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Abortion ruling in US: From the eyes of the Indian Law

Jul. 11, 2020   •   Samiksha Gupta

Profile of the author: Sampriti is a 2nd year law student of BALLB course, WBNUJS, Kolkata

What was the Supreme court decision in Louisiana abortion law?

The Louisiana Abortion law allowed doctors only with admitted privileges to perform the abortion surgeries. Passed in 2014, the law required doctors providing abortions to have an agreement with the local hospitals for transferring patients. The agreement being called “admitting privileges” and provide no specific medical benefits to people. Practitioners claimed that with law it was almost impossible for the doctors to acquire the privileges, leaving only one surgeon eligible to perform. The mean distance that a woman travels to avail the clinic is 58 miles. The law will almost quadruple the distance making it 208 miles. The patients are mostly black and come from lower income family. [1] Thus, the law disproportionately affected women of colour and exacerbating the poverty in already the poorest state in the nation. [2]

Similar worded law in Texas was held as unconstitutional by the same Court in the year 2016. The ruling of Whole Women’s Health vs Hellerstead acted as a precedent and it ideally should have been a quick disposal case. [3] But with the appointment of two ultra conservative justices in the court, Trump had promised in his campaign to overturn Roe vs Wade, which brought the ratio of justices tilting to the right. [4] The 1973 landmark case held that restriction on abortion is a violation to the right to privacy which was guaranteed by the constitution. Though the court granted abortion rights, it needed to balance the needs of the state and hence, the rights are not absolute. For the first trimester of the pregnancy, mother will have the right to abort the child without any state interference on exception of mother’s health and child’s development. Currently, the law is Roe vs Wade, even though consistent efforts have been made for its dilution.

What are the Indian laws regarding abortion?

Till 1971, India criminalized abortion under Section 312 of Indian Penal Code. After the growing recognition of women’s rights, the government passed the bill of Medical Termination of Pregnancy Bill, also known as Abortion Law. The law gained controversy in the 24-week-case, when the Bombay High Court disallowed the rape victim to abort her pregnancy as she was in her 24th week of pregnancy. On appeal, the Supreme Court set up a board of medical practitioners upon whose discretion the abortion was allowed. The question still remains unanswered, why can’t a woman have a right on her own body? The current law states that termination of pregnancy is allowed only on the opinion furnished by a registered practitioner who believes that continuance of bearing the child will pose a serious threat in the mother’s body. Opinion of two practitioners in case the pregnancy increases to twenty weeks. In situation when the time length extends twenty weeks the woman is left without any option but to approach the High Court. A board of 8 practitioners is constituted and the Court grants permission on the basis of the opinion furnished by the board. It is preposterous when opinions of only two gynaecologists are recognized when the time period is within twenty weeks, and as soon as it crosses a single day, the court demands a board of at least eight members. The law was passed in 1971, when the technology was not advanced enough to consider abortion after twenty weeks as safe. Development in medicine science had contributed to the possibility of having a safe abortion.[5]

Just before the COVID outbreak, Union Cabinet approved the Amendment to the MTP Act 1971, which proposes to extends the upper gestation limit from 20 weeks to 24 weeks. Though it took the government more time than required to realize the anomalies, the amendment still needs to fill many lacunae. The extension is envisaged only for survivors of rape, victims of incest, minors, or differently-abled women. [6] Such a law fails to actualize the reproductive rights for the women over her body and curtains the woman’s right to liberty from this façade of amendment. The law gives room for the interference of the subjective interpretation of medical practitioner whose opinion determines the fate of the mother. The amendment also fails to acknowledge right to privacy which includes marriage, procreation and one’s sexual orientation.

At this juncture it is critical for us to look where the developed state is advancing and where India stands in the wheel of time. Unlike Singapore and Canada, a woman can only seek abortion when it meets the reasons set out by law and not on her personal will and capacity. Indian laws continue to perpetuate to subordinate woman’s determination to her reproductive rights. Learning from the mistakes of other countries and taking inspiration from their development, India can successfully strike the balance between the functions of the state and the rights of its citizens.

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FAQ:

Q. Which committee was formed to frame MTP Act, 1971?

A. Shantilal Shah committee was formed in 1964 to look into the abortion law.

[1] Roberts C, ‘Implications for Women of Louisiana's Law Requiring Abortion Providers to Have Hospital Admitting Privileges’ (2015) 91 Contraception 368-72.

[2] Editors, ‘Louisiana remains one of nation’s poorest state’ (US News, 27 September 2019) <https://www.usnews.com/news/best-states/louisiana/articles/2019-09-27/census-louisiana-remains-1-of-nations-poorest-states> accessed 6 July 2020.

[3] Jessica Glenza, ‘Abortion rights case is first test for right-leaning US supreme court’ (The Guardian, 04 March 2020)<https://www.theguardian.com/law/2020/mar/04/us-supreme-court-louisiana-abortion-rights> accessed 6 July 2020.

[4] Jessica Glenza, ‘Supreme Court strikes down restrictive Louisiana law’ (The Guardian, 29 June 2020) <https://www.theguardian.com/world/2020/jun/29/abortion-ruling-supreme-court-strikes-down-louisiana-law> accessed 6 July 2020.

[5] Gazala Parveen, ‘Let Abortion laws be Woman-centric’(IPLeaders, 17 October 2019) <https://blog.ipleaders.in/abortion-laws/> accessed 6 July 2020.

[6] Vrinda Grover, ‘The amendments in the MTP bills are flawed’ (Hindustan Times, 20 February 2020) <https://www.hindustantimes.com/analysis/the-amendments-in-the-mtp-act-bill-are-flawed-analysis/story-H0DZJUAWWopQZKPzbLXyJL.html> accessed 6 July 2020.


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