Today is International Safe Abortion Day, an international day of action for the decriminalisation of abortion. Numerous studies prove that decriminalisation has a positive effect on women’s health: it allows them to have abortions in a safe and sanitary environment and also gives them the opportunity to make informed decisions about their health. In this vein, decriminalisation is the first step towards improving health outcomes for women; easing restrictions on access to abortion is widely considered the second.
On 29 April 2019, three women filed a PIL in the Supreme Court of India challenging the constitutionality of Sections 3 and 5 of the Medical Termination of Pregnancy Act (MTP Act). These sections allow women to procure abortions in very limited circumstances – such as risks to the physical or mental health of the mother, or foetal abnormalities – and only then with the consent of at least one medical practitioner.
While many jurisdictions recognize that women have the right to abortion in principle, this right is often heavily restricted.
For instance, the US Supreme Court in Roe v. Wade (1973) recognized that women had the unrestricted right to have abortions in the first trimester; however, restrictions could be placed in the second and third trimester to protect the mother’s health. Later in Planned Parenthood v. Casey (1992) the Court reversed course somewhat and held that each state could impose regulations on abortions from the time the foetus became viable.
Some legislators have argued that foetuses become viable as soon as a baby’s heart begins to beat; as a result, states like Alabama have been able to pass laws that prevent women from having abortions after six weeks, when a baby’s heart first starts beating.
The main takeaway from the US cases is that shifting the focus from the personal autonomy of the mother to the right to life of the foetus allows states to impose stricter restrictions on abortion access. As a result, abortion is not recognized as a ‘fundamental’ or essential right, except in limited circumstances such as rape or incest.
This is not limited to the US alone: even progressive courts such as the European Court of Human Rights have declined to fully recognize the right to have an abortion. As a result, the otherwise strong human rights protections afforded to residents of EU member states do not extend to the right to abortion.
For instance, until recently, Ireland criminalized abortions unless a woman was in danger of losing her life. However, the passage of the Health (Regulation of Termination of Pregnancy) Act 2018 allows women to have abortions on request during their first trimester. This Act was passed after the public voted in a referendum to repeal the 8th Amendment to the Constitution, which guaranteed that the State recognized and would defend the right to life of unborn children.
The global discourse on abortion rights is shaped by dominant religious groups in Europe and America, which view abortion as a violation of the sanctity of life of the foetus rather than as the exercise of the rights to bodily autonomy and privacy by a woman. The strong social and cultural opposition to abortion is likely the reason that even entities like the UN Human Rights Committee fall short of endorsing the right to access abortion on request.
Interestingly, the discourse on abortion in India has not revolved around the rights of the foetus – rather, it has been rooted in social attitudes towards contraceptives and premarital sex. The recent amendment to the MTP Act allows unmarried women to have abortions in case their pregnancies are the result of contraception failure – a right that was previously only available to married women. Will this encourage the Supreme Court to recognize abortion as a fundamental right?