Recently, the Supreme Court ruled that all women in the country, regardless of marital status, can have an abortion up to 24 weeks into their pregnancy.
What is the Supreme Court's decision?
Ruled over an ancient law:
It has ruled on a 51-year-old abortion law (The Medical Termination of Pregnancy Act of 1971) that prohibits unmarried women from terminating pregnancies up to 24 weeks.
The Medical Termination of Pregnancy Act of 1971 and its Rules of 2003 make it illegal for unmarried women between 20 and 24 weeks pregnant to abort with the assistance of registered medical practitioners.
The MTP Act was most recently amended in 2021.
Right to Choose under Article 21: The Court ruled that the rights to reproductive autonomy, dignity, and privacy guaranteed by Article 21 of the Constitution give an unmarried woman the same right as a married woman to choose whether or not to bear a child.
Article 14 guarantees the right to equality: Prohibiting single or unmarried pregnant women with pregnancies between 20 and 24 weeks from accessing abortion care while allowing married women with the same gestational age to do so was a violation of the right to equality before the law and equal protection (Article 14).
A single woman may have experienced the same "change in material circumstances" as a pregnant married woman. She could have been abandoned, unemployed, or a victim of violence during her pregnancy.
Not Constitutionally Sufficient: The artificial distinction between married and unmarried women is unconstitutional.
The advantages of the law apply equally to single and married women.
Increasing the Ambition of Reproductive Rights: The term Reproductive Right refers to more than just having or not having children. Women's reproductive rights included a "constellation of rights, entitlements, and freedoms for women."
Reproductive rights include the right to access contraception education and information, the right to choose safe and legal abortion, and the right to reproductive health care.
Opinions on Marital Rape: For the sole purpose of the MTP Act, the meaning of rape must include marital rape to marshal a woman’s right to reproductive and decisional autonomy.
The ruling's significance:
On the same level: The ruling would put unmarried women on the same level as distressed women with pregnancies less than 20 weeks old.
Both face similar dangers: Unmarried women are at risk of having a mental breakdown because they became pregnant due to the failure of "family planning devices or methods."
Both married and unmarried women face the same medical risks.
Our country has been concerned about safe abortion practise, and with this decision, we can expect a reduction in morbidity and mortality associated with unsafe abortion practise.
International importance: The significant decision came months after the US Supreme Court, in a 6-3 decision, overturned the historic 1973 Roe v Wade decision, which made abortion a constitutional right in the country.
What is the Abortion Law in India?
Abortion was illegal in India until the 1960s, and a woman could face three years in prison and/or a fine under Section 312 of the Indian Penal Code (IPC).
The government formed the Shantilal Shah Committee in the mid-1960s and asked the group, led by Dr. Shantilal Shah, to investigate abortions and determine whether India needed a law prohibiting them.
A medical termination bill was introduced in Lok Sabha and Rajya Sabha based on the Shantilal Shah Committee's report and was passed by Parliament in August 1971.
The Medical Termination of Pregnancy (MTP) Act of 1971 went into effect on April 1, 1972, and applied to all of India except Jammu and Kashmir.
Furthermore, Section 312 of the Indian Penal Code, 1860, makes it a crime to voluntarily "cause miscarriage," even if the miscarriage is with the pregnant woman's consent, unless the miscarriage is caused to save the woman's life.
This means that the woman, or anyone else, including a medical professional, could be charged with having an abortion.
The Medical Termination of Pregnancy (MTP) Act of 1971 allowed a medical practitioner to terminate a pregnancy in two stages:
Abortions up to 12 weeks after conception required only one doctor's opinion.
Before agreeing to terminate the woman's pregnancy, the opinion of two doctors was required to determine if the continuation of the pregnancy would involve a risk to the pregnant woman's life or grave injury to her physical or mental health, or if there is a substantial risk that the child would suffer from such physical or mental abnormalities as to be seriously "handicapped."
Parliament amended the law in 2021 to allow abortions based on the advice of a single doctor for pregnancies up to 20 weeks.
For pregnancies between 20 and 24 weeks, the modified law requires the advice of two doctors.
Furthermore, for pregnancies between 20 and 24 weeks, rules specified seven categories of women who would be eligible to seek termination under section 3B of the MTP Act's rules.
Victims of sexual assault, rape, or incest,
Change in marital status during a pregnancy (widowhood and divorce),
Women with physical handicaps (major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016)
Women with mental illnesses, including mental retardation
The foetal malformation that has a high risk of being incompatible with life, or if the child is born with such physical or mental abnormalities that it is severely handicapped, and
Pregnant women in humanitarian settings, disasters, or emergencies may be declared by the government
The MTP Act's Importance
Article 21 of the Indian constitution guarantees personal liberty, including reproductive choice.
Women's Reproductive Rights: The laws give women more reproductive rights and dignity because abortion is regarded as an important aspect of women's reproductive health.
Right to Privacy: The Privacy Clause also benefits rape victims and vulnerable victims.
Encouragement for Safe Abortion: The deaths and injuries caused by unsafe abortions are largely avoidable if services are provided legally by trained practitioners.
If the procedures are done in a hospital, they are done under proper medical and surgical supervision.
If the pills are taken at home, they must be taken under medical supervision and followed up on.
What are the issues?
Unsafe Abortions: According to the United Nations Population Fund's (UNFPA) State of the World Population Report 2022, unsafe abortions are the third leading cause of maternal mortality in India, with close to 8 women dying each day from causes related to unsafe abortions.
Women who are not married and come from low-income families have no choice but to abort unwanted pregnancies in unsafe or illegal ways.
Rural India has a medical expert shortage: According to a 2018 Lancet study, 15.6 million abortions were performed in India in 2015.
The MTP Act mandates that abortions be performed only by doctors trained in gynaecology or obstetrics.
India's abortion legal framework is widely regarded as progressive, particularly in comparison to many countries, including the United States, where abortion restrictions are severely restricted — both historically and currently.
Furthermore, a serious rethinking of public policy is required, as is accommodating all stakeholders to focus on women and their reproductive rights, rather than drawing red lines that medical practitioners cannot cross while performing abortions.
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