Roe v. Wade Overruled: Availability, but not Accessibility of Abortion in India   

Introduction

The Supreme Court of the United States’ decision to overturn the historic Roe v. Wade decision must be viewed in the context of the World Health Organization’s estimate that 23,000 women die from unsafe abortions each year and tens of thousands more suffer grave health consequences. The legal restrictions on abortion do not necessarily result in fewer abortions; rather, they force women to risk their lives and health by seeking out unsafe abortion care.

This is what protesters object to, not the right of women to control their bodies, but the looming fear of a mushrooming growth of illegal abortions. People state that the U.S, which is regarded as the most “Progressive” nation, has gone back 70 years as a result of the case’s reversal.

The fundamental rights of an individual are at the centre of the discussion over the elimination of the right to an abortion. The American Supreme Court’s 1973 judgement, which generally resulted from a decision to terminate a pregnancy due to rape, incest, or physical abnormalities of the embryo in the womb, was overturned, which sparked a debate that finally made us doubt a woman’s freedom and human rights.

Reversing the decision, according to proponents of human rights, robs women of their fundamental right to control their bodies. People contend that pregnancy and abortion are the two most personal decisions a woman can make, and that they should not be left up to the whims and fancies of the supreme court judges in a country where women make up only 30% of the workforce. The freedom of Americans is effectively under attack by this decision.

A number of international and regional human rights treaties, as well as many national constitutions, safeguard the right to a safe and legal abortion as a fundamental human right.

Different countries have different abortion laws, it’s time to revisit the world over, the nations are safeguarding these important human rights for their female citizenry. The Centre for Reproductive Rights says, around 60 per cent of women of reproductive age live in countries that broadly allow abortion, while 40 per cent still live under restrictive laws.

Understanding abortion terminology

To fully comprehend the status of abortion in each state, it helps to understand the frequently used legal terms and provisions used in reproductive rights law.

The capacity of a foetus to survive outside of the uterus is known as foetal viability. Although there is no hard and fast rule, the Supreme Court and the American College of Obstetrics and Gynaecology believe that a foetus is viable starting at around 24 to 28 weeks. A foetus is deemed “non-viable” if it cannot survive on its own at any stage.

With few exceptions for “fatal foetal abnormalities,” most states still prohibited abortion after foetal viability even after Roe.

For life-threatening pregnancies or medical crises, almost all state abortion prohibition statutes provide an exemption. Many demand that the pregnancy be declared to be life-threatening by two doctors. Only a few abortion restrictions provide for exceptions in rape or incest instances.

Both gestational age and weeks of pregnancy are typically defined as the number of days since the first day of the last menstrual cycle prior to conception. After a set number of weeks post-fertilization, or the time after a sperm has fertilised an ovum and produced a zygote, certain states forbid abortions.

The beginning of pregnancy, according to the American College of Obstetricians and Gynaecologists, is when the fertilised egg attaches to the lining of the uterus, which takes place about a week following fertilisation. The majority of healthcare professionals use the last menstrual period to estimate gestational age because it is exceedingly difficult to pinpoint the precise moment of conception or fertilisation.

79 percent of abortions in the US occurred before nine weeks, and 93 percent occurred before 13 weeks in 2019, according to the US Centres for Disease Control and Prevention. At six to seven weeks, when many women are not even aware they are pregnant, certain state laws forbid abortion.

Additionally, despite the fact that the abortion debate is frequently presented as a discussion about a woman’s right to privacy and that many abortion laws mention exceptions when “the life of the mother” is in danger, access to abortion affects more than just cisgender women. It affects trans guys, intersex people, nonbinary people, and gender-expansive people—anyone whose body is capable of becoming pregnant.

What are Trigger laws and which states have them?

A constitutional right to an abortion during the first trimester, or the first three months of pregnancy, was established by the 1973 Roe v. Wade decision. It also found that abortions prior to embryonic viability could be restricted but not outright prohibited.

State legislatures have since implemented numerous legislations limiting access to abortions, some of which have been overturned by the courts.

Trigger legislation pertaining to abortion postponed going into effect until after the Supreme Court restored state control over abortion. These statutes will now take effect as a result of the court’s ruling in Dobbs v. Jackson Women’s Health Organization, even though many of them are already being challenged in court.

