By Vishakha Singh*

Numerous activists worked restlessly towards the pro-choice in feminism for several years clamouring on their ultimate objective to be heard. Yet, even after the historic step taken by the supreme court of U.S. of America, the government keeps turning a blind eye towards the tiring voices of the activists. Regardless of several jurisprudence and their altercations over the right of women to abort, the question that kept looming amidst the talks of abortion is regarding the extent of a person’s body autonomy and whether it extends to unborn life? The Texas Republican Governor, Greg Abbott recently signed the bill on abortion “The Heartbeat Bill” that debarred the absolute right of abortion that was guaranteed in the historic resolution by the supreme court of U.S. in the case of Roe v. Wade.

“No woman can call herself free until she can choose consciously whether she will or will not be a mother.” These are the words of Margaret Sanger (the founder of Planned Parenthood). Planned Parenthood is a non-profit organisation, while advocating for reproductive rights during the revolution of abortion laws ignited by the historical judgment of Roe v. Wade, planned parenthood contributed and spearheaded the rights and privileges of a women that she has over her body. This also highlights a broad idea of the progressive feminist stance regarding abortion. The autonomy over one’s body is thus supreme, and not subject to decisions made by the state that alter lived experience without taking into account the context of the said act, or the additional responsibilities that come along with it.

Scenario before and after the historical judgment of Roe v. Wade– The previous situations regarding abortion rights in Texas were cataclysmic. The government of Texas doesn’t empower the women of their right to abortion and declared abortion as an illegal activity, therefore the abortion facilities were only accessible when the life of the mother was viewed as in harm’s way. As a result, various women hesitantly conceived offspring from unwanted pregnancies. An outrageous flood of illegal abortion flowed in the state. Researchers from Princeton University in the 1960s reckoned that almost one in three Americans (i.e., 32%) who don’t want any children gave birth to a child from an unwanted pregnancy before the ending of their fertility years. This situation affected both the mental and physical health of women but additionally resulted in several deaths due to illegal and unsafe abortions. The data given by American College of Obstetricians and Gynaecologists (ACOG) before Roe v. Wade on illegal abortion was roughly 1.2 million. The reported deaths were around 3000.

Supreme Court of U.S. denied the contention of Texas that the foetus is considered a person or individual and therefore has a right to life under the fourteenth amendment ruled in the judgment of Roe v. Wade. The right to abortion comes under the ambit of the right to personal privacy of a woman emerged from the ninth and the fourteenth amendment of the constitution. Both amendments inculcated in the constitution provided that the state shall not deny the life and liberty of the citizens also shall not be construed to deny or disparage others retained by the people.

The court disagreed, pointing out that a foetus has never been considered a person within the law and that the state of Texas cannot override the rights of a foetus based on the theory that a foetus is a person. The court struck a balance between Texas’s prohibition on abortion and a woman’s right to privacy, announcing that prior to, viability, the first trimester (Week 1-Week 12) right to privacy, allows her to choose to have the procedure done. After viability, however, second (Week 13-Week 27) and third trimester (Week 28-birth), the state can prohibit abortion based on its interest in protecting and promoting life, as long as the woman’s life isn’t in danger. According to the Centres for Disease Control and Prevention’s report of 2013, 91.6% of abortions were carried out during the first trimester after the historical judgment of Roe v Wade. Several women exercised their right to abortion.

Concept of ‘Right to Bodily Integrity’– The current Texas Heartbeat Bill does not provide autonomy to women on their right to bodily integrity. An eminent American philosopher, Martha Nussbaum in her list of Central human functional capabilities elucidated bodily integrity as: “Being able to move freely from place to place; being able to be secure against violent assault, including sexual assault, marital rape and domestic violence having opportunities for sexual satisfaction and for choice in matters of reproduction.” The right of bodily integrity isn’t simply restricted to the actual edges of a human body; it additionally incorporates the right to one’s respect, self-sufficiency, and personhood. These theoretical innate rights are indivisible and are ensured as essential rights to each human being. The law however, bars several of these freedoms and restricts a person’s bodily autonomy.

