Career Point International Journal of Research (CPIJR)

©2022 CPIJR ǀ Volume 2 ǀ Issue 1 ǀ ISSN : 2583-1895

Does The Government Have The Right to Make Laws On Women’s

Abortion Rights?

Aagya Jain, Shailesh Sharma

School of Legal Studies and Governance ,Career Point University, Kota, India, Shailesh.
Sharma @cpur.edu.in

Abstract ―Human rights are not a Can other countries also adapt this
privilege conferred by government. They judgment later?
are every human being’s entitlement by
virtue of his humanity.‖ (Mother I Introduction
Teresa)We all have the right to live in It is productive that the government passes
every part of the world and we can make
the law that affects fundamental equality in
choices without any kind of fear and
discrimination. Yet all over the world, a good way but does it is applicable or the
people are getting bullied they are women are getting their fundamental rights
discriminated against for their body,
gender etc. and also getting arrested in an affirmed way? If someone controls
because of choosing their lives over one’s body, it is the same as controlling
anything else. Almost 40% of women of
one’s life.
childbearing age are living in countries
where abortion is banned or strictly
According to the World Health
restricted and women also can’t use
contraception even if they want to stop not Organization abortion is a fair practice and
having children. We all should break the there are around 73 million abortions are
silence and talk openly in our society;
these norms are mainly controlled by the made annually across the globe out of that
government, our communities and our 45% are unsafe if the government think
families too. There should be no third-
that making abortion illegal will stop the
party control over the decision like when
having children or when to abort or not, abortion, no, otherwise it will make them
these are our rights to decide whether we unsafe to the health of the female.
want it or not and why it is becoming a
matter for the government to control it. China and Iran also made the major
The American Supreme Court has drafted
headline which can be a vast effect on
a devasted opinion on Thomas E Dobbs
V. Jackson Women Health Organization returning the ages of controlling women’s
in which the court prohibited the abortion wombs, of the fear of people getting old
of a foetus above the age of 15 weeks
except in the case of emergency. With this the China government replace the One
many, American women have lost their Child Policy with the Two-Child Policy,
fundamental protection and yes, it is
2016 and recently the government might
important to discuss the government's
rights and control over women’s bodies.

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 Career Point International Journal of Research (CPIJR)
©2022 CPIJR ǀ Volume 2 ǀ Issue 1 ǀ ISSN : 2583-1895

be dropping all the restrictions of the hope for rape victims, and also if a person
children number. does not want to get pregnant, they have
the right to their body, and the decision of
In another phase, the Iran government
the Dobbs straightly threatens the
recently blocked all the hospitals and
fundamental rights and also for the bodily
clinics from providing contraception and
autonomy.
aborting the child because for boost the
birth rate in the country and it is because ―An individual person should have their
the population is getting aged and the rights to make decisions about their bodies
economy is on down the way. Forcing these are the absolute rights and cannot be
women to give birth is not prohibited or entertained by judges.‖
restricted in developing countries it should
II Literature Review
be understood that women have the right
to their bodily autonomy and they are not Analysis of the case and Decisions
for moving your economy forward. The major turn take place when the U.S.

In the case of gender, women have few Supreme Court drafted an opinion in

legal protections but what about the lives Dobbs v. Jackson Women’s Health

and control of their own bodies, Yes, we Organization overturning Roe v. Wade,

may say that the condition is far better than this affected the whole person who is with

years, but the current state of the law is not the stamp of being a female whether a

enough for this system. As the U.S. married woman or unmarried.[10]

Supreme Court has overruled the case of In 1970, An American woman namely
Roe v. Wade410 US 113 (1973) which Jane Roe wanted to end her pregnancy
was the landmark judgment that safely but she was prohibited because of
established that abortion is a constitutional the law of Texas that says about no
right. The court backed up the Mississippi pregnancy could be terminated unless the
Gestational Age Act which the law bans other’s life is in danger.[5] After that, she
abortion after 15 weeks in the sues Attorney Henry Wade, and she argues
controversial case of Dobbs v. Jackson that the Texas laws violate her rights under
Women’s Health Organization 597 U.S. the first, fourth, fifth, ninth and fourteen
(2022). amendments of the U.S. Constitution.[6]

Abortion has a great influence and also After that, the U.S. Supreme Court held in
affects numerous things and it has a ray of the favour of Roe and down the Texas law,

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 Career Point International Journal of Research (CPIJR)
©2022 CPIJR ǀ Volume 2 ǀ Issue 1 ǀ ISSN : 2583-1895

