New Delhi, India-May 4 2018: Supreme court of India building in New Delhi, India.

The Supreme Court of India’s Landmark Abortion Ruling, Explained

By Aparajita Lath

The Supreme Court of India recently ruled that all women, whether married or not, have equal rights to access abortion up to 24 weeks of gestation, in compliance with the provisions of the Medical Termination of Pregnancy Act, 1971 (MTP Act).

Prior to this ruling, the MTP Act was understood to permit abortions up to 20 weeks (on the advice of one medical practitioner), and up to 24 weeks in certain specific cases, e.g., minors, pregnancies resulting from rape, women experiencing changes in marital status, women with certain mental / physical disabilities, fetal malformation, or pregnancies in emergency situations. The Supreme Court has now expanded the law to ensure access to abortion for all women, regardless of marital status, up to 24 weeks gestation.

This recent ruling is a significant step forward for women’s rights in India, bucking trends in the U.S. and other parts of the world, where abortion access faces new restrictions.

The key details behind the Supreme Court of India’s landmark decision involve an unmarried woman (the appellant) who was denied the right to terminate her pregnancy (at 22 weeks) by a lower court (a state High Court). The appellant did not want to carry the pregnancy to term for several reasons including social stigma, financial constraints, and risk of strain to her mental health. The High Court, however, held that she did not have the right to terminate her pregnancy. Only certain categories of women could terminate their pregnancy beyond 20 weeks and up to 24 weeks which included married women whose marital status had changed (divorced or widowed) during the pregnancy. The unmarried appellant, whose pregnancy arose out of a consensual relationship, was not covered. On appeal, the Supreme Court reversed this finding.

The court interpreted the MTP Act and related rules purposively to hold that the legislature did not intend to distinguish between married and unmarried women. A narrow interpretation, limited only to married women, would render the law discriminatory towards unmarried women and violate their fundamental right to equality. Not only did the court extend protection to unmarried women, but it also liberalized access to abortion to married women who become pregnant as a result of marital rape. Prior to this, married women did not have recourse to abortion on the grounds of rape, since marital rape is excluded from the definition of rape under the Indian Penal Code. This exclusion’s constitutional validity is being challenged in another case before the Supreme Court. The court also enhanced protections regarding abortion access for minors. The court held that medical practitioners need not disclose the identity of the minor in certain reporting requirements to authorities, on request of the minor and guardian.

In this decision, the court recognizes that reproductive and decisional autonomy are essential to the realization of fundamental human rights.

As the court held, “the right of every woman to make reproductive choices without undue interference from the state is central to the idea of human dignity. Deprivation of access to reproductive healthcare or emotional and physical wellbeing also injures the dignity of women.

Thus, the court interprets reproductive rights to include not only the right of choice but also a constellation of other rights – the right to access education and information about contraception, the right to access safe and legal abortions, and the right to reproductive health care.

The Supreme Court’s ruling is only the most recent advancement in the progressive liberalization of abortion law in India. Prior to the passage of the MTP Act in 1971, abortion was criminalized in India. This compelled women to seek unsafe and unregulated abortions. To address this situation, the MTP Act was passed. The act, as passed, permitted abortions up to 12 weeks (on the advice of one medical practitioner), and up to 20 weeks (on the advice of two medical practitioners).

Despite the MTP Act, unregulated and unsafe abortions continued in great numbers. Terminating pregnancies prior to 12 weeks proved to be difficult for several reasons, including lack of awareness of the pregnancy, social stigma, hesitancy, and discovery of fetal abnormalities at a later point. Further, lack of doctors and resources, especially in rural areas, were practical obstacles for abortions between 12 to 20 weeks. These obstacles were so prevalent that by 2021, there were more than 100 petitions before various State High Courts, seeking permission for abortions beyond the prescribed timelines. Taking note of this, in 2021, the government extended the timelines for legal abortions under the MTP Act, resulting in the 20 and 24 week categories further adjudicated by the Supreme Court this fall.

Apart from abortion, legal norms have been changing favorably over time for women. For instance, welfare legislation such as maternity benefits, certain religious succession laws, and adoption laws do not distinguish between married and unmarried women. Taken together, these laws and the recent court ruling signify that all women have decisional autonomy to make significant choices regarding their body and their welfare.

However, true realization of such autonomy will depend on material, social, and cultural changes.

India has historically been a patriarchal society. Male values dominate and regulate personal, social, and economic spheres of life and living. In fact, India has a historic cultural preference for sons over daughters, leading to selective abortion of female fetuses. To curb this practice, India has strict laws that prohibit sex selective abortion and criminalize female feticide. But pernicious social and cultural norms continue to restrict women from realizing their full potential and from having aspirations beyond marriage. Further, pre-marital relationships are often frowned upon or characterised as “illicit,” and  pre-marital sex is taboo.

Apart from social changes, resource constraints limit access to health care facilities. In a country where many live below the poverty line, increasing access to health care facilities and medical practitioners is a material consideration for true equality and freedom.

Hopefully the Supreme Court’s ruling will usher in social, cultural, and infrastructural changes as well.

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