A regression in time

Rights do not always go in a forward direction as sometimes, history intervenes and brutally deprives entire communities of hard-won rights, writes Arvind Narrain

We often think of the history of human rights as a forward movement with the gradual emancipation of more and more oppressed communities. It took till 1861 for the law to consider slaves in the US as humans. It took till 1928 for women to get the right to vote in the UK. We in India know that it took till 1947 for Indians to be considered entitled to the same rights as white people. In Saudi Arabia, it took till 2018 for women’s right to drive a car to be recognised. However, rights do not always go in a forward direction. It’s not always true that rights once recognised can’t be taken away. Sometimes, history intervenes and brutally deprives entire communities of hard-won rights. The capture of power by the Taliban in 2020 marked a moment of brutal rights regression both for women and the LGBT community.

2022 will witness one more such shocking regression into a state of rightlessness for women in the United States if a draft judgement in the case of Dobbs vs Jackson Women’s Health Organization which was leaked, becomes the final judgement. This draft judgement authored by US conservative judge Samuel Alito overrules one of the celebrated decisions of US constitutional law, Roe vs Wade. Roe recognised that women had the right to abortion as part of the constitutional right to privacy way back in 1973. Almost fifty years after the US Supreme Court recognised women’s right to control decisions about their own bodies, the draft judgement says that ‘Roe was egregiously wrong from the start’. The draft opinion declares that women have no right to abortion under the US constitution and states have the power to legislate controls over decisions a woman makes about her own body. The kind of control which will become constitutionally valid could include a requirement for
spousal notification before performing an abortion, the prohibition of abortion at any stage of the pregnancy, criminalising the provision of abortion services, the prohibition of the sale of abortion kits over the counter etc.

Of course, one should note that the leaked document is, however, still a draft opinion. The way the US Supreme Court works, draft opinions are circulated among judges and finally, the judges decide which way they will vote and sign on to the final opinion. However, after Trump appointed three deeply conservative judges to the Supreme Court there is a rock-solid majority of five conservative justices which will in all likelihood ensure that the draft opinion becomes the law in the United States.

If and when that happens, women in the United States will suffer one of the biggest reverses suffered by women globally, comparable to the rights lost by women in Afghanistan and Iran when Islamic regimes came to power. When it comes to the desire to control women’s bodies, there is a commonality between all religious fundamentalisms and the US is proving that it is no exception.

(The author is a lawyer & writer based in Bengaluru. He is the co-editor of Law like love: Queer perspectives on law.)