The status of the right to abortion in India and US
The status of the right to abortion in India and US
UG Semester – I, B.A. LL.B National Law
University, Jodhpur
Both India
and the US went pro-choice on abortion around the same time but taking recent
events into accounts, both seems to be moving into different directions with
regard to the right to abortion with India strengthening women’s right to
bodily autonomy through the MTP Amendments Act (2021) while the Supreme Court
of the United States (SCOTUS) doing away with the right in its judgement in
Dobbs vs Jackson Women's Health Organization (2022).
The status of
the right to abortion in India and US
In the
landmark judgement of Roe vs Wade (1973), the SCOTUS,
upheld the right to abortion as a fundamental right. Before this judgement,
abortion was illegal in 30 states while in 20 states, it was allowed only in
certain circumstances. In the case of Planned Parenthood Vs Casey (1992), the SCOTUS
relying upon Roe vs Wade held that the mother’s right to choose is essential
factor to be considered in every case of termination. Then came the highly
criticized and controversial judgement in the case of Dobbs
vs Jackson Women's Health Organization (2022) in which Women’s Health
Organization, an abortion clinic challenged the abortion law in Mississippi
which allowed abortion only till 15 weeks since pregnancy and not beyond that.
But to the public’s surprise and dismay, the SOTUS instead of relaxing this condition,
took away the constitutional right to abortion from the women in US.
The status of
the right to abortion in India and US
Before the
enactment of the Medical Termination of Pregnancy (MTP) Act (1971), Section 312
of IPC punished abortion with imprisonment of three years or fine or both but
this Act legalized abortion and an explanation was added providing that only
such abortions which aren’t voluntarily opted for by the woman will be
considered illegal under this section. The Act allows abortion up to 20 weeks
from pregnancy. The Supreme Court as part of its power to do complete justice
under Article 142 can allow abortions past any no. of weeks which It has done
on several occasions.
One or more
of the following conditions have to be fulfilled to avail abortion under this Act:
1. If the
pregnancy poses risk to a women’s life.
2. If the
expected child will be born with any life-threatening condition or will be
physically or mentally handicapped.
3. If
pregnancy is the result of rape.
4. If
pregnancy is the result of failure of contraceptive in preventing it.
The MTP Act
was amended in 2021 to bring in more relaxed and favorable provisions
furthering the right to abortion of women.
It brought
in the following changes to the law:
1. The time limit within which abortion was allowed
was increased to 24 weeks.
2. The right to privacy of women has
been upheld by providing that the hospital in which she is being operated can
only disclose the information regarding her abortion to such people to whom she
authorizes. This provision is especially helpful for rape survivors, incest
victims, differently-abled, minors, etc.
3. A medical practitioner has to
consult one doctor before performing abortion if its within 20 weeks of
pregnancy and two doctors if within 20 to 24 weeks.
Courts can
allow abortion beyond 24 weeks after consultation with a medical board on the
severity of the matter.
Comparison
Although abortion access in several Third World countries is
mainly supported by USA’s foreign aid, it is only partly the case in India.
India has had very limited dependence on foreign aid for availing abortion
services to her people historically speaking which has kept it unaffected if
ever such aid is unavailable at any point due to any local or global
circumstances.
In the USA right to abortion was achieved through demands for
better access to reproductive health care, bodily autonomy and constitutional
right but this wasn’t the case in India. In India, right to abortion was
initially provided to people in the light of it being one of the several
methods which will aid in controlling population growth but in the current
social and legal discourse, right to bodily autonomy, health of the women,
well-being of the child to be born etc have become equally important.
Conclusion
Given the wide-ranging power of law-making which the US
states have and the fact that the Roe vs Wade restriction is out of their way,
many states like Alabama, Kentucky, Mississippi, Oklahoma, Texas etc have and
many more will illegalise abortion in the future. It seems like the struggle of
American women to get back their right to abortion will be a long-drawn one.
In India, the right to abortion has the correct standing in
law and what we need to work on is to ensure its availability and accessibility
to everyone, an aspect on which we often lack behind.
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