Mera Jism, Meri Marzi: Reproductive Justice and South Asian Women's Right to Choose
Words by Shivani Parikh
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Meri Jism, Meri Marzi: Reproductive Justice and South Asian Women's Right to Choose by Shivani Parikh
With Supreme Court Justice Samuel Alito’s opinion on the Dobbs v. Jackson Women's Health Organization case leaked for the world to read preemptively, it is clear that in the coming weeks or months, Roe v. Wade and Planned Parenthood v. Casey will be overturned and individual states will have the discretion to dictate pregnant people’s access to abortions. This is a South Asian issue too, and it is critical that we politically mobilize to preserve the human right to choose what is best for ourselves and our families.
Roe v. Wade was a 7-2 decision in 1970 in which ruled that the Constitution of the United States protects a pregnant woman's liberty to have an abortion without excessive government restriction. Planned Parenthood v. Casey’s 1992 decision abandoned Roe's trimester framework in favor of a new standard based on fetal viability. It also overruled the strict scrutiny standard for reviewing abortion restrictions. The strict scrutiny standard holds that a law or policy is only constitutionally valid if the government can demonstrate that the law or regulation is necessary to achieve a "compelling state interest.” Examples of compelling state interests may include any regulation deemed vital to the protection of public health and safety, including the regulation of violent crime, the requirements of national security and military necessity, and respect for fundamental rights.
Crucially, the right to an abortion is no longer seen by Justice Alito and the majority of the court as a fundamental right, because it was not originally included in the constitution - therefore, it is now a liberty interest. Under the rational basis review standard (which only requires that a law have a “rational” connection to a permissible state end), a robust explanation is not actually required as a justification for a liberty interest’s curtailment. Claiming that a compelling state interest includes one to advance a moral imperative for prospective (and even nonviable) fetal life over the health of a mother (including cases of rape and incest) is an argument that can thus accepted by courts moving forward.
To begin to understand how a lack of abortion access can have dire consequences, one need only look at the 2012 preventable death of Savita Halappanavar, a 31 year-old dentist who died at 17 weeks pregnant after being denied an abortion in Ireland (where it was then illegal). On October 21st, 2012, upon her examination at the hospital, doctors found that her pregnancy was going to fail. On October 22nd, her water broke, but the fetus was not expelled. On October 28th she died. The cause of her death is documented as multi-organ failure following sepsis and an E. coli infection. In the wake of a nationwide outcry over her death, voters passed in a landslide the Thirty-Sixth Amendment of Ireland’s Constitution, which repealed its Eighth Amendment. It did so through the Health (Regulation of Termination of Pregnancy) Act 2018, signed into law on December 20, 2018.