NEW DELHI: In a a major milestone on women’s liberation, the Supreme Court on Thursday held that all women, married or unmarried, have the right to safe and legal abortion at any time up to 24 weeks of the pregnancy.
A 3-judge Bench headed by Justice D Y Chandrachud ruled that the rights available to married women to abortion under the Medical Termination of Pregnancy Act, 1971, to abort a foetus are equally available to the unmarried women.
The Bench, also comprising Justices A S Bopanna and J B Pardiwala, placed the forceful pregnancy of a married woman in the category of “marital rape” for the purpose of the abortion in a 75-page long judgment. Though the Indian law yet does not consider marital rape as an offence, the Court said a sexual assault by husband can be classified as a marital rape under the MTP Act.
“Married women may also form part of the class of rape survivors. Rape means sexual intercourse without consent, and intimate partner violence is a reality. In this case also, woman may get forcefully pregnant,” it said.
The right to abortion has proved contentious globally after the United States Supreme Court overturned in June its landmark decision in Roe v Wade that had legalised the procedure in the US.
The top court’s verdict came in response to a petition by a 25-year old woman who said her pregnancy resulted from a consensual relationship but she had sought abortion when it failed.
Putting emphasis on the consequences of unwanted pregnancy on women’s body and mind and the fact that the biological process of pregnancy transforms a woman’s body, the Bench decision to carry the pregnancy to full term or terminate is firmly rooted under the right to bodily autonomy and decisional autonomy of the pregnant women.
“If women with unwanted pregnancies are forced to carry their pregnancies to term, the state would be stripping them of the right to determine the immediate and long-term path that their life will take. Depriving women of their autonomy not only over their bodies but also over their life is an affront to dignity. It’s right to dignity which will be under attack if women are forced to continue with their unwanted pregnancies and there is no rationale,” the Court said.
It said though the 1971 Act was limited to the married women, the statement of objects and reasons in its 2021 amendment does not differentiate between married and unmrried and therefore “all women entitled to safe and legal abortion.”
The bench said the artificial distinction between married and unmarried women cannot be sustained and that women must have the autonomy to have free exercise of these rights. It said a lack of marital status could not deprive a woman of the right.
The judgment overrules the 1971 Act limiting the abortion to married women, divorcees, widows, minors, disabled and mentally ill women and survivors of sexual assault or rape.
While stressing that the reproductive autonomy is closely linked to bodily autonomy, the court ruled that the right to choose contraception, the number of children and whether or not to abort have to be taken without the influence of social factors.
It said interpretation of the MTP Act has to reflect the societal realities as consequences of unwanted pregnancy on a woman cannot be undermined and the health of the foetus depends on the mental wellbeing of the mother.
The bench referred to parliamentary debate statistics on unsafe abortions and to a Global Health Study by the British Medical Journal which had concluded that 67 per cent of abortions were unsafe. It added that denying access to safe abortion will increase people resorting to unsafe abortions.
Pointing to the abortion rights for rape survivors, the court said married women may also form part of a class of survivors of sexual assault and rape as it is quite possible that a woman may become pregnant on account of a non-consensual act by the husband.
It also clarified that nothing in the judgment must be construed as diluting the provisions of the pre-Conceptions and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act of 1994.
###
