The Supreme Court of India has done well to place a woman’s will and agency at the centre of abortion access. The basic right to decide for oneself, though, remains a wider battle to be won
A woman’s right to decide what she wants to do with her body is hers alone. In an ideal world, this should be beyond challenge. But in the name of religion, custom and honour, that right is often diluted. The US backslide on abortion rights is just one example of the paltry worth of women in societies that take patriarchal ideas to extremes. Some American states now justify denying access to abortion even to teenage survivors of rape and incest. In India, the state’s record on legal access to abortion is far from the nightmare it is in the US. Indeed, last week, a landmark judgement of our Supreme Court (SC) struck down provisions of the Medical Termination of Pregnancy Act, 2021, that barred unmarried women from terminating their pregnancy in the 20-24 week period. “This artificial distinction between married and single women is not constitutionally sustainable," held the court. In doing so, it followed the lead of Parliament, which amended the MTP Act last year to liberalize abortion access. It gave all women, irrespective of marital status, the right to claim abortion access till 20 weeks.
The SC ruling is path-breaking on several counts. For one, it extends safe abortion access under the MTP Act to queer and trans-people, and not just cis-gender women. Next, it places a woman’s will and agency at the centre of abortion access. “The decision to carry the pregnancy to its full term or terminate it is firmly rooted in the right to bodily autonomy and decisional autonomy of the pregnant woman," the court said. Finally, it ripples out into other aspects of intimate personal relationships, making this a ruling with far-reaching implications. It does so by placing abortion access and the right to take decisions about women’s bodies in a broader framework of constitutional rights. Under Indian penal law, abortion is barred, but the MTP Act carves out exceptions, making abortion available to women under certain conditions such as sexual assault, among others. The SC ruling recognizes that even married women qualify for this. Marital rape is not a crime in India. This is partly a legacy of colonial law, which conceived of marriage as a contract in which women permanently sign away sexual consent to husbands. There is enough evidence, however, to show that women face routine sexual violence at home. Politically, it is a fraught subject, given the paranoia that outlawing marital rape might lead to a breakdown of marriage. But, even as the apex court waits to hear a challenge to the impunity husbands have, last week’s ruling signals a rethink within the judiciary.
The top court also does well to spotlight ground realities that vex abortion access. It cited a study that found 67% of abortions done between 2007 and 2011 were unsafe. The shame and stigma attached to women’s sexual choices and social surveillance of their personal lives only makes it harder for women to exercise their choice. Judicial support for women’s reproductive autonomy might spur change at the clinic level, where wary doctors still insist on “extra-legal" documentation from women who request abortion services. Only one caveat applies. While a woman’s will is meant to be at the centre of all reproductive decisions, India’s record on tech-assisted female infanticide reveals unhealthy patriarchal influence. Yet, progress has been made. The SC has moved the needle on a crucial matter of choice. It’s now for our political class and society to follow through.
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