Bodily autonomy & safe abortion, a right under Article 21 Understanding the evolution of abortion laws, in the national and international context

18, Nov 2022 | Anish Padhye

Abortion laws and the increasing concern for ideas like bodily autonomyreproductive rightstermination ofpregnancyreproductive healthcareetc. influenced me to study the subject and write a historical account on abortion laws. This article attempts to explain abortion laws in context of their overview which includes origin, development and current status. Thereafter, it discusses the Medical Termination of Pregnancy Act, 1971 and its subsequent 2021 amendment; a very specific aspect with respect to the Indian legal system. Finally, it enunciates a recent landmark decision of the Supreme Court of India in X vs Principal Health Secretary, NCT of Delhi and comparatively analyses it with Dobbs vs Jackson Women’s Health Organization, a diametrically opposite verdict of the SCOTUS.

An Overview of Abortion laws

The word ‘abortion’ literally means a procedure to end pregnancy or the expulsion of the foetus from the uterus before it has reached the stage of viability (gestational limit) in medical terminology. It forms a part of an umbrella of reproductive rights. Reproductive rights are the privileges and liberties enjoyed by individuals regarding their reproduction and reproductive health. According to WHO, ‘Reproductive rights rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number of spacing, timing, information and means to copulate and the right to attain highest standards of reproductive health devoid of discrimination, coercion and violence.’ Some other types of reproductive rights include consensual sterilisation, reproductive healthcare and even access to awareness and education about the same.

Abortion and law in convolution didn’t emerge before the second half of the 20th century. One of the first instances of the amalgamation of abortion as a basic human right and the State-sponsored legalisation of the same was witnessed when the erstwhile Soviet Union significantly allowed the access to legal abortion way back in 1955. Before that, in the Nuremberg trials of 1948 post World War II, more specifically in United States vs Greifelt and Others, the surrendered and defeated Nazi regime was held guilty of its war crimes by a Military Tribunal and one of them was the coercion of semitic Jew women to terminate their pregnancies. This decision resonates with the popular modern understanding of human rights that indicates that the woman herself is capable of deciding the future of her pregnancy or ‘bodily autonomy’ as it has been consolidated globally. Until now i.e., 2022, 66 nation-States who are UN members have legalised abortion. More importantly, Article 6 of the International Covenant on Civil and Political Rights which has been ratified by most countries accords the right to safe and sound legal abortion in tandem with the right to life. As far as the United States is concerned, its Supreme Court in a liberal 1973 judgement Roe v Wade set a benchmark by constitutionally guaranteeing the right to safe and sound legal abortion. This was recently overturned.

Medical Termination of Pregnancy Act, 1971

In India, the origin of abortion laws can be found in the Medical Termination of Pregnancy Act, 1971 passed by both the houses of Indian Parliament during the tenure of prime minister, Indira Gandhi. It was the first legislation as far as India’s parliamentary history is concerned to ever create a framework that recognised the right to legal abortion publicly and normatively directed the executive to enforce it in hospitals. Though it was a developmental and remedial torchbearer, the Act was not comprehensive and exhaustive enough and lacked the ‘equal protection under law’ factor. Of course, one can defend it by considering the era it regulated and the social structure it catered to.

The Act defined its main purpose to provide termination of pregnancies by Registered Medical Practicians (RMPs). The gestational limit was 12 weeks that required one RMP opinion and 12-20 weeks that required two RMP opinions. Abortion in 12-20 weeks was only accessible if foetal abnormality was such that the chances of the foetus living were negligible. As those were the Article 370 operational times, the Act did not extend to the jurisdiction of Jammu and Kashmir. The Act technically had a very narrow and restrictive purview due to three aspects. The first one being that the abortion facility was limited only to government hospitals managed and run by the State and had no clause to regulate certified and licensed private hospitals in providing legal abortion. Also, the gestational limit to avail a blanket abortion for all women was very low i.e.,12 weeks. And more importantly, the provisions of the Act facilitated legal abortion to only married women which essentially discriminated against unmarried women with only pregnancies caused because of rape being an exception. Also, it was silent on the right to abortion of women below the age of 18 years and their basic reproductive rights and personal liberty pertaining to their pregnancy.

These prevalent anomalies in the legislation resultantly led to the 2021 Amendment Act that altered several provisions of the 1971 Act to widen the ambit of abortion.

Medical Termination of Pregnancy (Amendment) Act, 2021 

This concerned legislation is an amendment to the 1971 MTP Act that is currently functional and governs the termination of pregnancies. Certain changes incorporated in this particular Act are as follows:

The gestational limit necessitating one RMP opinion was increased to 20 weeks and that of two RMP opinions to 24 weeks. It was made inclusive to unmarried women by the usage of words ‘any woman and her partner’. Thirdly, private hospitals were authorised to provide medical termination of pregnancy by mandating them to renew empanelment every five years to maintain the credibility and reliability of the hospitals.

Lastly, abortion in the time period 20-24 weeks was synthesized to include various provisions which formed the Rule 3B of the MTP. Rule 3B of the MTPA allows termination of pregnancy in peculiar cases when there has been a change in the ‘marital status’ of the woman or she has been a survivor of rape or sexual assault and she has suffered any grave or serious mental trauma. Albeit these provisions, there are several demerits of the rule which will be discussed in detail in the commentary on Supreme Court’s landmark judgement X vs NCT.

