was, it must be noted, however, a growing but not universal trend of the time. The State of Texas, which enacted its first abortion legislation in 1840, was among the majority which made no movement toward liberalizing their abortion laws. Laws banning abortion, except in the case of tangible risks to the mother, remained in place in the majority of US States. Thus before even the rise of an opportunity for a stand-off between the legislature and the judiciary as we shall see in the forthcoming part, there were slow and decisive vacillations in abortion laws which sometimes favored the pro-choice and sometimes favored the pro-life with varying degrees over time.
B. ROE v. WADE: THE CONTEXT, CRITICISMS, CONCLUSIONS AND CONSEQUENT DECISIONS
Against the backcloth elucidated above, it might be pertinent to look into the landmark judgment and decision of Roe v. Wade.(Hereinafter referred to as Roe) Herein an unmarried, pregnant woman, under the pseudonym of Jane Roe, instituted a federal action “on behalf of herself and all other women” in the March of the year 1970 against the District Attorney of Dallas County, Texas, where she resided, challenging the very constitutionality of the Texas Criminal Abortion Laws. She stated her intent to procure a ‘legal’ abortion “performed by a competent, licensed physician, under safe, clinical conditions” and that she would not be able to travel to a jurisdiction which would allow her to obtain an abortion of the aforementioned nature. The case came in federal appeal to the Supreme Court of the United States in December 1971, and on the 22nd of January 1973, the Court’s historic seven-two judgement was enunciated by Justice Blackmun. This decision has since then taken the shape of a veritable cornerstone in any commentary of the protracted history of abortion debates in the United States.
Justice Blackmun gave on behalf of the majority the Court’s opinion. The Court recognized, following the decision in Griswold v. Connecticut, that a general right to privacy exists, although nowhere explicitly stated, in the US Constitution, and that it is protected by the Fourteenth Amendment’s Due Process Clause. It read the said right as a “fundamental” one, being “broad enough” to cover a woman’s right to choose whether or not to abort, and only subject to government regulation in the face of some “compelling” interest of the state ( both the life of the mother and the “potential life” of the fetus were recognized as “legitimate” interests). The Court held that State interference in pregnancy is justifiable in the second trimester only to protect maternal health, since at this point; the risks of abortion are greater than those associated with childbirth itself. However, it is only once fetal viability is reached that the State is granted a “compelling” interest. At this stage, the complete prohibition of abortion, other than in cases of risk to the expectant mother’s health or life, is permissible. The dissenting opinion, given by Justice Rehnquist, however lays down certain criticisms of the judgement. Firstly, that the Court went too far in formulating and applying constitutional rules in terms which were significantly broader than the precise facts of the case warranted. Secondly, the application of the right to privacy in this case was seen as difficult to justify and thirdly, he conceded the applicability of the Fourteenth Amendment’s Due Process clause to legislations such as the one at hand but goes on to find troubling the Court’s “sweeping invalidation” of restrictions in the first trimester. Further, he stated that the Court had perhaps taken its task too far, leaving the boundaries of judicial judgement and entering onto legislative turf.
The resolution of this and other cases by no means signalled the end of the pro-choice journey. As recognized by the courts, safe abortions remain a function of such considerations as race and income. The United States has seen violent attacks against abortion clinics and stigma remains a very real challenge. In spite of it being touted as a landmark judgement, Roe continues to attract criticism from all quarters. Drawing their main premises from the Rehnquist dissent, many, be it proponents or opponents of abortion alike, have questioned the sound basis of the judgement and the consequences of its overly broad and vague contentions. The construction of the doctor-patient relationship and the rights and roles of the two parties (the woman seeking abortion and the medical practitioner) as depicted by the Court was also criticized. There have also been several attempts to overturn the Roe decision. In fact in about a decade leading up to 1992, the United States approached the Court as amicus curiae in five separate cases, to overrule Roe, but the judgment was resoundingly upheld in what would be touted as another landmark: the Planned Parenthood of Southeastern Pennsylvania v. Casey.(hereinafter referred to as Casey) The court’s decision was given, in this case, by a triad of judges. This case is one among a very small group to hold that distinction. Justices O’Connor, Kennedy and Souter, in their joint opinion, had the following to say: “After considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed.” Casey, as is evident from the above, upheld the fundamental grounds of the majority decision in Roe. It has even been said that the (joint) opinion has definitively and decidedly put all doubts about the “basic constitutional question of abortion”.After Casey, the constitutional basis of the woman’s (qualified) right to abort was no longer negotiable, and no likelihood remained of the Court reconsidering or overturning Roe while, for example, in another, earlier case, the consideration of Roe’s constitutional merits were only left off for another day.It must be noted, however, that the judges in Casey made clear that they were by no means offering an unqualified affirmation of Roe. The Court denounced the prescriptive medical trimester system laid down in Roe and, in its place, enunciated the test of “undue burden”. Under this test, the State may justifiably place regulations on the procurement of abortion pre-viability as well, in furtherance of its interest in the life (or potential life) of the foetus, provided that the regulations imposed lay down no undue burden on the woman’s right to procure the abortion, if she so chooses. This right exists even in spite of the fact that the State’s interests were deemed in Roe to become compelling only in the third, last trimester of pregnancy, when the court could prohibit abortion, other than when the woman’s life was in danger. The Courts holdings in Casey came in the context of Pennsylvania’s state laws which required parental or spousal notification if a woman desired to procure an abortion. The provisions regarding the former were upheld on the grounds that that they did not impose an undue burden on the pregnant woman and her rights, while the latter was declared unconstitutional by the Court.
