Looking Back at the Abortion Laws

The article 'Looking Back at the Abortion Laws' is a positive approach to cover the active steps of the judiciary and legislature in the protection of the abortion rights of women. The author explains with the help of case laws and basically, the scope covers abortion rights and progress in India as well as the US. The author also suggests improvement to the limited access to safe abortion.

The Roe v. Wade decision, which declared abortion to be a constitutional right, was overturned by the Supreme Court of the United States by a 6-3 decision. With its most recent ruling, the pro-life v. pro-choice argument has been brought up not just in the United States but also across the globe. Joe Biden, the president of the United States, has also publicly denounced the Supreme Court's decision. Now, some could argue that Joe Biden's comments were just a little bit motivated by politics. as Donald Trump appointed the Supreme Court justices who made the decision. However, the folk's rage is genuine.

History of Abortion Rights in the US

Abortion-related social and legal regulations may be traced back to the colonial era. Before "quickening," or the time when a pregnant woman feels the foetus move, usually at about four or five months, abortion was permitted in the British colonies. State laws banning abortion did not first arise until the 1820s, and the earliest versions of these laws were unclear and not properly implemented. In order to stop the selling of chemical mixtures intended to cause abortions, several regulations were created as poison control measures.

Slaves were under the control of their masters, who often desired their subjugated captives to reproduce as many children as possible. As a result, the history of abortion regulation is entwined with racism. Black women and other women of colour still do today.

Despite the movement's opposition to abortion, the demand for birth control was regarded as a challenge to male domination, and efforts to regulate and limit women to the traditional childbearing role included banning abortion. Additionally, it was a method for males in the newly formed medical profession to usurp midwives, whom they detested for executing abortions, and take over the very lucrative industry of birthing.

Attacks against the right to an abortion were also motivated by racism and white supremacy. The eugenics movement fueled worries about the disappearance of the white identity. Attempts to outlaw abortion were driven in the late 1800s by rising immigration, particularly that of Catholic immigrants, and the dropping birthrate among white Protestant women born in the United States. Black midwives were frequently the object of specific censure from White doctors.

Roe v. Wade: A Landmark Judgment

In its historic Roe v. Wade, 410 U.S. 113 (1973), ruling from January 22, 1973, the U.S. Supreme Court declared all current criminal abortion prohibitions unconstitutional. According to the Court, every individual has a basic "right to privacy" that is "based on the concept of personal liberty" as stated in the Fourteenth Amendment.

The Court evaluated the right to privacy of a pregnant person against the interests of the state in promoting the mother's health and foetal survival. The Supreme Court ruled that the decision to have an abortion must be made by the person who is pregnant during the first trimester, in consultation with their doctor; that the state may regulate abortion in the second trimester in ways that are reasonably related to maternal health; and that the state may regulate or prohibit abortion in the third trimester, except where necessary to preserve the person's life or health.

While many people were happy that abortion was now legal nationwide, others were horrified and sought to limit access by petitioning state legislatures. Abortion became a divisive topic at this time. While the Democratic party backed abortion rights, the Republican party embraced an anti-abortion stance. Although Southern Baptists initially backed the Roe v. Wade abortion rights, the issue quickly became a major political issue for the growing number of white evangelical Christians, who rallied to limit access to abortion and allied themselves with the Republican party. After their support for racial segregation lost its viability as a wedge issue, they needed an effective unifying topic, which is why their language and policies changed.

Parental Consent and Bellotti v. Baird

The Supreme Court held in Bellotti v. Baird, (1979) that states might require a child to get parental consent for an abortion. However, the Court mandated that states offer a judicial bypass option, whereby minors could ask a judge to permit them to have an abortion without telling their parents, provided they could demonstrate that they were mature enough to make their own choice or that the abortion was in their interests.

Dobbs v. Jackson Women’s Health Organization (Decided on 24th June 2022): The United States Supreme Court eliminated Constitutional safeguards for the right to an abortion on June 24, 2022. The landmark decisions in Roe vs. Wade (1973) and Planned Parenthood v. Casey (1986) were reversed by the wide ruling in Dobbs v. Jackson Women's Health Organization, (1992). A basic constitutional privilege was curtailed for the first time in Supreme Court and American history.

