The right to abort

The world’s largest democracy and the world's oldest democracy seem to be going in the opposite direction when it comes to the protection of a woman’s right to abortion, writes Arvind Narrain

On June 24, 2022, in a hugely consequential decision, the US Supreme Court in Dobbs vs Jackson’s Women’s Health Organisation, overruled the fifty-year-old precedent which had recognised that women had the right to abortion as part of the right to privacy. The Supreme Court upheld the constitutionality of a Mississippi law which prohibited abortion except in case of a medical emergency or severe foetal abnormality post fifteen weeks. Post Dobbs, twenty-six states are expected to ban or severely limit access to abortion. There have been closures of reproductive health clinics in the US with this affecting black and working-class communities disproportionately. The judgement directly impacts women’s right to make decisions about their own body and the dissenting opinion in Dobbs called the potential implications ‘catastrophic’.

In contrast to the catastrophe of Dobbs where is India on the right to abortion? In September of 2022, the Supreme Court of India upheld the right of an unmarried woman to access abortion between the periods of 20-24 weeks and in December of 2022 the Delhi High court reiterated the right of a woman to make the personal decision to abort a foetus which showed signs of ‘foetal abnormality’.
The Parliament enhanced the rights of women to make choices about their bodies by amending the Medical Termination of Pregnancy Act of 1971 in 2021. The 2021 amendments allow for greater respect for the choice of women by extending the right to terminate a pregnancy to twenty weeks based on the opinion of a medical practitioner from twelve weeks under the 1971 statute. The woman also has a right to terminate the pregnancy after 20 weeks going up to 24 weeks, based on the opinion of two registered medical practitioners. The 1971 statute had by contrast prescribed an upper limit of 20 weeks. The statute was further liberalised to remove the requirement of being a ‘married’ woman to access abortion as a result of the failure of a contraception device. Though the Act post its 2021 amendment does not limit abortion to married women, the rules end up distinguishing between married and unmarried women.

Among the categories of women entitled to access abortion between weeks 20-24 are those who have a ‘change of marital status during the ongoing pregnancy (widowhood and divorce)’. This rule ends up reinforcing the distinction between married and unmarried women, with married women being entitled to abortion under the rule and unmarried women being denied the same. This rule was challenged in the Supreme Court in the case of X vs NCT. The case involved an unmarried woman aged about twenty-five years, who had become pregnant as a result of a consensual relationship and wished to terminate her pregnancy as she was wary of the “social stigma and harassment” pertaining to unmarried single parents, especially women”. She stated that she was not mentally prepared to “raise and nurture the child as an unmarried mother.”

The Supreme Court in a Bench headed by Justice Chandrachud held that the rule which limited abortion only to married women had to be interpreted more broadly as ‘the law in modern times is shedding the notion that marriage is a precondition to the rights of individuals’. The court held that ‘there is no rationale for excluding unmarried or single women’ from the benefit of abortion under the rule and proceeded to recognise the right of the ‘unmarried woman’ to make a choice as to ‘whether or not to bear a child, on a similar footing of a married woman’. The Delhi High Court in December 2022 in Mrs X vs GNCTD, reiterated this principle of respect for the decision of the woman regarding the termination of pregnancy. In the facts of this case, Mrs X who was in the 33rd week of gestation wanted to abort her pregnancy as medical tests indicated foetal abnormality. Mrs X applied for permission from the Medical Board and the Board denied permission, as though there was a foetal abnormality, the ‘condition is compatible with life and can be managed surgically following delivery.’

The Delhi High Court interacted directly with the petitioner and came to the conclusion that, ‘the ultimate decision in such cases ought to recognise the choice of the mother’ as well as the ‘possibility of a dignified life for the unborn child’. Considering both these factors, the court held that ‘the medical termination of pregnancy ought to be permitted in the present case.’ Both statutory amendments as well as the law laid down by the courts in India are moving towards greater recognition of the right of women to make choices about their own bodies. However, as the Supreme Court acknowledges in X vs NCT, there are still many challenges. Social morality which frowns on pregnancy outside of marriage is not only present in the rules but is a part of the morality within which institutions function.
The Supreme Court observes that there is a ‘widespread misconception that termination of pregnancies of unmarried women is illegal’ and this perception leads in turn to unsafe abortions. In India, public morality still holds sway, especially the viewpoint which condemns sex outside marriage.

‘Constitutional morality’ based on the recognition of the autonomy of women, remains a ‘top dressing’ on a ‘soil which is essentially undemocratic’. Till Babasaheb Ambedkar’s vision of ‘constitutional morality’ takes root, women in India will continue to face challenges in exercising their right to abortion.

(The author is a lawyer & writer based in Bengaluru. He is the co-editor of Law like love: Queer perspectives on law.)