Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dr. DY Chandrachud*, AS Bopanna and JB Pardiwala, JJ, while holding that unmarried or single women have the right to safe abortion as much as the married women, went into a detailed discussion around the equal status of married and unmarried or single women for the purpose of the Medical Termination of Pregnancy laws.

While the Court gave a purposive interpretation to Rule 3B(c) of the Medical Termination of Pregnancy Rules, 2003 (MTP Rules) and observed that “prohibiting unmarried or single pregnant women (whose pregnancies are between twenty and twenty-four weeks) from accessing abortion while allowing married women to access them during the same period would fall foul of the spirit guiding Article 14”, it also went ahead to include married women under the scope of Rule 3B(a) i.e. ‘survivors of sexual assault or rape or incest’.

https://www.scconline.com/blog/post/2022/09/29/unmarried-persons-women-cannot-be-denied-right-abortion-based-on-patriarchal-principles-about-permissible-sex-supreme-court-chundrachud-legal-research-updates-news/

This observation of the Court is particularly interesting as the challenge to Exception 2 to Section 375 of the IPC is already pending consideration before the Supreme Court. While the Court left the constitutional validity to be decided in the appropriate proceeding, it observed,

“It is only by a legal fiction that Exception 2 to Section 375 of the IPC removes marital rape from the ambit of rape, as defined in Section 375. Understanding “rape” under the MTP Act and the rules framed thereunder as including marital rape does not have the effect of striking down Exception 2 to Section 375 of the IPC or changing the contours of the offence of rape as defined in the IPC.”

The Court explained that Rule 3B(a) is based on an acknowledgement of the reality that survivors of sexual assault, rape, or incest may face immense stigma if and when they share the fact of their assault with others, including family members. Many survivors, including minors, may not even be aware that pregnancy is a possible consequence of rape. Hence, the delay in revealing the fact that a man has raped them may lead to a delay in discovering the pregnancy. Resultantly, the woman in question may be unable to access medical facilities in a timely fashion and may therefore find herself unable to terminate the pregnancy before the completion of twenty weeks.

In the context of marital rape, the Court held that married women may also form part of the class of survivors of sexual assault or rape.

“The ordinary meaning of the word ‘rape’ is sexual intercourse with a person, without their consent or against their will, regardless of whether such forced intercourse occurs in the context of matrimony. A woman may become pregnant as a result of non-consensual sexual intercourse performed upon her by her husband. We would be remiss in not recognizing that intimate partner violence is a reality and can take the form of rape. The misconception that strangers are exclusively or almost exclusively responsible for sex- and gender-based violence is a deeply regrettable one. Sex- and gender-based violence (in all its forms) within the context of the family has long formed a part of the lived experiences of scores of women.”

Considering the history of offences against women in India, including sexual assault by family members, the Court observed that it is not inconceivable that married women become pregnant as a result of their husbands having “raped” them.

“The nature of sexual violence and the contours of consent do not undergo a transformation when one decides to marry. The institution of marriage does not influence the answer to the question of whether a woman has consented to sexual relations. If the woman is in an abusive relationship, she may face great difficulty in accessing medical resources or consulting doctors.”

The Court also made clear that in order to avail the benefit of Rule 3B(a), the woman need not necessarily seek recourse to formal legal proceedings to prove the factum of sexual assault, rape or incest. Neither Explanation 2 to Section 3(2) nor Rule 3B(a) require that the offender be convicted under the IPC or any other criminal law for the time being in force before the pregnant woman can access an abortion. Further, there is no requirement that an FIR must be registered or the allegation of rape must be proved in a court of law or some other forum before it can be considered true for the purposes of the MTP Act. Such a requirement would be contrary to the object and purpose of the MTP Act. In fact, Explanation 2 triggers the legal presumption as to mental trauma “where any pregnancy is alleged by the pregnant woman to have been caused by rape.”

Taking note of all these factors, the Court, hence, held that notwithstanding Exception 2 to Section 375 of the IPC, the meaning of the words “sexual assault” or “rape” in Rule 3B(a) includes a husband’s act of sexual assault or rape committed on his wife. The meaning of rape must therefore be understood as including marital rape, solely for the purposes of the MTP Act and any rules and regulations framed thereunder. Any other interpretation would have the effect of compelling a woman to give birth to and raise a child with a partner who inflicts mental and physical harm upon her.

[X v. HEALTH AND FAMILY WELFARE DEPARTMENT, 2022 SCC OnLine SC 1321, decided on 29.09.2022]


*Judgment by: Dr. Justice DY Chandrachud

For Petitioner(s): Advocate Dr. Amit Mishra

For Respondent(s): ASG Aishwarya Bhati

Also Read 

https://www.scconline.com/blog/post/2022/07/22/unmarried-woman-cannot-be-denied-right-to-safe-abortion-supreme-court-delhi-high-court-termination-of-pregnancy-legal-laws-news-research-updates/

Case BriefsSupreme Court

“Besides physical consequences, unwanted pregnancies which women are forced to carry to term may have cascading effects for the rest of her life by interrupting her education, her career, or affecting her mental wellbeing.”

Note: The Court has used the term “woman” in this judgment as including persons other than cis-gender women who may require access to safe medical termination of their pregnancies.

Supreme Court: An unemployed unmarried woman found out in June that she was pregnant. In the same month her partner abandoned her. Delhi High Court held that she does not have a right to a safe abortion as her case was “clearly not covered” in any of the categories mentioned under Rule 3B of the Medical Termination of Pregnancy Rules, 2003 (MTP Rules).

