Roe v.
Wade
Roe v. Wade was a landmark case in 1973 in which the Supreme Court
declared that state laws prohibiting abortion were unconstitutional, giving
women the right to choose whether or not to have an abortion.
The case was brought by a woman named Norma McCorvey, who used the
pseudonym "Jane Roe" to protect her identity. She argued that the Texas
law prohibiting abortion violated her right to privacy.
The defendant was Henry Wade, the district attorney of Dallas County,
Texas, who defended the state law.
The Supreme Court used the rule of substantive due process to justify their
decision. This rule holds that certain rights are so fundamental that they
are protected by the Constitution, even if they are not explicitly mentioned,
and without due process of law, the people shall not be deprived of the
Right to Life, Liberty and Property.
The Court found that a woman's right to choose whether or not to have an
abortion fell under this category of protected rights, the Right to Privacy as
was protected in 1891 by the Supreme Court as well as the Right to Liberty.
The Court also held that this right was not absolute and could be limited
by the state's interest in protecting the health of the mother and the
potential life of the fetus.
However, the Court found that the Texas law was too restrictive and
violated the woman's right to privacy.
Rule of Interpretation: Golden Rule, no explicit mention of the Right to
Privacy or the fact that it may involve abortion, but scope was extended,
hereby applying Golden Rule.
Dobbs v. Jackson
The case involved Mississippi’s Gestational Age Act, passed in 2018, which
prohibited abortions after 15 weeks except for medical emergencies or
severe fetal abnormalities. The act also applied penalties such as license
suspension to abortion providers.
Jackson Women’s Health Organisation filed a suit in a federal district
court and challenged the constitutionality of the Act.
Thomas Dobbs (the petitioner) was a Mississippi State Health officer.
Dobbs filed a petition for certiorari (writ by which higher court reviews
case tried by lower court), which was granted. The Supreme Court
granted writ to address whether all pre-viability prohibitions on elective
abortions are unconstitutional.
Dobbs argued that the Constitution does not provide for a Right to
Abortion, and that the Tenth Amendment does not restrict powers to
restrict abortion. He also stated that “liberty” as per the 14 th Amendment
only talks about the fundamental rights that are “deeply rooted” in
American history and traditions.
Jackson’s Women’s Health Organisation argued that abortion is grounded
in the 14th amendment, it asserted physical autonomy and body integrity as
elements of liberty protected by the Due Process Clause.” The Right to
have possession of own body is an essential element of the Due Process
Clause.
The Court adjudged in favour of Dobbs. It claimed that the Constitution
makes no express references to abortion. It stated that the regulation of
abortion is not a sex-based classification and should not be subject to
scrutiny, and that abortion is not deeply rooted in US history and
traditions. It stated that justifying abortion as autonomy of body would be
same as justifying use of narcotics or prostitution, and that the Due
Process Clause only protects only the rights of the first 8 amendments and
rights that may be considered fundamental. It also stated that at the time
of the 14th amendment, Abortion was a crime in many states.
Rule of Interpretation:
1) Navtej Singh Johar v. Union of India
Navtej Singh Johar was a dancer and identified himself with the LGBT
community, he raised a writ petition in the court seeking inclusion of the
right to sexual autonomy and the right to choose sexual partner within the
ambit of right to life under Article 21, he south the declaration of Section
377 of IPC unconstitutional as there was no intelligible differentia between
natural and unnatural sexual acts. He also stated that the Right to Privacy
as per Article 21 was violated by putting LGBT in fear of humiliation due to
their lifestyle.
The court overruled the Suresh Kaushal Case as it adopted improper
rationale that LGBT was in minority, as even the minority has to be
protected.
The Court also held that there is no proper classification between natural
and unnatural sexual acts and the intimacy between consenting adults is
beyond the jurisdiction of the state, discriminating against them for no
reasonable ground as per Section 377 is violative of Articles 14 and 15.
The court said that not granting privacy to LGTV is violative of the
fundamental right to live with dignity and intercourse between two adults
of the same sex is not against public morality. Having been shunned for
long, the LGTV does have a fear of being shunned from society.
The five-judge bench held part of Section 377 as unconstitutional.
Prior Cases:
1. Naz Foundation v. Govt. of NCT, Delhi
An NGO committed to HIV-AIDS Prevention filed a lawsuit asking for
legalisation of homosexuality as such criminalisation was against its
initiatives. However, this was dismissed and later appealed to the
Supreme Court that said that public disgust is not sufficient to
criminalise homosexuality and “sex” under Article 15 includes “sexual
orientation.” It was also violative to “Right to Health” under Article 21
as due to Section 377, LGBT often hides its identity and this causes
problems in healthcare. Section 377 was declared unconstitutional.
2. Suresh Kumar Kaushal v. Naz Foundation
The decision of the court in the previous case was challenged and it was
contended that the documentary evidence given by Naz Foundation
was non-reliable and that the court cannot do the work of the
legislature. He also claimed that Section 377 was gender neutral and
hence this was not violative of Article 14. The court adjudged that LGBT
was minority and laws did not need to be changed for their interests
and 377 was pre-constitutional, if there were any issues it would have
been struck down long ago. 377 was held valid.
Hijab ban case
A 2-Judge Bench of the Supreme Court delivered a split verdict in the Karnataka
Hijab Ban appeal today. Justice Hemant Gupta, in chorus with the Karnataka High
Court’s decision, upheld the Hijab Ban. On the other hand, Justice Dhulia quashed
the High Court’s decision.
Justice Gupta was of the opinion that the Karnataka government was well within its
rights to ban the Hijab in educational institutions. He stated that the State
government’s policy upheld fraternity among different communities. Allowing
students to wear the Hijab in a secular institution would create feelings of inequality
among different students.
Justice Dhulia, during the Judgment pronouncement, stated that the education of
the girl child was foremost on his mind. ‘It is a matter of choice. Nothing more,
nothing less’, he said. In his Judgment, he pointed out that the focus of the hearings
should have been on the Rights to Equality and Freedom of Speech.
The Hijab Ban case involves a wide range of rights concerning Muslim girl students.
These include the Right to Equality, the Right to Practice Religion, the Right to
Access Education, the Right to Speech, the Right to Privacy, and the Right to Dress
with Dignity.
Today, neither Judge commented on the Essentiality of the Hijab to Islam.
Interestingly, even among the parties, the general consensus was that the question of
whether wearing the Hijab is an Essential Religious Practice should not be the focus
of the case. However, ERP arguments dominated the hearings, spanning 14 of the
nearly 25 hours of hearings.
