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What does Supreme Court’s abortion verdict mean for reproductive justice in India?
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October 21, 2023 05:50 pm | Updated October 22, 2023 01:50 pm IST

A reproductive rights academic decodes the Supreme Court’s verdict, the ‘pro-life-pro-choice’ debate in India and the future of reproductive justice discourse in India.

A 2016 file photo shows the Supreme Court building in New Delhi, India. | Photo Credit: AP

The Supreme Court this week rejected a woman’s plea for abortion. The woman — 26 weeks pregnant, married, with two children, and undergoing postpartum psychosis — requested termination because she was “physically, emotionally, mentally, financially and medically unable to carry, deliver or raise a child.” Denying her request, the three-judge Bench headed by Chief Justice of India D. Y. Chandrachud said the Court’s recognition of a woman’s autonomy cannot eclipse the “rights of the unborn child.”

India’s Medical Termination of Pregnancy Act allows abortion up to 24 weeks, post which termination is permitted only if a board of doctors attests that continued pregnancy presents a risk to the woman’s life or if there are foetal abnormalities. The woman approached the Court at 25 weeks when she was made aware of the pregnancy (she had lactational amenorrhea, where breastfeeding temporarily halts menstruation, thereby preventing pregnancy). The AIIMS medical board in its report found no cause for immediate concern: the foetus was healthy and viable. The government would bear medical costs and the woman may give the child for adoption post delivery, the Court said.

In a conversation with Saumya Kalia, Gauri Pillai, Assistant Professor of Law at the National Law School of India University, explains the Court’s verdict— one year after a landmark ruling expanded the scope of abortion rights in India. Edited excerpts:

The Supreme Court in X v NCT last year acknowledged women’s right to choose: “The right to choose for oneself... forms a part of the right to dignity. It is this right which would be under attack if women were forced to continue with unwanted pregnancies.” How does the present verdict interpret the ‘right to choose’?  

The Court reasoned that it could not ‘stop the [foetal] heartbeat.’ There is no doubt that the Court’s decision dilutes women’s right to choose, as understood by previous Supreme Court decisions including the landmark X v NCT in 2022. On the one hand, rights are rarely absolute and are typically subject to limitations. On the other, in the context of abortion rights, Indian courts have not explicitly articulated what these limitations are.

At the level of constitutional principle, they have tended to see the right as vesting solely with women. X v NCT declared that ‘it is the woman alone who has the right over her body’ and is the ‘ultimate decision-maker’ in deciding if she wants an abortion. However, in practice, when individual women come before courts, a discourse on foetal rights has begun to emerge. Women, it seems, are not, then, ‘ultimate decision-makers.’ 

And what is the immediate consequence of this conflict between theory and practice?

This leads to incoherence in jurisprudence, as the constitutional right to abortion does not appear to accommodate the limitations the Court authorises in practice. It also, more dangerously, risks reducing the Court’s proclamations on women’s rights to rhetoric.  

This would extend to shedding doubt on the legacy of X v NCT. Beyond its immediate relevance in allowing unmarried women to access abortions, whether the rest of its holdings on women’s rights have any real effect will depend on how future courts respond to this week’s verdict.

Where does the verdict fall in the larger conversation around abortion rights, in India and beyond?

Globally, the abortion right is in a significant state of flux. So far, India seemed largely insulated from these negotiations. Courts were not hesitant in recognising strong, affirmative reproductive rights, and holding the state to account in fulfilling them. It almost seemed too good to be true.

And then it was. This week’s Supreme Court verdict is a disruption. It offers ammunition for those arguing for restrictions on abortion. In 2022, a petition was filed to declare India’s abortion law unconstitutional for authorising ‘foeticide.’ The petitioner’s claims will arguably be bolstered by the verdict.

India has taken pride in abortion laws that respect women’s autonomy, are “pro-choice” and ahead of other countries. In the present case, however, the Court refused to hear arguments on autonomy because “it was on a different footing.” Why is that?  

The Court seems to be pitting some form of foetal right to life against women’s right to autonomy. In a battle between ‘life’ and ‘autonomy,’ it is not surprising that autonomy was seen to be on a ‘different footing’ and lost out. This form of reasoning could also create hierarchies: certain forms of autonomy (say, asking for abortion in case of rape) will be seen as more weighty when balanced against life, and other forms (like the petitioner in this case) as less weighty.