The Trigger laws that forbid abortion even in the first trimester are present in the following states: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Wyoming.

Countries where abortion is legally prohibited

Abortion is prohibited in 24 nations, where 90 million or 5% of women of reproductive age reside, according to the international advocacy group Centre for Reproductive Rights.

Laos and the Philippines are two Asian nations where abortion is not permitted. El Salvador, Honduras, Poland, Malta, and other nations are located in Central America and Europe, respectively. Djibouti, Egypt, Guinea-Bissau, and Senegal are all African nations that forbid it. Additionally, late-term abortions are still illegal in the Dominican Republic, Haiti, Suriname, Nicaragua, and Honduras.

These nations’ legal systems entirely forbid abortion, even if it poses a risk to the woman’s health or life. Malta is the only country in the European Union to firmly forbid abortions.

Abortion over Health Emergencies

A number of nations permit abortions under specific medical circumstances, such as saving the woman’s life, preserving her health, or on demand.

When a woman’s life is in danger, abortion is permitted in 42 different nations throughout the world. In these 42 nations, 22% of the women of reproductive age reside. Brazil, Bhutan, Chile, and Indonesia are a few examples of nations that fall under this group.

Abortion is legal in 51 nations throughout the world for medical or therapeutic reasons. The percentage of women who fall into this category is about 13%. Argentina, Chad, Niger, Monaco, and Mauritius fall into this category.

There are a number of nations that permit abortions upon request. Although it varies, the gestational limit is typically 12 weeks. Abortion is legal upon request in 73 different nations across the world. Uruguay, Cambodia, Switzerland, Nepal, and Ireland are among these nations.

What is the position of India’s Abortion law- MTP Act, 1971?

The Act specifies the circumstances under which a pregnancy may be aborted, according to the Indian government. The Bill extends the window of opportunity within which abortions are legal.

Currently, if an abortion is performed within 12 weeks of conception, one doctor must approve it, and if it is performed between 12 and 20 weeks, two doctors must approve it. When a woman is between 20 and 24 weeks pregnant, the Bill permits abortion on the advice of two doctors as opposed to one doctor up to 20 weeks. In cases of significant foetal abnormalities, the Bill establishes state-level Medical Boards to determine whether a pregnancy may be terminated after 24 weeks.

Compared to other affluent nations, India’s abortion regulations are much less restrictive, and the procedure is also considerably simpler. Evidence suggests that limiting access to abortions does not reduce the number of abortions, but it does have an impact on whether women’s and girls’ access to safe and respectable abortions.

Abortion must be an affordable, accessible, and simple legal right for all women worldwide. A woman’s body and any institution other than the government or the law should not be interfered with.

We live in a modern society of the twenty-first century where things are changing quickly, our infrastructure is expanding, robots are taking control, and the globe is being framed as a female collective. However, despite the fact that we refer to ourselves as living in a “Progressive and Modern World,” there are still some regions of the world where women are not permitted to exercise agency over their bodies or make decisions on their own bodies.

Judicial interventions

Prior to the 2021 modifications, the country’s High Courts had already issued a number of rulings allowing termination of pregnancy beyond 20 weeks in extraordinary circumstances involving rape or foetal abnormalities.

In an order issued in 2020 that permitted the termination of a 14-year-old rape survivor’s 24-week pregnancy, a division bench of the Kerala High Court noted that the woman’s “right to make reproductive choices is also a facet of her personal liberty as understood under Article 21 of our Constitution.”

The repeated legal orders issued by courts authorising abortions over the ceiling limit were also mentioned by the government while introducing the amending law, which convinced the government to do so.

The statement of objects and reasons for the amendment bill quoted then-Health Minister Dr. Harsh Vardhan as saying that “a number of Writ Petitions have been filed before the Supreme Court and various High Courts seeking permission for aborting pregnancies at gestational age beyond the present permissible limit on the grounds of foetal abnormalities or pregnancies due to sexual violence faced by women.”

There have been court interventions even after the 2021 amendment took effect on September 24, 2021.

