US: Confusion and Bifurcation After Roe Overturn
Roe v. Wade (1973): Abortion was considered a right under the 14th Amendment.
Planned Parenthood v. Casey (1992) applied the “undue burden” test – in which states could impose some restrictions but the fundamental right was upheld.
Author: Disha Parmar, Avantika University, Ujjain
To the Point
Abortion has become a very important and sensitive issue today. While India has liberalized its abortion laws over time, the United States removed the right to abortion at the federal level by overturning Roe v. Wade. In this article, we will compare the abortion laws of both countries, understand their legal frameworks, court decisions and social impact.
Abstract
This article compares the abortion laws of India and the United States. India’s Medical Termination of Pregnancy (MTP) Act is based on a public health approach, while the US, after the overturning of Roe v. Wade, has left it to the states to keep abortion legal or ban it. This article examines, through legal terms, case laws, and recent developments, what the future holds for reproductive rights in both countries.
Use of Legal Jargon
India’s abortion law – MTP Act, 1971 (amended in 2021) – allows that under certain conditions, a pregnancy can be terminated for up to 24 weeks. The Supreme Court has also considered reproductive rights as part of Article 21 the “Right to Life and Personal Liberty” and this means that getting an abortion is a constitutional right of a woman.
The situation has reversed in the US. Roe v. Wade (1973) made abortion a constitutional right. But Dobbs v. Jackson (2022) removed this right, and now every state makes its own laws. This has made access to abortion unequal in the US – legal in some states and total ban in some.
The Proof
India: Slowly Moving Towards Liberalization
The MTP Act, 1971 legalized abortion for the first time.
Some key changes came after the 2021 Amendment:
Abortion is allowed for up to 24 weeks for special categories (rape survivors, minors, etc.).
Medical Board permission is required for more than 24 weeks.
The term “any woman” was used instead of “married woman” – which included unmarried women as well.
In the case of X v. Principal Secretary (2022), the Supreme Court said that unmarried women also have the right to abortion for up to 24 weeks. This strengthened gender equality and personal autonomy.
Dobbs v. Jackson (2022) reversed both Roe and Casey. Now there is no federal protection for abortion.
Result
13 states banned abortion (trigger laws).
Some states (e.g., California, New York) protected abortion rights.
In some places abortion is illegal after 6 weeks – in which cases women do not even know they are pregnant.
Case Laws
X v. Principal Secretary, Delhi (2022)
The Supreme Court considered abortion a fundamental right under Article 21.
Unmarried women were also given equal right to abortion.
Roe v. Wade (1973)
The Supreme Court of US made abortion a constitutional right.
Planned Parenthood v. Casey (1992)
Gave the “Undue burden” test – in which some reasonable restrictions were allowed on abortion.
Dobbs v. Jackson (2022)
Reversed Roe and Casey. Now abortion laws are decided by the states.
Comparative Highlights
There are many important differences between the abortion laws of India and the United States. In India, abortion is legal under the Medical Termination of Pregnancy (MTP) Act, 1971 (as amended in 2021) and is allowed for up to 24 weeks for special categories. Whereas in the US, after the overturning of Roe v. Wade, federal protection of abortion was removed, and each state is making its own laws. In India, the right to abortion comes under constitutional protection under Article 21, whereas in the US there was no such constitutional right after the Dobbs judgment. In India, unmarried women have also been given equal right to abortion, which was confirmed by the Supreme Court in its 2022 judgment. This right is not uniformly protected in the US – some states allow it and some have total bans. There is also a difference in access between the two countries; in India there is a gap in access between rural and urban areas, while in the US the state-to-state differences have created inequality. Abortion is also stigmatized in both countries from social perspectives, but the legal framework in India is more stable and inclusive, while there is still more confusion and polarization in the US.
Global Perspective
India’s model treats reproductive health as a public health issue, while in the US it has become a political and religious issue. Abortion is a right in countries like Canada and South Africa, while it is strictly banned in countries like Poland and El Salvador.
Conclusion
India and the US are both democratic countries, but their approach to abortion law is completely different. India has made laws liberal over time, while the US took a step backward by reversing Roe v. Wade. India faces challenges – like access issues, stigma, infrastructure – but the legal framework is stable.
In the US, rights have been fragmented after the Roe overturn. Each state is following a different rule. Therefore, the message is being sent globally that reproductive rights are not always assured.
If an inclusive and safe abortion framework is to be created worldwide, India’s recent model can be a progressive example.
FAQS
Is abortion a fundamental right in India?
Yes, the Supreme Court has considered abortion as a part of the Right to Life and Personal Liberty under Article 21. This means that every woman has the right to make her reproductive choices. The Court also said that reproductive autonomy also comes under constitutional protection.
Do unmarried women have the right to abortion in India?
Absolutely, in the 2022 case of X v. Principal Secretary, the Supreme Court made it clear that unmarried women can also get an abortion for up to 24 weeks. The court said that there can be no discrimination on the basis of marital status. This increased women’s equality and bodily autonomy.
What was Roe v. Wade?
Roe v. Wade (1973) was a landmark case, US Supreme Court held that abortion is a constitutional right. It said that women have the right to make their own decisions during the pregnancy. The judgment made abortion legal nationwide in the US.
What did the Dobbs judgment do?
Dobbs v. Jackson Women’s Health Organization (2022) reversed both Roe v. Wade and Casey decisions. The Court held that abortion is not a protected right under the Constitution and left the matter to the discretion of the states. This made abortion access state-to-state dependent in the US.
Is abortion legal in the US?
In the US, abortion is legal in some states and completely banned in others. After the Roe overturn, each state made its own rules – some protected rights, while others imposed severe restrictions. This has made abortion access in the US highly unequal.
