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The Foundation Of Choice: Examining Abortion As A Constitutional Right

Abortion remains a sensitive matter in most countries, receiving a lot of international attention not only as a public health concern but also as an ethical and religious issue. Public discussion on abortion in India has either centered on declining sex ratios and sex-selective abortions or on the proliferation of clinics across urban areas. Unfortunately, there is much less public debate on abortion-related morbidity and mortality despite several national programs and campaigns for safe motherhood.

There are various reasons as to why women seek abortion. The reasons appear to range from such proximate causes as the desire to limit family size or to space pregnancies, the preference for sons, and medical compulsion, to more distant determinants like poverty, violence, and local belief systems.

Abortion has been a controversial issue both nationally and internationally. Various factors trigger a change in the type of abortion law in India and U.S.A. One pertinent question that has left everybody in dilemma is whether a mother has the right to terminate her pregnancy at her will or the rights of an unborn child take a front seat.

The first striking finding of a comparative survey of abortion regulation has always been the fact that a fundamental change has occurred in this area all over the world.

This article advocates for the recognition of abortion as a fundamental constitutional right. Drawing on ethical, legal, and societal considerations, it argues that protecting abortion rights is essential to upholding principles of individual autonomy, bodily integrity, and equality under the law. By examining the constitutional foundations of abortion rights, the importance of reproductive autonomy, healthcare access, and equity, and the need for judicial review to safeguard against legislative intrusion, this article makes a compelling case for the unequivocal protection of abortion rights as a cornerstone of constitutional law.

"Chosen motherhood is the real liberation. The choice to have a child makes the whole experience of motherhood different, and the choice to be generative in other ways can at last be made, and is being made by many women now, without guilt."-- Betty Friedan, The Feminine Mystique

Abortion is a complex social and legal issue, with each country enacting laws to bring about positive changes while respecting local values and customs. The laws concerning abortion vary widely across the globe, making it important to study the different approaches taken by different countries to regulate this issue. Despite being in the 21st century, many countries have taken a narrow-minded approach to dealing with abortion, with the latest example being the USA. Despite being one of the most progressive countries in the world, the US Supreme Court overturned its 40-year-old judgment in Roe v. Wade. In that case, the right to abortion was declared a fundamental right protected by the due process clause of the Fourteenth Amendment to the US Constitution, falling within the ambit of privacy.

On the other hand, Chile, a nascent democracy, was looking forward to enacting a new Constitution wherein the framers wanted to confer the right to abortion as a fundamental right. However, the Constitution did not get the requisite number of votes in the referendum held therein. In India too, there was a recent change in jurisprudence about abortion rights. The Supreme Court of India, in a very recent judgment of X v. Principal Secy, upheld the rights of unmarried women to abortion. The SC gave a liberal interpretation to the wording of the Medical Termination of Pregnancy Act to expand the protection of the law to unmarried women as well.

In light of these events in these three countries, various issues have surfaced about the rights of women. The first issue is whether the right to abortion should be raised to the pedestal of a constitutional right. Secondly, in the Indian context, there is a disparity in the treatment of married and unmarried women concerning their abortion rights. This differential treatment has no nexus to the object of the law regulating abortion. Thirdly, at a time when lawmakers should be more liberal in giving women their due share of rights, they are stripping them of the same rights as seen in the USA.

Abortion As A Human Right

Human Rights are those rights, which should be available to every individual in the society without any kind of discrimination. The most significant human right is the right to life. It is a supreme and an inalienable human right from which no derogation is permitted. Right to life is a woman's individual right to her liberty and to the pursuit her happiness and also sanctions her right to have an abortion.

A reproductive Right is also one of the human rights and is of great concern for women's health. Reproductive Rights is also a part of right to life and therefore it is the greatest need for the human society. Without reproductive freedom, including the right to abortion, women will never achieve equality with men and will be deprived of benefits regarding their health, employment, education and their roles in family affairs. Reproductive rights are internationally recognized as critical for both advancing women's human rights and to promote development.