History of Abortion Rights in India

Abortion was not permitted in India until 1971; in fact, it was illegal under section 312 of the IPC. However, the Indian Constitution gave women the right to an abortion in 1971.

MTP Act: Medical Termination of Pregnancy (1971)

The Shah Committee, which was established by the Indian government in 1964, researched the sociocultural, medical, and legal aspects of abortion. The group advocated for legalising abortion and cited several field research. The Constitution was amended to incorporate the Medical Termination of Pregnancy Act in 1971. It implied that women up to 20 weeks of pregnancy had the right to an abortion under the following circumstances:

1. If the pregnancy offers a serious risk to the woman's life and is likely to harm her physically and mentally.

2. If the unborn child would be physically or intellectually disadvantaged or pose a threat to their lives.

3. If a rape led to the pregnancy.

4. If a failed method of birth control leads to pregnancy.

A few cases of abortions performed after 20 weeks have also requested Supreme Court approval. The highest court has this authority under Article 142.

MTP Amendment Act (2021)

In March 2020, the MTP Amendment Bill was approved by both Houses of Parliament. One of the final laws approved before the lockdown was enacted was this one. This act is an improved and liberalised version of the prior act, which it embodied in its core.

It raised the threshold for pregnant women to have an abortion from 20 weeks to 24 weeks. This law also permitted unmarried women to end a pregnancy if contraception had failed. Women now have the privilege of having their privacy. Only the designated individual may get information on abortion from the medical institute. This new law extends more protection to rape survivors, incest victims, people with disabilities, juveniles, etc. Before this change, a licenced medical professional may terminate a foetus for up to twelve weeks. Additionally, the advice of two doctors was required for periods longer than 12 weeks and less than 20 weeks. One doctor is now required for abortions performed within 20 weeks and two physicians are required for those performed between 20 and 24 weeks.

A medical board is responsible for deciding if any woman requests an abortion post-24 weeks by evaluating the seriousness of the necessity.

Lacunae in MTP Laws

The absence of formal policy on appropriate clinical practice and research is a significant flaw in Indian abortion legislation. Published national technical requirements fall short of ensuring excellent clinical practice even at institutions that perform legal abortions and do not follow WHO's worldwide recommendations.

As a result, 8–15% of reported abortion clinics continue to employ general anaesthesia, and 39–79% of physicians continue to perform sharp curettage. Simply put, India has not been able to find a mechanism to guarantee the use of enhanced and safer abortion techniques brought about by research and continually advancing reproductive technology.

Similar to much of India's health care, abortion treatment is still not given enough attention, particularly in the public sector. A lack of effective law (or its inability to be implemented) combined with subpar treatment and a weak work ethic in the public healthcare sector has led to an unchecked expansion of the private sector's services, many of which are exploitative. Even though India's abortion policy and legislation are progressive, erroneous and unneeded practices frequently make it difficult for these policies and laws to increase access to safe abortion treatment.

The bill gives state governments the authority to control abortion providers. Even though states have modified these laws and regulations, there are differences in how they are interpreted and applied.

Ways Ahead

Despite not being particularly innovative, recent legislation and policy changes nonetheless mark a positive development in the fight to protect women's access to safe abortion treatment. Goals and objectives from the Action Plan of India's National Population Policy, 2000 that might be used:

1. Expanding access to the availability of safe abortion services.
2. Establishing additional facilities and professionals with the necessary qualifications, particularly in remote regions.
3. The decoupling of clinic and provider accreditation.
4. The tying of policy to technology, research, and excellent clinical practice.
5. The use of uniform standards in both the public and commercial sectors.

These policies require political will and commitment in the form of proper financial allocation, training, and infrastructural support, together with social inputs based on women's needs, to be implemented effectively. The National Population Policy, 2000's operational methods for abortion must be implemented through advocacy and legislation at the federal and state levels.

References

[1] The History of Abortion Laws in the United States, Available Here

[2] The History of Abortion Laws in India & the US, Available Here

[3] Abortion Laws in India: A Look Back At The Timeline, Available Here

[4] Abortion Law, Policy and Services in India: A Critical Review, Available Here

[5] Abortion in India, Available Here

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