The Calcutta High Court authorised the termination of a 35-week-old foetus in February of this year on the grounds of serious deformities. In December 2021, the Karnataka High Court issued instructions authorising the termination of a rape survivor’s pregnancy after 24 weeks, citing the situation as extraordinary. In a case involving a rape victim, the Uttarakhand High Court permitted an abortion of a 28-week-old foetus in February 2022.

In a case where a 10-year-old girl was sexually assaulted by her father in March of this year, the Kerala High Court ordered the Medical Board to consider if an abortion of a 30-week pregnancy was an option.

How some messaging furthers stigma against Abortion in India

For instance, in Punjab, where incidents of prenatal sex determination continue to be a problem that the state authorities have drawn attention to, the strictness of one regulation has a negative impact on pregnant women’s unrestricted access.

Instead, then focusing on son preference and sex-determination as the issue to target, posters in government clinics and offices stress “abortion” as a problem. Such propaganda makes abortion more socially stigmatised.

Similar to POCSO, any case of child sexual abuse must be reported. Due to this, it is now challenging for those under the age of 18 to get sexual and reproductive health services like HIV testing or abortion.

Laws like POCSO, which are crucial for protecting against sexual abuse, must make sure that they do not rob young people of their sexual autonomy or criminalise their consenting relationships in order for their full rights to be realised.

The MTP Act excludes the queer and trans* community from the current abortion discourse by using the term “women” rather than “pregnant individuals,” which perpetuates damaging medical and societal practises.

The entire Act solely refers to “women’s bodies” when discussing abortion, which excludes any pregnant people who identify as trans* and gender non-conforming.

The MTP (Amendment) 2021 Act has also expanded it’s access to services for single and unmarried women on the grounds that contraception had failed them and that the expectant mother had given her consent to an abortion. However, in reality, doctors still stigmatise pre-marital sex and ask for the agreement of a spouse or guardian.

The frequency of hazardous methods of abortion is frequently caused by a lack of confidentiality, a lack of faith in the healthcare system, and stigma.

The YP Foundation has also audited medical facilities where young people can obtain abortion services during the past year and found that the absence of legal expertise among service providers continues to be a significant obstacle to the successful execution of the MTP Act.

The researchers encountered situations when clinicians suggested using the two-finger test to confirm pregnancies, refused to provide vital medical care to unmarried patients, or required parental approval from adults.

Availability does not always mean Accessibility

Often, oppression occurs in people’s bodies. We now know that almost 50% of abortions in India are thought to be risky. Unsafe abortions are the third most common cause of maternal mortality, accounting for at least 20% of all such deaths.

With the law in place in India, we have made some progress, but we cannot overlook the gaps in access, the bias of service providers, and the affordability.

The Guttmacher Institute stated in 2020 that “abortion rates are similar in countries where abortion is restricted and those where the procedure is broadly legal (i.e., where it is available on request or on socioeconomic grounds)” – further demonstrating that accessibility to services is not always a given with respect to service accessibility.

The inability to access government-approved and affordable health facilities sustains unsafe and alternative methods to prevail. For many young people, financial cost implications have a direct bearing sometimes on their decision to choose to continue their pregnancy.

In India, where we have direct cash transfer schemes and other financial covers in the form of insurance and pre-post-natal care for pregnant persons, there are no such coverages for people who choose to willingly terminate the pregnancy.

While we acknowledge the prevalence of law in our country, we cannot stop at this stage as access to abortion is not absolute. Anyone who has worked on ground can tell you that societal pressure, insensitivity of medical practitioners, making the law almost exist just on paper and not on ground.

It’s time we change this narrative – and not just demand safe abortion for everyone, but also recognition of the pregnant person’s right to choose – above everything else.

This article has been contributed by Indrabha Biwas. The views are personal, if any.

References

1. https://www.theguardian.com/us-news/2022/jun/25/abortion-banned-in-multiple-us-states-just-hours-after-roe-v-wade-overturned
2. https://www.thequint.com/neon/gender/india-abortion-law-access-and-implementation-hurdles#read-more#read-more#read-more
3. https://www.thestatesman.com/world/banning-abortion-might-see-amricans-going-illegal-way-abortion-laws-world-1503087002.html
4. https://en.wikipedia.org/wiki/Abortion_in_India