Since its inception the United Nations has maintained that reproductive freedom is a basic human right. Promotion of women's reproductive rights has recently gained momentum, in large part, due to the 1994 International Conference on Population and Development (ICPD), held in Cairo, and the 1995 Fourth World United Nations Conference on Women which was held in Beijing . The consensus statements created at these conferences touch on women's right to abortion, and thus provides additional support for the notion that women's reproductive rights are human rights. Treaties, monitoring bodies, interpretations and jurisprudence have also played a large role in advancing women's reproductive rights .

The Preamble of the Universal Declaration of Human Rights describes the Declaration as, "a common standard of achievement for all peoples and nations" and states that "the peoples of the United Nations have reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person, and in the equal rights of men and women ." The article two of the above declaration states that these rights and freedoms belong to everyone, without discrimination, by virtue of being a human being: "Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind ." The article three of the above declaration further states that, "Everyone has the right to life." "The right to life lays down the foundation of all other human rights." However, this Declaration does not create legal obligations.

The International Covenant on Civil and Political Rights (ICCPR) echoes and enforces the right to life of the declaration. Article 1of ICCPR lays down that, "Every human being has the inherent right to life. The law shall protect this right. No one shall be arbitrarily deprived of his life ." It declares that 'every human being' has the inherent right to life, while in respect to other rights, the expressions used are 'everyone' and 'every person'. The use of different terminology raises doubt whether 'every human being' has a wider connotation than 'everyone' and could therefore be understood to include the unborn child. However, it is a well understood fact that the criminalization of abortion can have serious implications regarding the right to life.

This can be backed by various instances of suicides which are committed by the young females as a result of failure to perform an abortion due to its criminalisation by the state will lead to a direct violation of the right to life. The Failure on the part of the state to prevent unnecessary deaths due to anti-abortion laws has raised issues pertaining to its obligation to ensure that everyone enjoys the right to life.

Article 12 of the CEDAW provides that, "States parties shall take all appropriate measures to eliminate discrimination against women in the field of health care to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning."

Abortion And Laws In India

Abortion has always been a controversial issue since ancient times. In the past, abortion was considered as a taboo in India. In modern times, the famous propagator of non-violence, Mahatma Gandhi quoted, It seems to me clear as daylight that abortion would be a crime. But with changing times, the ideology of people has become more liberal and subsequently, many laws have developed, legalising abortion in India.

Abortion under the Indian Penal Code, 1860:
Sections 312 to 316 of the IPC 1860 have made induced abortions a criminal offence, except in cases to save the life of the mother. It has used the expression causing miscarriage to refer to abortion. Thus, according to these sections any person voluntarily causing miscarriage will be penalized by imprisonment for three years and/or payment of fine. The punishment may even extend to a period of seven years coupled with payment of fine in cases where the woman was quick with the child (foetus's motion is felt by mother).

Abortion under the MTP Act, 1971:
By passing the Medical Termination of Pregnancy Act, 1971, the Indian Parliament legalised abortion in India. As per Section 3(2) of the Act, abortion is permitted upto 12 weeks of pregnancy. Between 12 and 20 weeks, pregnancy can be terminated if not less two registered medical practitioners believe that the termination is in good faith of the mother and child. However, post 20 weeks, termination of pregnancy is not permitted.

The Right of The Woman Vis-À-Vis The Right of The Unborn Child:
Article 1 and 3 of the Universal Declaration of Human Rights states that all humans are born free and are equals in rights and dignity. All have the right to life, liberty and security.

Article 21 of the Indian Constitution states that:
No person shall be deprived of his right to life and personal liberty except according to procedure established by law. The Supreme Court has given wide amplitude to the expression Right to Life. This right covers right to sleep, right to live with dignity, right to privacy, right to move freely, right to health, etc. However, the predicament that arises is whether right to life includes the right to abortion. Another dilemma in the arena of abortion laws is the right of the mother to abort vis-à-vis the right of the unborn child to live.

