Abortions have been legal in India since 1971. Many countries have gone through a lot of struggle for abortion rights to be recognised as part of women’s bodily autonomy; it is still an ongoing struggle in many others. These struggles are waged on many fronts—religious fanaticism, pseudo bioethics, judicial biases, and all sorts of political conservatism. However, India faced none of these challenges when it passed the strategically titled Medical Termination of Pregnancy Act in 1971.

While feminist groups and movements elsewhere fought for abortion to be legalised as an expression of free choice, some feminist scholars in India viewed liberalisation of abortion laws as a double-edged sword. In the Malthusian demographic context, rather than upholding reproductive freedom in a patriarchal society, it can be used as a tool to oppress women by regulating their sexualities.

Legislative processes to liberalise abortion law in Britain compelled parliamentarians in India, who were still influenced by the colonial legacy, to look in that direction. The parliamentary debates on the MTP Act reveal the specific historical context of how welfarism was influenced by values of modernity such as “small families” and, to a lesser extent, the radical idea of women’s emancipation.

The main concerns about legalising abortion in India differed from those in Western countries. The frequently asked questions here were on whether a change in law would have any impact in lowering maternal mortality by reducing illegal abortions (considering that all illegal abortions are unsafe) and improving the health of women in India; on the role of abortion in the context of national population control policies; and on the help medical practitioners need to evade punitive actions prescribed by the Indian Penal Code and to ensure the quality of services from the perspective of both the provider and the beneficiary.

The practices relating to the MTP Act continue to be tools for perpetuating and validating patriarchy in India. The Act is an example of the intersection of exploitative structures, patriarchy, and law. Academic and judicial debates on abortion clearly show that the law dealing with the health of women is dominated by perceptions of them essentially as reproductive machines, and the role of the law is predictably protectionist. The political imagination of the legislative process see women as child-bearing beneficiaries, not as equal rights-bearing citizens.

Reproductive justice

The discourse on abortion within the framework of reproductive justice primarily challenges notions of power and control in family, and sexual and procreative relations. According to Alan Guttmacher Institute’s (AGI) global map of abortion legislation, India has one of the most liberal laws, allowing abortion for several physiological and social reasons. In reality, however, women face a lot of barriers, structural as well as cultural, in accessing safe abortion services. Multiple socioeconomic inequalities and cultural stigma make women facing an unwanted pregnancy even more vulnerable. In such situations, approaching the judiciary for the enforcement of the legal right to abortion is exasperating. The judiciary’s approach in most of the cases in India is deeply influenced by the pro-life ideology, and the right to abortion is misinterpreted or interpreted conservatively.

In a historic judgment, the Supreme Court of India recently declared that all women were entitled to safe and legal abortion under the MTP Act and any discrimination based on marital status would be unconstitutional. “It is only the woman’s consent (or her guardian’s consent if she is a minor or mentally ill) which is material,” the bench of Justices D.Y. Chandrachud, A.S. Bopanna, and J.B. Pardiwala observed. The verdict criticised the approach taken by Registered Medical Practitioners to insist on extralegal conditions such as consent from the woman’s family, unnecessary documentary proofs, and judicial authorisation. The court said that these extralegal requirements had no basis in law and directed the medical practitioners to stick to the provisions of the MTP Act and rules and regulations.

In X vs Principal Secretary, Health and Family Welfare Department, Government of NCT of Delhi (2022 LiveLaw (SC)809/C.A 5802/2022/29 September 2022), the Supreme Court invoked the constitutional safeguards to say that Article 21 “recognises and protects the right of a woman to undergo termination of pregnancy if her mental and physical health is at stake”. Reaffirming the bodily autonomy in the absolute form, the court stated: “it is the woman alone who has the right over her body and is the ultimate decision-maker on the question of whether she wants to undergo an abortion…. Reproductive autonomy requires that every pregnant women has the intrinsic right to choose to undergo or not to undergo abortion without any consent or authorisation from a third party.”

The court also interpreted the ambit of Rule 3B(a) of the Medical Termination of Pregnancy Rules, which lists the categories of women who can seek termination of pregnancy in 20-24 weeks. The bench held that the meaning of rape must include “marital rape” for the purpose of widening the scope of the MTP rules. The court identified marital rape as a legal category, which is not recognised by the Indian Penal Code. “Married women may also form the part of the class of survivors of sexual assault or rape. The ordinary meaning of the word rape is sexual intercourse with a person without consent or against their will. Regardless of whether such forced intercourse occurs in the context of matrimony, a woman may become pregnant as a result of non-consensual sexual intercourse performed by her own husband,” the court observed.

