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Editorial > ABORTION OR NO ABORTION? The Global Impact and The Indian Perspective after the Rollback of Roe v. Wade

ABORTION OR NO ABORTION? The Global Impact and The Indian Perspective after the Rollback of Roe v. Wade

Dais Editorial | 16/08/2022 05:01 PM

It’s been a little over a month since the Supreme court of the United States overturned the historic Roe v. Wade, striking down the constitutional right to abortion, after almost half a century. The judgment has made the individual States of the U.S. as the final decision makers of whether or not abortion should be legal in that particular State. Many Republican party ruled States have banned abortions- no exceptions, not even in cases of rape or incest. And also declared heavy penalties, if caught, for the ones getting and providing abortion services.

The pro-choice protestors in America who have been on the streets since the judgment leak, they are still standing firm. Many healthcare workers have warned that the after-effect of this verdict will now lead to an increase in the number of unsafe abortions.

Now, this decision has left almost all uterus bearers around the world in a state of fear. The question of the hour – What will be its global impact? Is it legal in India? Will I go to jail if I get an abortion? …countless other questions.

We are here to clear all of it- one at a time and let you know of the latest developments related to abortion in the U.S. and India- let’s begin from the root.

What is Roe v. Wade?

Roe v. Wade was a landmark decision of the Supreme Court of the United States in which it ruled that the Constitution of the United States shall grant the right to have an abortion. In a majority opinion written by Justice H arry A. Blackmun, the Court held that a set of Texas regulations criminalizing abortion in most instances violated a woman’s constitutional right to privacy.

In 1969, the case was brought by Norma McCorvey alias Jane Roe, who was pregnant with her third child and wished to abort her pregnancy but was stopped by Texas laws- according to which it was illegal to get an abortion unless there was a serious threat to the mother’s life. Her attorneys, Sarah Weddington and Linda Coffee filed a lawsuit on her behalf in U.S. federal court against her local district attorney, Henry Wade, alleging that Texas's abortion laws were unconstitutional.

On January 22, 1973, the Supreme Court ruled in her favor - making abortion a woman’s right.

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The current scenario in the U.S.

Now, the Supreme Court has overturned Roe v. Wade after almost 50 years. The court overruled the case with a 6:3 majority.

The judges involved in this case were appointed by Republicans so here comes American politics into the picture. Democrats and Republicans are the two major political parties in the USA with conflicting ideologies regarding abortion. The former is pro-choice which means the woman has the right to choose whether or not she wants to go ahead with a pregnancy. The latter has a pro-life stance- according to them abortion is a crime, more like a sin, and should be considered the same as “killing a life”, therefore, they are against it. Republicans have publicly cheered the decision, even going so far as to call for a national abortion ban. This difference in ideologies of both parties affected the abortion laws in the States.

Conservative states such as Arkansas, Kentucky, Louisiana, Missouri, Oklahoma, Ohio, and South Dakota immediately banned abortion after this verdict. Almost half the states are expected to ban abortion completely. Whereas 13 other states have trigger bans which means they haven’t made a decision yet. Among these states, West Virginia became the first one to legalize abortion temporarily being a Republican-ruled state.

Last month, America and the world witnessed the horror these bans bring when a 10-year-old rape victim was denied abortion as she is from Ohio and the courts have criminalized abortion there. She had to travel to Indiana to get the procedure.

Striking down this landmark piece of legislation created huge chaos among US citizens as well as people around the globe. Many companies reacted to this decision: YouTube CEO Susan Wojcicki did not support this decision and is pro-choice. Apple, considering their employee’s reproductive health as a major concern allowed them to use company benefits to travel out-of-state to receive medical care.

As soon as the decision was made, people came to the streets and started protesting. Thousands gathered in front of the White House and raised their voices to reverse the law. There were huge demonstrations with people using placards of ‘No Uterus, No Opinion’. Not just in the USA- people all around the globe are standing up for the protection of women’s rights.