When the matter reached before the Supreme Court, on 21.07.2022 the 3-judge bench of Dr. DY Chandrachud, Surya Kant and AS Bopanna, JJ, in a progressive take, held that a woman cannot be denied the right to a safe abortion only on the ground of her being unmarried. It observed that after the 2021 amendment to the Medical Termination of Pregnancy Act, 1971 (MTP Act), the phrase ‘married woman’ has been replaced by ‘any woman’ and the word ‘husband’ has been replaced by ‘partner. Which goes on to show that the legislature did not intend to leave out unmarried women from the scope of the Act.

Hence, Rule 3B (c) which provides for “change of marital status during the ongoing pregnancy” should be given purposive interpretation to include an unmarried woman who’s partner has abandoned her.

The Court said that there is no basis to deny unmarried women the right to medically terminate the pregnancy, when the same choice is available to other categories of women, especially when live-in relationships have already been recognized by the Court.

Woman cannot be denied right to safe abortion only on the ground of her being unmarried: Supreme Court

While the interim order was passed in the case on 21.07.2022 in X v. HEALTH AND FAMILY WELFARE DEPARTMENT, 2022 SCC OnLine SC 905, allowing the woman to terminate her pregnancy, the Court took over two months to write a far-reaching 75-pages-long verdict, touching upon various aspects like equal status of married and unmarried or single women, right to reproductive autonomy, right to dignity, effect of unwanted pregnancy on mental health of women, etc.. The 3-judge bench of Dr. DY Chandrachud*, AS Bopanna and JB Pardiwala, JJ observed that,

“Prohibiting unmarried or single pregnant women (whose pregnancies are between twenty and twenty-four weeks) from accessing abortion while allowing married women to access them during the same period would fall foul of the spirit guiding Article 14. The law should not decide the beneficiaries of a statute based on narrow patriarchal principles about what constitutes “permissible sex”, which create invidious classifications and excludes groups based on their personal circumstances.”

Here are the key takeaways from what the Supreme Court said in the detailed verdict:

Barriers to accessing safe and legal abortions

Despite the enactment of the MTP Act, a number of hurdles, such as insufficient infrastructural facilities, a lack of awareness, social stigma, and failure to ensure confidential care, continue to prevent full access to safe and legal abortions, pushing women to avail of clandestine, unsafe abortions. Unmarried women face particular barriers due to gender stereotypes about women’s sexual autonomy outside marriage. Such barriers may contribute to a delay in accessing abortion services or a complete denial of such services, consequently negating women’s right to reproductive autonomy.

Transcending the institution of marriage as a source of rights

The Court stressed upon the need for the law to remain cognizant of the fact that changes in society have ushered in significant changes in family structures. It observed,

“While much of law’s benefits were (and indeed are) rooted in the institution of marriage, the law in modern times is shedding the notion that marriage is a precondition to the rights of individuals (alone or in relation to one another).”

Societal reality, as observed in Deepika Singh v. Central Administrative Services, 2022 SCC OnLine SC 1088, indicates the need to legally recognize non-traditional manifestations of familial relationships. Such legal recognition is necessary to enable individuals in nontraditional family structures to avail of the benefits under beneficial legislation, including the MTP Act.

Also read: Family” includes domestic, unmarried/queer relationships

Equal status of married and unmarried or single women

In the evolution of the law towards a gender equal society, the interpretation of the MTP Act and MTP Rules must consider the social realities of today and not be restricted by societal norms of an age which has passed into the archives of history. As society changes and evolves, so must our mores and conventions. A changed social context demands a readjustment of our laws.

“Sexual assault” or “rape” under Medical Termination of Pregnancy laws includes “marital rape”: holds Supreme Court, without changing the contours of ‘rape’ defined under Section 375 IPC

Mental Health

Article 21 of the Constitution recognizes and protects the right of a woman to undergo termination of pregnancy if her mental or physical health is at stake. The understanding of the term mental health cannot be confined to medical terms or medical language but should be understood in common parlance. The MTP Act itself recognizes the need to look at the surrounding environment of the woman when interpreting injury to her health. Section 3(3) states that while interpreting “grave injury to her physical or mental health”, account may be taken of the pregnant woman’s actual or reasonably foreseeable environment. The expression “grave injury to her physical or mental health” used in Section 3(2) is used in an overarching and all-encompassing sense. The two explanations appended to Section 3(2) provide the circumstances under which the anguish caused by a pregnancy may be presumed to constitute a grave injury to the mental health of a woman.

Right to reproductive autonomy

The right to reproductive autonomy is closely linked with the right to bodily autonomy i.e. the right to take decisions about one’s body. The decision to carry the pregnancy to its full term or terminate it is firmly rooted in the right to bodily autonomy and decisional autonomy of the pregnant woman i.e. the right to choose the course of her life as,

“The consequences of an unwanted pregnancy on a woman’s body as well as her mind cannot be understated. The foetus relies on the pregnant woman’s body for sustenance and nourishment until it is born. The biological process of pregnancy transforms the woman’s body to permit this. The woman may experience swelling, body ache, contractions, morning sickness, and restricted mobility, to name a few of a host of side effects. Further, complications may arise which pose a risk to the life of the woman. A mere description of the side effects of a pregnancy cannot possibly do justice to the visceral image of forcing a woman to continue with an unwanted pregnancy.”

Hence, it is the woman alone who has the right over her body and is the ultimate decisionmaker on the question of whether she wants to undergo an abortion.

Right to dignity

The right to choose for oneself – be it as significant as choosing the course of one’s life or as mundane as one’s day-to-day activities – forms a part of the right to dignity. It is this right which would be under attack if women were forced to continue with unwanted pregnancies.

The right of every woman to make reproductive choices without undue interference from the state is central to the idea of human dignity. Deprivation of access to reproductive healthcare or emotional and physical wellbeing also injures the dignity of women.

