The matter under contention is that the constitutional right of women in the US to get an abortion is likely to be overruled by a conservative majority in the US Supreme Court. This news, in the form of a leaked draft opinion by Supreme Court Justice Samuel Alito, published by news outlet Politico, appears to show how the court could vote to overturn Roe v. Wade, the landmark ruling from 1973 that gives women in the US broad access to termination of pregnancy/abortions.
As the news spread, demonstrators gathered in front of the court, among them both advocates and foes of abortion. Social media was flooded with conflicting opinions and news outlets amplified the ramifications of any decision taken by the court in the matter.
The landmark Roe v. Wade judgment of 1973 had made the right to abortion constitutional upto the point of foetal viability and in so doing, it had established a benchmark for abortion laws across the world.
Under Roe v. Wade, which the U.S. Supreme Court had, on January 22, 1973, ruled (7–2) that unduly restrictive state regulation of abortion is unconstitutional. In a majority opinion written by Justice Harry A. Blackmun, the Court held that a set of Texas statutes criminalizing abortion in most instances violated a woman’s constitutional right of privacy, which it found to be implicit in the liberty guarantee of the due process clause of the Fourteenth Amendment (“…nor shall any state deprive any person of life, liberty, or property, without due process of law”).
However, the current majority opinion in the draft reads, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives”. This has spurred concern and alarm, with former President Barack Obama and his wife Michelle saying on social media that this “will relegate the most intensely personal decision someone can make to the whims of politicians and ideologues”.
While under Roe v. Wade, the abortion decision fell into the category of rights, the draft opinion moves abortion from being a constitutionally guaranteed right to an act the legality of which is determined by state laws. Thus, it would hereon fall under majority rule, determined by the citizens of each state through their elected state legislators. The language of the draft opinion, written in February, could change before the court’s final ruling.
As of now, it would give US states the power to decide the legality of abortion and roughly half of them, largely in the south and midwest, are expected to ban abortion quickly. Moving away from women’s rights and into the larger framework of human rights, this is likely to most severely impact the poor and the voice-less.
This legal wrangle has its echoes in seemingly far-away India as well, not least because any decision on women’s rights taken in the US has a ripple effect across the world. The challenges posed by the 15.6 million abortions each year in India are unique. In 2021, India amended the Medical Termination of Pregnancy (MTP) Act 1971 to provide comprehensive abortion care to all across the board.
The new Medical Termination of Pregnancy (Amendment) Act 2021 expanded the access to safe and legal abortion services on therapeutic, eugenic, humanitarian and social grounds. Among the key changes introduced by the Act were the right to terminate unwanted pregnancies caused by contraceptive failure, regardless of a woman’s marital status.
The new law, which came into force on 25 March 2021, was expected to contribute towards ending preventable maternal mortality. “This is a win for the collective wish of women in India. The amendments have increased the ambit and access of women to safe and legal abortion services,” Dr Sumita Ghosh, additional commissioner, Comprehensive Abortion Care, Child Health and Adolescent Health, Ministry of Health and Family Welfare (MoHFW), Government of India had said.
The changes under the Act consider advances in medical technology, simplify requirement of providers, increase upper gestation limit for termination of pregnancy under specific conditions, remove the gestation limit for cases that could burden the health system, strengthen access to comprehensive abortion care without compromising dignity, autonomy, confidentiality, and justice.
The key points in the Medical Termination of Pregnancy (Amendment) Act 2021 are:
- Increasing the upper gestation limit from 20 to 24 weeks for special categories of women, including survivors of rape, victims of incest and other vulnerable women (differently-abled women, minors, among others)
- The opinion of one provider needed for the termination of pregnancy up to 20 weeks of gestation. Requirement of the opinion of two providers for the termination of pregnancy from 20-24 weeks of gestation
- Upper gestation limit to not apply in cases of substantial foetal abnormalities diagnosed by a Medical Board
- Confidentiality clause. The name and other particulars of a woman whose pregnancy has been terminated cannot be revealed except to a person authorised by law
- Extended MTP services under the failure of contraceptive clause to unmarried women to provide access to safe abortion based on a woman’s choice, irrespective of marital status
However, abortion advocates contend that the law does not grant women complete control over their reproductive choices. Speaking to IndiaSpend, Suchitra Dalvie, gynaecologist and coordinator for Asia Safe Abortion Partnership (ASAP), a pan-Asia network for safe abortion advocacy, had said, “To me, the provisions (of MTP Amendment Act 2021) are progressive in a paternalistic, victimhood kind of way.”
Critics point out that the law does not take into account the healthcare crisis caused by the COVID-19 pandemic and given the chronic shortage of doctors in India, expecting women to seek out the opinion of two practitioners and a medical board for certain kinds of abortions is not fair.
Abortion, as such, continues to be a stigma in India and this holds true even within the medical fraternity. Women have been asked to bring partners or parents along for the procedure; they have been denied abortions on so-called ‘moral’ grounds. Abortions likely to impact a woman’s mental health are not accorded the same response as those which might affect her physical health.
Although the amendments mentioned above might seem more considerate in relation to a woman’s right to and agency over her body and privacy, some glaring loopholes remain, not least of which is that according to the Indian Penal Code 1860, abortion remains a criminal offence under Section 312. All that the MTP Act and its amendment provide is an exception to this criminalisation. Its deference to patriarchal mores and practices makes the right to abortion constricted and by extension, a woman’s agency over her own body and life decisions also stands truncated and compromised.
While passing the final judgement on the issue, the US Supreme Court should remember that the decision to be ‘pro-life’ should not necessarily and by implication mean being ‘anti-women’. It also ought to ensure that it is not setting a precedent that might relegate hard-fought women’s rights to the margins of human agency.