The author of this article is Sivarenjini GB, Editor Trainee at ljrfvoice.com.
‘Bodily autonomy is a foundation upon which all other human rights are built’
-Dr. Natalia Kanem
INTRODUCTION
A few days back, the voters in Kansas, a reliably conservative state in the United States bravely voted against the policy of removing the right to abortion from the state constitution. The popular mandate came as a blow to the recent decision of the US Supreme Court which overturned the landmark judgement in Roe v Wade that had acted as a guardian of abortion rights throughout the country. Article 3 of the Universal Declaration of Human Rights [UDHR] states that “everyone has the right to life, liberty and security”. It is a well-acknowledged fact that all human beings are entitled to equal rights and equal protection before the law. Besides, Article 12 of the UDHR substantiates this perception upholding that No one shall be subjected to arbitrary interference with his/her privacy. The concept of bodily autonomy is an irrevocable human right which shares a close affinity with an individual’s dignity and right to privacy. It is a larger spectrum, provided that it implies the right to complete governance over one’s own body. The 1948 UDHR clearly marks bodily integrity and autonomy central to both human rights and human dignity. This right, over time, has evolved to be a face of international human rights. The necessity of looking into the widely debated topic of abortion rights arises, to ensure that right to bodily autonomy is well protected when it comes to the instances of medical abortion. The right to safe and legal abortion is undisputedly a fundamental human right protected under countless international and regional human rights treaties. Shackled by the infixed and repulsive societal norms, women across the globe are mercilessly deprived of the right to abortion, which amounts to the visible infringement of their right to bodily autonomy. Furthermore, this topic is an apple of discord, in the wake of the overturning of the Roe v. Wade judgement by the United States Supreme Court, paving way for a swift political transition all over the world. The rhythm of the slogan “my body is my privacy” gains momentum far and wide in this context.
RIGHT TO ABORTION
The honourable Supreme Court of India in July 2022 viewed that denying an unmarried woman the right to safe abortion is interference with her personal autonomy and freedom. The apex court further held in detail that the right to abortion in such cases is an integral constituent of Article 21 of the Indian Constitution which guarantees the right to life and personal liberty to every person. In addition to this, the ballot initiative in Kansas is an apparent reflection of the vital conscience of the people to reaffirm their constitutional right to abortion.
Abortion is defined as a medical procedure to terminate a pregnancy by removal or expulsion of an embryo or foetus. As stated earlier it is a basic human right of an individual and forms an indispensable facet of the public health law. World Health Organization [WHO] defines abortion as pregnancy termination prior to 20 weeks gestation. The definitions of abortion may vary, but the underlying essence of the right to legal abortion is that a woman has supreme autonomy over her body and it can never be denied to her under any circumstance. Living in a country where about 77 rape cases occur daily, we are obliged to voice our loud opinion to ascertain the right to safe and legal abortion for the sake of the bodily autonomy of a woman as well as her dignity. Moreover, the right is indispensable taking into consideration the ‘unwanted pregnancies and the right to health of a woman associated with this.
ROE V. WADE: WHEN JUSTICE DEFEATED PREJUDICES
The US Supreme Court, to a shocking extent revoked the constitutional right to abortion, thus overturning the cornerstone Roe v. Wade decision of 1973 that had been a proclamation of a woman’s right to her body. Before analyzing the contemporary developments kick-started by the US Supreme Court, it is important to delve into the diverse aspects of the historic case. The case Roe v Wade is globally regarded as a wind that revolutionized the time.
Back in the year 1969, a resident of Texas, Norma McCorvey, who was five months pregnant, approached the court when abortion had been banned by the state of Texas except when it could be performed to save the life of a mother. When the case came before the US Supreme Court on appeal, it recognized abortion as a constitutional right in the U.S. This gesture of the US Supreme Court undoubtedly exhibits a supreme epitome of judicial activism, thus realizing the true spirit of the words of Thomas Jefferson who authored the US Declaration of Independence: “The Constitution is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form”. The US Supreme Court through Roe v Wade rightly proved that an independent judiciary is the bedrock of democracy. The US Supreme Court ruled 7:2 to recognize the constitutional right to abortion in the US. A trimester system was laid down in this regard, where in the first trimester [first three months] of pregnancy there was right to abortion, some limitations were imposed in the second trimester and the state was authorized to ban abortions in the third trimester as the foetus neared the stage where it could live outside the womb except when the mother’s life is in peril.
But not surprisingly, by the time the case had been won in 1973, she had already given birth and given her child up for adoption. The judgement also gave soundness to the mounting support for abortion in the 1960s following the public health crises which caused miscarriages and grievous health problems among newborn children. Besides, the Roe v Wade verdict turned out to be a guardian of the women’s right to reproductive and sexual health as it recognized the pertinence of usually disregarded aspects of women’s health and firmly expressed that a woman’s bodily autonomy can’t be compromised at any cost. It also gave a new shape to the evolving connection between human rights and health. In addition, the idea of the enjoyment of reproductive and sexual health also occupied a prominent space in the International Convention on Elimination of Discrimination against Women [CEDAW] adopted in 1979. To surmise, the landmark judgement revived and reformed the worldwide dynamic movement for safeguarding the right to bodily integrity of millions of women.
