Abortion rights: Landmark ruling

The Supreme Court’s judgement on abortion rights reaffirms a woman’s autonomy and power over body and her right to equality and privacy in an important area. It is a landmark judgement that expands women’s reproductive rights and aligns them with their fundamental rights. The court ruled that all women — whether married or in consensual relationships, including “persons other than cis-gender women” — are entitled to seek an abortion within 20-24 weeks of pregnancy. The ruling was on an appeal by a 25-year-old unmarried woman, whose plea for termination of her pregnancy in the 24th week was rejected by the Delhi High Court on the ground that the Medical Termination of Pregnancy (MTP) Rules, 2003, did not extend to unmarried women in consensual relationships. The woman had decided to go in for abortion as she was no longer in a relationship with her partner.

The MTP law and the rules under it have progressively changed over time in response to changing social mores and ideas about women’s role and rights. The amendment made in 2021 allowed several categories of women to seek abortions between 20 and 24 weeks. Last week’s judgement made unmarried women also eligible for abortions as the amendment did not distinguish between married and unmarried women, including those in consensual relationships. The court has given a liberal and purposive interpretation to the expression “change in marital status” and included even abandonment by the partner as a ground for abortion. While the law allowed abortion up to the 24th week if there was risk to life or health, the court has said this would mean both the woman’s physical and mental health. These less restrictive interpretations place the issue of abortion within the framework of women’s agency and freedom of choice and delink it from patriarchal norms and attitudes that still prevail. The directive for non-disclosure of the identity of minors under the Act is also right. It is a surprise it has come only now.

Another important aspect of the judgement is the widening of the definition of rape to include marital rape under the provisions of the abortion law. The court made it clear that married women may also form part of a class of survivors of sexual assault, having become pregnant on account of a non-consensual act by the husband. So, it has allowed women who conceive out of marital rape to seek termination of pregnancy within the specified period. This does not mean that marital rape is accepted as an offence, but it considers it an adequate ground for abortion. This should strengthen the case to recognise marital rape as a crime.