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abortion

By Shivangi Sharma

Supreme Court of United States on 24th of June, 2022 decided Dobbs v. Jackson Women’s Health Organization (“Dobbs”) and ruled in favour of the state of Mississippi which was seeking invalidation of the 50-year-old precedent of Roe v. Wade (“Roe”), protecting the constitutional right of abortion. After a federal district court ruling granting permanent injunction against the ban on abortion in the state of Mississippi was upheld by the Fifth Circuit Court of Appeals, SCOTUS turned the clock back on the right to abortion stating that the Constitution of United States does not confer the same.

The right to abortion globally and especially in the United States has always been controversial and has been at the center of ideological politics in the country. The Constitution of United States is designed to enshrine and protect individual rights of its citizens but which citizens are worthy of protection are controlled by the politicians and their ideologies. Most Democrats have been pro-abortion rights as opposed to the Republicans. After Brown v. Board of Education, Republican leadership shifted to more family and faith social-political issues and following the same, Nixon ran on a pro-life ticket attracting catholic voters enabling him to attack his Democrat opponent George McGovern who had allied with feminists and the Equal Rights Amendment Movement in the 70s. Conservative Activist who campaigned against the ERA movement and denounced abortion garnered support around Nixon’s traditionalist anti-choice campaign. Former President Ronald Reagan who passed a liberal abortion law as governor of California flipped his stance on the topic during his presidential campaign. His advisers apparently were the first to see possibilities of uniting conservative Catholics and evangelical protestants using abortion and gaining a voter base and formally endorsed the religious right’s efforts which included restricting abortion. However, the constitutional support to abortion had already been granted by SCOTUS in 1973 by passing the landmark Roe v. Wade which Reagan openly disagreed with. In his first two years of office he worked closely with congress to introduce bills that would recognize unborn as human being to be protected under the Fourteenth Amendment and prohibiting abortion. Decades later, the Reagan’s legacy was carried on by none other than Donald Trump.

Somewhat like President Reagan, Donald Trump too shifted dramatically on the issue of abortion. In an interview to NBC in 1999, Trump had called himself very pro-choice only to turn his back one and a half decades later as a presidential candidate announcing that he is pro-life repeatedly promising appointing anti-abortion judges. In the final debate with Hillary Clinton in 2016 general elections, Trump had categorically announced appointing pro-life judges and just like Thanos, he did what he said he would do with his powers and nominated anti-abortion conservative judges. 3 out of the 6 majority justices in the Dobbs judgment are Trump nominees.

As soon as the judgment was pronounced, several US states jumped to outlaw abortion. Attorney General of Missouri wasting no time announced his paperwork ending abortion in the state. Many states like Kentucky, Louisiana, South Dakota already had laws criminalizing or restricting abortion that kicked in as soon as the federal protection provided by the overturned judgements became nil. Most of these states anyway had very few abortion clinics which had temporarily stopped performing abortions due to the looming fear of overturn, and now effectively stopping access to proper abortion care. States where abortion is legal are in an acute minority and although travel for abortion is not illegal (yet), restriction on the same cannot be overruled. 

Dobbs judgment scrutinizes the stare decisis of Roe v Wade and Planned Parenthood v. Casey (“Casey”) through a very narrow understanding of constitution and mostly on moral grounds giving barely any consideration to the rights of women and consequences of overturn. Justice Alito criticizes Roe for being decided on constitutionally irrelevant history and incorrect interpretation of Constitutional rights. The majority opines that any right to be read under the constitutional amendments must be “deeply rooted in this Nation’s history and tradition” which as we gathered from the politics of abortion, it is not. The judgment further goes on to rule that doctrine of stare decisis does not counsel continued acceptance of Roe and Casey. It classifies 5 reasons why precedents of Roe and Casey should be overruled, which are a) nature of Court’s error as Roe was egregiously wrong and the court in Casey short-circuited the democratic process by closing it to the large number of Americans who disagreed with Roe; b) the quality of reasoning as Roe failed to note consensus of state laws and why sources relied by them shed light on the meaning of Constitution. It conflated the right of privacy and Casey refrained from endorsing most of Roe’s reasoning and instead grounded it on the due process clause of the fourteenth amendment and providing no new support to the abortion right; c) workability of the precedent as Roe and Casey did not prove to be consistent and predictable and the “undue burden” test was imprecise, ambiguous and gave lots of discretionary power to judges undermining the precedent and not advance it; d) effect on other areas of law as the two judgments distort unrelated legal doctrines and lastly e) reliance interests that overruling these cases won’t upend reliance interests like in those cases involving property rights etc. 