Woman's Right to Abortion:
The Supreme Court in the landmark case of Suchita Srivastava held that Article 21 of the Indian Constitution which guarantees right to life and personal liberty has a broader dimension which extends to liberty of a woman to make reproductive choices. These rights are the components of the woman s right to privacy, personal liberty, dignity and bodily integrity as enshrined by Article 21.

In the recent judgement of the Supreme Court by a nine-judge bench in Justice K. S. Puttaswamy case, which unanimously affirmed the right to privacy as a fundamental right under the Constitution, reiterated Suchita Srivastava's case and held that the woman's right to abortion falls within the purview of right to privacy and hence all her reproductive rights should be ensured by the state. Thus, it has been established by the courts that a woman's right to abortion is a fundamental right.

Pro-Life V. Pro-Choice

The entire conundrum around the legality of abortion rests on the debate over whether to support either pro-life or pro-choice. Supporters of the pro-life argument suggest that the foetus is a person in itself and is entitled to rights. Although this is true to some extent, to give primacy to foetal rights over the child-bearers rights would constitute an infringement on the women's right to liberty and privacy. Women are the carriers of the child, and they should have every right to exercise the choice of either carrying the child or not. At any point, when deciding whether the woman's rights should be subordinate to the foetus' rights, "one must justify this hierarchy of rights by recourse to one or more of three reasons:
  1. the welfare of the foetus;
  2. the health or happiness of the mother; or
  3. the overall future of the family into which the unwanted child would be born

In order to have autonomy over their bodies and sexuality, both women and men must enjoy reproductive freedom. Women's reproductive rights are essential to achieving gender equality and advancing toward just and democratic societies on a global scale. Reproductive rights are inclusive of the right to procreate, the right to abortion, and the right to choose the method of family planning and contraception.

Position Of International Conventions

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) is one of the few universal treaties that safeguards women's rights, including their sexual and reproductive health rights. Chile and India have both signed and ratified this treaty; surprisingly, the USA is one of the seven countries that have yet to ratify the treaty. This becomes a more important issue in the wake of the recent judgment of the US Supreme Court overturning its five-decade-old precedent wherein the right to abortion was extinguished as a constitutional right. Article 12 of the CEDAW Convention includes the right to bodily autonomy and encompasses women's and girls' sexual and reproductive freedom.

In the Indian context, unmarried women were placed in a subordinate position in comparison to married women when it came to abortion rights before 2022. The legislature had failed to recognize the socio-cultural stigma associated with abortion and, more importantly, with illegitimate children. Restrictive laws pave the way for quacks to practice unsafe abortion procedures, non-prescribed medications and forced abortions which eventually leads to a rise in the mortality rate. Such laws also fail to pass the test of equality as enshrined in Article 14 of the Constitution.

This position was nullified and rectified by the SC judgment which acknowledged the plight of unmarried and single women by providing them access to safe abortion. The court took note of the changing material realities (financial, situational, and social) and unique circumstances of individuals and held that the ultimate right to procreate or abstain from it is the prerogative of the pregnant woman herself and shall not be disregarded if it is unaccounted for by the prevailing law. According to the "classification test," for legislation to withstand Article 14 scrutiny, there must be:
  1. an intelligible differentia between the individuals or groups that are subjected to differential treatment, and
  2. a rational nexus between that differentia and the State's purpose in framing the law

The differentiation between married and unmarried women does not stand this test because, firstly, both categories of women suffer the same mental and physical health hazards of unwanted pregnancies. Secondly, as declared by the SC "the distinction between a married and unmarried woman does not bear a nexus to the basic purpose and object of the Act" which the Parliament sought to achieve. It is also imperative to note that as stated above, the Indian SC has recognized that reproductive rights form a key aspect of the right to privacy under Article 21 of the Constitution. It has been observed that being unmarried itself poses a risk for the woman as the attached stigma creates a ripple of other issues such as "lack of easy access to abortion facilities, lack of partner and family support and fear of disclosure" which increases the risks associated with abortion.