The broad constitutional questions surrounding the abortion having been addressed in Roe and settled in Casey, more specific issues began to appear before the Courts. In Stenberg v. Carhart (hereinafter referred to as Carhart I), at issue was a Nebraska state statute criminalizing the performance of partial-birth abortions, a particular form of abortion in which the living fetus is delivered partially into the vagina, aborted and then delivery is completed. The statute afforded no exception for cases in which the woman’s life is at risk. Dr. Leroy Carhart, a medical doctor in the state of Nebraska who performed abortions, brought this suit contending that the provisions of the statute violate the US Federal Constitution. The case came in appeal before the Supreme Court. The Court, in its opinion delivered by Justice Breyer on the 28th of June, 2000, found that the statutes were unconstitutional firstly, because the requisite exception in respect of grave risks to maternal life was entirely absent and secondly, because, in its complete restriction of access to a particular method of abortion, the statute was seen to place an undue burden on the woman’s right to choose abortion itself. The breadth of the judgement spans a consideration of the various abortion methods available, partial birth abortion being only one among them, and the validity of the ban on partial birth abortion under the statute, referring, as the District Court before it had, to medical definition and policy of the American Medical Association. The judgement also contained a further restatement of the Court’s as affirmation of the principles in Roe and Casey. The decision in Carhart I derives much of its value from the fact that the substance of the decision invalidated, for all intents and purposes, similar bans which were at the time in force in the majority of US States.
But, subsequently, on the 5th of November, 2003 the United States Congress passed the Partial Birth Abortion Ban Act(hereinafter referred to as the Partial Birth Act) criminalizing the performance of partial birth abortions. In spite of the decision in Carhart I, this piece of legislation contained, as did the Nebraska statute which was the subject of the dispute, no exception for the health of the woman. It has also been noted that the language of the Partial Birth Act was very similar to the Nebraska statute. The validity of the Partial Birth Act came up for question in yet another case brought to the courts by Dr. Carhart (and others) challenging its constitutional validity and seeking a permanent injunction against its enforcement, this decision we now call Carhart II. In this instance, Carhart II on appeal from the Eighth Circuit Court and another case, also involving US Attorney General Gonzales and the question of the validity of the Partial Birth Act (such cases were referred to as “facial” attacks or challenges to the statute), with specific reference to the requirement of an exception for cases involving maternal health, Gonzales v. Planned Parenthood Federation Of America, Inc., on appeal from the Ninth Circuit, were consolidated and heard by the Court. The case was closely fought, and the opinion deeply divided. With a majority of five as against four, the judgement went in favour of Attorney General Gonzales—the Act was upheld.
