Author: Vrinda Vohra, Amity law school, Amity University, Noida
Abstract
The following note deals with the comparative analysis of abortion laws in India and USA. There are 5 components to it. The Roe v. Wade case, which eased state regulations on abortion laws, is discussed in the first section. The second section discusses the country’s existing abortion laws. The third and fourth section discusses the Indian abortion law and includes several judgements on the subject respectively. A comparison of the abortion legislation in the USA and India is presented in the fifth section.
Roe v. Wade, 1973
The case of Roe v. Wade is seen as the case that legalised abortion in the United States. However, that is not true. The case did not legalise abortion but altered the methods by which states can control abortion regulations and defined the procedure as falling under the protection of privacy rights.
The Texas state government contended in the Roe v. Wade case that it had a strong interest in preserving medical standards, preserving health, and defending the rights of unborn children. The court contended that the right to an abortion is unalienable, that Texas legislation violated a person’s 14th Amendment right to liberty, and that it violated marital, familial, and sexual privacy. By splitting pregnancy into three 12-week trimesters, the court established a framework to strike a compromise between the state’s interest and individual rights. Abortion during the first trimester could only be regulated by the state if it was carried out under medically safe circumstances by a qualified physician. If abortion is deemed to be properly related to the health of the pregnant person, the state may control it throughout the second trimester. Abortions during the third trimester could be illegal in the state, unless necessary to save the life or health of the pregnant woman.
Existing abortion laws in USA
The federal norm defending the right to an abortion was abolished by the supreme court of the United States in its ruling in the Dobbs v. Jackson’s women’s health case on June 24, 2022. In the lack of a federal standard, it is now up to each state to create legislation protecting or limiting abortion. Availability of safe and authorised abortions varies from state to state.
In recent months, numerous states have either strengthened or outlawed abortion in anticipation of the Supreme Court’s decision to overturn Roe v. Wade. Less clarity has existed in the 17 states without specified abortion legislation. Only 21 states in America permit abortions.
The court’s ruling violates women’s autonomy over their own bodies. Abortions won’t stop or decrease if the federal law safeguarding the right to have one is repealed or abortion is outlawed. nonetheless, will result in high-risk abortions. When abortions are prohibited or criminalised, people turn to more risky and harmful ways to end pregnancies.
This new law affects people with low income, teenagers, people of colour in a drastic way because it is more difficult for them to travel and pay for an abortion. Additionally, it deals the LGBTQ community another hit. Trans individuals already struggle to exercise their legal right to contraception, and these new regulations would further marginalise them.
Abortion laws in India
In accordance with the Medical Termination of Pregnancy Act,1971 (MTP Act), abortion is permitted in India. But there are different restrictions on who can get an abortion and when. Before the MTP Act, section 312 of the Indian Penal Code classified abortion as a crime and made it illegal in India. Currently, the only exception to section 312 of the IPC is the MTP Act. According to the clause, anyone who willfully induces a miscarriage in a pregnant woman faces imprisonment, a fine, or both.
According to the MTP Act an abortion can take place up to 12 weeks of the pregnancy and the process has to be carried out by a licensed medical practitioner. Termination of pregnancy, when the duration of pregnancy has exceeded 12 weeks but not weeks requires the opinion of two medical practitioners. Another feature of this act is that in case of termination of pregnancy of a minor, a guardian or parent’s written consent is required.
The Medical Termination of Pregnancy (Amendment) Act, 2021 was adopted by the legislature (amendment act). By including a distinct group of women, including women with disabilities, rape survivors, adolescents, and incest victims, this measure aims to broaden the application of the MTP Act of 1971. Furthermore, it includes single women who seek to end their pregnancies. The MTP Act did not include this clause.
As per the amendment act, pregnancy can be aborted up to a period of 24 weeks in case of rape survivors. Any pregnancy being terminated within a period of 20-24 weeks needs the opinion of two medical practitioner, A pregnancy can be terminated beyond 24 weeks in the case of substantial foetal abnormalities. Any pregnancy being terminated after 24 weeks needs the approval of the medical board.
