WHEN the US supreme court overturned the long-standing precedent that abortion is a constitutional right in June, many feared that other countries would draw inspiration. But a judgement of the Indian supreme court is an example of a growing trend in some parts where courts are strengthening legal protection of women’s reproductive rights.
On Sept 29, 2022, in ‘X vs Govt of NCT of Delhi’, India’s supreme court ruled that unmarried women are entitled to an abortion under India’s Medical Termination of Pregnancy Act. India’s Penal Code criminalises abortion. The MTP Act created exceptions to criminalisation and set forth circumstances under which some abortions could be permitted. Amendments to the MTP Act and Rules made in 2021 extend the time limit for abortion from 20 to 24 weeks of pregnancy. The extension is available to women who fall in certain categories, including rape survivors, women with disabilities or who receive a diagnosis of foetal ‘abnormality’, women in disaster or emergency settings, and women who have a change of marital status during pregnancy. The MTP Act amendments do not include a specific provision for unmarried women.
The Indian supreme court gave a purposive interpretation of the law considering the lived experiences of women compelled to carry a pregnancy to term against their wishes. The court concluded that the intent behind the legislation was to enable all women, regardless of marital status, to avail safe and legal abortions: “The decision to have or not have an abortion is borne out of complicated life circumstances, which only the woman can choose on her own terms without external interference or influence.”
One of the grounds under which the MTP Act permits abortion is when a pregnancy causes harm to a pregnant woman’s mental health. The court interpreted the mental health provision broadly, saying it has a “wide connotation and means much more than the absence of a mental impairment or a mental illness”. The court stated that the determination must consider the “actual or reasonably foreseeable environment” of the woman, and declared that married women be permitted to seek an abortion if they have been subjected to rape by their spouses, stating it is “not inconceivable that married women become pregnant as a result of their husbands having raped them.”
It stressed that access to abortion services should extend to pregnant adolescents: “The absence of sexual health education in the country means that most adolescents are unaware of how the reproductive system functions as well as how contraceptive devices and methods may be deployed to prevent pregnancies.”
The court noted that “constitutional values” should guide the MTP Act’s interpretation. The values include the right to reproductive autonomy, which “requires that every pregnant woman has the intrinsic right to choose to undergo or not to undergo abortion without any consent or authorisation from a third party.”
To extend constitutional guarantees of abortion to all those capable of being pregnant, the court noted that it uses the term ‘woman’ to include “persons other than cis-gender women who may require access to safe medical termination of their pregnancies”.
The judgement’s conclusions are significant for women in Pakistan, where most abortions take place in clandestine conditions without proper medical guidance and supervision. According to the most recent study conducted in 2012, approximately 620,000 women were treated in one year in Pakistan for complications arising from induced abortions. There are exceptions to the criminalisation of abortion in Pakistan’s Penal Code. In 1997, these were expanded: for the first 120 days of pregnancy, abortion is permitted to save the life of a woman and for “necessary treatment”.
The term “necessary treatment” should be interpreted in light of Pakistan’s constitutional values, which include the right to life, dignity as well as equal protection of the laws. In a decision outlawing ‘virginity testing’ of sexual assault victims, the Supreme Court declared that the right to dignity under Article 14 of Pakistan’s Constitution requires that the “independence, identity, autonomy and free choice” of women be upheld.
Article 14 guaranteeing the right to dignity and Article 9 protecting the right to life entail that women be able to access abortion services to preserve their physical and mental health without requiring approvals from third parties. Women will be unable to exercise their “independence, identity, autonomy and free choice” unless they have control over their reproductive lives.
The Indian court’s recent judgement is a ray of hope in light of the persistent attacks on women’s rights around the world. We should hope that courts and lawmakers in other countries also move towards an interpretation of fundamental rights guided by realities faced by women and a vision of meaningful equality.
The writer is a lawyer and legal adviser at the Center for Reproductive Rights.
Published in Dawn, October 23rd, 2022