The History of Abortion Rights In India and the US
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- 07 Jul 2022
With a 6-3 ruling, the Supreme Court of America was able to overturn the Roe Vs Wade verdict which rendered abortion to be a constitutional right. With its latest judgment, a debate of pro-life vs pro-choice has been evoked not only in the United States but in the transboundary world. American president, Joe Biden, has also openly criticized the Supreme Court’s ruling.
Now some may consider Joe Biden’s remarks to be slightly influenced by the political motive. As the judges of the Supreme Court, who delivered the ruling, were appointed by Donald Trump. But the anger among the citizens is sincere.
With the bustling scenario regarding abortion rights in the world, where does India stand? And what has been the history of abortion rights in the US? Let’s find out.
History of Abortion Rights in the US
Before the landmark judgment of Roe Vs Wade, abortion was illegal in 30 states of America whereas in 20 states it was legal under specific circumstances.
Roe Vs Wade (1973)
America was awaiting one of the most significant verdicts when a woman named, Jane Roe knocked on the door of the judiciary. Roe demanded abortion for her third pregnancy when the Texas constitution revoked her choice.
But after winning in the district court, Roe appealed to Supreme Court. On Jan 22, 1973, the Supreme Court with a dominant majority of 7-2 amended the constitution. Following the due process of law under the “right to privacy’’, abortion was now legalized in the US.
The judgment halted the practices of many federal and state abortion laws. However, absolute rights were not granted. Women were furnished with the right to abortion up till fetal viability, that is until the third trimester.
Planned Parenthood Vs Casey (1992)
The judgment of Roe Vs Wade was upheld in this landmark case. Pennsylvanian State Abortion Act consisted of five rules for abortion and was challenged by Casey. With the 5-4 majority, the Supreme Court reaffirmed the central holding of the Roe Case.
But out of five rules, Supreme Court struck down only one - the one which stated about spousal notification requirement. It was proclaimed unconstitutional. Court also allowed the states to impose restrictions on abortion during the first trimester under certain circumstances.
The concept of ‘undue burden’ was highlighted in the jury debate. And since this case, an overview of ‘challenged restrictions placing an undue burden on a woman’s right to choose’ is considered in every abortion scenario.
Dobbs vs Jackson Women's Health Organization (2022)
Women Health Organisation, an abortion clinic challenged the law of Mississippi. They considered the Mississippi abortion law to be regressive and authoritative as it allows the option of abortion only up to 15 weeks.
Supreme Court analyzed the case and did several rounds of debate and discussions only to deliver the most appalling decision. It overturned its precedent and seized the constitutional right of abortion from American women.
History of Abortion Rights in India
Before 1971, abortion was not legalized and in fact, was criminalized under section 312 of the Indian Penal Code (framed by Britishers). But in 1971, the Indian constitution granted abortion rights to women.
Medical Termination of Pregnancy (MTP) Act (1971)
The Shah Committee appointed by the government of India in 1964 performed a study on the socio-culture, medical and legal scenarios for abortion. The committee stated many field studies and recommended legalizing abortion. In 1971, the Medical Termination of Pregnancy Act was included in the constitution. It inferred the right of abortion to women up to 20 weeks of pregnancy in the given below conditions-
1. If the pregnancy imposes a substantial threat to a women’s life and can cause physical and mental damage.
2. If the expected child will face a threat to life or will be physically or mentally handicapped.
3. If pregnancy is due to rape.
4. If pregnancy is the result of failed contraceptive.
Permission for a few cases of abortions after 20 weeks has also been asked in the Supreme Court. Article 142 (order passed by the apex court to do complete justice) confers this power to the highest court.
MTP Amendments Act (2021)
MTP amendment bill was passed by both the Houses of Parliament in March 2020. It was one of the last pieces of legislation to be passed before the lockdown. This act embodied the central essence of the previous act and is an enhanced and liberal version.
It increased the time limit for undertaking the abortion from 20 weeks to 24 weeks for pregnant women. This act also allowed unmarried women to terminate their pregnancy based on the failure of contraceptives.
The right to privacy has also been appointed to women. The medical institute can only reveal the details regarding abortion to the authorized person. This new law is more inclusive of rape survivors, victims of incest, differently-abled, minors, etc.
Earlier, a registered medical practitioner was allowed to perform an abortion on a fetus for up to 12 weeks. And for more than 12 weeks and under 20 weeks, the opinions of two medical practitioners were a must. Now it has been changed to one doctor for abortion within 20 weeks and two doctors for abortion between 20 to 24 weeks.
If any woman is asking for an abortion beyond 24 weeks, a medical board is in charge of deciding by studying the severity of the requirement.
Conclusion
Many states in the US have enlisted a ban on abortions in their “trigger law” category. Trigger law refers to the legislation which is created without enforceability. But with the autonomy granted to the states by removing abortion as a constitutional right, these states will not wait for long.
With the US consistently targeting India on issues of human rights, one can only wonder about its hypocrisy. With persisting incidences of gun violence, racial discrimination, and negligence of women's medical rights, America seems to be standing with a shallow hegemony in the world.
Women of America might have to tread on a long path to achieve what they are protesting for currently. Whatever the history bespeaks, the future indeed shall be hopeful.
Sagar K Mazumdar
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