But the problem does not end here, at least eight states have banned abortion completely including abortion pills. The demand for abortion pills has significantly increased across the United States following the Supreme Court's decision. So, now women are ordering them from overseas and are using them without any prescription which is quite risky in legal aspects as well as health. Another matter of concern is women using their own unsupervised methods to end pregnancy such as drugs, medications, alcohol, etc. These kinds of practices have increased among the economically weak classes.

What’s the scene in India?

When America, a supposedly “first world” country takes such a step backward, people of “developing nations” like India are living in dread and asking questions like- “Will it be banned in our country too”? or worse- “Is abortion even legal here”?

Well, let’s start by answering the prime question- Yes, abortion is legal in India irrespective of your marital status. And we’ll even go out on a limb to say that- No, India isn’t following the U.S.’ suit. Abortion won’t get banned here. If anything, recently our Supreme Court decided to tweak our existing abortion laws to make them even more friendly for the ones who want/need to get it.

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Abortion laws and rights in India

Abortion has been legal in India since the past 51 years.

In the year 1971, the Medical Termination of Pregnancy Act (MTPA) was passed- legalizing abortion under authorized medical supervision under the fulfillment of certain circumstances, like- contraceptive failure, an increase in gestation limit to 24 weeks for special categories of women, and the opinion of one provider required up to 20 weeks of gestation.

Before MTPA, abortion providers would face up to 3 and 7 years of imprisonment, the only exception being- a serious threat to the life of the pregnant person.

Over the years the MTPA has been made more progressive and inclusive. The new modified Medical Termination of Pregnancy (Amendment) Act 2021 expands the access to safe abortion on several grounds, such as therapeutic, eugenic, humanitarian, and social. It now also covers unmarried women- while previously that wasn’t an acceptable ground for abortion in case of contraceptive failure.

A few weeks back a 25-year-old unmarried woman appealed to the Supreme Court of India to allow her to abort her pregnancy which is nearly at 24 weeks.

Before appealing to the apex court, she had approached the Delhi High court where she kept her case. She challenged the Rule 3B of the Medical Termination of Pregnancy Rules, 2003, as per which only some categories of women- change of marital status during ongoing pregnancy (widow, divorcee), survivors of sexual assault or rape or incest, minors, women with physical disabilities, mentally ill women, women carrying a malformed fetus that has a substantial risk of being incompatible with life, and women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the government- are allowed to seek termination of pregnancy between 20-24 weeks. The list does not include unmarried women.

She said that her pregnancy was a result of a consensual relationship but her partner refused to marry her while she was in her 18^th week of pregnancy. She also spoke of the social stigma surrounding an unmarried pregnant woman and that she was not mentally or financially stable enough to commit to this, therefore, wished to terminate the pregnancy.

A division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad refused her plea and suggested that she instead go ahead with the pregnancy and give up the child for adoption.

“We will not permit you to kill the child; 23 weeks are over. The child will be in the womb for how many weeks for normal delivery? Hardly how many weeks are left? Give the child to somebody in adoption. Why are you killing the child,” the bench said.

On July 21, the Supreme Court allowed the woman the right to abortion and said- “We are of the view that allowing the petitioner to suffer an unwanted pregnancy will go against the parliamentary intent and the benefits under the Act cannot be denied to her only on the basis of her being unmarried…”. The decision was given by the bench of Justices D Y Chandrachud, Surya Kant, and A S Bopanna.

The Supreme Court also observed that the Delhi High Court had taken an “unduly restrictive view” of Rule 3B, and has further stressed the need to bring unmarried women at parity in the eyes of law regarding abortion under the Medical Termination of Pregnancy Act 1971. This case has triggered talks of tweaking and modification of the existing clauses so that unmarried women are included.

