Roe V Wade which established the Constitutional right to abortion since 1973 was overturned by the US Supreme Court on June 24, 2022. Justice Samuel Alito, while writing for the majority said the 1973 Roe V Wade ruling and repeated subsequent High Court decisions reaffirming the Roe judgement "must be overruled" because they were "egregiously wrong" and the arguments were "exceptionally weak" and so "damaging" that they amounted to "an abuse of judicial authority”. The reversal took place in a conservative-majority court in the Dobbs Vs Jackson Women’s Health Organization case.
In Roe V Wade, the US Supreme Court on January 22, 1973, had ruled with a 7-2 majority that the state regulation of abortion if done unduly and restrictively is unconstitutional. While writing for the majority Justice Harry A Blackmun, held that the woman’s Constitutional right of privacy, which is implicit in the Constitutional guarantee of liberty as in the due process clause of the Fourteenth Amendment (“…nor shall any state deprive any person of life, liberty, or property, without due process of law”) was violated by the set of Texas statutes criminalising abortion.
Now that Roe stands reversed the situation has completely changed as the US Supreme Court held that the right to abortion is not conferred by the US Constitution and as a consequence the authority to regulate abortion is returned to “the people and their elected representatives”, which means the state authorities. The immediate implication of the court’s decision is that about 26 American States in all likelihood will ban abortions and 13 States having “trigger bans” and which in all possibility will take effect in the aftermath of the reversal of Roe.
Restricting or criminalising abortions shall always lead to an unwelcome legal barrier to safe access to abortion and women find themselves coerced to undergo risky underground abortion procedures. And it shall never mean that the demand for abortion services are to decrease in any way but shall only subject the women seeking it to more exploitation and threat from enforcement agencies and illegal service providers. Besides, right to abortion is an essential part of right to physical autonomy which again is born from right to life and liberty.
After realising this, many countries have already decriminalised abortion and some are in the process of decriminalisation of the same. For example, Singapore provides for abortion on request up to 24 weeks on grounds of rape/incest, risk to the woman’s life, or on diagnosis of foetal anomaly, besides our neighbour Nepal permits abortions on request up to 12 weeks, and further up to 28 weeks on medical or compassionate grounds.
The reversal of Roe is bad news mainly because it will have global implications as it is already used as an important global precedent by courts across the world granting right to abortion like the Supreme Court of Canada and the High Court of Pretoria. In the Indian context, Roe was cited in Justice KS Puttaswamy Vs Union of India by Justice Chandrachud, who wrote in favour of keeping right to privacy and decisional autonomy within the fold of the Constitutionally-protected fundamental rights.
Now in the aftermath of reversal of Roe it remains to be examined, are we ahead of the West in having a more progressive approach as regards reproductive rights? India has a strong legislative framework namely, Medical Termination of Pregnancy Act, 1971 amended in 2021, which governs and regulates the domain of abortion.
The Indian Penal Code criminalises abortion, but at the same time the statutory exceptions making abortion legal are provided under the MTP Act. Under the Act, legal abortion is allowed up to 24 weeks under certain specific conditions, which requires the approval of registered medical professionals.
However, the Medical Termination of Pregnancy (Amendment) Act 2021 is subjected to criticism for not having a rights-based approach. This is mainly because it is understood that the Act doesn’t give the pregnant person complete autonomy to end the pregnancy and, on the other hand, subjects them to go through various procedural barriers. Besides, it uses the word “woman”, which in essence means, the pregnant transgender and non-binary persons who are biologically capable of bearing children are left out from being considered, which sort of coerces them to identify themselves in the gender-binary and undermines their gender identity.
And this has dangerous consequences as many women resort to unsafe abortion at illegal clinics and at home. The National Family Health Survey 2019-2021 reports that in India, 27 per cent of the abortions were carried out by the woman herself at home. According to the United Nations’ Population Fund’s (UNFPA) State of the World Population Report 2022, in India unsafe abortions cause death of about eight women each day. And these are serious issues which need immediate and effective course-correction.
No doubt, the MTP Amendment Act appears to be progressive, but it cannot escape the criticism for being based on a patriarchal, eugenic and cis-heteronormative rationale and excessively doctor-centric and at the same time disregarding the right to physical autonomy and right to have a fair access to abortion services.
(The writer is an Addl. Central Government Standing Counsel, Central Administrative Tribunal, Cuttack and a Distinguished Adjunct Professor of Law and Media Studies, KIIT University. Views expressed are personal)