Looking at Abortion Laws through a Prism of Reproductive Autonomy and Privacy
April 16, 2022
Abortion means ending a pregnancy by removing the embryo from the mother’s womb. Abortion is usually done by consuming medicines or through a surgical procedure. When pregnancy is ended without any deliberate involvement, it is called a miscarriage. Miscarriage is usually when a pregnancy ends before the 20th week of gestation. Abortion laws have become a topic of interest, especially in the United States, where Texas passed a statute that stated that once a heartbeat is detected, abortion is illegal. This law is the harshest anti-abortion law in the country. A big issue with this law is that a heartbeat can be detected as early as 6 weeks and most women can’t tell if they are pregnant at that time.
With this law, any citizen can file a suit against abortion clinics or any person who helps women get abortions financially or by any means. This law also gives no relief to women in cases of rape and incest but only in a medical emergency. This article provides an insight into abortion laws.
History of Abortion Laws
The practice of abortion has been prevalent for a long time. The Ramayana includes a visual that depicted abortion being performed which was usually done by surgeons or barbers. In those times, methods used for abortion did not involve surgery, but rather involved activities like climbing, and lifting weights. Some other methods included fasting, discharging hot water on the belly, etc. In ancient Greece, herbs were used to induce miscarriage.
Many beliefs and opinions were given towards abortion. Many scholars believed that abortion is legal as the child is not born yet and thus was not considered a person. In Christian beliefs, abortion was considered murder and could only be done if the life of the pregnant woman is in danger.
During the19th century, England passed a law that prohibited abortion. The provision stated that it would be an offense if a person performs or does something which causes abortion. Many other countries like the United States and France also made laws against abortion. The practice of abortion however continued. Clinics providing abortion services used advertisements in newspapers with hidden meanings for promoting their services to the public. The pharmaceutical companies used aliases to sell abortion-inducing drugs.
During the 1920s, the movement to ease restrictions on abortion started picking pace. More feminist groups began emerging and demanded change. The abortion laws around Europe and America started to liberalize as well during that time.
In India, the relaxation around abortion was due to its performance by unskilled persons as the cases of women who were gravely injured or dying due to unsafe abortion were proliferating. Taking this into cognizance, the government formed the Shah Committee to study the legal and medicinal aspects of abortion. In 1966, they suggested legalizing abortion as it will prevent women to get unsafe abortions and risking their lives. They used the term “Medical Termination of Pregnancy”, which in 1971 was used in naming the MTP Act. This act legalized abortion across India except for the state of Jammu and Kashmir. The MTP act provided for an abortion to be done by a registered medical practitioner, and it provides immunity to such medical practitioners if any injury happens during the process of abortion done in good faith under section 8 of the respective act. Furthermore, under this act, a pregnancy up to 20 weeks can be terminated. The conditions on which abortion is granted are as follows-
If women become pregnant due to rape
If a mentally unstable woman becomes pregnant due to rape
If pregnancy occurs due to contraceptive not working
If there is a risk that if the child is born, it will be born with deformities which can either be physical or mental or both
If the continuation of pregnancy can cause risk to women’s physical as well as psychological health.
MTP act also mandates consent from pregnant women before the process of abortion can begin. In the case of a girl under the age of 18 or a mentally unstable woman, the consent of her guardian is required.
After the amendment of the MTP act in 2002 and 2003, the district committee could authorize a private place to conduct abortion, the process of which was earlier centralized. It provided for harsher punishments for unregistered abortion sites and untrained medical practitioners. The chief medical officer (CMO) was given the duty to ensure that registered private places are taking all the necessary steps to maintain safety and hygiene during an abortion. If CMO finds any lapses in the termination procedure done by the private place, he/she shall submit a report specifying the flaws to the district committee and if they are satisfied, they can either delist or stop the approval of the private place given that the owner of such place shall be allowed to present his/her case.
