Author: - Riffat Soin
UILS, Panjab University
What did the US and India have in common in the first half of 1970s? Except of course the surprising emergence of rock in the music industry.
It was the flabbergasting attempt to accommodate the needs and demands of their newly woke citizens into their laws to provide a better and safer society for them, with a spotlight on the rights and demands regarding pregnancy and abortions. However, a promising history does not necessarily guarantee a promising future.
The West has always been a guide for us in regards of what to do, how to do it and when to do it. It has always been seen as a trendsetter rather than a follower. Hence, it would be the last place you would imagine to be progressing backwards. And a third world developing country would be the last place you would imagine to be providing a better healthcare domain than the US.
How such an event has unfolded is what is discussed below in respect of abortion rights in the US and India.
WHY IS ABORTION TODAY’S HOT TOPIC?
The number of searches about abortion and abortion laws evidently being the highest around 25 June 2022 compels our minds to question and wonder what exactly was happening in the world around that time.
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What was happening was that the US Supreme Court was overturning the landmark judgement of ROE v. WADE (1973)
Your own feed might have been bombarded with this particular heading and angry American posts leaving you feeling confused and uninformed. This blog is to give you all information you might be looking for regarding:
- Roe v. Wade
- Overturning of Roe v. Wade, and
- Abortion in India
What exactly is ROE v. WADE?
The famous Roe v. Wade (1973) judgement of the U.S. Supreme Court determined that women have the right to an abortion under the country's Constitution. The ruling invalidated a number of federal and state abortion regulations, sparking a national discussion about whether or not, and to what degree abortion should be permitted, who should make this decision, and the degree of stance religion and morality should be allowed in this subject.
Norma McCorvey, who filed the lawsuit under the alias "Jane Roe," pregnant with her third child in 1969, was denied an abortion because the Texas law prohibited it (unless it was essential to save the mother's life).
Roe v. Wade reached the Supreme Court when Roe appealed in 1970 alleging that the state laws were unconstitutionally vague and abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.
In Roe v. Wade, the Supreme Court concluded that:
- The United States Constitution provides a fundamental "right to privacy" that protects a person's right to choose whether to have an abortion.
- But the abortion right is not absolute. It must be balanced against the government's interests in protecting health and prenatal life.
It was thus a landmark judgement in which the U.S. Supreme Court on January 22, 1973, ruled with a dominant majority of 7-2 that the unreasonable attempt to control and dictate a woman’s body to deprive her the right to abortion is unconstitutional. The Court held that a set of provisions in Texas law criminalizing abortion in most instances violated a woman’s constitutional right of privacy, which it found to be implicit in the liberty guaranteed by the Fourteenth Amendment. Abortion was thus made a constitutional right.
Why is this 1973 judgement back in the news?
When the U.S Supreme Court issued a judgement in Dobbs v. Jackson Women's Health Organization, a case challenging Mississippi’s ban on abortion, brought by the Centre for Reproductive Rights and its partners on behalf of Jackson Women’s Health Organization, the only remaining abortion clinic in the state, overturning the 50-year-old judgement of Roe v. Wade, the news and consequences spread faster than a forest fire.
The U.S. Supreme Court issued its ruling in this case on June 24, 2022, taking away the constitutional right to abortion, abandoning almost 50 years of precedent, and paving the way for states to ban abortion.
It must be noted that this decision does not declare abortion as illegal.
What it does is take away the constitutional status of right to abortion thus opening up a pandora’s box allowing states legislators to set up any rules and laws they want regarding abortions. Some conservative states have shown great alacrity in drawing up bills that would totally eliminate abortion rights, ultimately restricting access to basic healthcare for women.
This marked the first time that the Supreme Court has revisited and stripped away the fundamental status of a right in the history of the USA.
“The Court’s opinion delivers a wrecking ball to the constitutional right to abortion, destroying the protections of Roe v. Wade, and utterly disregarding the one in four women in America who make the decision to end a pregnancy,” said Nancy Northup, President and CEO of the Centre for Reproductive Rights in a statement. “While public support for access to abortion is at an all-time high, the Court has hit a new low by taking away – for the first time ever – a constitutionally guaranteed personal liberty.”
Why has this resulted in a concern among Indian women?
As women in a third world country, we aspire to have the level of equality and liberty as same as that of first world democratic country like that of the US. However, hearing such a news of an apparent regressive judgement is bound to awaken our concern. Not long after this judgement was passed, women all over the world rushed to read about the laws and security their own country provides them with in case of abortions and miscarriages, including Indian women.
Provisions for Abortion in India
Voluntarily causing a miscarriage is a criminal offence in India under the Indian Penal Code (1860). However, an act provides an exemption in cases of abortions to medical practitioners who perform these abortions under certain special circumstances mentioned in the act. This act was constituted in 1971 to grant abortion rights to women and was called the Medical Termination of Pregnancy (MTP) ACT 1971.