and there was a recognition of a right to all over the world and it is a big blow to all
privacy and was vested in Fourteenth women’s reproductive rights.
Amendment, the court held that the
Simply by looking back as they stated
women had their absolute right to abortion
about the ages of 13th and 14th century and
by consulting her doctor without the
17th century at that time the discrimination
interference of the State, the State can only
of black people and white people was there
prohibit unless there is a threat to the life
and it was never protected by the law but it
of a mother.[4] Also, in the case of
is protected then why not the abortions
Planned Parenthood of Southeastern
rights so the unreasonable logic for talking
Pennsylvania v. Casey505 U.S. 833
about the ancient ages doesn’t make any
(1992), the court held that the undue
sense to say on the rights of women. The
burden on a woman seeking an abortion
right to abortion is for the women and their
before the foetus is viable.[3]
livelihood and no one should take control
The case in Dobbs v. Jackson Women’s of that as there are choices for them to
Health Organization, in which the State of decide on their body and also for their
Mississippi asked to remove the social and economical equality.[1]
constitutional validity of the right to
―By overruling Roe and Casey, the court
abortion was settled by the case of Roe.
not only held that there is no constitutional
Mississippi said that the state can protect
right to abortion but they also determined
the health of the mother so, the laws of
the abortion will not be subject to the
pre-viability abortion should be valid.
viability.‖
The majority says that there is no right to
The impact of these bans will be mostly
abortion as this is not ―deeply rooted‖ and
hard on the people who already facing
―implicit in the concept of ordered
discrimination in the community on their
liberty‖. Also, they said that the decision
colour for their healthcare facilities also
of Roe is wrong since starting.
the transgenders and the people in the rural
In the draft opinion, there are many area who cannot afford good healthcare
criticisms of the right to privacy including and other drugs for their needs. The
same-sex marriage, interracial marriage reasons for having an abortion or not
etc. of which the judgment of Roe was the should be left in the hands of an individual
foundation. In the opinion of Dobbs, and not be regulated by the government
abortion rights are in danger for females and their policies.[2]

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©2022 CPIJR ǀ Volume 2 ǀ Issue 1 ǀ ISSN : 2583-1895

Somehow it also affects parenting the Medical Termination of Pregnancy Act,

students, who face discrimination, loss of 1976 (MTP Act) which is amended in
earnings and all educational opportunities 2021, in which the termination of
almost the State fail to support pregnant pregnancy can be up to 24 weeks, however
women and their families with proper in Mississippi Gestational Age Act the is
facilities and treatment and Mississippi prohibited after 15 weeks of pregnancy
had the worst infant mortality rate in the which somehow inappropriate according to
country and the court almost ignores all the rights of the females and their body
these facts. The majority does not autonomy.
understand the harm of taking the rights
In the recent order of the Indian Supreme
away which is fundamental for liberty and
Court on X v. The Principal Secretary,
equality.
Health and Family Welfare Department
where the court according to the case of
Suchita Srivastava v. Chandigarh
III METHODOLOGY
Administration (2009) 14 SCR 989 held
How can Indian laws be affected by the that the women’s rights for the
Dobbs?
The U.S. Supreme Court in the case of reproductive choice is her part of the
Dobbs v. Jackson Women’s Health personal liberty whole Article 21 and it
Organization concluded that the right to allows the termination of 24 weeks of
abortion is not found in the first eight termination in pregnancy and also the
amendments and also it is not a Indian High Courts are accepting the
fundamental right. fundamental right in the subject to female
autonomy that it should be read into right
As the issue begins if the Mississippi
to life and liberty.
Gestational Age Act is challenged in the
Indian Supreme Court what could be the Implications Process After overruling
outcome as somehow Indian Courts Roe, almost 11 states banned abortion and
borrow the American constitution also clinicsare stopping in providing
philosophy for the content of the Indian abortion facilities due to the legal
constitutional rights. uncertainty, almost many millions of
women could no longer get healthcare and
As the Indian courts have the right to
their rights in a particular state.
female autonomy as a fundamental right to
However, it will also force the people to
life and liberty under Article 21 and the
move to multiple states which cost their

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©2022 CPIJR ǀ Volume 2 ǀ Issue 1 ǀ ISSN : 2583-1895

money and many barriers to affordable unfortunately, they took the opportunity to
care, and also the people have to worry send the Americans to the dark ages in
about their actions as if they are which the reproductive autonomy was
criminalized or not, also there is a fear of totally void.
security and privacy which can be
Many women in the U.S. who particularly
monitored by the government and the
have low income and those who belong to
politicians.
the racist community in minorities, will be
People are worried about their privacy more affected by the damages to their own
rights, the increased surveillance growing fundamental rights.
the access to birth control is being affected
This is about how the precedent of 50
the people may be denied for accessing
years of the existence of a woman’s rights
other treatments for their life saving and
now have been cut back so
the counselling for the emergency
unceremoniously with no defensive wall at
abortions or any other would be there or
all, it is a huge blow to the woman’s
not is the big questions for the Doctors too
human rights and equality, in the
and the patient who should get the proper
International Human Rights Law there is
knowledge.
about the access to safe and legal abortion
Also, there would be trouble ahead for which is mentioned and the abortion rights
other important rights like the right to are also human rights and the U.S.
contraception and same-sex marriages. Supreme Court cannot overrule the Roe
The Roe case make a far great influence to without contradictory obligations under
establish the right to abortion which also the International Human Rights Law.
expanded the right to privacy and liberty
The future seems dreary, but one can hope
and somehow it contains the basis for the
that the draft opinion remains a draft and
rights related to contraception, marriages,
the government protects the rights of the
intimacy etc.
women for their body autonomy, right to

IV SUGGESTION life, right to abortion and gender justice.

For me, this decision is a death knell to the
reproductive rights for women, the
majority of the judges did not like Roe V CONCLUSION
they did not want Roe according to them As I conclude, with that over five decades
the decision was wrong from the start and of a precedent being overruled and the

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