Towards a Rights-Based Approach to Abortion

The debates on abortion that often take the unprecedented moral highs and regressive lows, if watched mindfully, centres on one simple issue—the extent of women's autonomy over her bodily choices. In a somewhat contradictory world as ours where various facets of modernity run parallel to deeply religious and patriarchal norms, autonomous choices of women especially those relating to bodily integrity, are often the first casualties. The manner in which the right to abortion, that forms an intrinsic part of the women's right to reproductive health, was treated in a slipshod manner by the Supreme Court of the United States (SCOTUS) in the year 2022 is a case in point.

In Dobbs v. Jackson Women's Health Organisation¹, the SCOTUS ruled by a majority that the right of a woman to abortion is not constitutionally protected in the country. This highly criticised ruling overruled the landmark decision in Roe v. Wade² where the US Supreme Court allowed women a qualified right of abortion by reading it into the domain of personal privacy. Though the decision in Roe³ was subsequently modified in Planned Parenthood of Southeastern Pennsylvania v. Casey⁴ where it was held that abortion can be regulated without causing “undue burden” on women, broadly American women enjoyed the right to abortion for almost half a century until Dobbs⁵ happened. In Dobbs⁶, with the stroke of a pen the long-cherished right of abortion came crumbling down when the highest Court of the land held that “the Constitution does not confer a right to abortion” and “the authority to regulate abortion is returned to the elected representatives”. It was also held that any purposeful reading of the Due Process Clause in the Fourteenth Amendment to the US Constitution⁷ must be deeply rooted in the nation's “history and tradition”. While the American jurisprudence is replete with examples where several fundamental rights were read into the Constitution with the aid of the “due process clause”, it is the right to abortion that was bludgeoned to death at the altar of history, tradition, and the concept of “ordered liberty” of the American society. Seemingly as the decision is profoundly based on “history and tradition” a deeper introspection seems necessary.

Traditionally patriarchy has loomed large not only in America but also worldwide. In a largely patriarchal set-up where the corridors of power are helmed by mostly men whose point of view also becomes the unchallenged “dominant” view, it is but natural that autonomous decision-making by women especially in respect of their bodily or reproductive choices becomes contentious. Historically men have thrust “their notions” of reproductive rights upon women when in reality women do the heavy duties when it comes to childbearing and child-rearing.

History in fact, offers no clear reason why certain practices were allowed in certain societies and disallowed in others. Broadly the difference is attributed to the lack of uniformity in the ascription of values among the societies. For example, in the ancient Greek and Roman societies, same sex marriages as well as abortions were allowed. Contrast this to the technologically advanced United States of later years where abortion was criminalised in several States. However, in England, statutes were enacted in later years to decriminalise abortion before or after “quickening” or the first recognisable movement of the foetus. Again, in conservative Catholic countries such as Ireland, Argentina or Columbia abortion was decriminalised only recently up to certain weeks of gestation, usually 12 to 14 weeks following sustained campaigns by women's rights activists. India too recently amended the Medical Termination of Pregnancy (MTP) Act⁸ to incorporate liberal provisions that would ease the access to safe abortion.

These examples, nevertheless, help us understand that in reality there exists no common principle amongst societies, historically or traditionally, for denying the right to legal abortions beyond a statutorily fixed time-limit. Though many countries have specified the maximum time-limit for termination of pregnancy as 24 weeks as the viability of the foetus is presumed to have attained by then, there is no cogent medical evidence to suggest that the foetus attains its viability only by the 24th week. In fact, in Roe⁹, where viability was made the delineating factor in the abortion debate, SCOTUS made it clear that courts are not in a position to determine when life begins or when viability (possibility of survival) is reached. The World Health Organisation (WHO) also does not specify any maximum time-limit after which a pregnancy should not be terminated. Bereft of scientific evidence, most certainly then, if sacrosanct rights are struck down easily on grounds of history or tradition, as in Dobbs¹⁰, it will not be a folly to say that every established and conceivable right has an uncertain future.