As the right to abortion was brutally killed by irrelevant moral and conservative arguments, the dissent rose to record the catastrophe of this judgement stating that the majority has overruled Roe and Casey out of despise and has substituted a rule by judges for the rule of law.  The dissent opinion has pointed out the importance of right of women to be autonomous beings and possessing the right to take decisions with respect to their bodies and the procedure they want to put themselves through. The majority has trivialized women and their autonomy by imposing substantial obstacles and allowing states to make laws that can force women to bring a pregnancy to term even at the steepest personal and familial costs. It also points out the dangers of some state laws extending to all forms of abortion with no exceptions to even victims of rape and incest. Criticizing majority’s argument that right to elect abortion is not deeply rooted in history, dissent writes that in doing so, majority consigns women to second-class citizenship. It quotes that “It was settled at the time of Roe, settled at the time of Casey, and settled yesterday that the Constitution places limits on a State’s power to assert control over an individual’s body and most personal decision making. A multitude of decisions supporting that principle led to Roe’s recognition and Casey’s reaffirmation of the right to choose; and Roe and Casey in turn supported additional protections for intimate and familial relations. The majority has embarrassingly little to say about those precedents”.

Access to abortion care has never been easy given the heavy political influence on the issue in America but with the protection of Roe and Casey, not only did it keep the people exercising their right from going to jail and be a felon but also to expand that access not just to women but to people of colour, different sexual orientations and genders. People with uteri had constitutional protection to right to their own bodies without governmental interference into their personal decisions, and had options, for which they won’t be put behind bars. But now that protection no longer exists, there are innumerable threats that loom over America. Trigger bans have already come into effect and now there will be laws banning pre-viability gestation, methods of abortion, reasons etc. substantially making abortion at any stage inaccessible. There will be targeting of abortion care providers by putting them under strict rigours of law to make the process legally extraneous and burdensome effectively killing even the permissible abortion too. The right to abortion as a right privacy as hailed by Roe will suffer a tremendous blow as people fear excessive parental involvement, biased and inaccurate counseling before abortion affecting consent after this overturn. The fear of state and private companies snooping into phones through period tracking apps has also been raised by many. 

Misogyny is ‘deeply rooted in the history’ of most developed countries and there are people in authority who believe in forwarding the same. The politics of abortion has barely any relation to people (read cis white men) who played it to achieve their political goals. But the same ensured that not only the rights of women are in their hands, but even after waves of feminism and progressive movements, they can turn back the time to dark ages. The right to abortion now is at the mercy of state constitutional protection and public funding. God has saved the fetus, who will save America!

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By Arthita Banerjee

In the wake of the chaos unleashed by the infamous Senate 8 Bill it is important to take a look at ground zero, the fabled Roe v Wade. The broad idea held by the people is the US and the world at large is that Roe was instrumental in ‘legalising abortion’ in Texas, however the truth might be far from it. What it essentially did was determine the way states can regulate abortion.

For those not in the know, Jane Roe, was an unmarried pregnant woman who had filed a lawsuit on behalf of herself and others challenging the Texas abortion law. She was joined by her doctor who at the time claimed that the State’s abortion laws were too vague for even the medical practioners to follow. Roe argued absolute Privacy Rights for all women claiming the Texan law infringed on women’s rights to marital, familial and sexual privacy guaranteed by the Bill of rights. It also invaded an individual’s right to liberty guaranteed by the 14th amendment. The State, of course, argued that ‘fetus’ is a person protected by the 14th amendment and it is absolutely necessary for it to protect prenatal life from the time of its conception.

It might be important to understand here that the US Constitution doesn’t provide a definition of a ‘person’. It does say that the United States protection covers those who are born or naturalized in the Country. The Roe v Wade judgement went on to state that “the ‘unborn’ had never been recognized in law as persons in the whole sense”. The prevailing idea that life begins at conception draws from the Catholic faith rather than science. The medical community leans toward the belief that life begins sometime before birth. It is essentially a religious viewpoint that has stockpiled a whole lot of cultural clout.

The legendary Ruth Bader Ginsburg, said that she believed it would have been easier for the public to understand why the Constitution protected abortion rights if the matter had been framed as one of equal protection rather than privacy. During her time as a lawyer for the ACLU (American Civil Liberties Union) she fought for Struck in the matter of Struck v. Secretary of Defense.

