Gestational change in India’s abortion jurisprudence

The Supreme Court has expanded the ambit of the MTP Act, and placed the autonomy of the pregnant person at the forefront in balancing the rights of the pregnant person and the foetus.

—

"GRANTING women the civil right to have control over our bodies is a basic feminist principle. Whether an individual female should have an abortion is purely a matter of choice. It is not anti-feminist for us to choose not to have abortions. But it is a feminist principle that women should have the right to choose"

–          American author and social activist bell hooks, 'Feminism is For Everybody'

July 15, 2022 would have been an ordinary day at the Delhi High Court. Writ petitions were listed before it by the hundreds. This is a tale of one such writ petition. This writ petition, which became the protagonist of every news headline in this country over the past few days, was that of a woman seeking an abortion to terminate her pregnancy at 23 weeks and 5 days after her relationship ended.

What followed was a shocking proceeding, with the bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad saying, "Why are you killing the child? We are giving you a window… There is a big queue for adoptions." According to the Hindustan Times, the bench further said, "Your whereabouts will not be known to anyone. Deliver the baby, please come back… You ask the client. Everything will be looked after by the Government of India or the Delhi government or some good hospital. I am also offering to pay." The court dismissed the writ petition since the pregnancy was out of a consensual, unmarried relationship.

The woman could have gone on and had an unsafe abortion, as 67 per cent of the abortions in India happen, and this could have possibly led her to be one of the eight women who die of these unsafe abortions every day in this country. But the woman persisted. She appealed to the Supreme Court with three prayers: allow her to terminate the pregnancy, protection to her and the registered medical professional ('RMP') performing her abortion, and a direction to the government to include pregnant women under the ambit of Rule 3B of the Medical Termination of Pregnancy Rules, 2003 ('MTP Rules').

Also read: Dobbs resonating in Delhi?: Examining the recent litigation in access to abortion

Upholding that the right to bodily integrity should extend to women irrespective of their marital status, the Supreme Court passed an interim order in July directing inter alia that:

• The Director of the All India Institute of Medical Sciences ('AIIMS'), Delhi should constitute a Medical Board in terms of the provisions of Section 3(2D) of the Medical Termination of Pregnancy Act, 1971 ('MTP Act') to determine whether the foetus can be aborted without danger to the life of the petitioner
• In the event that the Medical Board concluded that the foetus can be aborted without danger to the life of the petitioner, a team of doctors at AIIMS should carry out the abortion in terms of the request which was made before the high court and reiterated both in the special leave petition and in the course of the submissions before the Supreme Court by the counsel appearing on behalf of the petitioner.

But this was an ad interim order. The petitioner terminated her pregnancy successfully, according to the Supreme Court. In its final judgment, the Supreme Court heralded a series of systemic changes and expanded the scope of the MTP Act, which I had written about in an earlier piece.

The purpose of this piece is limited to understanding the expansion of the ambit of the MTP Act, and looking at how the court has placed the autonomy of the pregnant person at the forefront in balancing the rights of the pregnant person and the foetus.

The issue and the determination

At the centre of the controversy was the interpretation of Section 3(2) of the MTP Act and Rule 3B of the MTP Rules. Simply put, Rule 3B provides for only survivors of rape, minors, women whose marital status changed during pregnancy, mentally ill women, or women with foetal malformation to terminate their pregnancy within 24 weeks. The question was whether unmarried women whose life has undergone significant change, such as the end of a long-term relationship, be covered under this rule.

The Supreme Court held that the legislature sought to resolve the mischief of women being able to get an abortion when their lives underwent a significant change. It noted that all the women who were covered under Rule 3B had undergone a deep change in their circumstances after 20 weeks which caused them to make the difficult determination of terminating their pregnancy. The Delhi high court had held that since unmarried women were not covered under Rule 3B, the petitioner could not avail the benefit under this rule. However, the Supreme Court set aside the judgement and held that even unmarried women could seek termination under this by giving Rule 3B a broad interpretation. It held that disallowing unmarried women would be violative of Article 14 of the Constitution, and this also furthered the gendered stereotype that only married women indulged in sexual activities.