The bill seeks to maintain maximum secrecy and confidentiality of the women who want to terminate their pregnancy. No medical practitioner can reveal the identity of any woman who wants to terminate their pregnancy to any law in force at that time.
A woman may choose to medically end her pregnancy under certain circumstances, such as when there is a serious risk to her physical or mental health, when there are fetal abnormalities, when a contraceptive device fails, or when a woman becomes pregnant as a result of rape, which can cause her great mental distress.
Judgements in India that helped in the development of abortion laws
One of the most prominent cases regarding abortion laws in India is that of Suchita Srivastava v. administration of Chandigarh (2017) wherein the petitioner was an orphan woman with mental retardation who got impregnated as a result of rape. The petitioner contested that consent is necessary for the termination of pregnancy of a mentally retarded woman. The Punjab and Haryana High Court in this case ruled that the pregnancy should be terminated as per section 3 of the MTP Act, 1971 as she lacked the capacity to care for the child and had no parent or guardian look after her. The supreme court overturned the ruling given by the High Court and stated that the right to reproductive choice is derived from Article 21 of the Indian Constitution. It also stated that by robbing her of her right to choose her own body would be an infringement on her right to privacy. It concluded that a woman’s mental retardation did not deprive her of her right to choose her reproductive organs. As a result, it was decided by the Supreme Court that termination of pregnancy without her consent could not be authorised.
In recent years, Indian courts have shown by way of certain recent judgements their progressive nature regarding abortion laws;
In 2020, the Kerala High Court allowed a 14-year-old rape survivor to terminate her pregnancy at 24 weeks. According to the division bench, under Article 21, the right to make reproductive choices is a facet of personal liberty. The aforementioned decision would also include whether or not to bring her pregnancy to term.
In February 2022, the Calcutta High Court allowed a woman to terminate a 35-week foetus. The medical board stated that the child would have a poor chance of surviving or living a normal life as s/he would be born with a spine condition.
In December 2021, the Karnataka high court allowed a rape survivor, who was a minor, to terminate her pregnancy at over 24 weeks. The court allowed the girl to get an abortion considering factors like the girl was a minor being raised by a single mother and was still studying at the time.
In February 2022, the Uttarakhand High Court permitted a 16-year-old rape survivor to get an abortion on the grounds of rape. Even though the medical board said that an abortion could cause substantial risk to the mother, the court stated that, “Right to life means something more than survival or animal existence. It would include the right to live with human dignity.”
In March 2022, the Kerala High Court permitted the termination of a 35 weeks pregnancy of a 10-year-old rape survivor. The alleged culprit is her own father. The medical board held that the there was only 80% chance of survival of the baby and if the baby was alive, the state government and child welfare committee should take the responsibility.
Comparative analysis of abortion laws in India and USA
The IPC’s section 312 originally made abortion illegal in India. Any woman who tries to end her pregnancy faces a 7-year prison sentence and an extra fine. Furthermore, anyone who carried out or attempted to carry out an abortion was subject to a fine in addition to a maximum 3-year sentence in prison. Only in cases where the woman’s life was in danger was a pregnancy allowed to be terminated. Abortion in cases of ineffective contraception or rape-related pregnancy was not mentioned. Furthermore, a woman’s mental health was not regarded as a justification for an abortion.
To relax these restrictions and offer a safe and authorised method of ending pregnancies, the MTP Act was passed in 1971. A pregnancy may be aborted under this law for up to 12 weeks. Two medical professionals’ opinions are needed to end the pregnancy if the gestation period is over 12 weeks but under 20 weeks. It aims to offer minors and women with mental illnesses options for pregnancy termination. The parliament approved the amended act in 2021. The purpose of this law is to protect women’s privacy while also extending the maximum gestational period to 24 weeks in light of recent developments in abortion technology. This law also covers incest victims and rape survivors. It also includes a clause that the previous act did not, allowing unmarried women to end their pregnancies.