Therefore, to summarise:

a. Yes, abortion is legal in India

b. You can avail an abortion irrespective of your marital status

c. If you are a major, then no one else’s nod (parents or partner) is required for you to go ahead with the procedure

d. For minors or mentally unwell, a guardian’s written consent is required

If you are pregnant and do not wish to continue your pregnancy you have every right to terminate the same and for that procedure always consult a doctor, preferably a gynecologist, or a specialist to ensure a safe abortion procedure.

Progressive laws, yet they are failing the Indian women

Even though from the legal standpoint of India’s abortion laws it looks like the woman is the one in control, the reality is sadder than that. The main reason being the social stigma, the woman who recently appealed to the Supreme Court to permit her to terminate her pregnancy is one such example. The comments made by the Delhi High Court bench before she moved to the apex court, are a reflection of society. Asking someone to go through a life-changing process when they are not ready- how is that fair? Calling them selfish, or worse- a killer, for choosing to not give birth- what does it say about our mentality?

These far-reaching, extreme conservative views are what have brought the United States here today and India shouldn’t be too happy to have more liberal laws in this department than their ‘developed’ counterpart, because the difference between the states of the two countries in this area isn’t so strikingly apart.

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Social stigma

The debate is of control, of choice- one’s autonomy over their own body- and India is failing in this department. Even today when a woman alone goes to a clinic seeking the procedure, she is asked about her partner’s consent- making it worse for single or unmarried women. Some also go to the extent of denying them abortion because it’s “unethical” for the doctor. And this pushes them to go away from it all and seek information and refuge from the places they shouldn’t- leading to unsafe abortions. Deaths from unsafe abortions still constitute 10% of maternal mortality.

Female feticide argument

Though there are not much of pro-choice or pro-life lobbies in the Indian context due to a lack of religious point-of-views to be imposed, the main argument that some abortion skeptics put forward is of selective abortion in the case of female fetuses, also known as female feticide.

There are laws to combat the same. The Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) law was enacted banning prenatal sex determination to stop female feticide. But, even today female feticide is very much prevalent. This proves that laws can only do so much. Hence, criminalizing abortion to stop female feticide will also be a step toward vain, therefore, this argument doesn’t stand.

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Population control logic

What puts our liberal laws for abortion on the backfoot is that it is driven by the population control logic and not women’s rights. And moving forward with this logic is dangerous because it completely disregards a woman’s health and well-being and therefore, does not prioritize safe abortion. The laws we have today, no matter how progressive they look, at the end of the day it’s the doctor’s call- do they think you need an abortion. Here the choice is an illusion.

Excludes Trans Men

It is only now that it struck our Supreme Court that ‘hey, unmarried women should also have the same rights as other women, right’? That the need to also include Trans Men who are capable of getting pregnant hasn’t even crossed their minds yet. Our MTP Act uses the word “woman”, making the law gender specific. This not only disregards a transgender man’s bodily autonomy but also the fact that they too could be victims of sexual assault.

So… what’s the solution?

Education, loads of learning and unlearning, changing orthodox mindsets, and empathy.

It is important to make people aware of the importance of abortion and that it is a monumental part of healthcare for those who can get pregnant. Learning new facts and unlearning old myths is also a part of that education process. Further, this effort when implemented can change mindsets and make society more understanding. But the most important element to reach our solution is to spread empathy. Empathy towards others, the inability to see them in pain, and hence, respecting their decisions even if you personally disagree with them- is what we need.

This decision by the Supreme court of the United States has triggered the talk of abortion all over the world and has also exposed how little to no education related to it is available or provided to people. The stigma around the words- sex, pregnancy, and abortion makes people hesitant to even seek information about it. Each of us needs to take an active part in breaking this stigma by starting the talk and then walking the talk. Our judicial system also needs to do a better job of ensuring that the law protects our rights and is implemented and followed across the nation.

Until then, each of us can do our part by reading, learning, sharing our knowledge- and stopping the war led against choice.

Are you with us?

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