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Roe v. Wade Upended: A boon or a bane for democracy?

Published : Sunday, 14 August, 2022 at 12:00 AM  Count : 546
Akhlak-Ul-Islam Tusar

The existence of the right to abortion has been a matter of debate for an extended period of time in all over the world and Bangladesh is no exception to it. One of the most significant steps in the fight to ensure the right to abortion in Bangladesh has been the filing of a writ petition in the High Court Division. This writ petition extendedly refers to the famous Roe v. Wade.

Interestingly, the very case referred to i.e. Roe v. Wade has recently been overturned by the Supreme Court of USA in the case of Dobbs v Jackson Women's Health Organization. There is no doubt that it will work as a huge setback for the petitioners as one of their most relied upon sources has lost its persuasive value significantly.

However, this is not for and against article in regards to the right to abortion. Instead, this article discusses the separation of power between the legislature and the judiciary in light of the judgment of the US Supreme Court in Dobbs.

The separation of power between the State organs is one of the most important measuring devices in determining whether a State cherishes the democratic values. However, it has been witnessed that the pure separation of the State organs is neither possible nor desirable. Thus, the current practice is based on the doctrine of checks and balances which reasons that the State organs will keep each other in check to ensure accountability and obstruct any arbitral acts.

In pursuance to the checks and balances doctrine, the clash between the State organs can be observed quite frequently. The clash of judiciary and legislature is very common, specially, when the question of the Constitutionality of any enactment arises. The job of the legislature is to create and enact laws. One the other hand, the job of the judiciary is to interpret the law. However, no matter whichever rule is being applied to interpret the law, the aim of the judiciary should be to find out the actual intention of the legislature while drafting a law. The judiciary cannot go beyond the intention of the legislature. Otherwise, it would amount to making laws instead of interpreting them. Such actions are gross violations of the principle of the separation of power.

Judicial activism is currently a much talked about subject in the legal arena. There are differences in opinion regarding the definition of judicial activism. It is considered a device of misusing the judicial power by the judge by some while others consider it as a tool for practical purposes. In fact, the most recent and the first black woman US Supreme Court Judge, Ketanji Brown Jackson, in the confirmation hearing had to face most of her questions from the Republican Senators pertaining to her previous judgments as a District and Circuit Judge and how they had judicial activism all over it as she went beyond the intention of the legislature to interpret laws.

The issue of judicial activism has been a controversy in the US for decades. In Roe v. Wade, the SC had held that the right to abortion was inherent in the right to privacy and liberty.

According to the SC, the Ninth Amendment of the US Constitution clearly expresses that the rights enumerated are not exhaustive and there are unenumerated rights in the Constitution which have been retained by the people. The judgment of Roe v. Wade considered the right to abortion to be such an unenumerated right of a person. On the other hand, in the dissenting opinion of Roe v. Wade, it was stated that there were several State laws prohibiting abortion at the time of the Ninth Amendment. However, the legislature never intended to strike them down. Thus, it is going beyond the intention of the legislature to construct that the right to abortion is a fundamental right.

After almost 50 years of Roe v. Wade, the Supreme Court of US in the Dobbs case upended the set precedent. The SC in its majority opinion in the Dobbs case opined that the right to abortion is not one of the unenumerated rights as the right to abortion was never deeply rooted in the US society. Thus, the right to abortion is not one of the rights retained by the people as mentioned in the Ninth Amendment. The SC in the Dobbs case further stated in its majority opinion that the decision of Roe v. Wade was a mistake. According to the Dobbs judgment, the Supreme Court has no jurisdiction to make the right to abortion a fundamental right and abortion can only be regulated by the States.

Despite whatever the merit and demerits the right to abortion holds, it is to be understood that the Supreme Court is comprised of only a few unelected judges. Whereas, the legislature is composed of the elected representative of the people who make laws on behalf of the people. Of course, any laws enacted against the values of the Constitution are to be scratched. However, can the judiciary construe whatever meaning it wants from the provisions of the Constitution to justify its holding?

The overturning of the precedent of Roe v. Wade will surely have ripple effects over other matters as well. The right to abortion should be ensured by the elected representatives through a legislation instead of the Court by going beyond its jurisdiction to force the States to follow its suit. If we are to talk about the merits of the abortion right e.g. in cases of rape, incest etc., many will consider the decision of the Dobbs case as a bane for the people as they are being put in a bind.

However, the discussion does not only concern a single right; rather it concerns one of the core values of democracy i.e. the separation of power. Thus, it is difficult to determine whether upending Roe v. Wade is a boon or bane for democratic values.
The writer is a student of Law,
East West University

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