Susan Struck, an Air Force Captain got pregnant while serving in Vietnam and sued the Air Force after it said she would have to either get an abortion at the base hospital or leave if she wanted to have the child. She told the Air Force that she didn’t want to get an abortion instead give birth and then put the baby up for adoption because abortion violated her Roman Catholic faith. Ginsburg explained her approach to the Senate Judiciary Committee stating:

“First, that the applicable Air Force regulations — if you are pregnant you are out unless you have an abortion — violated the equal protection principle, for no man was ordered out of service because he had been the partner in a conception, no man was ordered out of service because he was about to become a father.

Next, we said that the Government is impeding, without cause, a woman’s choice whether to bear or not to bear a child. Birth was Captain Struck’s personal choice, and the interference with it was a violation of her liberty, her freedom to choose, guaranteed by the due process clause.

Finally, we said the Air Force was involved in an unnecessary interference with Captain Struck’s religious belief.”

So all three strands were involved in Captain Struck’s case. The main emphasis was on her equality as a woman vis-à-vis a man who was equally responsible for the conception, and on her personal choice, which the Government said she could not have unless she gave up her career in the service.

In that case, all three strands were involved: her equality right, her right to decide for herself whether she was going to bear the child, and her religious belief. So it was never an either/or matter, one rather than the other. It was always recognition that one thing that conspicuously distinguishes women from men is that only women become pregnant; and if you subject a woman to disadvantageous treatment on the basis of her pregnant status, which was what was happening to Captain Struck, you would be denying her equal treatment under the law.

It is interesting to note that the Supreme Court revisited Roe v. Wade in 1992 when reviewing Planned Parenthood v. Casey. In that case, the Court once again established a woman’s right to choose. But, it changed the framework created in Roe. Instead of requiring states to regulate abortion based on trimester, the Court created a standard based on “fetal viability” – the fetus’s ability to survive outside the womb. Viability is usually placed at around seven months (28 weeks), but it can be as early as 24 weeks.

Coming back to the present, abortion is still legal in Texas, well only for about 2 weeks after a women misses her period which is the Senate Bill 8 driving a hard bargain because 85% of women seeking abortions are at least 6 weeks pregnant. In a bid to milk the Senate Bill, 12 other States have tried to ban abortion after six weeks, by trying to pass various scientifically unfounded ‘heartbeat’ laws. Most have been unsuccessful in their attempt because the precedent set by Roe v Wade, makes them unconstitutional.

Hope is still a radical idea for woman pregnant beyond the 6 weeks mark because the bill was framed placing the burden of enforcement entirely on private citizens, who are encouraged—to file lawsuits against anyone who performs an abortion after the six-week mark, or who “engages in conduct that aids and abets” an abortion, or who even “intends” to do such a thing. Plaintiffs do not need to know the person they file suit against, and, if they win, they are entitled, in most cases, to ten thousand dollars from the defendant and the reimbursement of their legal fees; defendants who win cases do not get their legal fees back. This bounty mechanism has made the bill immune to judicial interference, because there is no clear entity that can be sued in order to block the inhumane law.

Even pro-life Senators are thrown off by this idea of every citizen being able to tattle, sue an Uber driver to enforce the abortion law penalizing anyone who drives a woman to an abortion clinic after six weeks into a pregnancy. In response, the nation’s biggest rideshares, Uber and Lyft have announced that it is setting up a Drivers Legal Defense Fund to cover all legal fees for drivers sued under Senate Bill 8.

In a statement issued last week, Biden said he was directing the Office of the White House Counsel and his Gender Policy Council to involve the Health and Human Services Department and the Justice Department to evaluate what “legal tools we have to insulate women and providers from the impact of Texas’ bizarre scheme of outsourced enforcement to private parties.”

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By Dheeraj Diwakar

A fourteen-year girl died while giving birth at Church Shrine in Zimbabwe. The girl was forced to marry at an early age. After two hours of her death, she was secretly buried by Church. This incident caused a serious outrage among citizens and Human Rights fraternity all over the world. This case has highlighted the age-long practice of Child Marriage in Zimbabwe. United Nations in its statement condemned the incident and criticized the Government for not taking substantial steps to prohibit Child Marriage in practice. The silence kept by the Government of Zimbabwe raises several questions i.e., Will child-brides in Zimbabwe ever get Justice? This piece seeks to legally analyze the plight of child-brides in Zimbabwe.

Despite various International Human rights movements initiated to prohibit child marriage, the statistic of Child marriage is alarming. About 31% of girls below eighteen years of age are married, of which 4% were married before fifteen years. The age difference between bride and groom is even more concerning. According to data of 2014, about 20% of girls aged 15-19 years who are married have spouses ten or more years older. This is the main cause of gender-based violence, as about 20% of women have experienced sexual violence in their life. The mortality rate for child brides is higher than the average mortality rate. 