But the present developments that took place in the US pose an egregious threat to the campaigns all over the world appealing for the right to bodily autonomy.
FUNDAMENTAL RIGHT OF DEFINING LIFE: CASEY V PLANNED PARENTHOOD
Later in 1992, another landmark judgement in Casey v. Planned Parenthood brought to light the countless debates and upheaval which followed the decision in Roe. Wade. There were many states in the US which sought to defy the law in Roe v Wade by enacting new laws that prohibited abortions and imposed procedural hurdles upon the women deciding to terminate the pregnancy. In the case, the US Supreme Court affirmed what it called the basic holding of Roe v Wade that, states have no authority to prohibit abortions before fetal viability, the point when a foetus could survive outside the womb, which is now about 23 weeks. Another striking feature of this judgement is that the court waived the trimester framework as laid down in Roe v Wade. Instead, it designed an “undue burden test” under which the court sustained the constraints that prevailed on abortion. The ‘Undue burden test’ is a constitutional test fashioned by the Supreme Court of the United States with an aim to test the constitutionality of state abortion regulations. The court after looking deeper into the liberty interests and privacy interests of a citizen and also the due process clause as guaranteed by the US Constitution identified that every person is entitled to a “substantive right to privacy” which is protected from state interference in “marriage, procreation, contraception, family relationships, child rearing and education”. The court ruled that the abortion decision also comes under the purview of this right. The observation of the court that a woman’s fundamental right to define her life should not be denied elevates the judgement to unsurpassable glory.
A MOURNFUL OVERTURNING: ROE V WADE OVERTURNED
The new decision of the US Supreme Court in Dobbs v Jackson Women’s Health Organization which has the effect of overturning Roe v Wade clearly amounts to the taking away of the constitutionally guaranteed personal liberty of American citizens. The new judgement decimated the right to abortion in the US, thus empowering the states to ban abortion as they wish. In the words of Nancy Northup, the President and CEO of the Center for Reproductive Rights “the Court’s opinion delivers a wrecking ball to the constitutional right to abortion, utterly disregarding the one in four women in America who decides to end a pregnancy”.
The court in its 6-3 ruling backed by its conservative majority, upheld a Republican-backed Mississippi law that bans abortion after 15 weeks after gestation except in the case of a medical emergency. The verdict in the heatedly controversial case overturned the ruling in Casey v. Planned Parenthood also. Justice Samuel Alito, while writing for the majority held that the Roe ruling and the subsequent High Court decisions reaffirming Roe amounted to an abuse of judicial authority. They have substantiated their decision further stating “the Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives”.
In spite of all these, what comes as a ray of hope is the loud and unyielding opinion of the three dissenting judges from the liberal block who firmly underscored “With sorrow-for this court, but more, for the many millions of American women who have today lost a fundamental constitutional protection-we dissent”. They remarked that the judgement “diminishes women’s opportunities to participate fully and equally in the nation’s political, social and economic life”. The dissenting judges rightly said that the majority substituted a rule by judges for rule of law.
The contentious judgement now opens the door for the states to formulate their own abortion laws in motion without concern of contravening Roe v Wade which stood as a binding precedent for nearly half a century. In the eyes of abortion advocates, the verdict is a ‘death knell’ for the nationwide protection of reproductive rights and women’s health.
RIGHT TO ABORTION: EXPLORING THE INDIAN SCENARIO
Section 312 of the Indian Penal Code [IPC] criminalizes the intentional causing of miscarriage if it was not done in good faith, for the purpose of saving the life of the woman. But the framing of abortion laws for the welfare of the pregnant woman is an efficacious way through which we can eradicate the catastrophic gender discrimination in our society. India, the homeland of iconic women’s rights movements and protests has also come a long way in introducing legislation in connection with this. Given paramount importance to the health of a woman, the Medical Termination of Pregnancy Act [MTP Act], 1971 was passed in India with clear provisions for reducing the number of unsafe illegal abortions. The legislation granted immunity to the registered medical practitioners carrying out abortion as per its provisions from the prosecution by virtue of Section 312 of the IPC. Earlier, by virtue of this statute, the termination of pregnancy was not legally permitted after 20 weeks of gestation. But considering the trauma that has been caused by this short time frame to the pregnant woman, the Government realized the necessity to bring about amendments to the Act. The MTP Bill, 2020 presented a wholesome solution to these challenges. The new law came into force on 25 March 2021, aiming at expanding access to safe and legal abortion services on therapeutic, eugenic, humanitarian and social grounds to provide universal access to comprehensive health care.