Purposive Interpretation of Rule 3B of the MTP Rules to include unmarried women, single women, or women without a partner under its ambit

The common thread running through each category of women mentioned in Rule 3B[1] is that the woman is in a unique and often difficult circumstance, with respect to her physical, mental, social, or financial state. It is important to note that Rule 3B does not enumerate all the potential changes that a woman’s material circumstances may undergo. It merely specifies some of the potential changes to a woman’s material circumstances. From the object and purpose of the MTP Act, its overall scheme, and the categories of women specified in Rule 3B, it is evident that it was not the intention of the legislature to restrict the benefit of Section 3(2)(b) and Rule 3B only to women who may be confronted with a material alteration in the circumstances of their lives in the limited situations enumerated in Rule 3B. Rather, the benefit granted by Rule 3B must be understood as extending to all women who undergo a change of material circumstances.

“It is not possible for either the legislature or the courts to list each of the potential events which would qualify as a change of material circumstances. Suffice it to say that each case must be tested against this standard with due regard to the unique facts and circumstances that a pregnant woman finds herself in.”

Rule 3B(c) speaks of a change of marital status during an ongoing pregnancy and is followed in parenthesis by the words “widowhood and divorce”. However, the expression “change of marital status” should be given a purposive rather than a restrictive interpretation. The expressions “widowhood and divorce” need not be construed to be exhaustive of the category which precedes it.”

“If Rule 3B(c) was to be interpreted such that its benefits extended only to married women, it would perpetuate the stereotype and socially held notion that only married women indulge in sexual intercourse, and that consequently, the benefits in law ought to extend only to them. This artificial distinction between married and single women is not constitutionally sustainable. The benefits in law extend equally to both single and married women.”

[X v. HEALTH AND FAMILY WELFARE DEPARTMENT,2022 SCC OnLine SC 1321, decided on 29.09.2022]


*Judgment by: Dr. Justice DY Chandrachud

For Petitioner(s): Advocate Dr. Amit Mishra

For Respondent(s): ASG Aishwarya Bhati


[1] Rule 3B of the MTP Rules lists down the category of women eligible for termination of pregnancy up to twenty-four weeks.-

(a) survivors of sexual assault or rape or incest;

(b) minors;

(c) change of marital status during the ongoing pregnancy (widowhood and divorce);

(d) women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)];

(e) mentally ill women including mental retardation;

(f) the foetal malformation that has substantial risk of being imcompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and

(g) women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: A Division Bench of Sathish Chandra Sharma, CJ and Subramonium Prasad, J refused termination of pregnancy to an unmarried woman whose pregnancy arose out of a consensual relationship after holding that her case was clearly not covered by any of the categories mentioned under Rule 3B of the Medical Termination of Pregnancy Rules, 2003 as on the date of the judgment.

The Petitioner aged 25 years is a 24 weeks pregnant unmarried woman. Her pregnancy arose out of consensual relationship that eventually failed. It was her case that she cannot give birth to the child due to her financial incapacity to raise and handle the child along with mental incapacity to be a mother in order to secure her future from social stigma.

The Court noted that a perusal of Section 3(2)(a) Medical Termination of Pregnancy Act, 1971 provides that the Medical Practitioner can terminate the pregnancy, provided the pregnancy does not exceed 20 weeks. Section 3(2) (b) of the Act provides for termination in circumstances where the pregnancy exceeds 20 weeks but does not exceed 24 weeks.

Further, it was noted that a perusal of Section 3(2)(b) Medical Termination of Pregnancy Act, 1971 provides that the said sub-Section is applicable only to those women who are covered under the Medical Termination of Pregnancy Rules, 2003. Rule 3B of the Medical Termination of Pregnancy Rules, 2003, which permits termination of pregnancy up to 24 weeks, reads as under: –

“3-B. Women eligible for termination of pregnancy up to twenty-four weeks.

The following categories of women shall be considered eligible for termination of pregnancy under clause (b) of sub-section (2) section 3 of the Act, for a period of up to twenty-four weeks, namely:

(a) survivors of sexual assault or rape or incest;

(b) minors;

(c)change of marital status during the ongoing pregnancy (widowhood and divorce);

(d) women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016];

(e) mentally ill women including mental retardation;

(f) the foetal malformation that has 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

(g) women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.”

The Court observed that the petitioner, who is an unmarried woman and whose pregnancy arises out of a consensual relationship, is clearly not covered by any of the Clauses under the Medical Termination of Pregnancy Rules, 2003. Therefore, Section 3(2)(b) of the Act is not applicable to the facts of this case.

A noteworthy mention was made by the counsel for petitioners regarding non-inclusion of unmarried women under Rule 3B of the Medical Termination of Pregnancy Rules, 2003 being violative of Article 14 of the Constitution of India. The Court, however, observed that whether such rule is valid or not can be decided only after the said rule is held ultra vires, for which purpose, notice has to be issued in the writ petition and has been done so by this Court.

Noting that granting interim relief to the petitioner now would amount to allowing the writ petition itself, the Court held that in light of the law prevailing on the date of the passing of the order, Rule 3B Medical Termination of Pregnancy Rules, 2003, stands, and thus “this Court, while exercising its power under Article 226 of the Constitution of India, 1950, cannot go beyond the Statute.”

This order, however, stands modified by the Supreme Court vide order dated 21-07-2022 wherein it has been held that woman cannot be denied right to safe abortion only on the ground of her being unmarried.

[X v. Principal Secretary, 2022 SCC OnLine Del 2171, decided on 15-07-2022]


Advocates who appeared in this case :

Dr. Amit Mishra, Advocate, for the Petitioner;

Ms. Hetu Arora Sethi, ASC for GNCTD with Mr. Arjun Basra, Advocate for R-1 Mr. Kirtiman Singh, CGSC with Mr. Waize Ali Noor, Ms. Kunjala Bhardwaj, Advocates for R-2, for the Respondent.


*Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a case relating to the termination of pregnancy of an unmarried woman, whose pregnancy arose out of a consensual relationship, the 3-judge bench of Dr. DY Chandrachud, Surya Kant and AS Bopanna, JJ has given a progressive ruling by holding that a woman cannot be denied the right to a safe abortion only on the ground of her being unmarried.

“Denying an unmarried woman the right to a safe abortion violates her personal autonomy and freedom.”

Facts

In the case at hand, the woman, a permanent resident of Manipur currently residing in Delhi, was in a consensual relationship but the relationship failed. In the month of June 2022 she learnt that she was pregnant. On 5 July 2022, an ultrasound scan revealed a single intrauterine pregnancy of a term of twenty-two weeks. The petitioner decided to terminate the pregnancy by averring that she has stated that she is the eldest amongst five siblings and her parents are agriculturists. She holds a BA degree and, in the absence of a source of livelihood, she would be unable to raise and nurture a child. It is the case of the woman that she was deserted by her partner at the last stage in June 2022 causing her immense mental agony, trauma, and physical suffering.

The laws in question

The woman sought a direction for the inclusion of an unmarried woman within the ambit of Rule 3B of the Medical Termination of Pregnancy Rules 2003 (MTP Rules) for the termination of pregnancy in terms of the provisions of clause (b) of sub-section (2) of Section 3 of the Medical Termination of Pregnancy Act 1971 (MTP Act).

Section 3(2) of the MTP Act

Clause (a) of sub-section (2) of Section 3 permits the termination of pregnancy where the length of pregnancy does not exceed twenty weeks. Clause (b) permits termination where the length of pregnancy exceeds twenty weeks but does not exceed twenty four weeks for such categories of women “as may be prescribed by Rules made under this Act”. However, an opinion must be formed by not less than two registered medical practitioners that inter alia “the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health”.

Explanation 1 to Section 3 stipulates that for the purpose of clause (a), where a pregnancy has occurred as a result of a failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman. Explanation 1 evidently qualifies clause (a) but not clause (b).

Rule 3B of the MTP Rules

This rules lists down the category of women eligible for termination of pregnancy up to twenty-four weeks.-

(a) survivors of sexual assault or rape or incest;

(b) minors;

(c) change of marital status during the ongoing pregnancy (widowhood and divorce);

(d) women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)];

(e) mentally ill women including mental retardation;

(f) the foetal malformation that has substantial risk of being imcompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and

(g) women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.

Delhi High Court’s order

The High Court denied the right to safe abortion to the woman by holding that since she is an unmarried woman whose pregnancy arose out of a consensual relationship, her case is “clearly not covered” by any of the above clauses of Rule 3B and, as a consequence, Section 3(2)(b) is not applicable.

Supreme Court’s observations

Disagreeing with the view, the Supreme Court observed that the High Court has taken an unduly restrictive view of the provisions of clause (c) of Rule 3B.

“Clause (c) speaks of a change of marital status during an ongoing pregnancy and is followed in parenthesis by the words “widowhood and divorce”. The expression “change of marital status” should be given a purposive rather than a restrictive interpretation. The expressions “widowhood and divorce” need not be construed to be exhaustive of the category which precedes it.”

Explaining the fundamental principle of statutory interpretation that the words of a statute must be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act and the intent of the legislature, the Court said that Parliament by amending the MTP Act through Act 8 of 2021 intended to include unmarried women and single women within the ambit of the Act. This is evident from the replacement of the word ‘husband’ with ‘partner’ in Explanation I of Section 3(2) of the Act.

It was further explained that Explanation 1 expressly contemplates a situation involving an unwanted pregnancy caused as a result of the failure of any device or method used by a woman or her partner for the purpose of limiting the number of children or preventing pregnancy. Hence, it cannot be said that the Parliamentary intent is to confine the beneficial provisions of the MTP Act only to a situation involving a matrimonial relationship.

“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. In recognizing the right the legislature has not intended to make a distinction between a married and unmarried woman, in her ability to make a decision on whether or not to bear the child. These rights, it must be underscored, are in consonance with the provisions of Article 21 of the Constitution.”

Drawing a comparison between the two provisions before and after the 2021 amendment, the Court noticed that the phrase ‘married woman’ was replaced by ‘any woman’ and the word ‘husband’ was replaced by ‘partner’. But evidently, there is a gap in the law : while Section 3 travels beyond conventional relationships based on marriage, Rule 3B of the MTP Rules does not envisage a situation involving unmarried women, but recognizes other categories of women such as divorcees, widows, minors, disabled and mentally ill women and survivors of sexual assault or rape. There is no basis to deny unmarried women the right to medically terminate the pregnancy, when the same choice is available to other categories of women, especially when live-in relationships have been recognized by the Supreme Court.

“A woman’s right to reproductive choice is an inseparable part of her personal liberty under Article 21 of Constitution. She has a sacrosanct right to bodily integrity.”

Holding that the distinction between a married and unmarried woman does not bear a nexus to the basic purpose and object which is sought to be achieved by Parliament which is conveyed specifically by the provisions of Explanation 1 to Section 3 of the Act, the Court was, hence, of the opinion that allowing the petitioner to suffer an unwanted pregnancy would be contrary to the intent of the law enacted by Parliament. Moreover, allowing the petitioner to terminate her pregnancy, on a proper interpretation of the statute, prima facie, falls within the ambit of the statute and the petitioner should not be denied the benefit on the ground that she is an unmarried woman.

The Court also took note of the fact that the petitioner had moved the High Court before she had completed 24 weeks of pregnancy, hence, the delay in the judicial process cannot work to her prejudice.