This pitting exercise indicates why it is so important to be clear on what the foetal interest involved is. Is it life? Is it a form of potential life (which would, arguably, be less weighty)? Most importantly, irrespective of what the foetus is (which is not a legal determination), what status should it be granted within the law? And how should this legal status, even if granted, be protected — through restricting abortions or other means? Which option would be constitutionally consistent?

The Court last year said that continuing with an unwanted pregnancy has an adverse impact on the pregnant woman’s mental health and can be a ground for abortion. In the present case, the woman suffered from post-partum depression. What was the Court’s stance?

This is another unfortunate example of seemingly expansive constitutional principles getting reduced to rhetoric in practice. In X v NCT, the Supreme Court did not confine ‘mental health’ to medical diagnosis of illness. Rather, the Court emphasised that it must be understood based on the petitioner’s ‘self and experiences.’ In the present case, the petitioner pleaded for an abortion at 26 weeks because she was suffering from post-partum psychosis — lack of sleep, hallucinations, suicide attempts — after her previous pregnancy. [Evidence shows suicide is the leading cause of maternal death following childbirth.] 

She submitted prescriptions as evidence of her medical condition, stressing that postpartum psychosis was more severe than postpartum depression. While the Court eventually decided that the mental health ground for abortion did not extend beyond 24 weeks of gestation, it questioned the validity of the petitioner’s argument throughout the hearings. It suggested that the prescriptions might have been doctored to ‘bolster the case.’ It also directed a medical examination of the petitioner to confirm the diagnosis.  

ALSO READ | Depressed after childbirth? Understanding postpartum depression and what to do about it 

 

The Union Government argued the foetus is “a viable baby with a reasonable chance of survival.” What is the rationale of the viability argument, and has the government applied it before?

The theory is: when the foetus reaches a point of viability — where it can exist outside the womb of the woman (with medical support) — the right to abortion should be curtailed. Viability was most famously endorsed by the U.S. Supreme Court in Roe v Wade in 1973. Two decades later, in 1992, the U.S. Supreme Court replaced the viability standard with a different test, and in 2022, the Court rejected the viability standard completely.

In India, the viability of the foetus has historically had no purchase in restricting abortion. While India’s 1971 law on abortion allows third-trimester abortions only in limited circumstances, this appears to have been driven by a need to protect women’s health rather than protect the foetus. At the time of passing the 1971 law, only two members of the Legislative Assembly protested against abortion (calling it ‘murder’ and a ‘crime against humanity’). The others endorsed it and affirmed that ‘there is no violation of the right to life in any manner.’  

However, in 2009, the Indian Supreme Court, citing the U.S. decision in Roe, suggested that the state has a ‘compelling interest’ to protect the foetus which is a form of ‘potential life.’ The state can, then, impose ‘reasonable restrictions’ on abortion. The Supreme Court did not, however, mention viability. Yet, some loose version of viability seems to exist in Indian law. In 2016, the Punjab and Haryana High Court claimed that once the pregnancy is viable, the ‘potential child’ becomes a part of the determination. Similarly, the Calcutta High Court in 2019 said that at an advanced stage of pregnancy, ‘the right to life of the foetus outweighs the mental trauma’ suffered by the mother.

However, there is no explicit articulation of this standard or a defence of it, despite it being highly critiqued; it has simply been slipped into the law.  

What are the rights of a foetus under Indian law? [The CJI said, “We can’t kill the child...there are rights of an unborn child too.”]

The rights of a foetus under the Indian Constitution are unclear — there has been no upfront articulation of it. Whether the foetus possesses rights, or simply ‘interests’ (as the 2009 Supreme Court decision termed it) is also ambiguous. A 2016 Bombay High Court decision relied on international human rights law to hold that the foetus does not have rights till birth.

In essence, the state of law is jumbled, and requires urgent deliberation, especially if foetal interests (or, rights) are being used to restrict abortion rights.

How did women’s autonomy and right to choose compare with the ‘rights of an unborn child’, as the court termed it, in the present verdict?

The pregnant woman’s rights were seen as extending only as far as they did not harm a viable and healthy foetus. The Court reasoned that it was simply following the conditions under the Medical Termination of Pregnancy Act, 1971, and seemed to suggest that its hands were tied, as this was what the law required the Court to do.