In the United States, in the case of Roe v. Wade (1973) the court created a framework to balance the state’s interest with individual’s privacy. It held that a state may only restrict abortion in the first trimester by mandating that it be carried out under medically safe conditions by a licenced physician. A state may control abortion during the second trimester if the restrictions are logically connected to the unborn child’s health. Additionally, during the third trimester, the state’s interest in safeguarding the unborn child trumps the individual’s right to privacy. As a result, the state may forbid abortions unless they are required to save the pregnant woman’s life or health. It is considered that this case legalised abortion, which is not true. What did case did was change the ways in which states can regulate abortion and characterized abortion as something that was covered under the rights of privacy.
In June 2022, the Supreme Court of the United States eliminated the federal standard of termination of pregnancy. This leads to criminalisation or banning of abortion in a lot of states since the abortion rights are now on the discretion of the state. This decision of the court won’t stop or reduce abortions but will lead to high-risk abortions in the US. This new law is discriminatory towards people with low incomes, people of colour, teenagers, as it is more difficult for them to travel and pay for termination.
Recent developments in abortion law and policy
The parliament of New South Wales passed a measure decriminalizing abortion, repealing a prohibition that had been in place for 119 years. This took place after more that 70 hours of debate at the lower house of the parliament and weeks of protest.
The Mexican city of Oaxaca has also legalised abortion and is the second region of the country to allow the procedure, after Mexico City. Outside the Mexican capital, the procedure has been illegal, until recently, except in certain circumstances.
The UK parliament to extend the access to abortion in northern island bringing the region on the same lines as the UK.
The Iceland parliament passed a bill legalising the termination of a 22-week pregnancy. Abortion was previously legal in Iceland within the same time frame, however a person’s decision to terminate a pregnancy after the 16th week required approval by a committee. The pregnant woman alone now has the final say in that matter.
South Korea lifted its abortion ban which was prevailing for 66 years. However, termination of pregnancy after 20 weeks will remain illegal. Previously women who had abortions in South Korea could face up to a year in prison with an additional fine of 1780 dollars.
Conclusion
The Medical Termination of Pregnancy Act, 1956, which specifies the conditions under which a woman may be permitted to have an abortion, establishes an exception to the ban on abortion in India. The MTP act was amended in 2021 to expand its purview to include women with disabilities, children, rape survivors, and incest victims. Moreover, it includes an option allowing unmarried women to end their pregnancies, which was absent from the prior statute. In terms of a safe and healthy abortion, the Amendment act offers Indian women new hope. India still has a long way to go to eliminate the stigma associated with abortion as well as to curtail the use of unsafe abortion methods.
It is clear from a comparison of US abortion regulations with those in India that the US appears to be moving backward. Contrarily, India has taken a more progressive stance when it comes to abortion laws, as evidenced by the legislative enactments, such as the Medical Termination of Pregnancy Act, 1956, and its subsequent amendments, as well as the numerous court rulings that permit the termination of pregnancy in a variety of situations.
FAQS
Did Roe v. Wade legalize abortion in the U.S.?
No, Roe v. Wade (1973) did not legalize abortion but set guidelines on how states could regulate it, protecting abortion under privacy rights.
What is the current abortion law in the U.S.?
After the 2022 Dobbs v. Jackson ruling, abortion rights are now determined by individual states, leading to varying restrictions across the country.
How does India’s abortion law compare to the U.S.?
India has a more progressive approach, allowing abortion under the Medical Termination of Pregnancy Act (MTP), while the U.S. has seen increased state-level restrictions.
What are the key changes in India’s abortion law after the 2021 amendment?
The amendment extended the legal abortion limit to 24 weeks for certain cases, included unmarried women, and emphasized confidentiality.