Intimate partner violence

Recognising intimate partner violence as a reality, and sex- and gender-based violence within families as part of the lived experience of women, will surely initiate further discussions in feminist jurisprudence beyond the context of expanding the MTP rules. As such, this verdict is a relief in terms of reaffirming abortion rights as well as broadening the horizons of legal protection for intimate gender-based violence.

We must admire the progressiveness of this verdict in the light of the recent U-turn in abortion rights litigation in US judicial history, overturning the landmark Roe vs Wade (1973) decision that recognised a woman’s constitutional right to abortion.

The U-turn in the US

In the judgment on Dobbs vs Jackson Women’s Health Organization (2022), the court, in a 6-3 ruling powered by its conservative majority, upheld a Republican-backed Mississippi law that bans abortion after 15 weeks. Joe Biden described it “as a sad day for the court and the country”. Against the authoritarian governance in India, the Supreme Court of India’s decision gives a ray of hope for women’s health rights groups, and scholars and activists who stand for reproductive justice.

In Jurisprudence, John William Salmond argues that in order to confer a legal right, it is essential that interest must be protected and recognised by the state (legal right is the legally protected interest, according to Rudolf Von Jhering). With this landmark judgment, the Supreme Court of India has reiterated and reinforced the right to abortion irrespective of marital status and broadened the interpretation of rape under the MTP Act.

The decision came on the day of WHO’s International Safe Abortion Day. This year, WHO recognises the role people play in their own sexual and reproductive health, as well as the life-saving, life-changing impact of health care workers committed to delivering quality comprehensive abortion care, including information, abortion management, and post-abortion care.

However, the question is whether India has an evidence-based abortion care programme. Is India in a position to argue that abortion care is health care and that health is a human right? Does this progressive judicial interpretation of the MTP Act recognise access to the highest attainable standard of health, including sexual and reproductive health, as a core human right? Does this judicial interpretation enhance the woman’s ability to decide if and when to have children, and access to safe, timely, affordable, respectful, and person-centred abortion care, including information and post-abortion care?

The answers are not in the affirmative. For that, there is need for political will to ensure the state does its duty to protect the interest of women by guaranteeing free and affordable abortion care to all, irrespective of biases. According to the latest data of the Ministry of Health and Family Welfare’s Rural Health Statistics (2019-20), there is a 70 per cent shortage of obstetricians and health care practitioners in the country. The rural health care infrastructure is pathetic.

With the shameful amount that India spends on the health sector as percentage of GDP, will it able to ensure abortion rights by the legal and judicial action? The hope is that the new judicial interpretation will initiate political debates in this direction, making it obligatory on the state to address the structural barriers in abortion-care services.

Appendix

Abortion Rights in India: Understanding the Supreme Court verdict

The Supreme Court of India recently declared in a historic judgment that all women were entitled to safe and legal abortion under the MTP Act and any discrimination based on marital status would be unconstitutional.

The verdict criticised the approach taken by Registered Medical Practitioners to insist on extralegal conditions such as consent from the woman’s family, unnecessary documentary proofs, and judicial authorisation.

The Supreme Court invoked the constitutional safeguards to say that Article 21 “recognises and protects the right of a woman to undergo termination of pregnancy if her mental and physical health is at stake”. Reaffirming the bodily autonomy in the absolute form, the court stated: “it is the woman alone who has the right over her body and is the ultimate decision-maker on the question of whether she wants to undergo an abortion.”

The court also interpreted the ambit of Rule 3B(a) of the Medical Termination of Pregnancy Rules. The bench held that the meaning of rape must include “marital rape” for the purpose of widening the scope of the MTP rules.

“Married women may also form the part of the class of survivors of sexual assault or rape. The ordinary meaning of the word rape is sexual intercourse with a person without consent or against their will. Regardless of whether such forced intercourse occurs in the context of matrimony, a woman may become pregnant as a result of non-consensual sexual intercourse performed by her own husband,” the court observed.

[Source: 2022 LiveLaw (SC)809/C.A 5802/2022/29 September 2022]

(Arathi P.M. is Assistant Professor, School of Indian Legal Thought, Mahatma Gandhi University, Kottayam, Kerala. Courtesy: Frontline magazine.)