It is well established that the abortion debate is a highly polarised one between pro-choice and pro-life advocates. The decision in Dobbs¹¹ forms part of the pro-life lobby. However, it is not difficult to discern that the world is gradually veering towards a rights-based approach to abortion. The decision in Dobbs¹² is hence, more of an aberration than the ongoing convention as more and more countries are aiming at liberalising the abortion laws. These laws, when liberalised, not only guarantee the basic human right to undergo a safe abortion procedure but also fortifies other concomitant rights such as the right to health, the right to life and personal liberty, and the right to privacy. In fact, in the landmark decision of the Supreme Court of India in K.S. Puttaswamy v. Union of India¹³, the decision of a woman to procreate or abstain from procreating s recognised as a facet of “the right to life and personal liberty” as enshrined under Article 21 of the Constitution of India¹⁴. Even prior to Puttaswamy decision¹⁵, the Supreme Court in Suchita Srivastava v. Chandigarh Admn.¹⁶ upheld the right of a mentally challenged woman to choose to continue with pregnancy. The decision set the precedent of a nuanced understanding of the “choice” of all categories of women. Recently in the landmark case of X v. Health and Family Welfare Deptt.¹⁷, the Supreme Court of India gave an unprecedented boost to the rights of women. In this case, the Supreme Court allowed an unmarried woman to terminate her 22 weeks unwanted pregnancy by declaring the distinction between married and unmarried women as unconstitutional when it came to availing medical services for abortion was also held that denying an unmarried woman the right to a safe abortion violates her personal autonomy and freedom. This is a huge step forward in the domain of the evolving feminist jurisprudence in India as the marital status of women will no longer determine the availability of rights.

As women and girls face a greater risk of unsafe abortions and unnecessary health complications in the presence of too many policy barriers such as mandatory waiting times, or approval from designated persons or authorities¹⁸, liberal abortion laws and procedures that avoid unnecessary delays are the need of the hour. The abortion debate will naturally veer towards a more rights-based approach if consent and autonomous decision-making by women are made the determining factors for availing legal abortions. This will also be in line with the international human rights standards that nudge countries to adopt liberal abortion laws.

The latest amendments to the Medical Termination of Pregnancy Act are certainly a step forward towards relaxing the prevailing law. As per the latest amendments, abortions are legalised up to 24 weeks of the gestation period for certain categories of women. There also exists no upper limit for abortion if substantial foetal abnormalities are diagnosed by the Medical Board. While these improvements are welcome, it cannot be ignored that in today's age when women are being increasingly vocal of their preferences, termination of pregnancy without any foetal abnormality and/or beyond the statutorily fixed time-limit may be opted on myriad grounds such as fall out with partner, intensification of marital discord, or even the previous inability to undergo abortion for financial troubles. However as per the existing law, in such cases the only avenue to terminate the pregnancy is by availing the legal route of filing writ petition in the High Court concerned.

It is time that the Act is further amended to include that pregnancy can be terminated primarily on the voluntary and informed consent of the woman. This is not to say that the right to abortion should be made absolute. Every right has to be circumscribed with reasonable restrictions. However, when questions of autonomous decision-making in respect of bodily choices arise, the threshold of any external interference must be not only high but also proportionate, so that intrusions are rare and far in between. As women bear the travails of unwanted pregnancy, it is critical that the capacity to exercise free agency in reproductive choices is also handed over to them. The Medical Boards constituted under the MTP Act can certainly assist the decision-making process provided the reports are not based on “sketchy” findings¹⁹ as often noted by the High Courts.

In situations where allowing or disallowing abortion becomes the central issue, it will not be wrong to say that there exists a race against time. As a result, what is needed is an easy and facilitative process by which the physical and mental anguish of women are relieved in shorter periods of time. The annals of history document how the freedoms of women were curbed on the pretext of social, moral, religious or ascriptive values. It is time steady changes are made to these values and practices that impinge on the fullest realisation of their human rights.