American flip-flop mustn’t set abortion back in India

Photo: AP
Photo: AP


No matter how different our legal systems, a restrictive abortion law in the US could have a ripple effect on access to services, information, choice and resources for abortion in India

Should we in India worry about the leaked majority opinion of a yet-to-be- pronounced judgement of the Supreme Court of the US which appears to be overturning the law set out in Roe vs Wade and in Planned Parenthood vs Casey? I do want to state here that the leaking of a portion of a judgment in the media is extremely shocking and I am not sure if I have a comparable parallel to that in the Indian legal system, I might, however, be uninformed. But the fact that a leaked portion of a judgement is doing the rounds in the media and has been officially owned by the highest court there is quite unnerving for a legal practitioner like me.

Having said that, I do want to state that while the legal systems and the belief systems are very different for the US and India, a restrictive abortion law in the US will have a ripple effect on access to services, information, choice and resources for abortion in India and elsewhere. In the recent past, there have been some excellent examples of how access to abortion in a country should look like, like Columbia, Kenya, Ireland or Nepal, but considering the nature of the debate in the US, it is likely that similarly placed countries, especially from the religious outlook point of view, may follow suit.

Abortion has been legalized in certain conditions in India since 1971 through the Medical Termination of Pregnancy (MTP) Act. It is an exception to the general criminalization of “causing a miscarriage" under the Indian Penal Code.

The Roe vs Wade case of the US Supreme Court was a judgment passed in the year 1973 that recognized the right of a pregnant woman to decide about the continuation of her pregnancy and held it to be part of her right to privacy, thereby striking down many restrictive laws around abortion prevalent in the US at that point in time. Abortion has always been a controversial issue in the US, primarily on account of significant sections of America viewing access to this medical service from a religious perspective and not from the vantage point of the pregnant person.

In the Indian context, this access becomes an issue from a very different standpoint, one of universal poor access to general health services, and the second of its conflation with the country’s declining child sex ratio. In both these concerns, the religious or moral beliefs of the medical practitioner are of no consequence.

In the first scenario, there is lack of access to safe legal abortion services simply because there is lack of access to any other health services in general. In the second scenario, for the most part, second trimester abortions are incorrectly viewed as being abortions based on knowledge about the sex of the foetus.

However, the fact that the most recent set of amendments to India’s MTP Act were passed in 2021 to expand the scope and reach of the law speaks volumes on the little or no impact that the incorrect conflation with the declining child sex ratio had on the legality and availability of abortion services in the country.

As per India’s National Family Health Survey (NFHS-5) report published in March 2022 that provided data from 2019 to 2021, 2.9% of pregnancies resulted in an abortion, 20.3 % of abortions took place in a public health set-up, and 52.9 % in a private set-up. The most commonly stated reason for seeking an abortion was an unplanned pregnancy.

Having said that, abortion is still not acknowledged or recognized as a right in India, and this in spite of the fact that the right to privacy judgement has read decision-making autonomy about one’s body, including the decision to become pregnant or not and to continue a pregnancy or not, as part of the person’s right to privacy and therefore part of the right to life guaranteed under the Constitution of India.

The abortion law in India is also not inclusive in its true sense, as it does not consider the lived realities and various forms of discrimination based on caste, class, religion, sexual orientation and disabilities that prevail in the country.

The abortion law has in fact created bigger hurdles for people while expanding its scope in the form of medical boards to be set up at every state level and also by creating various categories of women who can access MTP services on classifications based on their circumstances. Further, the amended abortion law has done nothing to do away with the practical hurdles that provisions of other laws, like the Protection of Children from Sexual Offences Act and the Drugs and Cosmetics Act, have created. It also does not take into consideration the awkward fact that in spite of law amendments, there are still a number of petitions being filed in various high courts seeking legal permission for termination of pregnancy.

It does appear that it’s time to ask a moot question about the need for a law regulating abortion in the country, where there is no specific law regulating any other medical procedure.

The answer lies in the fact that the rule is of criminalization and the exception is the procedure performed under the MTP Act. Therefore, what needs to be reassessed is the existence of provisions in the general criminal law criminalizing abortion and then the consequential need for an MTP Act that is not in tune with the changing realities of India and its people.

Anubha Rastogi is a lawyer practising in Mumbai courts

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