Dr. Alka Barua, Dr. Souvik Pyne and Dr. Arvinder Nagpal
On June 24, 2022, the Supreme Court of the USA overruled an earlier judgement on Roe v Wade on the grounds that abortion is not a right as it is not “deeply rooted in the Nation’s history or tradition”. Almost half a century earlier, on January 22, 1973, the Supreme Court in a majority decision had ruled that fundamental “right to privacy” under the country’s constitution protected a pregnant woman’s right to abortion. The Court also said that this right is not absolute, must be balanced against the government’s interests in protecting women’s health and ‘prenatal life’ and does not prevent individual states from formulating some abortion regulations, but introduced a trimester-wise framework to address the potential conflict of rights. The 1973 judgement was rights-affirming and the current overturning is a regressive step that would have serious implications for reproductive health and rights not just in USA but also globally.
In India, as early as 1933, a bill to decriminalize abortion and allow it for ‘physical, social or economic reasons’ was proposed but it did not go through. Under the century-old Indian Penal Code (IPC), abortion was a crime with punitive consequences for the woman and service provider. These stringent provisions were observed in the breach in a large number of cases in the country albeit at great risk to women’s health. In 1964, the Shah committee formed to examine the increase in the number of unsafe abortions and associated morbidity and mortality, after review of the medical, legal, and socio-cultural aspects, found the existing IPC restrictive and recommended formulation of a law on comprehensive abortion care. Recommendations of the committee form the foundation of the Medical Termination of Pregnancy Act of 1971. The Act specifies who, where and under which conditions can legally provide abortion services. Abortion in the country continues to be governed by this Act with a 2002 amendment that allowed the use of medical abortion pills and a 2021 amendment that increased the gestational limit under various categories. Yet, apart from the provisions, abortion continues to be criminalised under IPC. Though considered “progressive”, the fact remains that the legislation and its amendment are not grounded in reproductive rights.
Across countries, reproductive rights and choices have consistently reflected the conflict between liberal and conservative values, faced judgements on sexual morality and invited state intervention. The women’s rights movement in the USA from 1960-80s had debated on sexuality, reproductive rights and the birth control movement had advocated for the legalisation of abortion and right to contraception and abortion, with an increasing emphasis on “choice”. The Roe v Wade ruling came about in this environment of rights movement. In the 1990s, reproductive rights were further endorsed at the ICPD and at the Beijing Platform for Action. In India, the feminist movement has historically not invested significantly in advocating for reproductive rights and choices in the context of abortion. The MTP Act came about out of concerns about maternal mortality and covertly concerns about burgeoning population. Despite amendments, the Act does not permit abortion unconditionally and on-demand. Abortion is at the discretion of medical opinion and in reality, deviates from the Shah Committee’s proposed comprehensive abortion care.
India’s development sector, especially around reproductive health, has significant Overseas Development Assistance from USAID and US-based philanthropies. The reinstatement of the Global Gag Rule followed by the Pompeo expansion of the same during the Trump administration had created a perception and phobia at a grassroots level that interventions around abortion should be avoided. Even though it has been revoked recently, still there is a lasting effect of the same in India. The government has minimal focus on promoting safe abortion as a health service as it might offset public perception about its ‘family planning’ program. Moreover, misdirected aggressive public campaigning around sex determination has unwittingly demonised abortion instead of addressing the innate societal son-preference and has created a purported impression that induced abortions in the country are predominantly due to sex-selection. Alongside, considerable indoctrination of many CSOs/development partners for rallying behind this misdirection makes them undermine the negative impact on access to safe abortion. Disproportionate liberty accorded to eugenic conditions in the law rather than unequivocally foregrounding the pregnant person’s request unconditionally leaves it open to misinterpretations. Centering a protectionist approach to the adolescent sexuality discourse often comes in conflict with a rights-affirming narrative. The existing abortion discourse also sidesteps experiences of diverse marginalised identities across axes of gender/sexual identities, ethnicity, caste, occupation and so on. All these apparent fault lines create hurdles to developing a broad solidarity movement and having a united voice to demand for unconditional access to safe abortion as a right. Within such a complex context, there has been the unfettered existence of anti-choice entities as well who are mostly funded and influenced by their counterparts from the Western world. The overturning of Roe v Wade judgement may inadvertently lend a fillip to such entities to amp up their efforts toward propagating their insidious agenda. India is a signatory to international agreements and has articulated its commitment to individual reproductive rights through its policies. Till the Act and its enforcement retain its conditionalities, non-inclusive moralistic language and an overtone of “control”, it will continue to undermine agency of the individual and abortion will remain stigmatised and not a right or a choice. Advocacy needs to centre pregnant person’s autonomy in exercising their reproductive rights with an intersectional lens and inclusive approach. CSOs and activists in India by persuasion, argument and evidence successfully incorporated some amendments to the MTP Act 2021. However, these groups have to guide against the ripples caused by and pre-empt consequences owing to the recent overturning of the Roe v Wade case. The gains of last five decades have to be proactively protected, anti-choice narratives countered, and efforts to ensure unconditional abortion access for everyone have to continue. India has to show the way to the rest of the world. CommonHealth as a national coalition dedicated to working on reproductive rights and safe abortion pledges to contribute towards this vision and collaborate with pro-choice entities and other like-minded entities to defend and advance this crucial human right – right to safe abortion!