Abortion rights face many hurdles in India
The leaked draft majority opinion of the Supreme Court of the United States (SCOTUS) has caused a global controversy. The draft opinion confirmed that SCOTUS intends to reverse the judgment of Roe v. Wade, which recognised the right to abortion. Although the draft opinion does not formally represent the court’s opinion until published, the immediate implication of such a judgment will restrict abortion in many parts of the United States. The draft decision is likely to have global implications on abortion rights.
Abortion is either criminalised or a qualified right in most countries. However, recent international jurisprudence increasingly shows a liberalising trend, especially in the Global South.
The overturning of Roe will not have a major impact around Indian abortion laws, as India has a legislative framework granting a qualified right to abortion. The Medical Terminal of Pregnancy (MTP) Act, passed in 1971, permitted women to have abortions up to 20 weeks, at the discretion of a Registered Medical Practitioner, if extending the pregnancy puts their physical or mental health at danger, if there is a possibility of foetal “abnormalities”, alleged rape or failure of contraception for married women. A 2002 amendment legalised medical abortion, using the combined mifepristone-misoprostol regimen for the termination of early pregnancies.
In 2021, the government passed the MTP (Amendment) Act and introduced a few significant but inadequate changes, including the extension of abortion rights to unmarried woman and conditional increase in gestational limit. Arguably, the Indian law does not have an upper gestational limit for pregnancies with foetal anomalies. However, the amendments are not framed through a gender justice lens, but preserve the doctor-centric approach of the 1971 law. Removing the gestational limit for pregnant women whose foetuses have been diagnosed with “abnormalities” indicates eugenic underpinnings and furthers an ableist rationale that ascribes less “value” to foetuses with potential disabilities. Further, the delineation of specific categories of women who are eligible for abortions between 20 and 24 weeks creates a framework of “graded victimhood” — the perceived victimhood of certain women is used to justify an extension of the permissible gestation period for abortion, rather than their agency, circumstances or desire to get an abortion.
The setting up of medical boards to decide cases of foetal “abnormalities” after 24 weeks of gestation period is likely to cause severe delays in granting abortions. A study by the Centre for Justice, Law and Society at Jindal Global Law School found that on average, states reported an 80% shortfall in obstetricians and gynaecologists — thereby making functional medical boards largely unfeasible.
Finally, the amended law continues to be an exception within the criminalisation of abortion under sections 312-318 of the
Indian Penal Code, which significantly impact access to abortion services and exacerbates abortion stigma.
The amendments are carried out in isolation of other laws and policies — such as the Protection of Children from Sexual Offences Act, 2012, (POCSO). The mandatory reporting provision of POCSO conflicts with section 5A of the MTP Act, which guarantees confidentiality for the pregnant person obtaining abortion services. Adolescents, therefore, face a barrier as consensual sexual relations are construed as sexual assault under POCSO, which triggers the mandatory reporting clause. The legal ambiguities in multiple legislation make it difficult for adolescents to access sexual and reproductive health care services. Moreover, medical practitioners also face the threat of persecution while providing adolescents with abortion services. It is imperative that abortion in decriminalised and the legal reforms are rights based, holistic and intersectional that centre the pregnant person.
The multiple barriers to abortion, when compounded with caste discrimination, bureaucracy and poverty, hurt access to safe abortions for marginalised pregnant persons. Abortion is allowed only for women, excluding transgender and gender variant persons who require reproductive health services.
Finally, legal reforms alone cannot produce structural changes to improve access, which require holistic advancements that will allow pregnant people from all backgrounds to exercise their bodily autonomy while making reproductive decisions. Despite limited legal reforms, access to abortion rights will continue to be challenging considering structural inequalities in seeking reproductive health services. A framework of reproductive justice that acknowledges the multiple axes of oppression persons from marginalised communities face is important to ensure inclusive and intersectional access to abortion services for all marginalised persons.
Dipika Jain is a professor of law, vice-dean and director, Centre for Justice, Law and Society, Jindal Global Law School The views expressed are personal