September 25, 2022

Lukmaan IAS

A Blog for IAS Examination

TOPIC: USA COURT RULING AND THE ISSUE OF ABORTION IN THE 21ST CENTURY

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THE CONTEXT: In a significant step backwards for women’s rights in the US,the Supreme Court overturned the landmark Roe v. Wade judgement of 1973, which gave women in America the right to have an abortion before the foetus is viable outside the womb or before the 24–28-week mark.Abortion rights, which have been available to women for over two generations — will now be determined by individual States. In this write up we will analyze in detail the implications of the USA court ruling and the issue of abortion in the 21st century.

WHAT IS ROE V. WADE JUDGEMENT?

  • The case is sometimes referred to simply as “Roe”, the listed name of the 22-year-old plaintiff, Norma McCorvey. Wade was the State of Texas District Attorney where this case was filed in 1969.
  • Roe struck down laws that made abortion illegal in several states, and ruled that abortion would be allowed up to the point of foetal viability, that is, the time after which a foetus can survive outside the womb.
  • Foetal viability was around 28 weeks (7 months) at the time of the Roe judgment; experts now agree that advances in medicine have brought the threshold down to 23 or 24 weeks (6 months or a little less), and newer studies show this could be further pegged at 22 weeks. An average pregnancy lasts about 40 weeks.
  • Abortion laws across the world rely on this metric but those opposing abortions argue that this is an arbitrary timeframe that legislation and the court in Roe adopted.

Foetal viability: It is often seen as the point at which the rights of the woman can be separated from the rights of the unborn foetus. The length of a pregnancy is commonly calculated from the start of a person’s most recent menstrual period. Since many people identify pregnancy only after the sixth week, pre-viability timelines leave women with very little time and opportunity to make a decision to abort.

MISSISSIPPI LAW ON ABORTION

The Mississippi law makes most abortions illegal after 15 weeks of pregnancy, about two months earlier than Roe and later decisions allow. Most experts estimate fetal viability to be about 24 weeks. The law was enacted in 2018 by the Republican-dominated Mississippi Legislature but never went into effect because of an immediate legal challenge that led to a federal appellate court blocking its enforcement. The law bans abortions if “the probable gestational age of the unborn human” is determined to be more than 15 weeks, with narrow exceptions for medical emergencies or “a severe fetal abnormality.”

WHAT IS THE DEBATE REGARDING ABORTION?

The abortion debate is the ongoing controversy surrounding the moral, legal, and religious status of induced abortion. The sides involved in the debate are the self-described “pro-choice” and “pro-life” movements.

  • Pro-choice emphasizes the woman’s choice of whether to terminate a pregnancy.
  • The pro-life position stresses the humanity of both the mother and foetus, arguing that a fetus is a human person deserving of legal protection.

Ethical questions raised

(1) The primary questions:

The moral debate about abortion deals with two separate questions:

  • Is abortion morally wrong?
  • Should abortion be legal or illegal?

(2) The secondary questions:

But those two questions don’t end the debate.If we conclude that abortion is not morally wrong, that doesn’t mean that it’s right to have an abortion; We need to ask whether having an abortion is the best thing (or least bad thing) to do in each particular case. If we conclude that abortion is morally wrong, that doesn’t mean that it’s always impermissible to have an abortion; we need to ask whether having an abortion is less wrong than the alternatives.

IMPACT OF THE JUDGEMENT?

  • Regardless of what happens in the US, reproductive rights in other nations have always been insecure. It is a constant battle to increase and maintain abortion access due to the power of those who are opposed. This will continue even without the influence of the US.
  • The fall of Roe is a significant boost to the global anti-abortion movement. It will encourage this movement to pursue additional routes to power and influence in other nations and pan-national organizations.

ABORTION LAWS IN OTHER COUNTRIES

In approximately 16 countries around the world, abortion is entirely prohibited and even criminalized. But several Catholic majority nations, such as Ireland and Mexico have decriminalized abortion in the last decade.