As in Carhart I, Justice Kennedy in his statement of the Court’s opinion for the majority began with an exposition on the various methods of abortion. The plurality opinion in Casey in relation to State interest was resurrected, but Justice Kennedy made a clear distinction: the Act merely regulated one method of abortion. It placed restrictions on the procurement of abortion itself and, therefore: “The law saves not a single fetus from destruction, for it targets only a method of performing abortion.”The specific statement of the validity of the Act was justified by Justice Kennedy. He held that the Act was “not void for vagueness, does not impose an undue burden from any over breadth, and is not invalid on its face.” Justice Thomas and Justice Scalia concurred, and the former in his concurrence states, crucially, that: “I write separately to reiterate my view that the Court’s abortion jurisprudence, including Casey and Roe v. Wade, has no basis in the Constitution.” Justice Ginsburg, with whom Justice Stevens, Justice Souter, and Justice Breyer joined, in an emphatic dissent was in her words “alarmed” by the Courts decision. She further recognised the weight of the precedent which, in upholding the Act, the Court was ignoring and could not find any fathomable justification for the same. Thirdly, she pointed out the Court’s complete and unjustifiable terms, which showed no regard for or recognition ,express or implied, of the hitherto firmly entrenched notion of viability and the distinction and consequences of pre- and post-viability abortion decisions. Lastly, she expressed complete disagreement with what amounted to an absolute sanction of federal intervention and legislation contrary to a specialist body’s, the American College of Obstetricians and Gynaecologists (ACOG), professional view that such a procedure was in specific cases required and necessary.
Notwithstanding Justice Ginsburg’s specific premises of dissent, several others exist. One strong objection to Carhart II is this: Thirty four years after Justice Blackmun’s decision in Roe, Justice Kennedy’s enunciation of the majority opinion in Carhart II marked a return of the Court to its initial stance on the relationship of the woman, vis-à-vis medical practitioners. The construction of the woman slid from casting her as the primary stakeholder and decision maker as regards termination of pregnancy, as explicitly established in Casey among several other decisions of the Court, to one in which the she acted as her doctor chose. It seems that Carhart II is, by its statements with respect to the woman’s status and their implications at least, a return to Myra Bradwell-esque rhetoric and reasoning, where the woman’s status and function in society and societal interaction is reduced to a narrow definition, accounting for only her ability to procreate and her role in maternity and child rearing. Another (related) criticism also stems from Justice Kennedy’s statement as regards the consequences for the prospective mother upon the actual performance of a medical abortion: “Severe depression and loss of esteem can follow.” No empirical foundation is offered for such an inference; indeed, doubts surrounding the very question of existence of a scientific basis are admitted: the absence of “reliable data to measure the phenomenon” is explicitly conceded.
Roe, since its passage three and a half decades ago, has been a touchstone in the evolution of the body of laws that governed medical termination of pregnancy. Its full scope was whittled down early in its existence, most visibly and explicitly in Casey. But, despite that, its basic premises, its spirit unambiguously prevailed in all of the US Supreme Court’s deliberations and pronouncements on the subject. It is a foreseeable consequence, however, that, after Carhart II, movements, especially pro-life advocacy, and their founding impetus will grow in favor of overthrowing Roe or circumventing it, most likely through legislation, as is already beginning to emerge in several US states. The question of whether the vast body of abortion jurisprudence in the United States Courts system will finally at all, let alone conclusively, amount to “progress” in the field of gender rights and, more particularly, for the cause of female reproductive autonomy has, now, especially after Carhart II and Casey taken on a significantly diametric range of possible answers as compared to those that were presumed likely prior to the resolution of these cases. The precise answer is, at this juncture at least, only a product of time.
II. FOETAL PAIN LEGISLATION—CONTRACTION OF AUTONOMY FOR PREGNANT WOMEN
“The essence of civilization is this: The strong have a duty to protect the weak. We know that in a culture that does not protect the most dependent, the handicapped, the elderly, the unloved, or simply inconvenient become increasingly vulnerable.” –George W. Bush
A. A SHORT ANALYSIS OF THE PROVISIONS OF THE UNBORN CHILD PAIN AWARENESS ACT OF 2005 AND THE NEED FOR SUCH A LEGISLATION
Though the then Governor Bush who would later become the President of the United States of America was not talking of abortion at all, he was perhaps echoing the sentiments of another President of a by-gone era: Ronald Reagan. The latter in an address had famously said that: “Medical science doctors confirm that when the lives of the unborn are snuffed out, they often feel pain, pain that is long and agonizing.” With such lofty intentions in mind, to protect the vulnerable perhaps, the Fetal Pain Legislation was introduced in the Senate.