[X v. HEALTH AND FAMILY WELFARE DEPARTMENT, 2022 SCC OnLine SC 905, order dated 21.07.2022]


For Petitioner(s): Advocates Dr. Amit Mishra and Rahul Sharma

For Respondent(s): ASG Aishwarya Bhati, Advocates Deepabali Datta, Ketan Paul, Aman Sharma, B.L.N. Shibani, G.S. Makker

Op EdsOP. ED.

Introduction

The Supreme Court of the United States is once more faced with the question involving abortion rights, the Supreme Court will in Dobbs v. Jackson Women’s Health Organisation[1] revisit the precedent set in Roe v. Wade[2] where the Court had upheld the concept that privacy encompasses the right of a woman to terminate her pregnancy. In Roe[3], the Supreme Court had also enunciated the principle that when the foetus is viable, that is, it can survive on its own outside the womb, abortion may be prohibited. This period of viability was considered to be 24 to 28 weeks. The position in India is similar and a woman may terminate her pregnancy with the opinion of a single medical practitioner up to twenty weeks and with the consultation of two medical practitioners up to 24 weeks. This position may be changed by the Supreme Court in June 2022, through its judgment in Dobbs v. Jackson Women’s Health Organisation[4] in light of recent medical and sociological advancements.

All of this has brought to the fore a question that should have been settled since long. The balance between a woman’s right to life and privacy vis-à-vis the right to life of the unborn child. This debate has an additional layer to it which adds to the urgent need to settle this jurisprudence. The question involves legal as well as medical attention, the right to life debate gains further traction based on the unborn child’s feasibility to survive outside the mother’s womb. Should we have a category conclusion on this (from the medical world), would we then be able to say that the right of the life of the unborn child should be paramount? This and more could be answered by the United States Supreme Court sometime in June 2022.

In January 1973, the Supreme Court of the United States of America in a 7:2 majority decision delivered its judgment in Roe v. Wade[5], holding a Texas statute unconstitutional which banned abortions except when necessary to save the life of the mother.

Jane Roe was the fictional name chosen by Norma McCorvey, petitioner, to protect her identity. McCorvey was an unmarried pregnant woman residing in Dallas County, Texas and wished to terminate her pregnancy by an abortion performed by a competent, licensed physician, under safe clinical conditions. She contended that the Texas laws were unconstitutional for being vague and infringed on her right to privacy. Roe wished to sue on behalf of herself and all women similarly situated, thereby making it a class action lawsuit.

Subsequently, Dr James Hubert Hallford, a physician who had previously been arrested in violation of the Texas statute and had two pending prosecutions, along with the Doe’s, a married couple whose wife was advised not to get pregnant due to medical reasons, also filed companion complaints against the constitutionality of the Texas statute. The impugned Texas statutes were Articles 1191-1194 and 1196 of the State’s Penal Code.

The District Court granted declaratory relief though not injunctive, and held that it is a person’s fundamental right to choose whether to have children and such right is protected by the Ninth and Fourteenth Amendment. The District Court held the Texas criminal abortion statutes to be void because they were both unconstitutionally vague and constituted an overbroad infringement of the plaintiffs’ Ninth Amendment rights. As per the Ninth Amendment,

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

The law, as it then stood, declared that if any person with the consent of the woman deliberately administers or knowingly procures to be administered any drug or medicine, or shall use towards her any violence or means whatever externally or internally applied, and thereby procure an abortion shall be confined to prison for not less than two up to five years. If such abortion was without her consent, the punishment was doubled.[6]

The term “abortion” was defined as the life of the foetus or embryo destroyed in the woman’s womb or that a premature birth thereof be caused.[7] To furnish the means for abortion and an attempt to abort were also punishable under the Code.[8] The exception to abortion which did not attract criminal liability was when the abortion was procured or attempted by medical advice for the purpose of saving the life of the mother.[9]

The Supreme Court also dealt with the compelling interest of the State in balancing the rights of the potential life and rights of the pregnant woman, the Court then brought to the front the concept of viability. Viability means when the foetus has the capability of meaningful life outside the mother’s womb. The Court held that, the regulation protective of foetal life will be logical and biological.

The Court also resolved certain vital questions in 1973 through this judgment including the standing of “right to privacy”. The Court held that while the right to privacy was not explicitly mentioned in the Constitution, the right finds its place in the Fourteenth Amendment. The scope of right to privacy was further widened to include the abortion decision, although not absolute and subject to limitations.

The Fourteenth Amendment[10] to the US Constitution reads:

  1. … No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law;

The Court concluded by creating distinction based on the term of the pregnancy, trimester wise.  For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation was to be left to the medical judgment of the pregnant woman’s attending physician. After the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

Law in various States

In Texas, the Senate Bill No. 8[11] was signed into law on 19-5-2021. The Texas law is one of the most significant anti-abortion laws in force in the country. As per the law, also sometimes referred to as the “heartbeat law”, abortions after 6 weeks are banned. The law provides no exception to horrendous situations like rape and incest, which cause extreme psychological suffering to the woman. Even though, cases of incest may lead to abnormalities in the child so conceived, however, the law makes all such abortions also unconstitutional and makes no special exceptions in these cases either. This Act goes a step further by implementing a “sue thy neighbour policy”[12], wherein the Act provides that any person, other than an officer or employee of the State or local Government entity in the State may bring a civil suit against another where he is of the opinion that abortion has been undertaken in contravention of the Act.If he succeeds in the suit, he shall be awarded injunctive relief and also statutory damages of not less than $10,000 for each abortion that the defendant performed or induced in violation of the sub-chapter.[13]

Various other States in the United States of America have what are called trigger bills which would go into effect, and substantially regulate or completely prohibit abortions if the Supreme Court overrules Roe v. Wade[14]. One such State is Utah, Senate Bill 174[15] was signed into law by Utah Governor Gary Herbert in 2020. S.B. 174 prohibits all abortions except in cases of certain exceptions. A woman can receive an abortion if the pregnancy poses a life-threatening risk to the woman or has a serious risk of substantial and irreversible impairment of a major bodily function. It also grants exemption if the foetus has a defect that is uniformly diagnosable and uniformly lethal or has a severe brain abnormality that is uniformly diagnosable.

