A 51-year-old abortion law that prevents unmarried women from ending pregnancies that are up to 24 weeks old was cracked open by a three-judge bench chaired by Justice D.Y. Chandrachud. In this landmark decision, the Supreme Court gave unmarried and single women with pregnancies between 20 and 24 weeks the same safe, legal access to abortion services as married women. The application of Rule 3B of the 2003 Medical Termination of Pregnancy Rules, only permits certain groups of women to request pregnancy termination between 20 and 24 weeks in exceptional situations, and fails to include single or unmarried women in that category. Rule 3B(c) perpetuates the myth that only married women engage in sexual activity. Constitutionally speaking, this is unsustainable. It is not possible to maintain the arbitrary division between married and single women on this ground. In order for women to freely exercise their rights, they must have autonomy.
However, unmarried women are not covered under Section 3(2)(b) of the Act and not only did this seem discriminatory, but it was also blatantly against Articles 14 and 21 (which guarantee the rights to equality and life and personal liberty, respectively), making it unconstitutional in nature. So, while admitting this petition the court admits that there is “no relationship between the distinction between a married and an unmarried woman and the fundamental purpose and object which is sought to be attained by Parliament and which is clearly communicated by the provisions of Explanation 1 to Section 3 of the Act”. This shall also go against the purpose of the statute passed by Parliament to let the petitioner experience an unintended pregnancy.
The court found that preventing single or unmarried pregnant women with pregnancies between 20 and 24 weeks from accessing abortion care while allowing married women with the same term of pregnancy to do so violated Article 14’s right to equality before the law and equal protection. According to the court’s “purposive interpretation,” Rule 3B’s unifying element is “a change in a woman’s material circumstances.” According to the court, an unmarried woman who becomes pregnant may have experienced the same “change in material circumstances” as a married woman. She might have experienced violence during her pregnancy, been left behind, or been jobless, as it happened with the petitioner, her partner had refused to marry her at the last stage.
The bench also admits that “a woman’s right to reproductive choice is an inseparable part of her personal liberty under Article 21 of the Constitution. She has a sacrosanct right to bodily integrity”. Not only that, but the decision whether to carry a pregnancy to term or abort it is firmly anchored in the right to bodily autonomy, as Justice Chandrachud pointed out while relating the autonomy to reproductive rights. The judgment, while expanding the ambit of “reproductive rights”, says that “reproductive rights” of women include a “constellation of rights, entitlements, and freedoms for women”.
The bench further notes that one of a person’s reproductive rights is to have access to education and information on contraception and sexual health. The freedom to select which forms of birth control to use and the authority to choose whether and when to have kids and the choice of deciding the number of children to have, the legal and safe right to an abortion. The right to maternity care entails “women must be free from coercion or violence and have the autonomy to exercise their rights.” And if the Act is properly interpreted, permitting the petitioner to end her pregnancy falls within its purview, and the petitioner shouldn’t be denied the benefit because she is an unmarried woman. As a result, the court concurred and acknowledged the murky areas of the MTP Act as well as the presumptive discrimination and violations of Articles 14 and 21 when it issued this ruling. Before this judgment, the MTP Act, 2021, was hospital or doctor-centric to a large extent.
The woman’s preference was not taken into account at all. She was reliant on the medical Centre or the doctor’s advice. But this judgment has also changed that aspect. On the one hand, women must demonstrate for their reproductive rights in the United States because the Supreme Court of the United States ended the constitutional right to an abortion by overturning the Roe v. Wade decision, and on the other, there are many restrictions on abortion in the European Union, including in countries like Malta, the Vatican City, Liechtenstein, Andorra, and Poland, which deprive women of their autonomy over their own bodies. On the other hand, the Supreme Court of India made a historic decision regarding abortion by recognizing the ambiguities in the MTP Act of 2021 and reiterating that criminal law should not be used to “interfere with the domain of personal autonomy.” This decision codified a woman’s right to make her own decisions and her bodily autonomy as a part of her “personal liberty.” This is crucial in a nation where stereotypes and discrimination against women are based on their capacity for reproduction and are used to deny them the same chances as men.
According to the Indian Constitution, the rights to liberty and equality are essential rights, and the Supreme Court is interpreting those rights in a really admirable way. This is a very progressive move in that direction. By authorizing the exercise of the right of reproductive choice, regardless of relationship status, this ruling establishes a solid constitutional foundation for the autonomy of all women. This is a very progressive move in that direction.
References:
- Supreme Court’s abortion ruling; available at https://indianexpress.com/article/explained/supreme-court-women-abortion-ruling-8181347/
- Supreme Court judgment on abortion; available at https://journalsofindia.com/supreme-court-judgment-on-abortion/
- Supreme Court passes landmark judgment on abortion; available at https://www.thehindubusinessline.com/news/national/supreme-court-passes-landmark-judgementon-
abortion/article65951867.ece - Abortion: India Supreme Court says amended law to cover single women too; available at https://www.bbc.com/news/world-asia-india-63071113
- The medical termination of pregnancy (amendment) act, 2021; available at https://egazette.nic.in/WriteReadData/2021/226130.pdf
- The medical termination of pregnancy act, 1971, available at https://www.indiacode.nic.in/bitstream/123456789/15389/1/the_medical_termination_of_pregnancy_
act%2C_1971.pdf - A firm foundation for autonomy: SC’s landmark judgment on abortions enables the full exercise of women’s productive choice; available at https://indianexpress.
com/article/opinion/columns/a-firm-foundation-for-autonomy-supreme-courts-landmark-judgment-on-abortions-enables-the-full-exercise-of-womens-reproductivechoice-
8209199/lite/ - A decisive shift in the discourse on abortion rights; available at https://www.thehindu.com/opinion/op-ed/a-decisive-shift-in-the-discourse-on-abortion-rights/
article65967146.ece/amp/ - What a landmark ruling on abortion will mean for women in India; available at https://www.weforum.org/agenda/2022/10/what-a-landmark-ruling-on-abortion-willmean-
for-women-in-india/ - Roe v Wade; what is US Supreme Court ruling on abortion? Available at https://www.bbc.com/news/world-us-canada-54513499
- Fragile progress on abortion laws in EU; available at https://www.dw.com/en/abortion-in-eu-fragile-progress-and-tightened-laws/a-61883045
- To say U.S. abortion rollbacks are in line with Europe is simply wrong; available at https://www.washingtonpost.com/opinions/2022/09/22/europe-abortion-laws-vs-usa/
