The protections and privileges that the U.S. Constitution guarantees to the populace are known as constitutional rights. These rights are explicitly mentioned, but there is still disagreement over how to best use them. The right to abortion was one such right upheld as a constitutional right in the landmark case of Roe V. Wade which was decided on 22 January 1973. This right has transformed since the early 1970s. In the 1970s, US-based attorneys Linda Coffee and Sarah Weddington were dealing with abortion cases and rights and were looking for plaintiffs who would help them validly prove that abortion rights were medically necessary for women. They eventually found the ideal woman – Norma McCorvey, a 33-year-old woman who was expecting her third child. She was, in the words of her attorneys, ‘A white woman, pregnant, young, and wanted an abortion.’ Norma then assumed the pseudonym Jane Roe and proceeded with her case in the district court of Texas. As the Texas abortion ban violated the right to privacy, the court found in favor of Jane Roe, but it did not issue an order/injunction that would have allowed McCorvey to have an abortion. Later in 1970, a petition for review was submitted to the Supreme Court, and in a 7:2 majority in January 1973, the court ruled that women in the US had the right to decide whether or not to have an abortion. The Jane Roe decision, which supported an individual’s right to life and liberty, spoke out strongly against excessive government regulation and control. The ruling heavily cited a case from 1965 that had invalidated a state-imposed prohibition on contraception and supported married couples’ freedom to use contraceptives without interference from the government. The US Supreme Court overturned Roe v. Wade in the case of “Planned Parenthood v. Casey” in June 2022, ruling 6:3 that the Constitution does not mention abortion and does not implicitly protect such a right. The US Supreme Court has virtually abolished the constitutional right to an abortion in America, allowing states to enact an abortion ban, over 50 years after the right was acknowledged. All of the states that have outlawed abortion and a number of those that are considering doing so have curtailed or discontinued offering abortion services. In locations where certain abortions are still legal, people who had had appointments are scrambling to locate new ones. These include places where abortion is legal and safe as well as others with new gestational limits but incomplete bans on abortion, such as Florida, Ohio, and Georgia. As citizens of India and a fellow democratic nation-state, it is necessary to draw a comparison between the abortion laws in India and The United States of America.
Just like the American model, abortion laws in India have undergone amendments. The Indian judiciary recognizes abortion, though to a very limited extent. The British legislation in 1860 punished and prohibited abortion. In 1971, the Medical Termination Pregnancy Act was passed which legalized abortion. It was amended in 2003 and then in 2021 to include certain exceptions to the prohibition of abortion, like increasing the upper gestation limit for special categories of women from 20 to 24 weeks for those who fall under the categories defined in the amendments to the MTP Rules, which would include survivors of rape, child rape victims, and other vulnerable women (such as women with disabilities, minors, etc.), Up to 20 weeks of gestation, only one provider’s opinion will be necessary; for termination of pregnancy between 20 and 24 weeks, two physicians’ opinions will be required. In 2022, the MTP act was once again amended to include unmarried women as well. India’s commitment to treating safe and legal abortion as every woman’s constitutional right is reiterated by the Supreme Court’s 2022 decision to include women—regardless of their marital status—under the MTP statute, which permits them to terminate pregnancies up to 24 weeks.
As far as the question of the degree of abortion liberty is concerned, One can safely say that the US does currently have stricter laws relating to the illegality and allowance of abortion. Eleve (11) US states, including Mississippi, Idaho, South Dakota, Louisiana, Oklahoma, Texas, etc, have illegalized abortion. They have nullified the right to abortion which can be read along with the right to privacy, where the former was once considered a constitutional right. The Indian version of abortion rights, although strict is not authoritarian and inhuman. It allows for abortion in most cases and has even increased the gestation period and weeks of pregnancy up to which termination can occur. It is only logical to understand that a fetus is borne and carried by the mother and until the former acquires life, it cannot be considered capable of exercising human rights. The killing of a fetus and the decision to perform the same is an extremely emotional one and will only be carried out by the mother or father and even both only when it is completely necessary. The conditions are mentioned in the MTP amendment act of 2021 and 2022. The regulation of abortion is required and not extremist approaches like a complete ban on it or allowance of it. Such an extremist approach is adopted by several American states and this figure is only increasing. Therefore, India has a more liberal approach as long as abortion laws are concerned and adopts a model which is anti-extremist and more regulatory.
Author’s Name: Rhea L Vinay (Christ (Deemed to be University)
- With Recent Ruling, India Follows Global Trend of Liberalizing Abortion Laws, Centre for Reproductive Rights, https://reproductiverights.org/india-abortion-mtp-act-supreme-court/#:~:text=The%20Court%20ruled%20that%20under,regardless%20of%20their%20marital%20status.
- Akanksha Khullar, Amended Abortion Rights in India, Observer Research Foundation, https://www.orfonline.org/expert-speak/amended-abortion-rights-in-india/
- The New York Times, Tracking the States Where Abortion is Now Banned, The New York Times, https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html
- Jane ROE, et al., Appellants, v. Henry WADE, Cornell Law School, https://www.law.cornell.edu/supremecourt/text/410
- 184.108.40.206. Right to an Abortion, Cornell Law School, https://www.law.cornell.edu/constitution-conan/amendment-5/right-to-an-abortion
- Jill Wieber Lens, The Devastating Implications of Overturning Roe Will Go Far Beyond Abortion Patients, TIME, https://time.com/6190782/roe-overturned-pregnancy-complications-miscarriage/