However, rape and incest exceptions are only granted in situations of a reported crime, hence the woman must have necessarily reported the crime to the law enforcement in order to get an abortion arising out of the same. This is extremely burdensome as this would often put the life of the woman at risk or cause her even more mental trauma and agony.

An Idaho trigger law, Senate Bill No. 1385,[16] also criminalises abortions. Criminal abortion attracts a sentence of imprisonment of no less than two (2) years and no more than (5) years in prison. Further the law imposes sanctions on the medical professionals performing, attempting or assisting in performing abortions. As per the statute, if convicted, their professional licence may be suspended by the appropriate licensing board for a minimum of six (6) months upon a first offence and shall be permanently revoked upon a subsequent offence.

There are various States in the United States of America which have abortion laws influenced by religious and conservative opinions, which will be in force if the precedent set by the Supreme Court is overruled. Various pro-choice organisations such as Planned Parenthood[17] are fighting to challenge these laws and are continuing to offer support in States with statutes criminalising abortions.

Present dispute before the Supreme Court

On 19-3-2018 the State of Mississippi enacted a new law named “Gestational Age Act”[18] which provided that in most cases an abortion cannot be performed after 15 weeks. As per the legislature “most abortions performed after 15 weeks’ gestation are dilation and evacuation procedures and that “the intentional commitment of such acts … is a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profession.”[19] While noting that the State has a legitimate interest in protecting the life of the unborn[20] the legislature was of the opinion that at 12 weeks’ gestation, an unborn human being can open and close his or her fingers, starts to make sucking motions, and senses stimulation from the world outside the womb. Importantly, he or she has taken on “the human form” in all relevant aspects[21]. Thus, the reasoning supported for the Gestational Age Act was that after the completion of 15 weeks the abortion procedure is merely ripping apart the child and removing the dead child from the womb, a child who can sense simulations of outside world’s right to life is taken away by the abortion procedure. Additionally, they also noted various risks to the health of the woman carrying the child including physical as well as psychological effects.

The Gestational Age Act was in conflict with the decisions of the Supreme Court of the United States in Roe v. Wade[22]and Planned Parenthood of Southeastern Pennsylvania v. Casey[23], where abortions before the point of viability were held to be allowed and the State could regulate abortions thereafter, however the Gestational Age Act implicitly banned all abortions after 15 weeks.

When the Act was signed into law, Jackson Women’s Health Organisation filed a suit challenging the Act and prayed for a temporary restraining order before the District Court. The Court granted temporary restraining order and in a summary judgment held that the Act was unconstitutional. The Court noted that “viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on non-therapeutic abortions[24]”.The States shall not ban abortions prior to viability, which the State of Mississippi through the Gestational Age Act was seeking to do. The decision of the District Court was appealed to the United States Court of Appeals for the Fifth Circuit, which affirmed the decision of the District Court.

The State has appealed to the Supreme Court of the United States of America against the decision of the Court of Appeals, the oral arguments for the same were concluded in December 2021 and the Court is expected to pronounce the judgment in June 2022.

This decision is anxiously awaited since a decision in favour of the appellants would effectively overturn Roe v. Wade[25] and Casey[26], overturning fifty years of precedent in the country. It is estimated that the judgment in Dobbs v. Jackson Women’s health Organisation[27], will be delivered by the Supreme Court in June 2022, the Supreme Court may decide in favour of the rights of the unborn child. Noting the medical advancements in the 21st century, the Court may decide that an unborn child will be able to survive earlier than the “viability condition” of the foetus, as the Court has previously discussed. The chances of the foetus surviving with the help of medical facilities such as new age life support and advancements could possibly help the Court in ruling for a shorter period acceptable for abortion. The point in time where “life” began for a foetus in 1973 may well differ from that in 2022.

Indian perspective

The abortion laws in India are governed by the Medical Termination of Pregnancy Act[28] (hereinafter referred to as “the MTP Act”), and the Penal Code, 1860[29]. The Penal Code criminalises voluntarily causing miscarriage to a woman (or done by the woman herself) except in cases where it is necessary to save the life of the woman.[30]

However, when the termination of pregnancy is carried out by a registered medical practitioner, the liability is saved by MTP Act. The MTP Act provides for termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto.[31]

As per the MTP Act, 1971 a pregnancy may be terminated on the opinion of a single registered medical practitioner if the period of pregnancy didnot exceed 12 weeks, and on the opinion of two registered medical practitioners if the period exceeded 12 weeks but didnot exceed 20 weeks. If they were of the opinion that the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury physical or mental health or there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.[32] There was an amendment brought about to the abovementioned Section 3 in 2021 vide the Medical Termination of Pregnancy (Amendment) Act.[33] As per the Amendment Act, the gestational period has been increased, in light of medical advancements, from 12 weeks to 20 weeks where the pregnancy may be terminated on the opinion of one registered medical practitioner and from 20 weeks to 24 weeks, in case of such category of woman as may be prescribed by rules made under the Act, if not less than two registered medical practitioners are of the opinion that the termination is advisable in view of the provisions of the MTP Act.

The 2021 Amendment brought the MTP Act, 1971 in sync with the requirements of the present times. The MTP Act provided for situations where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman. Understanding the changing times and to bring the law in sync with these times, the 2021 Amendment Act has amended the provision and in place of married woman or her husband the words “any woman or her partner” have been used. This Amendment now makes the provision applicable to an unmarried as well as a married woman, thus substantially helping a woman regain her reproductive autonomy.

