Should we worry about the leaked majority opinion of a yet-to-be-announced US Supreme Court ruling in India that overturns the law set forth in Roe v. Wade and Planned Parenthood v. Casey? I would like to state here that the leaking of a portion of a judgment to the media is extremely shocking and I am not sure if I can be oblivious if it has the same commonality as the Indian legal system. But the fact that a leaked portion of a judgment is doing the rounds in the media and is officially owned by the Supreme Court is quite troubling to a legal practitioner like me.
Having said that, I want to point out that the legal systems and belief systems are very different for the US and India, but a restrictive abortion law in the US would have a ripple effect on access to services, information, choice and resources. Abortion in India and elsewhere. In recent times, a country such as Colombia, Kenya, Ireland or Nepal has some excellent examples of how access to abortion should look, but given the nature of the debate in the US, it is likely that similar countries will hold. Particularly from a religious point of view, may follow suit.
Abortion has been legalized in India under certain conditions since 1971 under the Medical Termination of Pregnancy (MTP) Act. This is an exception to the general criminalization of “cause of abortion” under the Indian Penal Code.
The Roe v. Wade case of the US Supreme Court was a decision passed in 1973 that recognized a pregnant woman’s right to make decisions about the continuation of her pregnancy and considered it to be part of her right to privacy, which many Americans had at the time. Restrictive laws around abortion in practice. Abortion in America has always been a controversial issue, mainly due to significant sections of America viewing this medical service from a religious point of view and not from the point of view of a pregnant person’s convenience.
In the Indian context, this access becomes an issue from a very different point of view, one of universally poor access to general health services, and its second association with the country’s declining child sex ratio. In both these cases the religious or moral beliefs of the physician are of no importance.
In the first scenario, there is a lack of access to safe legal abortion services, as is the lack of access to any other health services in general. In the second scenario, for the most part, second trimester abortion is wrongly viewed as an abortion based on knowledge about the sex of the fetus.
However, the fact that India’s most recent set of amendments to the MTP Act was passed in 2021 to expand the scope and reach of the law has little or no effect on what is wrong with the declining child sex ratio. The relationship had an effect on legitimacy. and the availability of abortion services in the country.
According to the National Family Health Survey of India (NFHS-5) report published in March 2022, which provides data from 2019 to 2021, 2.9% of pregnancies resulted in miscarriage, 20.3% of abortions occurred in a public health set-up, and 52.9% in a private set-up. The most common reason for seeking an abortion was an unplanned pregnancy.
Having said that, abortion is still not accepted or recognized as a right in India, and this despite the fact that the right to privacy has read the autonomy of making decisions about one’s body, Including the decision to become pregnant or not. continue the pregnancy or not, as part of the individual’s right to privacy and therefore as part of the right to life guaranteed under the Constitution of India.
The abortion law in India is also not inclusive in its true sense, as it does not consider the living realities and various forms of discrimination on the basis of caste, class, religion, sexual orientation and disabilities prevalent in the country.
The abortion law has actually created great obstacles for people by expanding their scope in the form of medical boards to be set up at every state level as well as creating different categories of women who are classified on the basis of their circumstances. But MTP services can be used. Moreover, the amended abortion law has done little to remove the practical barriers that the provisions of other laws such as the Protection of Children from Sexual Offenses Act and the Drugs and Cosmetics Act have created. It also does not take into account the strange fact that despite amendments to the law, there are still many petitions being filed in various High Courts seeking legal permission to terminate the pregnancy.
It appears that the time has come to ask an important question about the need for a law governing abortion in a country where there is no specific law regulating any other medical procedure.
The answer lies in the fact that the rule is that of criminalization and the exception is the procedure under the MTP Act. Therefore, what needs to be re-evaluated is the existence of provisions in the general criminal law criminalizing abortion and then the consequent need for an MTP Act that is not in tune with the changing realities of India and its people.
Anubha Rastogi is an Advocate who practices in Courts in Mumbai.