- Medical Termination of Pregnancy (MTP) Act (1971)
It inferred the right of abortion to women up to 12 weeks of pregnancy on acknowledgment of one medical practitioner and up to 20 weeks of pregnancy on acknowledgement of 2 medical practitioners in the following conditions-
- If the pregnancy imposes a substantial threat to a women’s life and can cause physical/mental damage.
- If the expected child will face a threat to life or be physically/mentally handicapped.
- If pregnancy is due to rape.
- If pregnancy is the result of failed contraceptive between a married couple
Though seeming reasonable enough on first sight, for the women of the 21st century, this act still had a lot of scope for improvement. Hence, having been subjected to various bills, scrutiny and amendments, the act has been recently amended in 2021 to provide the pregnant women a better and wider ambit and access to safe abortions and comprehensive care.
- MTP Amendment Act 2021
- Under the Act, a pregnancy may be terminated up to 20 weeks on the acknowledgement of 1 Registered Medical Practitioner (RMP) by a woman (either married or unmarried) in cases already mentioned in the MTP Act 1971.
- Abortion can be performed up to 24 weeks of pregnancy on the acknowledgement of 2 RMPs in certain specific situations of:
- Survivors of sexual assault or rape or incest.
- Minors.
- Change of marital status during the ongoing pregnancy (widowhood and divorce).
- Women with physical disabilities.
- Mentally ill women.
- Foetal malformation that has a substantial risk of being incompatible with life or if the child is born, he/ she may suffer from serious physical or mental abnormalities.
- Women with pregnancy in humanitarian settings or disaster or emergency situations.
- A Medical Board will be formed by all state and union territory administrations. The Board will decide whether or not a pregnancy can be ended beyond 24 weeks owing to significant foetal abnormalities. The state government will appoint:
- A gynaecologist,
- A paediatrician,
- A radiologist/sonologist,
- and other members as suitable, to each Board.
- It also includes a confidentiality clause which states that the name and other particulars of a woman whose pregnancy has been terminated shall not be revealed, except to a person authorised in any law that is currently in force.
A clearer picture of the amendment through the recent SC ad interim order
In a recent case, an unmarried woman was denied her right to abortion at 24 weeks of pregnancy by the Delhi High Court on the basis that it would amount to killing of the foetus and since she was unmarried, a change in the relationship status was not found to be falling under the amendment provided in the MTP Act (unlike the provision for change in the marital status).
She thus approached the Supreme Court with the argument that the MTP Amendment 2021 covers her situation since her live-in partner, who had promised to marry her, “ditched” her at the last moment. Burdened by the social stigma along with the mental and financial incapability to raise a child alone, drove her to seek an abortion.
The Supreme Court held that abortion cannot be denied solely because of the woman being unmarried. The SC stated “a woman’s right to reproductive choice is an inseparable part of her personal liberty under Article 21 of the Constitution, and she has a sacrosanct right to bodily integrity” thus expanding the scope of the MTP Act.
According to the analysis of the bench, the amendment act mentioning the woman and her “partner” and not her “husband” clearly acknowledges the relationships besides marriage.
The Supreme Court thus passed an ad-interim order on 21 July 2022 to allow the woman to abort her pregnancy, subject to a medical board concluding that the foetus can be aborted without any risk to the life of the woman.
ANALYSIS
A 2021 amendment trying to keep up with the needs and demands of its citizens can be seen as being in consonance with a 1973 judgement of US that was a judgment applauded and first of its kind. However, on one hand where we can see this amendment trying to accommodate the new needs of the new liberal society, on the other, we can also see the landmark judgment it resonates with being overturned. The regression is thus very evident and is happening in front of our eyes. Why a country which passed a then progressive law is now progressing backwards in confusing, appalling and scary at the same time
This amendment, though not exactly giving abortion the status of a fundamental or constitutional right, does provide a wider ambit and access to safe abortion to women. It is certainly a step in the right direction, but it yet has a long way to go. The act still looks at abortion as a decision which requires to be analysed and scrutinized by individuals it does not affect. It does not provide absolute bodily autonomy to women and neither does it acknowledge areas where the required RMPs or the resources of a medical board are not available. The goal should be to provide access to safe abortion to women countrywide by bridging the disparities in availability of basic healthcare and acknowledging the fact that granting of reproductive rights to women would act as a great equalizer in the long run. Afterall, in a country where legislation is not done over moral issues like adultery, why should a situation like abortion be an exception to this tradition, wherein a woman’s issue regarding her own personal body is subjected to the whims of changing public opinion
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