The country has two different sets of laws concerning marriage i.e., Customary Marriages Act and Marriage Act but neither of them sets the minimum age of marriage. On the other hand, Customary law permits polygamy. Zimbabwe’s constitution is progressive which enshrines gender equality and justiciable rights. Section 78 prescribes a minimum age limit for marriage i.e., 18 years, and condemns coerced marriage. It says, “no person shall be compelled to marry against their will”. Section 26(2) orders the State to implement measures to prohibit children from getting into matrimonial alliances. 

Constitutional Court in the landmark case of Loveness Mudzuru has outlawed the practice of Child-Marriage. Thus, child marriage is found contradictory with Constitutional provisions. Further, Article 1 of the Convention on Consent to Marriage and Registration of Marriages 1964 calls upon the nations to prohibit the marriage of girls under puberty and set the minimum age of marriage. This is reaffirmed by Article 16(2) of the Convention on the Elimination of Discrimination Against Women. Further, Article 21 of the African Charter on the Rights and Welfare of the Child states that child betrothal and marriage shall be prohibited, and “effective action” shall be taken to ensure that the minimum age for marriage is 18. The “minimum age for marriage is 18” is further reaffirmed by Article 6(b) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa. 

The increasing prevalence of child marriage in Zimbabwe is contradictory with the Nation’s growth and development. Despite having numerous constitutional provisions and International Conventions, the graph of child brides is rising. Government fails to implement these legal provisions effectively. The lacunas in marriage laws are one of the biggest concerns which results into prevailing of the customary laws. The Government must take serious steps to tackle this social evil and ensure justice for all.  

Image Courtesy: BBC

Author: Dheeraj Diwakar

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Srinivas Rayappa

The Samburu are a Nilotic people of north-central Kenya. Samburu are semi-nomadic pastoralists who herd mainly cattle but also keep sheep, goats and camels. Rooted deeply in patriarchy, the Samburu people are semi-nomadic, largely polygamist and closely related to the Maasai tribe. Women in the tribe have been living under a harsh patriarchal system for as long as they can remember. For generations, female genital mutilation is one of the most important rituals among the Samburu tribe. Once circumcised the girl can be given away in arranged marriage to a man who is old enough to be her grandfather. The Samburu tribe has a tradition of repressing women and treating women as second class citizens. Women are not allowed to own land or other types of property, such as livestock and are considered property of their husbands.

In accordance to their culture, the father chooses an older “warrior” male with which the daughter will enter into a temporary marriage. Pregnancy is forbidden, but contraceptives are unavailable. If the child becomes pregnant, she is forced into an abortion, conducted by other women in the village. Since the girl is married at an early age, she cannot be a competent parent. While giving birth they face a lot of challenges: they rupture, they bleed, because they are young and don’t have access to healthcare facilities.

Even performing their duties and chores, is very hard for them. They are often left to take care of animals.

Some of the harrowing experiences endured by the women in the tribe include the story of a 11 year old girl who was traded for cows by her father. Her husband was 57 years old. Another young lady has five children, all with different fathers. Girls are married off to men, the age of their grandfathers. Women have little or no say in matters pertaining to the Samburu community. At village meetings men sit in an inner circle to discuss important village issues, while the women sit on the outside, only occasionally allowed to express an opinion.

If the repression and harrassment meted out to women in the Sambaru community by local men were not enough, during the 1980’s there was an “epidemic of rape” on Sambaru women by British troops on exercise in central Kenya. Since, 500-600 women from the Samburu tribe in Kenya have fought for decades to prove that they were raped by British soldiers who, under an arrangement with the Kenyan government, train regularly in the nearby countryside. Those impregnated by their rapists and who gave birth to children that are of a lighter colour than native children have been shunned, abandoned by husbands and families and forced to leave their villages. On August 14th 2003, a hundred Masai women trekked to the British High Commission in Nairobi, to lodge a complaint that they had been raped by British soldiers. Another 800 women, mostly from the Masai tribe or their Samburu cousins, have made similar claims. The matter is being investigated by Britain’s Ministry of Defence at snail’s pace. More incidents of sexual assault are coming to light with the most recent being 30 women from the Samburu tribe alleging that they were raped by Gurkhas based at Archers Post in 1997.

