What does it take to be a mother? The physical and emotional energy that a woman has to spend for nine long months carrying a baby can neither be measured nor quantified. This does not mean that women have to be patronised or patted on the back for what they do. The State must only provide all resources to ensure that the health of both the mother and the baby are at their best throughout. All this looks fairly simple. But, it is not.

Way back in the second year of my college, I had written a paper for the Law & Poverty course (click here). It looked at the Right to Abort and the various strands of arguments to support and oppose it. While the US discourse talks about liberty, privacy, and undue burden, the Indian law has a fairly simple motivation. As Parliament passed the Medical Termination of Pregnancy Act in the year 1971, it was said that this law will help reduce the population boom simply because of all the abortions that will now take place. Neither bodily autonomy nor personal liberty was to be seen in this discussion. Despite this, there is no absolute right to abort in India. For the right to be exercised, a woman has to prove either grave injury to her physical or mental health or that the child may be born with serious physical or mental abnormalities. Failure of contraceptives or that the pregnancy was a result of rape are additional grounds mentioned in the law.

Surely, there is much to be desired in the Indian law. Recognising the right to bodily autonomy within the ambit of personal liberty will be a step toward upholding Constitutional Morality. On the other hand, the US seems to have stepped back from it.

Dobbs v. Jackson is a dreadful read. It is all too glaring that the majority had decided what conclusion they must reach and used plenty of illogical means to get there. The prime basis for not recognising the Abortion right is the absence of such a right in the “deeply rooted history and tradition of the country” for it to be included in the “ordered liberty”. And the question is: why does it have to be deeply rooted? Surely, you can defend racism, sexism, and heteronormativity by simply stating that they are too deeply rooted to frame any right against them! This is a real threat since Brown v Board of Education (which outlawed segregation) and Obergefell v Hodges (which recognised same-sex marriage) can also be held to be per incuriam simply because they identified rights which were never deeply rooted in the American history.

Then there is a question of “ordered liberty”. The Fourteenth Amendment speaks about liberty, but does not mandate it to be ‘ordered’. This innovation that liberty has to be ordered is a sly standard to curtail substantial liberty. Roe v Wade spoke extensively on the potential life, i.e., the unborn child. For them, the balance of interests was tilted in favour of the woman in whose body this potential life grew. But in Dobbs, the majority shrugs away from looking at this balance. They throw the ball back to the State Legislatures which will decide whether or not a woman has control over her own body for another life to grow. In doing so, they proudly claim that the question has to be answered by the people which increases the democratic process. No one seemed uncomfortable in throwing a question of individual liberty to the mercy of the majority!

Dobbs has unabashedly attacked Roe on five direct counts: nature of court’s error, quality of reasoning, workability, effect on other laws, and reliance interests. It says that Roe created a winning side and a losing side. And this losing side (the pro-life) lost their democratic right to approach their representatives to express their interest in a specific law on abortion. It is dubious how the Court curtails the interpretation of liberty and curbs the bodily autonomy of women simply because the electors cannot approach their representatives with their views. And with this, they created another losing side – the women who have unwanted pregnancies, but are forced to carry on with them simply because it is no more their choice to do otherwise.

Dobbs put the rights regime back to what it was in the year 1973. With the young judges appointed by Trump playing by the script, the Supreme Court may take another 49 years to set the course right. The same court which has influenced the courts across the world has taken a step into darkness. And if Dobbs too has the same influence over the courts of the world, many countries may follow where the US seems to go. This is the biggest legacy that Trump leaves for the decades to come. Of all the walls that Trump wanted to build, this is the strongest one yet. Generations will suffer trying to jump over it, and the gloom will last until it is taken down.