In a significant blow to the bodily autonomy of women, in June this year the US Supreme Court overturned Roe V Wade, a landmark decision that guaranteed women the constitutional right to abortion. While it was expected, after a draft opinion was leaked in early May, the ruling still sent shockwaves through the country, sparking protests in many places.
On the heels of the controversial order, the Indian Supreme Court last week passed a judgement being hailed as "historic" and "a big step forward" for women's rights. The ruling says that all women, including those unmarried, had equal rights to abortion. Currently, the MTP act states that a woman is well within her rights to terminate a pregnancy by a medical practitioner up to 20 weeks. This can extend to 24 weeks if continuing the pregnancy will cause grievous harm to a woman’s physical or mental health.
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While the verdict is a huge step towards securing the bodily autonomy of women in our country, it also contains another important decision regarding the safety of women. For the first time, and only within the ambit of the Medical Termination of Pregnancy Act, the apex court ruled that the definition of rape must include marital rape. A pregnancy caused by rape is presumed to constitute a grave injury to the mental health of the pregnant woman.
It is this explanation that the Supreme Court used to justify this landmark ruling. A bench led by Justice DY Chandrachud noted that intimate partner violence is a reality that can take the form of rape, and if the MTP act does not recognise marital rape, it would compel 'a woman to give birth to, and raise a child with, a partner who inflicts mental and physical harm upon her.'
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The judgement also contains noteworthy language increasing the ambit of the MTP Act – the ruling reads that the term ‘women’ includes persons other than cis-gender women. Recognising that transmen, or gender non-conforming persons also need access to safe abortions is an important step towards securing the rights of people belonging to the LGBTQIA+ community in India.
There is no doubt that this is a big step for India, a country that is home to 675 million women – and the progressive nature of this judgement stands in stark contrast to the regressive stance of the United States Supreme Court.
The overturning of Roe V Wade has had landmark ripple effects throughout American society. In many states, women no longer have access to safe abortions.
The USA is a federal country, so all its states have the right to form their own laws. Roe v. Wade, however, prevented states from making their own laws banning abortion. . After the ruling was overturned, owing to the federal structure of the country, each state can now take its own call on the matter. Abortion is now illegal or heavily restricted in at least 15 states. At least eight other states have laws in place that pave the way to ban or severely restrict access to abortion. Performing an abortion is now a felony punishable by up to life in prison in Texas, with only narrow exceptions to save the life of a pregnant patient. According to a study by the Guttmacher Institute, at least 66 clinics across 15 states have stopped providing abortions.
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Pro-life vs Pro-choice. It's a debate that has been a part of US society for decades. In the United States, questions pertaining striking a balance between the rights of the fetus and the mother dominate the debate around abortion. In contrast, India emphasizes a woman’s right to bodily autonomy.
The differing attitudes between the two countries can also be attributed to their religious differences. In the USA, the religious angle of the abortion debate concerns the complicated and personal question of ‘when does life begin’. According to Catholicism, the majority religion in the US, life begins at conception. In India there exists no singular viewpoint on the conception of life. Strong Catholic beliefs on the conception of life and ‘abortion as a sin’ significantly influence the American abortion debate. However, in India, this moral-legal debate on abortion has never attracted much interest.
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The law in India is progressive, and a welcome ruling specially in the face of recent global developments. However, as with all other issues, putting in the work between judgements and on-ground action becomes more important now than ever before. Unsafe abortions are the third leading cause of maternal mortality in India, and close to 8 women die from causes related to unsafe abortions each day, according to the United Nations Population Fund. Systemic challenges, attitudes of medical professionals, proper post-abortion care, and access to proper gynecological services in the hinterlands of India are battles that need to still be won, before we can truly celebrate the spirit of this judgement.