  • France, the UK, Austria, Ethiopia, Italy, Spain, Iceland, Finland, Sweden, Norway, Switzerland and even Nepal allow for termination beyond 20 weeks on the diagnosis of foetal abnormalities.
  • Some countries go beyond even these limits with laws in 23 countries-Canada, Germany, Vietnam, Denmark, Ghana, and Zambia-allowing for abortion at any time during the pregnancy at the request of the mother.
  • In UK, abortions are allowed at up to 24 weeks, with abortion guidelines formulated by the Royal College of Obstetricians and Gynaecologists including procedures for termination of pregnancies older than 20 weeks. It also states that, in pregnancy older than 21 weeks and 6 days, an injection to cause foetal death is given before the foetus is evacuated.

ABORTION LAWS IN INDIA 

The nature of Indian Laws on Abortion (i.e Focused on Abortion or Population control):

The history of abortion rights in India is traced back to the Medical Termination of Pregnancy Act of 1971 (MTPA). It is often regarded as a landmark moment in India’s social legislation, opening the doors, as many would say, to social reform. The passage of the MTPA as early as the 1970s is frequently pitted against the West, wherein abortion rights continue to remain a debated issue. The politics surrounding the Act shows that it was less a product of the women’s movement in India and more of a means to control the expanding population of the country. The Act’s wording and the arguments made in its favour remains heavily criticized by Indian feminists.

Is Indian law based on the Pro-choice or Pro-life Approach?

  • Abortion was a criminal offence according to Section 312 of the Indian Penal Code (IPC), 1860, carried on from the British legacy. It only allowed abortion in extreme emergency cases where the woman’s life was endangered.
  • Voluntary abortion puts a woman in jail for three years. This changed in the 1960s when the government set up a committee led by Shantilal Shah 1964 to suggest changes in the abortion law of India. In 1971, upon the recommendations of the Shah Committee, the Parliament passed the Medical Termination of Pregnancy Act (MTP). It did legalize abortion, but with many conditions such as the pregnancy being a danger to life, when risk is involved in the birth of the child when pregnancy results from rape or depending upon the socio-economic context of the family. However, unmarried women could not abort their pregnancies if none of the criteria was met.
  • In the MTP Amendment Act of 2021, one of the biggest changes was the inclusion of all women, whether married or unmarried and the increase in the limit of terminating pregnancies from 12 weeks to 20 weeks with advice from doctors and special categories where women could abort up to the 24th week.
  • The pro-choice stance which has evolved in India shows a changing attitude towards women and their bodies. Most developed countries have legalized abortion, whereas a number of developing nations either have restrictive laws or completely banned abortion. India has become a beacon of progressive, liberal ideas among rising countries when developed countries like the US are regressing.

How did abortion laws come about in India?

  • In the 1960s, in the wake of a high number of induced abortions taking place, the Union government ordered the constitution of the Shantilal Shah Committee to deliberate on the legalization of abortion in the country.
  • In order to reduce maternal mortality owing to unsafe abortions, the Medical Termination of Pregnancy (MTP) Act was brought into force in 1971. This law is an exception to the Indian Penal Code (IPC) provisions of 312 and 313 and sets out the rules of how and when a medical abortion can be carried out.
  • Under Section 312 of the IPC, a person who “voluntarily causes a woman with child to miscarry” is liable for punishment, attracting a jail term of up to three years or fine or both, unless it was done in good faith where the purpose was to save the life of the pregnant woman.
  • This section effectively makes unconditional abortion illegal in India. Section 313 of the IPC states that a person who causes the miscarriage without the consent of the pregnant woman, whether or not she is in the advanced stages of her pregnancy, shall be punished with life imprisonment or a jail term that could extend to 10 years, as well as a fine.

How has the MTP Act evolved from 1971 to 2021?

  • The latest amendment to the MTP Act was made in 2021. Before that, new rules were introduced in 2003 to allow the use of the newly discovered abortion medicine misoprostol to medically terminate a pregnancy up to seven weeks into it. Broader amendments to the original Act were introduced in 2020 and the amended Act came into force in September 2021.
  • Under the Medical Termination of Pregnancy (Amendment) Act, 2021, abortion is permitted after medical opinion under stipulated circumstances. The 2021 Act increased the upper limit of the gestation period to which a woman can seek a medical abortion to 24 weeks from 20 weeks permitted in the 1971 Act. But this renewed upper limit can only be exercised in specific cases. Gestational age, calculated in weeks, is the medical term to describe how far along the pregnancy is and is measured from the first day of the woman’s last menstruation or period.

