INTRODUCTION
According to United Nations, reproductive choice means that the right to reproductive choice refers to a woman’s capacity to decide whether or not to have children, whether or not to bear or terminate an unwanted pregnancy, and the sort of family planning and contraceptive technique she desires. This broad category of rights includes within them the reproductive rights of women, which involves rights to make sexual and reproductive decisions, as recognized by the International Conference on Population and Development sponsored by the United Nations (1994). The Supreme Court has consistently confirmed the core tenet of the abortion right, which was originally acknowledged four decades earlier.
The right to privacy and physical integrity was first acknowledged by the US Supreme Court in 1891, and it was expanded to include acts related to marriage, reproduction, kinship connections, and even childrearing. The Supreme Court ruled in Griswold v. Connecticut[1] that a married couple’s decision to use birth control falls under the constitutionally protected right to privacy. Unmarried people were quickly included in this access to contraception, in Eisenstadt v. Baird[2] (1972). The SC said that “If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwanted governmental intrusion into matters so fundamentally affecting a person’s decision whether to bear or beget a child. In the case of Roe v. Wade[3], the right of a woman to end a pregnancy was addressed by the SC using the fundamental principles of privacy and liberty. The court made it plain that the woman’s right to privacy is essential, as it is protected any efforts to restrict a right are subject to “strict scrutiny” under the due process provision of the Fourteenth Amendment. Yet the court also observed that “right is not unqualified and must be considered against important states in regulation.” According to the court, before embryonic viability, a state could only control abortion if it was required to preserve a woman’s health, such as licensing doctors. Many attempts to restrict a woman’s freedom to choose whether or not to have an abortion were rejected by the Supreme Court years after Roe, giving her greater control over her reproductive system, her well-being, and even her way of life.
EVOLUTION POST-ROE V. WADE
In the case of Stenberg v. Carhart[4], the statute’s definition was so wide and embraced even the most popular methods for abortion as early as the 12th week of pregnancy, it posed an unreasonable burden and the United States Supreme Court rejected the Nebraska criminal law that forbade this medically-approved abortion procedure. Furthermore, no exemption to this law would permit these abortion techniques to be used when necessary to safeguard women, as stated in Roe and Casey. Court has adopted the same concept in the instances to come.
Women now have the option to end pregnancies up to viability according to the Supreme Court’s Roe v. Wade ruling. Reproductive Health Services[5] a Missouri legislation that forbids state employees from performing or assisting in abortions as well as advising women about abortions was upheld by the Supreme Court. In Planned Parenthood v. Casey[6], it appeared as though the Supreme Court might reverse Roe. However, the Court affirmed Roe’s central conclusion that the constitutional right to privacy is sufficiently wide to cover a woman’s choice to end her pregnancy.
At present, while limits and accessibility do differ from state to state, abortion is lawful across the United States and its territories. Anti-abortion legislation has been in effect in every state since 1900. Abortion has always been a contentious topic that has caused division in American politics, culture, and society.
IN INDIA locating reproductive rights under the ambiance of fundamental rights is interrelated with, and dependent on, the fulfillment and protection of various human rights. Regarding women’s reproductive rights, several Supreme Court decisions have been quite progressive. In the case of Navtej Johar[7], adultery and homosexuality were criminalized. A crucial component of the right to personal liberty, the court in this judgment found that women had a right to sexual autonomy.
The Indian privacy judgment[8] gives the legislature much-needed urgency to settle prospective constitutional challenges to reproductive regulations. In the case of Justice K S Puttaswamy v. Union of India, a nine-judge Supreme Court of India panel unanimously declared privacy to be a fundamental right. The court affirmed that each person has the inalienable right to privacy, which is based on principles like dignity that form the basis of all of our fundamental liberties. Even though judges’ definitions of privacy varied, the bench unanimously agreed that informational privacy, as well as bodily, mental, and decisional autonomy, fell under the umbrella of privacy. In Suchita Srivastava v. Chandigarh Administration[9], a three-judge bench reaffirmed the same principle, ruling that a woman’s reproductive rights include the freedom to carry a pregnancy to term, give birth, and raise children and that these rights are an integral part of her right to privacy, dignity, and physical integrity. Questions about girls’ reproductive rights were contested in the case Independent Thought v. Union of India[10]. The court ruled that a girl’s human rights, whether or not she is married, are still very much alive and well and should be acknowledged and accepted. All these judgments have been a key step towards achieving privacy about reproductive rights. Privacy about reproductive rights is a must since the decision of to whether have a child or not affects the life of the woman in multiple and exorbitant ways. Here, when the female literacy rate is only 65.47%[11] where the life of a lot of girls is about family, not having reproductive rights would lead the situation worse.
In a country like India where the majority of women have no real control over their lives, laws like this come as a shield to let them have legal support for the decisions they take for themselves in life.
Author(s) Name: Aparna Tiwari (Dr. Ram Manohar Lohiya National Law University, Lucknow)
Reference(s):
[1] Griswold v Connecticut, 381 US 479 (1965).
[2] Eisenstadt v Baird, 405 US 438 (1972).
[3] Roe v Wade, 410 US 113 (1973).
[4] Stenberg v Carhart, 530 US 914 (2000).
[5] Webster v. Reproductive Health Services, 492 US 490 (1989).
[6] Planned Parenthood v Casey, 505 US 833 (1992).
[7] Navtej Johar v Union of India, AIR 2018 SC 4321.
[8] Justice K S Puttaswamy v Union of India, (2017) 10 S.
[9] Suchita Srivastava v. Chandigarh Administration, (2009) 14 SCR 989.
[10] Thought v. Union of India, (2017) 10 SCC 800.
[11] ‘Literacy’ (Know India) <https://knowindia.india.gov.in/profile/literacy.php#:~:text=The%20literacy%20rate%20in%20the,males%20and%2065.46%20for%20females> accessed 15 June 2022.
