Study of abortion rights in India and the United States
Roe V Wade which established the constitutional right to abortion since 1973 was struck down by the United States Supreme Court on June 24, 2022. Justice Samuel Alito, while writing for the majority, declared the Roe V Wade decision of 1973 and repeated subsequent High Court decisions reaffirming the Roe judgment “must be set aside” as they were “grossly wrong” and the arguments were “exceptionally weak” and so “prejudicial” that they constituted “an abuse of judicial authority”. The reversal took place in a conservative majority court in the Dobbs Vs Jackson Women’s Health Organization case.
In Roe V Wade, the United States Supreme Court on January 22, 1973, had ruled by a majority of 7 to 2 that state regulation of abortion, if practiced in an undue and restrictive manner, was unconstitutional. While writing for the majority, Justice Harry A Blackmun, argued that a woman’s constitutional right to privacy, which is implicit in the constitutional guarantee of liberty as in the Due Process Clause of the Fourteenth Amendment (“”. .. no state shall deprive any person of life, liberty, or property, without due process”) was violated by all Texas laws criminalizing abortion.
Now that Roe is overthrown, the situation has completely changed as the United States Supreme Court has ruled that the right to abortion is not conferred by the United States Constitution and therefore the power to regulate abortion is returned to the “people and their elected representatives”, which means state authorities. The immediate implication of the court’s decision is that approximately 26 US states are likely to ban abortions and 13 states have “trigger bans” that in all likelihood will come into effect as a result of Roe’s reversal.
Restricting or criminalizing abortions will always lead to an unwanted legal barrier to safe access to abortion and women will find themselves forced to undergo risky underground abortion procedures. And that will never mean that the demand for abortion services has to decrease in any way, but will only subject women who seek them to more exploitation and threats from law enforcement and illegal service providers. Furthermore, the right to abortion is an essential part of the right to physical autonomy, which also arises from the right to life and liberty.
After realizing this, many countries have already decriminalized abortion and some are in the process of decriminalizing it. For example, Singapore provides abortion on demand up to 24 weeks in cases of rape/incest, risk to the woman’s life or diagnosis of fetal abnormality, while our neighbor Nepal allows abortions on demand up to 12 weeks, and up to 28 weeks for medical or compassionate reasons.
Roe’s overturning is bad news primarily because it will have global implications as it is already used as an important global precedent by courts around the world granting abortion rights such as the Supreme Court of Canada and the High Court of Pretoria. In the Indian context, Roe was quoted in Justice KS Puttaswamy Vs Union of India by Justice Chandrachud, who wrote in favor of maintaining the right to privacy and autonomy of decision as part of the fundamental rights protected by the Constitution.
Now, after the overthrow of Roe, it remains to be considered, are we ahead of the West in having a more progressive approach to reproductive rights? India has a strong legislative framework namely the Medical Termination of Pregnancy Act 1971 as amended in 2021 which governs and regulates the field of abortion.
The Indian Penal Code criminalizes abortion, but at the same time, statutory exceptions making abortion legal are provided by the MTP Act. Under the law, legal abortion is permitted up to 24 weeks under certain specific conditions, which requires the approval of licensed medical professionals.
However, the Medical Termination of Pregnancy (Amendment) Act 2021 is criticized for not having a rights-based approach. This is mainly because it is understood that the law does not give the pregnant person full autonomy to terminate the pregnancy and on the other hand subjects them to go through various procedural barriers. Also, he uses the word “female”, which basically means that transgender and non-binary pregnant people who are biologically capable of bearing children are not counted, which somehow forces them to identify themselves in the binary gender. and undermines their gender identity.
And this has dangerous consequences as many women resort to unsafe abortions in illegal clinics and at home. The National Family Health Survey 2019-2021 reports that in India, 27% of abortions were performed by the woman herself at home. According to the United Nations Population Fund (UNFPA) State of the World Population Report 2022, in India, unsafe abortions cause the death of about eight women every day. And these are serious issues that require immediate and effective course correction.
Without doubt, the MTP amendment law appears progressive, but it cannot escape criticism for being based on a patriarchal, eugenic and cis-heteronormative logic and excessively centered on the doctor and at the same time disregarding the right to autonomy. physical condition and the right to have equitable access to abortion services.
(The author is a Central Government Staff Advocate, Central Administrative Court, Cuttack and Emeritus Adjunct Professor of Law and Media Studies, KIIT University. Opinions expressed are personal)