Riding the Green Wave: A transformative path for India's abortion laws

For India, Mexico's judgement carries immense significance as it illuminates a path to secure the human rights of women by untangling criminality from abortion, writes Kanav Narayan Sahgal

On September 6, 2023, Mexico's Supreme Court delivered a historic verdict that effectively decriminalised abortion nationwide. This landmark ruling marked a significant step towards securing reproductive rights and women's autonomy in Mexico. The court's decision centered on Articles 329 to 334 within Chapter 4 of the 1931 Federal Criminal Code, which had long criminalised abortion in the country. These articles had established varying penalties for abortion, punishing those who assisted a woman in obtaining an abortion with sentences ranging from one to three years in prison, irrespective of the means employed, even if performed with the mother's consent.

In cases lacking consent, the imprisonment term escalated from three to six years, and if the abortion involved physical or moral violence, the
offender faced an even more severe sentence of six to eight years. Importantly, both women and abortion practitioners could be prosecuted under federal law. Moreover, the length of imprisonment for women was determined by vague factors, including their "reputation" in society. This ruling nullified those provisions.

Mexico's federal structure meant that federal penal code provisions on abortion held limited relevance at the state level. They would only apply if the abortion occurred under exclusively federal jurisdiction. Nonetheless, the 1931 penal code served as a model for state penal codes.

In 2021, a significant turning point occurred when 10 Supreme Court judges overturned the ban on abortion in the northern state of Coahuila. This decision set a precedent for the entire country, laying the groundwork for the transformative 2023 ruling. The 2021 judgement has been likened to America’s Roe vs Wade, the landmark 1973 US Supreme Court decision that decriminalised abortion nationwide and affirmed American women's constitutional right to choose. However, it is worth noting that in a curious twist of fate, this US ruling was subsequently overturned by the same top court in 2023, in the case of Dobbs vs Jackson Women's Health Organisation. As Mexico made strides in advancing abortion rights, the United

States witnessed a reversal. In the 2023 verdict, the Supreme Court of Mexico emphatically overruled the criminal penalties that had long governed abortion. The court deemed these penalties a violation of the human rights of women and other persons with the ability to conceive. Additionally, the court addressed another pressing issue: the suspension of medical personnel's, midwives', and

midwives' right to practice their profession if they performed an abortion. This suspension was deemed discriminatory and unjust.

This groundbreaking ruling underscored the strength of a feminist movement known as the "Green Tide" or “Green Wave” in Latin America. The movement has been unwavering in its advocacy for expanded abortion access, even in the face of staunch religious opposition, particularly from the Catholic Church. While several Latin American countries, including Argentina, Uruguay, and Colombia, have successfully decriminalised abortion, and Chile has eased restrictions, other nations like El Salvador and Honduras have clung to strict bans.

Mexico, the world's second-largest Catholic country, has experienced shifting attitudes toward abortion in recent years, mirroring broader trends in Latin America. Mexico's triumph now shines as a beacon of hope for women engaged in the broader struggle for sexual and reproductive rights, especially those residing across the border in the United States.

For India, Mexico's judgement carries immense significance. It illuminates a path to secure the human rights of women by untangling criminality from abortion. India's abortion laws, governed by the Medical Termination of Pregnancy (MTP) Act of 1971 and its subsequent amendments and rules, are relatively liberal. However, these laws remain intrinsically linked to the Indian Penal Code (IPC). The IPC still classifies abortion as an exception under the criminal act of "intentional miscarriage" outlined in Sections 312 to 316. Similar to Mexico's 1931 Federal Penal Code, these sections in the IPC impose criminal penalties for both women and those who aid them in seeking abortions.

Furthermore, the recently proposed replacement for the IPC, the Bharatiya Nyaya Sanhita, 2023, disappointingly overlooks this crucial issue. The new code fails to modernise or decolonise India's abortion laws, representing a missed opportunity for progressive legal reform. While the Mexican judgement is commendable, it remains an imperfect victory. Abortion rights activists must persist in their efforts to secure legalisation, one state at a time. Presently, only 12 out of Mexico’s 32 states have removed criminal penalties for abortion. This journey began with the successful 2007 decriminalisation law passed in Mexico City. Subsequently, Oaxaca state followed suit 12 years later, and in the last three years, 10 more states have joined the ranks of those decriminalising abortion. The pace of change for abortion rights has been slow, steady, and unpredictable on the global stage. Nevertheless, India holds an advantage, with clear federal legislation in the form of the MTP Act and numerous Supreme Court judgements consistently affirming a woman's fundamental right to bodily integrity and autonomy.

As India endeavours to reform its criminal laws and establish itself as a global leader following the G20 meeting, where India and other G20 leaders unanimously committed to promoting gender equality and safeguarding sexual and reproductive rights in the G20 New Delhi Leaders' Declaration, it becomes imperative for India to ride the "Green Wave". This wave, originating from across the Arabian Sea and the North Atlantic Ocean, offers an opportunity to rejuvenate India's abortion laws. The focus should be on prioritising maternal care and reproductive rights above all else.

(The author is a Communications Manager at Nyaaya, the Vidhi Centre for Legal Policy and can be reached at [e-mail])