Distraught at being subjugated to domestic violence, child marriage, female genital mutilation and rape from men, both within and outside the community, a group of 15 brave women under the able leadership of Rebecca Lolosoli, took matters into their own hands and setout to start their own village, devoid of men. Thus, in 1990, was born Umoja Uaso (“unity” in Swahili, the Uaso Nyiro is a nearby river), an all female matriarch village located near the town of Archers Post in Samburu County, 380 km (240 mi) from the capital, Nairobi. Umoja Uaso is one of the world’s first “All-Women” communities where men are not allowed to reside nor are they allowed to dictate their views or opinions on matters pertaining to the community.

What started as a sanctuary for 15 women, who survived sexual assault and rape by British soldiers, has today grown to give shelter, livelihood and a future to any and all women trying to escape harrassment, repression and rape.

Rebecca Lolosoli, who started this movement recollects, “As a woman you have no right. If the husband wants to kill you, he has the right to kill you anytime because women are like a property. Men wanted to destroy our village but we resisted. We are not going to move an inch even if it means they kills us. Let them kill us all and make history of killing all the women in the village.”

Rebecca is the matriarch of Umoja women’s village and an advocate for women’s rights. Growing up as a member of the Samburu tribe she was married off at the age of 18. Deeply moved by the suffering of women all around her, she began speaking up about helping women who were victims of rape by British soldiers. Angered by her vocalism, the men in her neighborhood beat her up till she was hospitalized. To make things worse, her husband did not protest when she was being beaten and hence she left him. Along with her other victims of violence, she established the women-only village of Umoja Uaso. Umoja which was once a safe heaven for women has now become a globally known example of a successful matriarchy.

Even to this day, the men in the Samburu tribe consider Rebecca as a threat because they firmly believe that she is ruining the age old culture and tradition. She has faced repeated threats and attacks from local men since she set up the “women-only” village, but she remains undeterred.

What began as a refuge for survivors of sexual violence and torture, Umoja has grown to provide a safe habitat and nutures 47 women and 200 children. One would imagine that these communities would only have older women, but there are plenty of young women as well, who left their homes because they did not wish to be subjugated to torture from their husbands.

Although the inhabitants live extremely frugally, these enterprising women earn a regular income that provides food, clothing and shelter for all. Village leaders run a campsite, a kilometre away by the river, where groups of safari tourists stay. Many of these tourists, and others passing through nearby nature reserves, also visit Umoja. The women charge a modest entrance fee and hope that, once in the village, the visitors will buy jewellery made by the women in the craft centre.

Intimidated by their self-sustenance model, the insecure men from neighboring villages began beating the women and snatching away their hard earned money. The men felt threatened with the gaining independence of women. Since, Umoja has now been barricaded by thorns and women stand guard all night to protect their community. Over the years, women have grown in strength and are enjoying their freedom. There are no bells and whistles to their lifestyle but the women and children earn a regular income to take care of their basic needs.

The women of the village have been taught how to construct their own houses where they can live peacefully. With the hand crafted jewellery that they make and sell by the roadside, they have attained financial independence. With their savings, they have now started a school for the children in the village because they now understand the importance of education. Rebecca firmls believes that the children should not be handicapped because of lack of knowledge and that they should see light in their life by having good education and have an understanding of what’s going on in this world. As if setting an example, Rebecca’s daughter now studies in Germany. The self-sufficiency and freedom has inculcated a ray of hope among the distraught women which has inspired them to give a better future for their children.

Rebecca_Lolosoli_2.jpg

On occasions, men are allowed to meet the women of the community. However, who comes in and who goes out is dictated by Rebecca. The rules of the village are crafted solely by the women. The young girls are allowed to meet their boyfriends but outside the village. When they get pregnant, their children can live in the village but the male must leave the village once they are eighteen years of age. All decisions are collectively made by the women of the community under the “tree of speech”, a place where they gather for discussions on issues plaguing their community.

The internet has put Umoja firmly on the global map and now people travel far and wide to come and see how the land of “no-men” thrives in the region of Samburu. Rebecca has been able to interact with powerful women across the globe and is now friends with the former First Lady of the United States, Hillary Clinton. Thanks to Rebecca’s every growing international clout, the elaborate beaded jewellery produced by the women of Umoja has found a worldwide marketplace. Also, Umoja Uaso has turned into a tourist destination visited by people across the globe.

Inspired by the success of Umoja Uaso, several all-feamle societies have cropped up across Kenya. While some villages forbid men completely, others allow men to be part of the community but it is the women who have an overriding say in all matters pertaining to their community.

Gender inequality is the blemish of the 21st century, a remnant of the past that the tide of time should have long washed away. It’s easier for girls in urban places to fight for equal rights but for a tribal women like Rebecca Lolosoli to raise her voice in a patriarchal society and highlight that misogyny is not normal, is indeed a rare achievement and ofcourse commendable.

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