However, this claim is not entirely true. The Supreme Court possesses the power to do ‘complete justice’ under the Constitution. It has previously read the abortion law liberally even when the text did not seem to explicitly authorise it. Here the Court choosing not to do so was, then, less about the law and more about the Court’s concern for the foetus.

The government maintained that killing a foetus would ‘amount to foeticide’, evoking two sides of the abortion debate: pro-life and pro-choice. Is this a new discussion in India?

This conversation is largely alien to India; it is likely that the global contestation on these lines influenced the Court’s reference to it. However, now that it has been initiated in courts, it has to be engaged with. Engagement would allow us to shape the judicial dialogue, instead of merely being bystanders to courts deciding the issue.  

The question of when ‘life comes into being’ took centre stage even as the Court said it couldn’t decide on that matter. Has the law tried to engage with this quandary in the past? How can it engage with it?

Whether the foetus should, at all, be a relevant factor in abortion regulation is a question that has not been answered in India. For the law, a pregnant woman is a unique subject. The foetus is intimately associated with the body of the woman, in a way that is different from all other situations that the law regulates. Any form of recognition of the foetus will, therefore, most likely grievously invade women’s legally recognised rights. When we contemplate the legal (as opposed to ethical, moral or religious) status of the foetus, a strong case can be made that the impact on women has to be a consideration.

On the other hand, even if some legally relevant status is granted to foetuses, it need not signal the end of liberal abortion laws. Empirical evidence suggests that restrictive abortion laws do not really protect foetuses; they simply push women toward unsafe abortions and harm their health. In fact, if foetal protection is the aim, better alternatives exist. These include comprehensive sex education, access to temporary contraception, reducing violence against women, and providing forms of childcare support, which reduce the overall rate of abortions. Adopting this reasoning, constitutional courts in South Korea (2019) and Colombia (2021) liberalised abortion while also recognising foetal interests.

The CJI during the hearing asked why it took 26 weeks for the woman to realise she didn’t want the child. Studies find that stigma and doctors’ judgment also determine women’s access to safe abortion services on time. Do abortion restrictions interfere with women’s right to equality?

Typically, abortion cases are seen as involving the right to privacy. Reproductive decisions are intimate and personal, shaping who we are as individuals. However, abortions are also necessary to guarantee women equality.

Denying abortions perpetuates women’s disadvantage at several levels. In pushing some women to seek abortions with unsafe backstreet providers, their lives are threatened. For others, who are forced to carry an unwanted to pregnancy to term, there is a risk to their physical and mental health. [In comparison to women who receive an abortion, those who are denied abortions report a higher risk of life-threatening complications like eclampsia, postpartum haemorrhage, chronic headaches or migraines, joint pain, and gestational hypertension, research shows.]

Moreover, women are still the primary caregivers in India, with their responsibilities of care affecting their labour participation, workplace advancement and wages. Being denied abortions, then, has a socio-economic impact on women, as a group. It also entrenches stereotypical assumptions about women’s role as mothers, which then leads to abortion stigma and provider bias. [NFHS-5 data shows the burden of family planning mostly falls on women in India]

The Supreme Court has repeatedly held that perpetuating the disadvantage of a historically disadvantaged group is what inequality looks like. Under this definition, the denial of abortion is an obvious equality issue.  

One critique of reproductive rights in India (including last year’s judgment) is that abortion still falls within the framework of criminal law and the decision to abort rests with medical practitioners. What precedent does the verdict set for future cases, and for reproductive justice issues?

This week’s verdict does not directly point to increased criminalisation. However, it could set in motion a prominent role for the foetus in abortion regulation in India. In other countries, foetal concerns have been the prime motivations behind criminalising abortion. In opening the door to foetal interests, the Supreme Court decision could weaken claims for decriminalising abortion in India.   

Overall, the verdict does not conclusively decide the abortion issue. However, it presents an inflection point. As we traverse the paths it opens up, it is important for us to keep reminding ourselves, and the Court, about whose rights are at stake, which rights they are, and why.  

(Gauri Pillai is an Assistant Professor at the National Law School of India University, Bangalore, and a Max Weber Postdoctoral Fellow at the European University Institute, Florence. Her work studies reproductive rights and constitutionalism in India and globally.)

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