"It is the woman alone who has the right over her body and is the ultimate decision-maker on the question of whether she wants to undergo an abortion". In times when reproductive rights are under attack globally, this statement of the Supreme Court will be the light at the end of the tunnel that will serve as a beacon of hope in the broader struggle for decriminalising abortion in India. It will go a long way in abortion being made accessible for women, irrespective of their marital status, and prevent healthcare providers from acting as gatekeepers to safe, affordable and accessible abortion.

Also read: U.S. Supreme Court's judgment in Dobbs versus Jackson Women's Health Organization: The reasoning and the takeaways

Holding that the cardinal principle of interpretation of statutes was to look at the intent of the legislature, the court held that the MTP Act and Rules should be constructed in the light of object and purpose of the enactment.

Reproductive autonomy and marital status

Access to abortion is inextricably linked to patriarchal thoughts around sex, sexuality and how the society perceives women, especially fertile women. Ours is a society that has long stigmatised pre-marital sex and abortions. The justifications have always been around the role of the women to give birth, and the importance of ensuring that the family blood line is carried on.

The Supreme Court held that statutes are "always speaking", and relying on its decision in Navtej Singh Johar versus Union of India (2018), it held that the judiciary has a duty to "ensure and uphold the supremacy of the Constitution, while at the same time ensuring that a sense of transformation is ushered constantly and endlessly in the society by interpreting and enforcing the Constitution as well as other provisions of law in consonance with the avowed object".

This is undoubtedly a progressive judgement which has moved beyond just reproductive autonomy. Holding that marital rape will be rape under the MTP Act and the MTP Rules, the court has upheld the right of women to their bodily autonomy, and that husbands can no longer force their wives to carry a pregnancy to term and deliver a child, if the wife does not consent to it. The wife has absolute autonomy over her body that is rooted in her right to privacy and dignity, which have been read into Article 21 of the Constitution.

Abortion has far wider implications to the lives of women. Studies have shown that when women are denied abortions, they face higher risks to their mental and physical health. Not only that, they also face worse credit scores and economic hardships, and a higher chance of sinking into poverty. The court has also read the right to mental health within the MTP Act, holding that that the decision to abort is that of the woman alone; her perception becomes the most important in determining if the pregnancy needs to be terminated.

So far, it was the views of the medical board which were given the primacy of the opinion. Often, these boards were not constituted, and sometimes pregnant persons had to approach the high court, seeking constitution of such boards. By the time these boards would be constituted, it would become too late to terminate the pregnancy, and this also gnawed into the right to bodily integrity of these women. As I had pointed out in my earlier piece, this judgement might pave the way for eliminating these boards.

Also read: Abortion in India – still not a right but a privilege

Next set of challenges

This judgement is undoubtedly a progressive one. But we are faced with a question— what does this mean for things on the grassroots level? Though the court has directed the government to ensure safe and affordable services, there has been a recent move to privatise district hospitals. Five states have set the wheels in motion to do it already, and several more will follow suit. How do we ensure safe and accessible abortion that is affordable when the district hospitals, which are the last bastion of our public health systems and are affordable, are privatised? They are by no means perfect, but are the only hope for people in rural and far-flung areas of the country. Leasing them out for 99 years, as is proposed, would undoubtedly hit the poor and the marginalised populations the most.

The second issue is changing attitudes towards abortion. It would be impossible to do without ensuring access to contraception, and increasing awareness around safe-sexual practices and sexual health. It will also involve changing attitudes of RMPs, which often become the major hindrance to access.

However, as much as there is to despair, this is undoubtedly a victory for the abortion rights movement and the judgment recognises its intersectionality. It gives us cause to celebrate, and to carry on the good fight.