THE MEDICAL TERMINATION OF PREGNANCY (AMENDMENT) ACT, 2021

Under the 2021 Act, medical termination of pregnancy is permitted if it is backed by medical opinion and is being sought for at least one of the following reasons —

  • If the continuation of the pregnancy would involve a risk to the life of the pregnant woman
  • If its continuation would result in grave injury to the woman’s physical or mental health (if the pregnancy is a result of rape or failure of contraceptive used by the pregnant woman or her partner to limit the number of children or to prevent pregnancy, the anguish caused by its continuation would be considered to be a grave injury to the mental health of the pregnant woman)
  • In the case of a substantial risk that if the child was born, it would suffer from a serious physical or mental abnormality

The pregnancy can be terminated up to 24 weeks of gestational age after the opinion of two registered medical practitioners under these conditions —

  • If the woman is ​​either a survivor of sexual assault or rape or incest
  • If she is a minor
  • If her marital status has changed during the ongoing pregnancy (i.e. either widowhood or divorce)
  • If she has major physical disabilities or is mentally ill
  • On the grounds of foetal malformation incompatible with life or if the child is born, it would be seriously handicapped
  • If the woman is in humanitarian setting or disaster, or emergency situation as declared by the government
  • Besides, if the pregnancy has to be terminated beyond the 24-week gestational age, it can only be done on the grounds of foetal abnormalities if a four-member Medical Board, as set up in each State under the Act, gives permission to do so.
  • The law, notwithstanding any of the above conditions, also provides that where it is immediately necessary to save the life of the pregnant woman, abortion can be carried out at any time by a single registered medical practitioner.
  • Under the 2021 Act, Unmarried women can also access abortion under the above-mentioned conditions because it does not mention the requirement of spousal consent. If the woman is a minor, however, the consent of a guardian is required.

 IS TERMINATING A PREGNANCY A CRIMINAL OFFENCE IN INDIA?

  • Voluntarily terminating a pregnancy is a criminal offence under the Indian Penal Code, 1860 (IPC). The Medical Termination of Pregnancy Act of 1971 authorizes medical doctors (with specific specialization) to abort a pregnancy on certain grounds. Pregnancy can be terminated at any time up to 12 weeks if one doctor agrees and up to 20 weeks if two doctors agree. Only where the pregnancy’s continuation will endanger the pregnant woman’s life, cause grave harm to her mental or physical health (including rape and refusal to utilize birth control), or result in foetal abnormalities is it permissible to terminate the pregnancy. Termination is also permitted at any time during the pregnancy if it is necessary to save the life of the woman concerned.
  • MTPA 2021 alters the MTPA 1971 to raise the upper limit for abortion from 20 to 24 weeks for certain types of women, removes the limit in cases of significant foetal abnormalities, and establishes state-level Medical Boards. According to Bill’s Statement of Objects and Reasons, multiple cases have been brought in the Supreme Court and different High Courts requesting authorization to terminate pregnancies at stages beyond the Act’s 20-week restriction based on foetal abnormalities or pregnancies in cases of rape. It also adds that as medical technology advances, the maximum limit for terminating pregnancies may be raised, particularly for vulnerable women.

ISSUES IN THE PRESENT LAW

  • The MTP Act, first enacted in 1971 and then amended in 2021, certainly makes ‘medical termination of pregnancy’ legal in India under specific conditions. However, this Act is framed from a legal standpoint to primarily protect medical practitioners because under the Indian Penal Code, “induced miscarriage” is a criminal offence.
  • This premise points to a lack of choice and bodily autonomy of women and rests the decision of abortion solely on the doctor’s opinion. The MTP Act also only mentions ‘pregnant woman’, thus failing to recognize that transgender persons and others who do not identify as women can become pregnant.
  • As the law does not permit abortion at will, critics say that it pushes women to access illicit abortions under unsafe conditions. Statistics put the annual number of unsafe and illegal abortions performed in India at 8,00,000, many of them resulting in maternal mortality.
  • The acceptance of abortion in Indian society is situated in the context of population control and family planning. But, most importantly, after more than 50 years of the MTP Act, women and transgender persons face major obstacles in accessing safe abortion care.

