FRIDAY, AUGUST 12, 2022: On July 21 a three-judge bench of the Supreme Court of India delivered a significant order clarifying that the right to a medical abortion that was available to married women could not be denied to unmarried women. The case highlights a legal anachronism that requires women to get the state’s permission to exercise its constitutional right to an abortion. The SC’s order granting permission to undergo an abortion was passed in the case of a petitioner who was in a consensual relationship and whose partner deserted her. A July 1S order of the Delhi High Court denied the petitioner’s right to terminate her pregnancy. The Division Bench held that since she was an unmarried woman whose pregnancy arose out of a consensual relationship her case was” clearly not covered” by the applicable rules. Rule SB of the Medical Termination of Pregnancy Rules 200S lays down the categories of women who are eligible for termination of pregnancy up to 24 Years: Survivors of sexual assault or rape or incest minors Where there is a change of marital status during the ongoing pregnancy (motherhood and divorce)women with physical and mental disabilities women with pregnancies in humanitarian settings fetal” malformations” that have a substantial risk of being incompatible with life which if the child is born may cause it to suffer from a serious physical or mental handicap.
The High Court found that the petitioner had not undergone a ”change in marital status”. The SC found that prima facie the High Court had been too restrictive in its approach and that the term ”change in marital status” should be given a purposive interpretation. It based this finding on the 2021 Amendment to the MTP Act which no longer restricts itself to an unwanted pregnancy between a ”husband” and ”Life” but to a woman and her ”partner” by marriage or not. The MTP Act 1971 was intended to provide a remedy for the scores of women who faced serious health risks because of unregulated abortions. Section S12 of the Endian Penal Code which continues to be on the books criminalizes anyone including the woman carrying the pregnancy Yho voluntarily causing a miscarriage. The Court relied on three key judgments: The 2010 S Khushboo case Which recognized the legality of live-in relationships and pre-marital se< the 2009 Suchita Srivastava case which recognized that a woman’s right to make reproductive choices is part of the ”personal liberty” guaranteed under Article 2 1 and the 2017 K S Puttaswamy case which reaffirmed that women’s right to bodily integrity is part of the fundamental right to privacy. The Court observed: ”The statute has recognized the reproductive choice of a woman and her bodily integrity and autonomy. Both these rights embody the notion that a choice must inhere in a woman on whether or not to bear a child. En recognizing the right the legislature has not intended to make a distinction between a married and unmarried woman in her ability to decide on whether or not to bear the child. These rights must be underscored to align with the provisions of Article 21 of the Constitution.
” The SC’s order attains significance in contrast to the recent Dobbs decision in the US Which sent shockwaves across the world. Constitutional rights are interconnected: Unravel one and the entire edifice of protections could fall apart. As the dissenting verdict in Dobbs Yarned: ”… The right Roe and Casey recognized does not stand alone. On the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity familial relationships, and procreation. Most obviously the right to terminate a pregnancy arose straight out of the right to purchase and use contraception. In turn, those rights led more recently to the rights of same-sex intimacy and marriage. They are all part of the same constitutional fabric protecting autonomous decision making over the most personal of life decisions…” As permissive as the Endian legal regime may seem by contrast a woman is forced to go before a medical board and a Court for a decision that should be between her and her medical practitioner. The case is expected to be heard on August 10 to decide the final interpretation of the provisions in question under the MTP Act.