X vs Principal Health Secretary, NCT of Delhi

A  three-judge judge bench comprising Justices D.Y Chandrachud, A.S Boppana and J.B Pardiwala pronounced a significant judgement on abortion laws in India pertaining to the umbrella legislation of Medical Termination of Pregnancy(Amendment) Act, 2021.Facts- X (anonymity maintained due to right to privacy) an unmarried woman was denied abortion of her pregnancy (20-24 weeks) by Regular Medical Practitioners (RMPs) under Rule 3B of the MTP Act. A petition was filed in the Delhi HC directing the doctors to terminate her pregnancy. The High Court however rejected the petition by adhering strictly to the legislation that Rule 3B of the MTP Act does not provide abortion for unmarried women.

The judgement fundamentally emphasised three aspects while broadening the scope of Rule 3B and legally substantiating the Delhi HC order.

  • The eligibility criteria for abortion under the clause ‘change of marital status’ was made inclusive to unmarried and single women recognising her right to individual liberty, bodily autonomy and safe and sound legal abortion under Article 21 of the Constitution. Justice Chandrachud wrote in the judgement that it would be fallacious in not correcting the stereotype that only married women engage in sexual intercourse.
  • Exceeding the purview of the factual matrix and expanding judicial thought,thejudgement also shed light on the exception clause of Section 375 of the IPC. It reiterated that rape under Rule 3B includes marital rape for the purposes of MTP Act. ‘We need to understand the lived realities of many women who suffer from sexual violence perpetrated by their husbands’ quotes the judgement. Survivors of rape and sexual assault were already entitled to abortion under the 20-24 weeks category. But the regulations were silent on its marital aspect. This particular judgement consolidates it. So, the child conceived out of forced sexual intercourse within a marriage is eligible for abortion under the Act.

This is the first time after Justice Rajeev Shakder’s path-breaking verdict in the Delhi High Court case challenging the validity of the Section 375 exception was upheld. Justice Shakder’s verdict held the exception to be unconstitutional under Article 14 (equality before law) and 21 (right to life and personal liberty and now the Supreme Court has upheld that judicial opinion. Though it was central to MTP, this could pave the way to its criminalization when the actual hearings in the appeal against the Delhi HC’s split verdict actually begin in February 2023.

Thirdly, it negated every possibility of discrimination among women in seeking sound legal abortion. The verdict essentially opens access to legal abortion for all women irrespective of their marital status, age and consent factor. It also extended the interpretation of ‘grave injury to mental health’ to not only psychological illness but also any unwanted pregnancy. The judgement called into veracity the impugned practice of RMPs in asking for consent of a woman’s family and in-laws. It held that adhering to the core constitutional principles, the woman is herself an ‘ultimate decision maker’ as far as the termination of her pregnancy is concerned. Justice Chandrachud authoring the unanimous opinion also highlights a nuanced legal reasoning as to why the Indian State should value X vs NCT as a judgement. The court very constructively argues that India is obligated to offer comprehensive abortion as the Protection of Human Rights Act, 1993 recognises and hence technically ratifies all the United Nations’ human rights conventions which include the International Covenant on Civil and Political Rights (ICCPR) whose Article 6 acknowledges right to legal abortion as a part of right to life; coincidently the essence of Article 21 of the Constitution.

Dobbs viz a viz X: A Comparative Analysis 

The final part of this article intends to comparatively analyse contemporary judicial opinions in the United States and India as far as abortion laws are concerned and contextually indicate the contradictory legal template by comparing two landmark judgements of the the two apex courts.

Before examining these in detail, one has to understand that the inherent difference between the US and India’s abortion law is that it’s a constitutional right in the former and a legislative right in the latter.

Hence, Dobbs v Jackson Women Health Organization, a draconian 5:4 majority of the SCOTUS overturned Roe v Wade; a 1973 judgement that had conceded abortion as a constitutional right i.e., safeguarded by the Grundnorm (law of the land). As Roe and Planned Parenthood v Casey (1991); another Supreme Court judgement that had fortified Roe’s structure, had constitutional connotations the decision in Dobbs invaded the constitutional right to abortion and its declaration as illegal abrogated the ‘due process clause’ that encompasses 5th and 14thAmendments to the US Constitution. Dobbs was predicated on an irrational and frivolous Republican premise that the ‘foetus has life’ with disregard for the individual liberty of the woman and was the direct result of appointing conservative judges by conservative politicians.

Coming back to India, X vs NCT did not contain any element of constitutionalism or fundamental rights because abortion in India was recognized through a legislative enactment by the Indian Parliament and the concerned judgement was pertaining to the MTP Amendment Act, 2021.

Though the unanimous judgement broadens the ambit of Rule 3B considering the three aspects mentioned earlier, it has been partly criticised for ignoring the unnecessary directive of seeking a RMP opinion which negates the bodily autonomy factor and for failing to promulgate right to abortion as a fundamental right under Article 21 as it did with respect to right to privacy in K.S Puttaswamy vs Union of India in 2018 which is well within Supreme Court’s constitutional powers. Though I find the former argument a bit too impractical due to medical and scientific reasons, the latter is something that would have truly redefined abortion law in India and considerably changed the justice delivery mechanism for the aggrieved ones.

The current legal template for abortion laws in India is undoubtedly progressive and landmark. And post the X vs NCT judgement delivered by the apex court, it holds a mandatory value insofar being binding on High Courts and the lower judiciary. But for abortion to be accessible and absolute up to 24 weeks without the interference of the judiciary at every step, an amended legislation of the MTP Act that answers these questions posed by the Supreme Court in a comprehensive manner is necessary to make it a reality.

Image Courtesy: Reuters/Mario Anzuoni

The author is a law student pursuing a 5-year B.A LL.B course at ILS Law College Pune with a special interest in constitutional law, criminal law and human rights.

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