By Fredrick Ikenna Awkadigwe

Abortion rights, whether of the mother or the provider, may be conferred on the persons by the national constitution, or by the legislatures. Legalisation or penalisation of abortion is a touchy issue in the countries of the world. The U.S. Democratic presidential candidate has constantly alluded to her determination to sign any national abortion legalisation bill passed by the federal legislatures into a federal law of the U.S. federation. In Nigeria, the federal government has recently hinted at its move to decriminalise abortion for the federation of Nigeria by tampering with the provisions of the federal Criminal Code, as scheduled to the Nigerian Criminal Code Act.

Abortion rights in the USA have graduated from the pre-Roe v Wade, to Roe v Wade, and finally through to Dobbs v Jackson. See Roe v. Wade, 410 U. S. 113, 163 (1973); and Dobbs v. Jackson Women’s Health Organisation, 597 U.S. 215 (2022).

Prior to Roe v Wade, the procurement of elective abortions is a statutory criminal offence in most states of the USA. However, Roe legalises elective abortion procurement in the first trimester of pregnancy. Posterior to Roe v Wade, the decision as to the legality of abortion service provision is, by the textual contents of the decision in Dobbs v Jackson, is returned to the legislatures of the states of the USA.

National constitutions usually clearly share legislative powers and matters amongst their tier legislatures, and the legal right to procure an elective abortion by a mother, or to provide an elective abortion service to a mother, in different federations of the world, is determined by the provisions of the federal national constitutions that may either directly confer the right to procure abortions on the mother or the right to provide abortion services on the provider; or by the indirect means of conferring on any of the federations’ tier legislatures the power to prohibit or not to prohibit the mothers to procure their miscarriage for themselves, or the providers of abortion services to provide the services.

Any constitutional abortion rights for mothers and/or providers? The argument as to whether or not there is a fundamental constitutional right to abortion is an unnecessary debate that is borne out of the mixed and aggregate understanding of the salient and nuanced aspects constituting the distinct and independent rights in the abortion discourse.

In Roe v Wade, the Supreme Court of the USA (SCOTUS) holds that a mother’s right to procure her miscarriage prior to the end of the first trimester is an exercise of her fundamental right to privacy and liberty guaranteed in the national constitution of the USA. In Dobbs v Jackson, the same SCOTUS, without adverting itself to the distinct and different questions before it in Roe and in Dobbs, and the subtle judicial difference between Roe and Dobbs in those questions, overrules Roe and entrenches Dobbs.

While the fundamental right to personal liberty may cover the pregnant mother who wants to procure the miscarriage of her own baby for any personal reason known to her; that same fundamental right to personal liberty may not be available to the provider of abortion services that is in an occupational service to the pregnant mother. The right to render services to another person as a lay, improvised or professional practitioner is not a fundamental right. This salient difference between fundamental rights and service rights in the respective acts of procurement (receiving) and provision (giving) of abortion services, has been missed in Roe v Wade and Dobbs v Jackson.

Roe asks no question about the provider’s right or obligation to provide elective abortion services to a pregnant mother. In fact, no provider of abortion services is sued in Roe because the question is not about the provider but about the fundamental rights of the recipient of the abortion services to have her pregnancy miscarried. This distinction becomes even more fundamental knowing that the willing pregnant mother, with some self-administered medications, can also procure her miscarriage without resorting to an abortion service provider.

The district court has not also ordered that Roe joins any abortion service provider to make the case competent for final adjudication of the issue of giving and receiving an abortion service that has been aggregated in the provisions of the abortion statute.

What the SCOTUS appears to have done, but which it has no judicial power to do (Courts limit themselves to questions before them. See Adetoun Oladeji Nig Ltd v. N.B Plc (2007) 5 NWLR (Pt. 1027) 415), in Roe v Wade, is that SCOTUS subsumes the right of the provider into the fundamental right of the mother seeking to procure her own miscarriage, without recognising that the question of the right of the provider of abortion services, is not before the court, but rather is within the constitutional legislative powers of the legislatures to prescribe.

Dobbs v Jackson is not about the right of a pregnant mother to procure her own miscarriage, but about the right of a provider to render elective abortion services. In fact, no pregnant mother is a party in Dobbs suit. Dobbs v Jackson falls into the same competency ditch of Roe v Wade by entertaining and deciding an abortion case that potentially raises issues involving an abortion procuring mother and a provider of abortion services, without first bringing both parties before the court.

While Roe v Wade deals with the rights of a pregnant mother to procure her own miscarriage, Dobbs v Jackson deals with the rights of a provider of abortion services to render such service. SCOTUS, without adverting itself to the obvious fundamental differences between the two cases and the subtly different questions that they differently raise, and without any attempt at differentiating the two cases, holds that Roe must be overruled by Dobbs.

It becomes apparent that, while the panel of SCOTUS that decides Dobbs v Jackson criticises the panel that has decided Roe v Wade for skipping over the critical question of whether the U.S. constitution, properly understood, confers a right ‘to obtain an abortion’, the Dobbs panel misses the most critical point, which is that Roe is all about the abortion rights of pregnant mothers seeking to electively miscarry their unwanted pregnancies, while Dobbs is all about the abortion rights of providers of abortion services.

The Dobbs panel of SCOTUS also fails to imbibe Mr Justice Holmes’ admonition in his now vindicated dissent, in Lochner v. New York, 198 U. S. 45, 76 (1905), that: ‘The Constitution is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States’. Curiously, Dobbs panel instead goes ballistic on the moralities in abortions.

To be continued tomorrow.

Awkadigwe, who is a medical doctor and has a degree in Law, wrote from Enugu.

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