India’s highest court has released a decision equalizing access to abortion, correcting a 2021 law that limited access for unmarried women to the 20th week of their pregnancies.
The ruling means that all women in India, irrespective of marital status, have a right to get an elective abortion until the 24th week, or the end of the second trimester.
The decision is important as it challenges the strong cultural stigma against unmarried women in India, which is exacerbated in the case of pregnancies outside wedlock.
The court also sent an important pro-choice signal from the world’s soon-to-be most populous country, at a time when conservative political forces are curtailing access to reproductive health, or attempting to, in the US and globally.
The distinction between married and unmarried women is unconstitutional
Since 1971, all Indian women have had access to abortion until the 20th week of pregnancy, under the Medical Termination Pregnancy Act. In 2021, the act was amended to extend access to 24 weeks in specific cases, such as rape, incest, or mental illness. The extension also was granted to married women—whether currently married, divorced, or widowed—which essentially left only unmarried women with a limit of 20 weeks.
“If [the expansion] is understood as only for married women, it would perpetuate the stereotype that only married women indulge in sexual activities. This is not constitutionally sustainable,” said justice Dhananjaya Y. Chandrachud, reading the decision in court. “The artificial distinction between married and unmarried women cannot be sustained.”
The decision also contains a powerful statement on the right to abortion. “The foetus relies on the woman’s body to sustain, therefore, the decision to terminate is firmly rooted in their right of bodily autonomy. If the State forces a woman to carry an unwanted pregnancy to the full term, it will amount to an affront to her dignity,” says the court.
The court also acknowledged the existence of marital rape, and that pregnancies resulting from forced sex during wedlock can be considered the result of rape. While this doesn’t change the terms under which a woman can seek an abortion, it is an important symbolic acknowledgement.
Additional protections for adolescents
In the same decision, the court added protections for minors seeking abortions, ruling that doctors don’t need to disclose their younger patients’ identity to the police. That requirement assumed any pregnancy for a minor was the result of rape, discounting the fact that some adolescents engage in consensual sex, said the court. It also pointed to a lack of sexual education and stigma as causes of teenage pregnancy.
“The absence of sexual health education in the country means that most adolescents are unaware of how the reproductive system functions as well as how contraceptive devices and methods may be deployed to prevent pregnancies,” the decision reads. “The taboos surrounding pre- marital sex prevent young adults from attempting to access contraceptives.”