The overturning of Roe v. Wade in the United States has reignited fierce debates over the future of abortion rights globally. The US Supreme Court took back the fifty-year-old constitutional right to abortion, which formed the bedrock for creating a rights-based perspective towards women’s autonomy in their procreative functions. The United Nations High Commissioner for Human Rights Michelle Bachelet calls it a ‘move against the progressive trends’ for reproductive rights.
In India, causing a miscarriage is an offence under Section 312 of the Indian Penal Code. The Medical Termination of Pregnancy Act, 1971 makes an exception allowing terminations through medical and surgical methods on specific grounds. The enactment of the 1971 Act was not a response to a call of women’s rights movements; it instead was intended to cover medico-legal concerns, supported by the proponents of population control and public health. Like several other countries, the legislation based the nature of regulation on the gestational period. The Act was amended in 2021, extending to unmarried women and raising the limit from 20 to 24 weeks. A termination is thus permitted until the 24th week on medical opinion and through judicial intervention on cases that lie beyond the prescribed time limit. Therefore, continued pregnancy remains the norm, and abortion is still an exception. The legislation allows a plea for abortion where there is a risk to the pregnant woman’s life, a potential injury to their physical and mental health, or foreseen foetal abnormality. The law restricts the permission to abort on the grounds of medical necessities with the medical experts as the final decision-makers. It nowhere considers a woman’s decision on whether to bear the child, stripping off sovereignty over one’s own body. One must ask – Does India have a right to abortion?
In cases where there is no risk to the foetal or the woman, courts have been reluctant to permit a termination. For instance, if a woman doesn’t wish to bear the child for lack of means or emotional support, she may be left with no choice. An alternative discourse was seen in Suchita Srivastava v. Chandigarh Admin., where the Supreme Court linked a woman’s decision, including the right to abstain from procreating, as a dimension of their personal liberty, dignity, and bodily autonomy under Article 21. Yet, it qualified abortion rights with compelling state interest in protecting the foetal life, holding it to be a reasonable restriction.
In the event of seeking abortion post the 24-week period, the case goes to the courts, where a medical board’s opinion is usually taken for adjudication. The varying application of discretion has kept the judicial position ambiguous – upholding the reproductive decisions as a woman’s right or from a public health perspective. The former approach is selectively applied, mostly in cases that are not about terminating pregnancy.
The landmark Roe judgment was a trailblazer in advocating abortion rights, placing it within the broader purview of the right to privacy. Years later, in the Puttuswamy case, India revisited the jurisprudence while holding privacy as a fundamental right. Taking away the Roe holding would embolden an anti-choice movement worldwide and strengthen state control – a gross intrusion into a woman’s private life and choices, forcing them to adopt unsafe procedures.
The WHO finds that developing countries have more health concerns from unsafe termination practices – more than half of which are reported in Central and South Asia. A restrictive legal framework does not necessarily alter societal wants; people tend to go beyond the legal framework if no recourse is present to address their needs. It is evidenced that countries with more restrictive abortion laws have a maternal mortality rate three times higher than countries with less stringent laws.
The 5th National Family Health Survey, 2022, reveals that most abortions (48%) are sought due to unplanned pregnancies. A quarter of abortions are performed by women at home, increasing the risk of post-abortion complications. A restrictive framework prevents women from seeking efficient medical assistance, resorting instead to unspecialised quacks. A case against coercive and punitive frameworks is also to promote gender-equality. A restrictive framework without due respect to a woman’s autonomy, compels her to motherhood. A decision for abortion by anyone other than the women themselves will abet the notions of societal stigma, shame, and guilt surrounding the procedure.
Making abortion a right is a jurisprudence in the making in countries like India. The fall of the essential holding in Roe could push the global movement several steps backward.
(Shrutika is an independent researcher pursuing LLM from TISS Mumbai. Mayank is a Delhi based lawyer.)
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