Most importantly a new section[34] has been added to the MTP Act by the 2021 Amendment, which puts the right to privacy of the woman undergoing the abortion in the forefront. It mandates that no registered medical practitioner shall reveal the name and other particulars of a woman whose pregnancy has been terminated under this Act except to a person authorised by any law for the time being in force. Whoever contravenes this shall be punishable with imprisonment which may extend to one year, or with fine, or with both.

As per the Statements and Objects of the Bill[35], the legislators understood that with the passage of time and advancement of medical technology for safe abortion there was a possibility of increasing the period of gestation. It was also felt that there was a need to make legal and safe abortion more accessible which would in reduce maternal mortality and morbidity caused by unsafe abortion and its complications. It was also noted that several writ petitions praying for permission for aborting pregnancies at gestational age beyond the permissible limit as per the MTP Act on the grounds of foetal abnormalities or pregnancies due to sexual violence faced by women. A nine-Judge Bench of the Supreme Court in 2017 has held that “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21”, the right to privacy is now a fundamental right of the people.[36]

Right to life

The main contention that has divided the people, the country and the courts for years is:  What takes precedence, a woman’s right to have an abortion and have the last word over her reproductive autonomy or an unborn child’s right to life.

As per legal precedent, the courts have time and again tried to balance the rights of the two and the legal jurisprudence that has developed is simple, pre viability the State has practically no interference in the decision of the woman to abort a child however post viability regulations are necessary but prohibitions are not favourable. The medical community is as divided in their opinion of abortion as the rest of the world.

The Supreme Court of the United States through  O’Connor,  Kennedy, and  Souter, JJ. delivered the judgment in Planned Parenthood of Southeastern Pennsylvania v. Casey[37], strongly noted that even after 19 years of the Supreme Court pronouncing that the Constitution protects a woman’s right to terminate her pregnancy in its early stages[38] the definition of liberty is still questioned.  The right of liberty flows through the Fourteenth Amendment and the constitutional protection of a woman to terminate her pregnancy is derived from the due process clause of the Fourteenth Amendment.[39]

The main argument for right to life that the Supreme Court in Dobbs v. Jackson Women’s Health Organisation[40] heard is that the viability rule must be rejected. While the Court has previously determined that a foetus is at most the potentiality of life[41], it has since agreed that a foetus is a living organism while within the womb, whether or not it is viable outside the womb[42]. Certainly, the Court has a duty to protect the right to life inside the woman, and they may do so by regulation. However, they cannot do so by completely prohibiting a woman from taking the ultimate decision to terminate the pregnancy before viability. The Court has instead noted that any decision made by the woman should be fully informed of all consequences including consequences she may face physically and emotionally, and the State must help in this regard.

Further, advocates favouring right to life of unborn child argue that the Fourteenth Amendment to the American Constitution uses the language “person” and extends to an unborn person, even though this argument was not accepted in Roe v. Wade[43]. Interestingly, even while rejecting the argument and in cases since, the Supreme Court has not delved into the argument – “When exactly does life begin”, as they stated in Roe v. Wade[44],

  1. … We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.

Conclusion

Till date there is no sufficient jurisprudence to determine when exactly in the process starting from fertilisation and ending in the birth of human child does life really begin. This is the most important question which must be determined in order to finally conclude the debate surrounding abortions, it is undoubtedly the State’s duty to balance the rights of both the potential life and the woman birthing the child. If the Supreme Court of the United States in Dobbs v. Jackson Women’s Health Organisation[45], overrules the nearly five decades old case of Roe v. Wade[46], it would cause immense fetters on the reproductive rights of the woman. Many trigger laws will come into force which will immensely regulate the lives of women wishing to have an abortion. The current position taken by the Supreme Court in 1973, and reiterated ever since is that undue regulations must not be put on a woman’s choice to terminate her pregnancy. In this judgment[47] abortion may be allowed up to 24 weeks, with regulations, if required, this position is also in sync with the Indian position after the 2021 Amendment to the Medical Termination of Pregnancy Act, 1971.

In light of medical advancements over the past five decades, we are now in a better position to determine when the foetus can be considered alive and till what time is it safe for a woman to undergo abortion. This must not be standardised since medical advancements in different countries are at different stages and thus the safety of the woman must be considered priority.


 *Partner, L&L Partners, New Delhi.

**Final year law student at Amity Law School, Guru Gobind Singh Indraprastha University, Delhi. Author can be reached at <shaaivishukla999@gmail.com>.

[1] Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women’s Health Organisation, et al., No. 19-1392.

[2]1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).

[3]1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).

[4] Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women’s Health Organisation, et al., No. 19-1392.

[5]1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).

[6]Texas Penal Code, Art. 1191.

[7]Texas  Penal Code, Art. 1191.

[8]Texas Penal Code, Arts. 1192-1193.

[9]Texas  Penal Code, Art. 1196.

[10]US Constitutional Amendment 14 (adopted 9-7-1868).

[11]https://capitol.texas.gov/tlodocs/87R/billtext/pdf/SB00008F.pdf.

[12] S.B. No. 8, S. 171.208(a).

[13]S.B. No. 8, S. 171.208(b).

[14]1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).

[15]https://le.utah.gov/~2020/bills/static/SB0174.html.

[16] https://legislature.idaho.gov/wp-content/uploads/sessioninfo/2020/legislation/S1385.pdf.

[17]https://www.plannedparenthood.org/planned-parenthood-center-for-choice/texas-abortion-laws.

[18]House Bill No. 1510.

[19]House Bill No. 1510, found at: http://billstatus.ls.state.ms.us/documents/2018/pdf/HB/1500-1599/HB1510SG.pdf.

[20]Planned Parenthood of Southeastern Pennsylvania v. Casey, 1992 SCC OnLine US SC 102 : 505 US 833, 873 (1992).

