Supreme court’s ruling on abortion

General Studies Paper 2

Context:

• Recently, Supreme Court ruled that all women, irrespective of their marital status, are entitled to safe and legal abortion.

More about the ruling

• Issue:
  • The Medical Termination of Pregnancy (MTP) Act of 1971 and its Rules of 2003 prohibit unmarried women who are between 20 weeks to 24 weeks pregnant to abort with the help of registered medical practitioners.
• SC’s Judgement:
  • In a landmark judgement, the country’s apex court said that the rights available to married women under the Medical Termination of Pregnancy Act, 1971,to abort a foetus will also be available to unmarried women.
  • Court said that the“artificial distinction” between married and unmarried women cannot be sustained, and women must have the autonomy to have free exercise of these rights.
• Marital rape:
  • The bench also noted that for the sole purpose of the MTP Act, the meaning of rape must include marital rape.

Significance of the ruling

• On the same level:
  • The judgement would put unmarried women on par with anguished women with less than 20-week-old pregnancies.
• Similar risks for both:
  • Unmarried women run the danger of suffering a mental breakdown because they had conceived due to the failure of “family planning devices or methods”.
    • Medical risk is the same for both married and unmarried women
  • Safe abortion practice has been a concern in our country, and with this judgement, we can expect a reduction in morbidity and mortality associated with unsafe abortion practice.
• International significance:
  • The significant decision came months after the US Supreme Court overturned the historic 1973 Roe v Wade decision in a 6-3 decision that made abortion a constitutional right in the country.

Salient features of the “Medical Termination of Pregnancy Act 2021”:

• Abortions before 20 weeks of pregnancy:
  • Terminating a pregnancy up to 20 weeks will only require the medical advice of one doctor.
• Abortions up to or beyond 24 of pregnancy:
  • Abortion is legal for women in certain circumstances up to 24 weeks.
  • It would include:
    •  survivors of rape, victims of incest and other vulnerable women (like differently-abled women, minors) etc.
  • Opinion of 2 providers is required for termination of pregnancy of 20-24 weeks of gestation.
  • A state-level medical board will be set up to decide:
    • if pregnancy may be terminated beyond 20 months till 24 months.
    • Such a decision can be taken by the medical board only after
      • due consideration and
      • ensuring that the procedure would be safe for the woman.
      • The time frame available to the Medical Board is 3 days.
  • The upper gestation limit does not apply in cases of substantial foetal abnormalities diagnosed by the Medical Board.
• Anonymity: 
  • Name and other particulars of a woman whose pregnancy has been terminated shall not be revealed except to a person authorised in any law for the time being in force.
• Marital and age criteria:
  • Unmarried women can also access abortion under the above-mentioned conditions because it does not mention the requirement of spousal consent.
  • If the woman is a minor, however, the consent of a guardian is required.
• Intentionally causing a miscarriage:
  • Section 312 of the Indian Penal Code holds intentionally causing a miscarriage as a criminal offence.

Significance of the MTP Act

• Constitutional right:
  • The reproductive choice is personal liberty guaranteed under Article 21 of the Indian constitution.
• Reproductive Rights of a Woman:
  • The laws provide greater reproductive rights and dignity to women as abortion is considered an important aspect of the reproductive health of women.
• Right to Privacy:
  • The rape victims and vulnerable victims are also benefitted from Privacy Clause.
• Encouragement to Safe Abortion: 
  • Deaths and injuries from unsafe abortions are largely preventable provided services are performed legally by trained practitioners.
  • The procedures are performed under proper medical and surgical supervision if done in the hospital setting.
  • If termination pills are taken at home, it must be under medical supervision and follow up.

Criticisms:

• No Personal Choice:
  • The boards are unnecessary and an invasion of privacy of the pregnant women which pushes the laborious process a woman had to undergo in order to get an abortion.
  • As the law does not permit abortion at will, critics say that it pushes women to access illicit abortions under unsafe conditions.
• Increase in Gestational limit only in certain cases: 
  • It enhances the gestational limit for legal abortion from 20 to 24 weeks only for specific categories of women.
  • A woman who does not fall into these categories would not be able to seek an abortion beyond 20 weeks.
• Shortage of medical staff:
  • According to a 2018 study in the Lancet, 15.6 million abortions were accessed every year in India as of 2015.
  • The Act requires abortion to be performed only by doctors with specialisation in gynaecology or obstetrics.
  • However, the Ministry of Health and Family Welfare’s 2019-20 report on Rural Health Statistics indicates that there is a 70% shortage of obstetrician-gynaecologists in rural India.

Way ahead

• Access to legal and safe abortion is an integral dimension of sexual and reproductive equality and must be a crucial element of conventional society.