Another American philosopher Judith Butler in her work of ‘Theory of Performativity’ opined gender performativity as performed series of acts. It has a well-defined script that was devised and regulated by society. She also propounded that a law produces specific subjects and decides whose body will be monitored, regulated, and controlled. In connection to the trammelling bill passed by the Texas government, Butler’s answer is to deconstruct the actual reason by publicly upholding abortion rights that would give all women the conceptive decision to abort whenever during their pregnancy. Upholding for their reproductive freedom is a chance to reconfigure the authoritative gender identities. The ideologies of these eminent philosophers are providing an unobstructed path for the deconstruction of gender to salvage the rights of a woman. The light of this post-modernist feminism era should not only brighten the limited aspects of a woman and her position in society.

Simone de Beauvoir, a French writer, wrote “One is not born, but rather becomes, a woman.” The set of guidelines that are pre-decided for any gender to follow and to show their respective genders to the society is a stumbling roadblock in the daunting path of advocating women’s rights. This bill exclusively restricts the right of choice of a woman to make a decision regarding her own future, her own body and mind. This whole labyrinth of restrictions in the name of the law is trapping the liberty of an individual without considering the serious body malfunctions resulting in dreadful outcomes on both body and mind. 

New provisions in the bill- This Texas “heartbeat” bill includes and bans abortion if a doctor finds a foetal heartbeat in the foetus, usually about six weeks of pregnancy. This provision of the bill is not supported by the citizens since; many women are not able to figure out that they are pregnant within these six weeks. The internal machinery of a woman’s body sometimes has varying cycles of response with irregular periods, PCOD & PCOs due to which the determination of pregnancy remains under the veil of ignorance. This particular criterion mentioned in the bill is completely debarring the right of reproductive choices which was elucidated by the philosopher Martha Nussbaum while defining the right to bodily integrity as generally, the bodily malfunctions camouflage the idea of getting pregnant.

What if the woman believes that they are not mentally prepared to have a child as it is a major social and financial responsibility? The bill mandates that the mother cannot opt out of parenthood once this 6-week period has passed. This act has to be committed to under the bill regardless of social, economic considerations that are important with having children. However, the bill does not take into account any of these issues or considerations.

The Texas bill differs from other legislations in place around the United States today. Earlier, the government officials had the responsibility of enforcing the law, and if clinics wanted to challenge the constitutionality of laws, they had the right to do so. However, now in accordance with the new bill, the officials are fully prohibited to enforce it. Instead, the rights are given in the hands of the ordinary citizens that if they find and report an illegal abortion, they will be awarded $10,000 per illegal abortion. An outsider can also report the case of illegal abortion. It is obviously apparent that this new bill is curbing the rights from every direction and this provision can also be misused by a rapist, human trafficker, or abductor if they impregnate any woman they could sue the provider ahead of the methodology to prevent it from occurring, denying the casualty the capacity to have the foetus removal. Nevertheless, the governor of Texas, Greg Abbott remained behind the arrangement, referring and citing to his religious beliefs. “Our creator endowed us with the right to life, and yet millions of children lose their right to life every year because of abortion,” Governor Greg Abbott said while signing the bill. The legislature “worked together on a bipartisan basis to pass a bill that I’m about to sign that ensures that the life of every unborn child who has a heartbeat will be saved from the ravages of abortion.”

The mental enigma faced by the woman during her pregnancy period ought to likewise be considered alongside the right to reproductive choices. John Stuart Mill, a former member of the parliament of the United Kingdom wrote, “over himself, over his own body and mind, the individual is sovereign” and “each is the proper guardian of his own health, whether bodily or mental and spiritual.” In any case, this large number of uproarious squabbles all throughout the world side-line the main agenda of basic human rights.

Concluding Remarks

Forcing rights by naming them as ‘law’ over somebody’s body ought not to be drilled in the public eye. This bill is setting an off-base picture of concealment of human rights and the domination over the body of a woman. Excessive encroachment over the rights of bodily integrity of its subjects is equal to stepping out of the periphery of the concept of the welfare state. Also, ethics can be the premise of a law however law should never turn into the premise of unfair traditions. In a socialized society, it is crucial to demarcate law and moral values and then rectify the incorrect ethics prevailing in the society with the help of modern laws.

*Vishakha Singh is a 2nd Year B.A. LLB. (Hons.) student at Jamia Millia Islamia, New Delhi