The fight for women’s rights has come a long way. From being held down by the patriarchal mindset to the current scenario where women are given equal opportunities in every field, it has been a long journey. With time, abortion views have also changed. In many religions and cultures, abortion was considered murder, and women were punished for participating in it, however, every woman has the right to have reproductive autonomy over their own body. These rights are commonly referred to as reproductive rights. These rights include the right to plan pregnancy, have an abortion, use contraceptives, etc.
The 1994 International Conference on Population and Development recognized that reproductive rights are part of human rights obligations. If these rights are violated, they can send society back to a time when these rights never existed.
Abortion right is an integral part of reproductive rights. Women have a right to have autonomy over abortion. Pregnancy is very challenging and hard for women. It becomes even more difficult when it happens due to sexual abuse, incest, or with a woman who is unable to give consent due to mental ailments. If women didn’t have reproductive rights, they may continue to suffer till that child is born and might continue to do so due to the psychological effects suffered after pregnancy. People who oppose abortion say that fetus is a living being and cannot be “killed”.
But what they fail to consider is that women are the ones who bring the child into this world and if their health is compromised by not aborting, then the child’s health may also be compromised. In India, the MTP act provides a safe way through which women can have an abortion. Despite this act, it is difficult for women to embrace their reproductive rights due to deficiency in healthcare services and ignorance of women’s autonomy and decisions over their children. Article 21 of the Constitution of India provides the right to personal liberty. Women are free to make any reproductive choice they want.
This was also observed in the case of Suchita Srivastava and Another v Chandigarh Administration. In this case, an orphan woman who suffered from mental retardation was raped due to which she became pregnant. The Punjab and Haryana High Court held since the woman is not capable of taking care of the child on her own and due to the absence of her parents or guardian, it is in the interest of the woman that the child should be aborted under Section 3 of the MTP act. However, the Supreme Court stayed the order and observed that a women’s right to make reproductive choices is a part of personal liberty mentioned under Article 21 of the constitution. The court made a distinction between mental illness and mental retardation and held that women’s reproductive choices cannot be overlooked by the reason for mental retardation.
Looking at the issue through the prism of Privacy
In the landmark case of KS Puttaswamy v. Union of India, the Supreme Court held that the right to privacy is a part of constitutional provisions. The right of a woman to make reproductive choices also falls within the purview of the Right to Privacy. Privacy, if understood in general, is very personal to a person and a woman’s reproductive choice is personal, thus, it falls under the ambit of the right to privacy.
The question of privacy is also raised in cases of sex determination and abortion based on the sex of a fetus. The Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act was enacted in 1994 which prohibited the use of any means to determine the sex of the fetus. The professional who carries out the routine test on a fetus to determine its heath should not disclose the sex of the fetus to anyone. The reason why this act was needed was that in many places, a male child is preferred over a girl child. This orthodox mindset has resulted in many cases of female foeticide where women are forced to go for abortion if the fetus is female. Sex determination is a direct infringement of the privacy of women.
It is the right of the mother and father to determine whether to bring the child into this world. In the recent amendment of the MTP act, an unmarried woman who became pregnant due to a failed contraceptive can also opt for adoption. Whatever decision a woman makes regarding her pregnancy depends on her judgment and choice. In the United States, the decision in the case of Roe V. Wade is considered to be a landmark, in which it was held that the constitution protects women’s liberty to have a choice over abortion without the interference of the government. In this case, the U.S Supreme Court held that the Texas law which states that abortion is illegal except when necessary to save the mother’s life is in contravention of the due process clause in the fourteenth amendment. It was further held that the right to privacy includes a family’s planning to abort a child.
Earlier, there was a lot of hesitation regarding abortion, and women were not allowed to abort even if the pregnancy was fatal. In the current scenario, abortion is being talked about more openly and advocated by activists globally. Many laws all over the world provide a safe way for a woman to have an abortion. Women’s decision regarding abortion is a matter of her liberty as well as privacy and it should be given utmost respect.