These are seven examples:

  1. They may not even be aware that abortion is legal or know where to obtain one safely;
  2. Since the MTP Act does not recognize abortion as a choice, they need the approval of medical professionals even in the first few weeks of the pregnancy;
  3. Unmarried and transgender people continue to face stigma and can be turned away from health facilities, forcing them to resort to unsafe care;
  4. Fourth, mandatory reporting requirements under the Protection of Children from Sexual Offences Bill (POCSO), 2011 law against child sexual offences, impact privacy and hinder access of adolescents to safe abortion services;
  5. Many are still coerced into agreeing to a permanent or long-term contraceptive method as a prerequisite for getting abortion services;
  6. Health-care providers may impose their own morality by insisting on ‘husbands’ or ‘parental’ consent for abortion. Even women seeking abortion care in health facilities are often mistreated and not provided medications for pain relief;
  7. Despite laws prohibiting sex determination, the illegal practice persists. The mushrooming of unregulated ultrasound clinics in India continues to facilitate the illegal practice of sex determination, resulting in unsafe abortions and female foeticide.

JUDICIAL INTERVENTIONS IN CASES OF ABORTIONS

  • In the landmark 2017 Right to Privacy judgement in the Justice K.S. Puttaswamy v. Union of India and others, the Supreme Court had held that the decision by a pregnant person on whether to continue a pregnancy or not is part of such a person’s right to privacy as well and, therefore, the right to life and personal liberty under Article 21 of the Constitution.
  • Several women annually approach the apex court and High Courts when medical boards reject their application to access MTP beyond the gestational upper limit (now 24 weeks), seeking permission to abort a pregnancy, mostly in cases where it is a result of sexual assault or when there is a foetal abnormality.

WHAT ARE THE CRITICISMS AGAINST THE ABORTION LAW IN INDIA?

  • According to a 2018 study in the Lancet, 15.6 million abortions were accessed every year in India as of 2015. The MTP Act requires abortion to be performed only by doctors with specialization in gynaecology or obstetrics. However, the Ministry of Health and Family Welfare’s 2019-20 report on Rural Health Statistics indicates that there is a 70% shortage of obstetrician-gynaecologists in rural India.
  • As the law does not permit abortion at will, critics say that it pushes women to access illicit abortions under unsafe conditions. Statistics put the annual number of unsafe and illegal abortions performed in India at 8,00,000, many of them resulting in maternal mortality.

THE WAY FORWARD

  • Rolling back the right to abortion is like rolling back modernity. Without legally accessible and medically safe abortions, women would be in greater danger and have much harder lives. It pushes women into an unsafe dark zone if faced with an unwanted pregnancy where forced motherhood could alter the very trajectory of their life.
  • In Justice K.S. Puttaswamy (Retd.) vs. the Union Of India And Others (2017), the court recognized the constitutional right of women to make reproductive choices as a part of personal liberty under Article 21 of the Indian Constitution, which, despite laying a robust jurisprudence on reproductive rights and the privacy of a woman, does not translate into a fundamental shift in power from the doctor to the woman seeking an abortion.
  • The government needs to ensure that all norms and standardized protocols in clinical practice to facilitate abortions are followed in health care institutions across the country.
  • Along with that, the question of abortion needs to be decided on the basis of human rights, the principles of solid science, and in step with advancements in technology.

THE CONCLUSION: There is an urgent need in our country to shift the discourse on abortions from just being a family planning and maternal health issue to one of sexual health and reproductive rights issue. The situation in India shows that one law alone is insufficient and we must raise the bar on reproductive justice. We must improve our health systems to ensure good quality and respectful abortion care. As the focus on abortion rights in the US rages, we call upon all to self-reflect and to stand in solidarity with people in the US and other places where reproductive rights are in jeopardy. Reproductive injustice anywhere is a threat to the lives of people everywhere.

QUESTION FOR MAINS EXAMINATION:

  1. Critically analyze the Medical Termination of Pregnancy(MTP) (Amendment) Act, 2021.
  2. In the light of the recent judgement of the USA Supreme Court on abortion. Discuss the pro-life and pro-choice angles on abortion.
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