The Unborn Child Pain Awareness Act of 2005(hereinafter referred to as the Act) was introduced by Senator Sam Brownback of Kansas in the US Senate on 24th January 2005; being Senate Bill no. 51. This Act aims to punish physicians heavily should they fail to advise women of the potential for fetal pain after 20 weeks’ gestation.This is done by amending by adding a new chapter titled “Title XXIX—Unborn Child Pain Awareness” to the Public Health Service Act, first enacted in 1946. There has been a considerable furor over this particular provision in the Act as the medical fraternity is continuously making itself heard that at this stage of gestation, the fetus does not develop the necessary biological mechanism to feel pain as such. Case in point would be a wing of physicians, specialized in embryology and neuro-anatomy, who assert that pain fibers do not start penetrating the cortex before the fetus is 26 weeks old and the sensation of pain would not begin before the 29th week. Nevertheless the Congress ignoring well proven ideas on the same issue, state in the Findings which are a part of the Act that at 20 weeks after fertilization, fetuses have the capability to feel pain and to make the ambit even wider—since the concept of what the fetuses might be ‘feeling’ might not be ‘pain’ at all—the Congress in its Findings mentioned that such fetuses might show such stimuli as may be interpreted to show feelings of pain if observed in infants or adults.
The requirement of informed consent as laid down is Sec. 2902 of the Act provides for some very stringent and conformist ideas about intimating the pregnant woman regarding the consequences of her action. The provision states the abortion provider or an agent must provide to the pregnant lady with the information that after however many weeks her fetus is into gestation (provided it is more than 20 weeks), such fetus has the necessary physical structures present to feel pain and that such fetus shall feel pain irrespective of whether the pregnant lady has been given pain-averting drugs or general anesthesia. The pregnant lady is to be then given a brochure to be designed by the Department of Health and Human Services and also made to necessarily sign a decision form whereby her decision as to whether or not pain alleviating drugs shall be administered to the fetus directly are recorded for official purposes. This step-by-step method is not only to be compulsorily followed but the provision also mentions what the abortion provider or the agent must say in such situations in as many words. The only exception provided to this is in case of Medical Emergencies and such situations which would fall under this exception have also been defined in the Act. As such Medical Emergencies are to mean such situations in the reasonable medical opinion of an abortion provider of imposing a “serious risk of causing grave and irreversible physical health damage entailing substantial impairment of a major bodily function” if abortion is delayed. Penalties for not substantially following the mandates of these provisions have also been laid down in the Act itself and range from monetary fines to cancelling of licenses. The Act also grants a private right of action to the woman on whom an abortion is performed in violation of the provisions of this Act or her legal guardians in case of an minor or unemancipated woman, to commence a civil action against such abortion provider who has acted recklessly or knowingly for actual and punitive damages.
If we were to adopt a simple assumption that given a choice between a procedure which would result in inflicting pain upon a fetus and another maybe more expensive procedure which might alleviate the pain a fetus may feel, most women would prefer the latter procedure. If that were to be true, then physicians would regularly administer pain relieving medicines to fetuses as a part of late term abortion procedures. However there is at present no such indication that it happens. Doctors however have been found to routinely providing fetal pain relief drugs quite routinely while performing in-utero surgeries.And here lies precisely the need for a fetal legislation.
To explain more elaborately, we can pinpoint the reasons for physicians not administering fetal relief medicines due to broadly three reasons. The first and very pertinent reason would be that physicians do not look at fetuses as their patients and hence do not bother themselves with the problem of alleviating their pain. Secondly, physicians and patients would not be willing to venture into pain relieving methods which would involve higher costs as well as some health risks associated with longer periods of sedation. Also because discussing fetal pain before an abortion might be uncomfortable, even for a physician accustomed to having conversations about sensitive matters with patients, as such abortion has as its purpose the destruction of the fetus, and physicians naturally prefer to discuss matters that patients find reassuring, the default arrangement seems to be that physicians provide no information on fetal pain or fetal pain relief.
Thirdly and perhaps a disconnected reason from the other two at that, is the fact that most women did not have enough awareness to realize that there is a possibility, albeit a minor one, that the fetus she is aborting might feel pain during the procedure, much less asking for means to alleviate that pain. However if perhaps women could be provided with the required information that their fetuses may and in all probability do suffer fetal pain while undergoing abortion, then they would in most circumstances be persuaded to administer drugs to the fetus. This is assuming that such women would not be indifferent as to whether their fetuses feel pain or not. This would in fact be in line with the testimony of most women who opted for late-term abortions saying that they had to opt for a tragic end to much wanted pregnancies due to other considerations. Even with such factors for women to want administration of pain relieving drugs to the fetus, it has been suggested that they might not be in a position to actively seek out information about the issue of fetal pain, keeping in mind that they have innumerable such considerations clamoring for attention in their minds. Thus legislation requiring the abortion providers to necessarily supply pregnant women of such information and seek their informed consent to administer pain alleviating drugs might right the current skew in the society.
B. HOW THE LEGISLATION COULD PASS CONSTITUTIONAL