Under this amendment, the time limit for termination of pregnancy has been extended to 24 weeks after gestation for certain categories of women. Moreover, there is no upper time limit for abortion if “substantial foetal abnormalities” are diagnosed. The persons coming under the ambit of certain categories of women are survivors of sexual assault or rape or incest, minors, women whose marital status undergoes a change during an ongoing pregnancy [Widowhood and divorce], and those with physical disabilities and mental illness. Now there is an increased appeal to extend the right not only to certain categories but to the whole women also.
A few days back, the honourable Supreme Court signalled a drastic change in defining the ‘certain categories of women. The Bench consisting of Justices DY Chandrachud, Surya Kant and AS Bopanna passed an ad-interim order to allow an unmarried woman to end her pregnancy of 24 weeks emerging out of a live-in relationship, subject to a medical board of two doctors set up by the All India Institute of Medical Science [AIIMS], Delhi concluding that the foetus can be aborted without posing a risk to the life of the pregnant woman. The Supreme Court went on to say that an ‘unmarried woman’ shall also be covered under the ‘certain categories of women ‘. The order of the Supreme Court of India is sure to bring about affirmative changes in society which always views the women involved in such relationships with stereotypic eyes and narrowed thoughts. It is worth noticing that the Indian judiciary, which is considered the last resort for every aggrieved citizen has again proved its judicial sensitivity through this order.
Earlier legal abortion mandated the opinion of one doctor if it is done within 12 weeks of conception and two doctors if it is done between 12 and 20 weeks. The 2021 amendment says that the opinion of only one doctor is required to terminate a pregnancy up to twenty weeks. The amendment incorporated a new mechanism also, a state-level medical board. The medical board consisting of two doctors shall be constituted to decide whether the pregnancy may be terminated after 24 weeks in cases of foetal malformation and if the foetal malformation raises a substantial risk of it being incompatible with life or if the child is born, there are chances of it suffering from such physical or mental abnormalities to be seriously handicapped. On the other hand, in order to terminate pregnancy any time after diagnosing substantial foetal abnormalities the opinion of a four-member medical board is mandatory.
One of the regressive aspects of this legislation is that, however beneficial it is, it does not confer a woman her basic right to terminate the pregnancy if and when she desires. Although the amendment has inserted new hopeful provisions and increased its scope, this inherent blemish in the Act could not be rectified. Another grey area of concern is the setting up of a state medical board, which exhibits a kind of medical paternalism, thus undermining the decision-making right of a woman. Moreover, there are widespread apprehensions regarding access to the medical board, especially for women from rural areas and underprivileged classes. The present social phenomenon denotes that reproductive autonomy is still a distant dream for a woman, who is deprived of the right to plan a pregnancy. Furthermore, an Indian woman who is seeking safe and legal abortion confronts multi-dimensional barriers created by both society and the statutes.
Nevertheless, the new amendment to MTP Act, of 1971 was described by World Health Organization [WHO] as a “historic move” to provide universal access to reproductive health services and to empower women by providing comprehensive abortion care to all. According to World Health Organization, the legislation would positively contribute to ending preventable maternal mortality in order to fulfill the Sustainable Development Goals propagated by the United Nations.
CONCLUSION
Reproductive autonomy and bodily integrity are the most discarded rights as far as a woman is concerned. When she is from the vulnerable strata of society, things become worse, crushing her to a life of misery. The decision of the US Supreme Court which overturned the Roe v Wade judgement has far-reaching adverse consequences. Now the formulation of abortion laws is left to the discretion of respective states in the US, challenging the fundamental tenets of rule of law and the right to choice of a woman. Although the conservative ideology could win temporarily through a majority judgment, the progressive society of the US shows its dissent through various manifestations of protest and democratic framework as the people of Kansas did. When we come to Indian social realities, shockingly there is a section of society chained by the deep-rooted traditional and conservative values, believing that abortion is a sin and a woman has no right to end her pregnancy as she decides. But the organs of Government, especially our judiciary serve as the liberators in this regard. Despite suffering from some fundamental flaws, the Medical Termination of Pregnancy Act is a sigh of relief for many women across the length and breadth of our nation. The fair observations of the judiciary embolden the lawmakers to revisit and reform the prevailing legislations. Bodily autonomy is integral to human dignity. It is political freedom as well. Abortion laws worldwide have to acquire new shapes in order to protect the basic human rights of a woman.
END NOTES
- Kansas votes to preserve abortion rights in first post Roe election test, The Hindu, August 03 2022, 12.13 IST
- Manu Sebastian, Roe v Wade Overruled : What Does Indian Law Say On Abortion, LiveLaw, June 25 2022, 07.44 GMT
- Abortion Can’t Be Denied Because Woman is Unmarried : Supreme Court Allows Unmarried Woman To Seek Termination of Pregnancy, LiveLaw, July 21 2022, 07.53 GMT
- Sudipta Datta, How will the Roe v. Wade rollback impact women?, The Hindu, June 30 2022, 20.17 IST
- Universal Declaration of Human Rights, 1948
- Indian Penal Code, 1860
- Medical Termination of Pregnancy [MTP] Act, 1971
- India’s amended law makes abortion safer and more accessible, World Health Organization, April 13 2021
