Anti-abortion Legislation in Texas and Alabama: An International Human Rights Approach
Texas Heartbeat Act signed into law
Source: commons.wikimedia.org
Recently this year, the state of Texas passed SB 8, possibly the nation’s most restrictive abortion legislation yet. Also called the “Texas Heartbeat Act”, this Act not only banned all abortions at the point of detection of a fetal heartbeat (typically 6 weeks into a pregnancy), but also made no exceptions for rape, sexual assault, or incest. Furthermore, the Act deputised private citizens to enforce the law, making it impossible for pro-abortion activists to sue the Texas government when the law came into effect on 1st September 2021. What followed was a chilling effect, with abortion clinics shutting down overnight and Texan women leaving the state and rushing to Mexico to have abortions (Mexico’s Supreme Court decriminalized abortions almost a week after Texas passed SB 8).
It should be noted that the US Supreme Court legalised abortions in Roe v Wade, a landmark 1973 judgment, in which the court observed that a woman’s right to personal privacy also included her right to seek an abortion. However, this right was not unqualified and had to be balanced against certain important “state interests”. The point at which state interest in protecting prenatal life became ‘compelling’ was at ‘viability’- that point of a fetus’ development when it had the capability of living a meaningful life outside the mother’s womb (usually between 24 weeks to 28 weeks of pregnancy). The court further introduced a trimester framework in which it laid out- trimester by trimester- the state’s role in regulating abortion. This framework was subsequently slammed by Justice O'Connor in Akron v. Akron Center for Reproductive Health, who called it an unworkable scheme because of advances in medical technology. But as it stands today, Roe remains the law of the land. However, abortion rights have remained a thorny issue in American politics. According to Pew research data, abortion rights are one of the most partisan issues in American politics today- and the gap between liberals and conservatives on this issue has only widened- not narrowed- over the years. Red states continue to pass restrictive abortion laws to undermine and possibly someday overturn Roe. For instance, in 2019, Alabama’s governor passed the Alabama Human Life Protection Act (AHLPA) also called HB314. This law banned all abortions in the state of Alabama except in cases when the mother’s life was at risk (it made no exceptions for rape or incest).
Source: eu.azcentral.com
Furthermore, it listed abortions and attempted abortions as felony offences- which means that doctors could be imprisoned for life for simply carrying out an abortion. Before SB 8 came into force, this was the most restrictive abortion law in the country till it was blocked temporarily by a federal judge. As it stands today, SB 8 is still in force, while Roe hangs in a balance as the Supreme Court gears up to hear the constitutionality of a Mississippi law that directly challenges Roe. The argument conservative lawmakers often make is that by protecting the sanctity of life, they are giving “voice to the voiceless” (the unborn). In fact, HB314 went so far as to compare abortion with the Jewish Holocaust in Germany, the Communist purge in China, and the Rwandan genocide. While this may sound like hyperbole, six countries- El Salvador, Malta, the Vatican, Chile, the Dominican Republic, and Nicaragua- prohibit abortion without exception even today. Abortions are not permitted even in cases of rape, incest, or a threat to the mother’s life. And in thirty-seven countries, abortion is illegal unless used to save the mother’s life. However, none of these restrictions are in line with international human rights precedent, as pointed out by some legal scholars. For instance, the first sentence of Article 1 of the Universal Declaration of Human Rights (UDHR), the foundation of modern international human rights doctrine, states “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” Thus, highlighting that human rights begin at birth, not before. Similarly, the Convention on the Rights of the Child (CRC) does not recognise fetal rights. Instead, it emphasises the state’s duty to protect the life and health of the mother so that she can care for her children.
According to the Council on Foreign Relations, the past fifty years have seen jurisdictions around the world moving towards liberalising abortion laws and recognising a woman's right to choose. As nations across the globe expand the grounds on which women can access reproductive health services, the quality and safety of abortion care concomitantly improves, as does maternal health and survival. International frameworks continue to uphold abortion rights as an inalienable part of woman’s reproductive rights and yet, the pro-life lobby in places like the United States continue to flourish with the rising support of female millennial pro-life conservative political commentators like Candace Owens (who has likened abortion to the “the murder of infants”), Meghan McCain (who believes that Joe Biden- a practicing Catholic-was doing ‘spiritual harm to himself and the country for supporting abortion), and Katie Pavlich (who argues that the pro-life movement in America is largely a women’s led movement) to name a few.
Reports have ranked Texas as one of the worst US states in educational attainment. It also has some of the lowest health care rankings in the nation, plagued with high costs, poor access, and insufficient health outcomes. Children in Texas are also worse off than in other states, a study found, on parameters such as health, education, and wellbeing. Texas also has strict capital punishment laws in its statute books, so much so that moratoriums on executions are ordinarily prohibited under the Texas Constitution. This begs the question: for a State that believes in the sanctity of life and upholding the principle of limited government intervention (Texas levies no state income tax), has it done enough for those who are living breathing Texans, before worrying about those who are not yet born? Also, reports show that strict abortion laws not only negatively affect the liberties of the mother, but also her life. How does the pro-life position reconcile this dilemma? And finally, how can a state that believes in the sanctity of life and minimum government intervention uphold such strict capital punishment laws? Alabama’s case is no different. The Equal Justice Initiative points out that Alabama consistently has one of the nation's highest per-capita execution rates. As the death penalty rate declines across the country, Alabama still sentences more people to death per capita than any other state. In addition to poor health and education indicators, Alabama also has little to no state-level protections for LGBTQ+ citizens, which once again raises similar questions about how this State recognises meaningful life. It could be argued that being “pro-life” must mean respecting all life, in all its diversity. It is rather odd that living breathing LGBTQ+ residents of Alabama should complain about the sanctity of their life, at a time when the State is hell bent on protecting life that isn’t even born.
Moreover, states like Alabama and Texas use government overreach to take away life when convenient (through capital punishment) while concomitantly making life difficult for the marginalised (like resource-poor women seeking abortions and transgender people). These political positions are not only not in sync with international human rights law- which recognises LGBTQ+ rights and opposes capital punishment- but also challenges the very edifice of the pro-life argument.
Till such time the Supreme Court doesn’t hear the Mississippi case in December, Roe v Wade remains the law of the land. Texas’ ability to work around the law is sinister and raises important questions about legislative independence and federalism in the United States. More specifically, it points out the fact that till such time questions about what constitutes meaningful life are not resolved, abortion rights will remain a contested issue in the United States and other parts of the world.