Abortion Laws: Writ Petition SummaryConstitutionality of Abortion Laws
Background and Issue
The Medical Termination of Pregnancy Act, 1971 (‘MTP Act’) decriminalised abortion in India based on the recommendations of the 1966 Shah Committee. However, there remain substantial limitations on the access to abortion. On the 29th of April 2019, Ms. Swati Agarwal, Ms. Garima Sekseria, and Ms. Prachi Vats filed a Public Interest Litigation (‘PIL’) in the Supreme Court challenging the constitutionality of Sections 3 and 5 of the Medical Termination of Pregnancy (MTP) Act, 1971. The petitioners argue that Sections 3 and 4 of the MTP Act are in violation of Articles 14 and 21 of the Constitution of India, 1950 and request the Court to widen women’s right to make reproductive choices, and increase access to safe abortions.
What do the petitioners seek?
The petitioners request that the Court:
- Declare s.3(2)(a) unconstitutional and void as far as it requires the opinion of a medical practitioner;
- Declare s.3(2)(b) unconstitutional and void as far as it permits abortion only up to 20 weeks from conception, and then only on the grounds of risk to life or mental/physical health of the mother and the mental and physical abnormalities of the child;
- Declare Explanation 2 to s.3(2) unconstitutional and void to the extent that it applies only to married women;
- Declare s.3(4) violative of Article 21;
- Declare s.5 violative of Articles 14 and 21; and
- Direct the central government to take steps to provide all women safe access to abortion, especially those disproportionately affected by their social status.
The petitioners argue that this issue requires urgent consideration by the Supreme Court because of its grave effect on women throughout the country. Their arguments can be classified into three different categories: claims under Article 21, claims under Article 14, and claims as to the unjust curtailment of fundamental rights.
The petitioners refer to the right to life and the right to personal liberty as enshrined in this Article. They refer also to the decisions of the Supreme Court in the cases of Puttaswamy v. Union of India  and Suchitra Shrivastava v Chandigarh , which respectively recognised the right to privacy, and a woman’s right to reproductive choices as essential to the core of liberty and personal autonomy under Article 21. Lastly, they also emphasise the right to health under Article 21, which constitutionally protects the right of a woman to choose a course which is least detrimental to her health.
The petitioners referred to the right to equal protection under the law afforded by Article 14 and argue that Section 3 is discriminatory towards an unmarried woman, and fails to recognise social inequities.
Curtailment of Fundamental Rights
The petitioners also draw on the established principles for the curtailment of fundamental rights as laid out by the Supreme Court in Maneka Gandhi v Union of India , and affirmed in Puttaswamy . To curtail a fundamental right, a law must be duly enacted, it must be reasonable as per Article 14, and it must be proportional in that the means of the law must justify the ends it seeks to achieve. In this case, the goal of the MTP Act is to reduce maternal mortality and to guarantee safe abortions.
Section 3(2)(a) allows for the termination of a foetus within 12 weeks of pregnancy, subject to the conditions that a registered medical practitioner has determined that there is a risk of death, or grave mental or physical injury to the mother; or a risk to the child of serious handicap caused by a mental or physical abnormality.
The petitioners challenge this section because it is violative of personal liberty enshrined in Article 21 and that imposing such severe restrictions on the right renders it meaningless. Furthermore, it is also violative of the right to privacy and a woman’s right to reproductive choice as guaranteed under Article 21. The petitioners also argue that this infringement is not a proportionate one, since it has been established that abortions in the first trimester pose minimal risk to the mother. As such, the state cannot and should not make any laws restricting abortion with the justification of preserving maternal mortality as far as the first trimester is concerned. Further, the petitioners argue that this section is violative of the right to health, and the fundamental right of a woman to safe abortions.
Section 3(2)(b) allows for the termination of a foetus up to 20 weeks after conception, if it is determined by two medical practitioners that there is a risk of the mother’s death, or grave mental/physical injury; or risk to the child of serious handicap as a result of mental or physical abnormality.
To this, the petitioners contend that it is impossible to determine with certainty all possible risks to the mother and child within 20 weeks, particularly given the uneven nature of India’s healthcare infrastructure. Thus, the petitioners argue that this section infringes on the rights guaranteed by Articles 14 and 21 of the constitution.
Explanation 2 to Section 3(2) allows for the termination of the foetus in those cases where there has been a failure of a contraceptive used by a married woman or by her husband, as those pregnancies are presumed to cause grave injury to the mother’s mental health.
The petitioners argue that this section is discriminatory toward single or unmarried women, and is thus violative of Article 14. They also assert that the section is disproportionate since there is no logical connection between marital status and the purpose of the Act. The petitioners also assert that this section leads to unmarried women seeking illegal abortions, and is thus a violation of the right to health under Article 21.
Section 3(4)(a) holds that a guardian’s consent is necessary if a mother is either a minor or is mentally ill. The petitioners argue that this is a flagrant violation of the mother’s autonomy under Article 21. They also argue that it fails to meet the ‘best interest’ test which the Court is obliged to apply in the case of minors or mentally ill persons.
Section 5 allows for the termination of a foetus beyond 20 weeks if a registered medical practitioner determines that it is essential to save the mother’s life. Here too, the petitioners make an Article 21 claim that there is a disproportionate violation of the mother’s right to personal liberty, especially given the very high bar of immediate necessity to save a life. Furthermore, they hold that it is arbitrary because it does not allow for abortion where foetal abnormalities are detected beyond 20 weeks, even if there is a grave risk of physical or mental injury to the mother that does not amount to immediate risk of death. They assert that both the Apex Court and the High Courts routinely grant requests for termination of pregnancy beyond 20 weeks on these grounds, as well as on the grounds of rape. They cite examples of cases such as A v Union of India  and Mamta Verma v Union of India .