Why the Supreme Court order on abortion is not helping women?

In a Judgment, the Supreme Court had recently put decision on abortion rights for all adult women in India to have the right to seek a safe abortion through a medical expert till up to 24 weeks of pregnancy. Despite these steps, women in the country still face difficulty to avail the abortion especially for unmarried women.

There are five key aspects of this judgment that need to be shared:

• Acknowledging the context of criminality: IPC criminalises accessing and providing an abortion except where there is an immediate necessity to save the life of the pregnant woman, and the MTP Act is an exception to this criminal offence.
• Removal of ‘compulsory’ marital status: The judgment basically holds that what is accessible and available for a married pregnant woman should be accessible and available to any pregnant woman and that a classification based on marital status is fallacious and illegal.
• Inclusive of the concept of Marital Rape: An acknowledgement has been put that a pregnancy can be sought to be terminated on the ground of it being a result of rape by the husband of the pregnant woman must be recognised.
• Confidentiality: This judgment clarifies that while the need to report mandatorily remains, the identity of the pregnant person need not be disclosed in the cases of consensual sexual activity and where the minor and/or her guardian request the medical service provider to maintain confidentiality.
• Relief to Medical Practitioners: It recognises the extra-legal requirements that medical practitioners insist upon before providing MTP services, only to safeguard themselves due to the context of criminality and the present law is non-inclusive.

The Medical Termination of Pregnancy Amendment (MRTP) Act:

• In 2021, Parliament amended the law to allow for abortions based on the advice of one doctor for pregnancies up to 20 weeks.
• The modified law needs the opinion of two doctors for pregnancies between 20 and 24 weeks.
• Further, for pregnancies between 20 and 24 weeks, rules specified seven categories of women who would be eligible for seeking termination under Section 3Bof rules prescribed under the MTP Act;
  • Survivors of sexual assault or rape or incest,
  • Minors,
  • Change of marital status during the ongoing pregnancy (widowhood and divorce),
  • Women with physical disabilities (major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016)
  • Mentally ill women including mental retardation,
  • The foetal malformation has a substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped, and
  • Women with pregnancy in humanitarian settings or disasters or emergencies may be declared by the Government.

What are women’s reproductive rights?

Based on the multiple definitions of reproductive rights, it can be said that they include some or all of the following rights:

• Right to safe and legal abortion.
• Right to control one’s reproductive functions.
• Right to access in order to make reproductive choices free of coercion, discrimination and violence.
• Right to access education about contraception and sexually transmitted diseases and freedom from coerced sterilization and contraception.
• Right to protection from gender-based practices such as female genital cutting and male genital mutilation.

Significance:

• Addressing the ‘actual’ concerns: This was a judgment keeping the pregnant person at the centre of it despite the law being provider-centric and read a judgment that beautifully encapsulates all the concerns that exist about the legal regime on abortion in India.
• Breaking the stereotype: The judgment basically reiterates that one cannot make a distinction between a woman who is pregnant because of rape only on the grounds of her marital status.

Why do women still face difficulty to avail of abortion rights?

• Non-compliance with Government rules in accordance with the SC judgement:
• Rule 3(2) (b) of the MTP (Amendment) Rules, 2021 does not permit single women to abort after 20 weeks.
• The rule is discriminatory as it only allows “special categories” including survivors of sexual assault, minors, widows or divorcees, women with disabilities, a malformed foetus or women stuck in humanitarian emergencies, to access abortion post-20 weeks. 
• Discrimination for unmarried status: The government will have to step up to promote safe abortions irrespective of the fact that the woman is married or not.
• Loopholes in the government’s current legislation: Currently, there is no mechanism under the rules to monitor the movement of abortion pills.

•  Biased consultation committee: MTP amendment has created a new institution called the “medical board”. This board consists of a gynaecologist, paediatrician, radiologist and so on.
• A gynaecologist is the only member of this board who by virtue of training, qualification and experience can take a final decision. In case a board takes a decision on basis of the majority of the votes, the opinion of one gynaecologist may go unheard.