Constitutional Protection For The Right To Abortion: From Roe To Casey To Whole Woman's Health

In its landmark ruling in Roe v. Wade, 410 U.S. 113 (1973), the Supreme Court recognized that the right to abortion is a fundamental liberty protected by the Fourteenth Amendment of the Constitution. Since Roe the Court has repeatedly reaffirmed the Constitution's protection for this essential liberty, which guarantees each individual the right to make personal decisions about family and childbearing. Accordingly, the Court has made clear that it cannot dismiss "the certain cost of overruling Roe for people who have ordered their thinking and living around that case."

Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 856 (1992). Over the decades since the Court first held that the Constitution encompasses protection for the right to abortion, including its most recent decision, Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292 (2016), as revised (June 27, 2016), it has also recognized that without access to abortion, the right is meaningless.

Abortion: A Constitutional Right

Despite its transformative and progressive judgment on abortion rights, the SC failed to address a fundamental issue: the criminalization of abortion rights. Abortion in India is criminalized as per the Indian Penal Code. The MTPA is the only statute that provides exemptions from criminalization for terminating a pregnancy. However, the MTPA does not provide for abortion on request, allowing the termination of pregnancy only under certain circumstances. Despite the statute prescribing the acceptable conditions, there is no uniformity among high court decisions: some have allowed termination, and others have blatantly rejected the pleas.

Under the MTPA, registered medical practitioners (RMPs) are entrusted to serve as gatekeepers for abortion access. They are bestowed with a duty to assess whether the pregnant individual meets the requirements of the MTPA for terminating the pregnancy based on their "actual or reasonable foreseeable environment." However, RMPs' decisions to provide or deny abortion services can be motivated by factors unrelated to the pregnant individual's health and autonomy interests. While RMPs who perform abortions are protected from any criminal liability as long as they comply with the MTPA, those who fail to comply may face prosecution under the Penal Code. In contrast, RMPs who refuse to provide abortions face no repercussions.

When abortion access is placed within a criminal law framework, it can have a chilling effect on the willingness of RMPs to terminate pregnancies. This reality sets up a conflict between the RMPs' interests, such as avoiding criminal liability, and those of their patients. Thus, under the MTPA, it is not the pregnant individual who decides on termination; rather, it is the medical practitioner who approves the termination as the final decision bearer. A similarly chilling effect was seen recently in Texas's abortion law, which prohibits RMPs from performing an abortion if they identify cardiac activity in an embryo—"first detectable heartbeat"—even if it is months before a viable fetus develops. Texas abortion law went a step further when it allowed private parties to bring a lawsuit against abortion clinics and individuals seeking abortion with a reward of $10,000 (8.32 Lakhs INR).

Research indicates that there are approximately 48.1 million pregnancies each year in India, and approximately one-third of them end in abortion. Shockingly, out of the 12.3 million abortions that take place, a significant 78% of them are deemed illegal merely because they do not comply with the MTPA, even though they pose no threat to safety.

Therefore, abortion is still not a constitutionally protected right because constructing abortion as a "constitutional right" for pregnant individuals would require modifying the provisions of the Penal Code and the MTPA. If abortion were considered a constitutional right under the law, RMPs who did not provide the service when requested would face consequences. Such a law would prioritize the pregnant individual's choice, and medical reasons would only be considered when the pregnant individual is unable to give consent. Thus, the decision of X placed the so-called abortion right of an unmarried woman in the hands of the abortion provider, the RMPs, and the judges.

Yet despite the SC's failure to address the criminalization of abortion, the ruling is a major milestone in several respects. It has established a novel constitutional framework for reproductive justice and furnished constitutional backing for advocacy efforts in both judicial and non-judicial settings. Moreover, the ruling expanded the unprotected reproductive right (also not a constitutional right) to individuals beyond binary gender definitions. It also extended the right to women who are subjected to sexual violence within their marriages. Thus, the ruling can be called a crucial first step toward achieving reproductive justice in India.

Written By: Smita Anil Deshmukh

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