[21]House Bill No. 1510; Gonzales v. Carhart, 2007 SCC OnLine US SC 25 : 550 US 124, 160 (2007).

[22]1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).

[23]1992 SCC OnLine US SC 102 : 505 US 833 (1992).

[24]Jackson Women’s Health Organisation v. Currier, 349 F Supp 3d 536, 539 (S.D. Miss. 2018) [quoting Planned Parenthood of Southeastern Pennsylvania v. Casey, 1992 SCC OnLine US SC 102 : 505 US 833, 860 (1992) (plurality opinion)].

[25]1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).

[26]1992 SCC OnLine US SC 102 : 505 US 833 (1992).

[27] No. 19-1392.

[28]Medical Termination of Pregnancy Act, 1971.

[29]Penal Code, 1860.

[30]Penal Code, 1860, S. 312.

[31]Medical Termination of Pregnancy Act, 1971, Preamble.

[32]Medical Termination of Pregnancy Act 1971, S. 3 (unamended).

[33]Medical Termination of Pregnancy (Amendment) Act, 2021.

[34]Medical Termination of Pregnancy (Amendment) Act, 2021, S. 5-A.

[35]Medical Termination of Pregnancy (Amendment) Bill, 2020.

[36]K.S. Puttaswamyv. Union of India, (2017) 10 SCC 1, 637, para 652.3.

[37]1992 SCC OnLine US SC 102 : 505 US 833 (1992).

[38]Roe v. Wade, 1973 SCC OnLine US SC 20 : 35 LEd2d 147 : 410 US 113 (1973)..

[39]Planned Parenthood of Southeastern Pennsylvania v. Casey, 1992 SCC OnLine US SC 102 : 505 US 833, 873 (1992).

[40]Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women’s Health Organisation, et al., No. No. 19-1392.

[41]Roe v. Wade, 1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).

[42]Gonzales v. Carhart,2007 SCC OnLine US SC 25 : 550 US 124 (2007).

[43]1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).

[44]1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).

[45]Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women’s Health Organisation, et al., No. 19-1392.

[46]1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).

[47]Roe v. Wade, 1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).

Op EdsOP. ED.

Introduction 

 Postmodernism is a movement that began mid-late 20th century and was characterised by skepticism, suspicion of reason and acute sensitivity towards the role of ideologies in politics and economic power. Postmodernism provided an excellent structure for feminists to present their arguments. While explaining postmodernism’s impact on gender, Judith Butler defines it as a subversion of modernist projections of “women as a gender”.[1] Postmodernism helps deconstruct the relationship between gender and sex as a juridical category where the sexed body is perceived as gendered, preceding the emergence of the order of discourse.[2] This paper will present Judith Butler’s theory on gender performativity and analyse its application to abortion laws in India.

I. Butler’s Theory on Performativity

Butler employs her concept of performativity to bring forth the limitations of identity politics that presumed a universal and unified subject of feminism.[3] Performativity allows us to “reconceive the gendered body as a legacy of sedimented acts rather than predetermined or foreclosed structure, essence, or fact, whether natural, cultural, or linguistic”.[4]

 Butler’s problem is with accepting the category of women as a universal presupposition, existing in the cultural experience and society. She believes that gender is performed and constitutes a series of acts. It has a well-defined script that was devised and regulated by society. [5]  There exists immense pressure to maintain this set of gendered roles, and all deviations are strictly punished.[6]

Butler draws our attention towards how the legal system produces and then conceals the notion of a “subject before the law” to invoke the discursive formation as a naturalised foundational premise that subsequently legitimates that law’s regulatory hegemony.[7] She proposes the inclusion of cultural diversity to proliferate within discourses to expose the binarism of sex and the unnaturalness of fundamentals of ontology.[8] Therefore, according to Butler, subjects of feminism should be women who are culturally and politically positioned and constituted as “women”.[9]

Butler implies the importance of deconstructing these socialised norms that manifest through regulatory structures of the judicial system for they create a regulatory fiction of pre-existing identity as natural gender identity.[10] To break free of this script, one has to use the postmodern critique of gender identity. Through such an approach, one understands that a woman is not born but becomes a woman and hence, a woman is a social construct.[11]  Therefore, community discourses involving the category of “women” should be open to intervention.[12]  For in postmodern thought, the community determines the facts they will accept as beliefs. If one can successfully alter the network of beliefs of the community regarding “women” and hence alter the language and conventions, women stand a chance at gaining their agency and improving women’s political and socio-economical position in society.[13]

Conceptual Basis of Butler’s Postmodernist Deconstruction of Gender

Butler’s theory of performativity is based on Foucault’s inquiry into the connection between subject, knowledge and power and Austin’s idea on constative.

Foucault introduces three modes of objectification through which a person is produced by systems of power as subjects. This subjects’ objectification happens through “those (who) categorise, distribute, and manipulate; those through which we have come to understand ourselves scientifically; and those that we have used to form ourselves into meaning – giving selves”.[14]  According to him, the system acts as a disciplinary power in society to maintain and produce docile, passive, subjugated and productive individuals.[15] Hence when regressive judgments are delivered, the system creates a hegemonic structure that constructs bodies that the system represents.[16]

Further, she relies on J.L. Austin’s concept of performatives which includes “speech acts” and “speech does”.[17]  Austin argues that constatives are propositions that are stated positively or negatively.[18] These statements can be true or false. The speaker of such constatives deliver such a speech expressing their own beliefs and with an intention that the audience can also form a similar belief. [19] Butler proposes that there “need not be a ‘doer behind the deed’,” but the “doer” is variably constructed in and through the deed.  Butler argues that one should deconstruct the constative terms that supported their understanding of gender to reveal its performative character.[20]  These are usually constative elements of the sexed body that feed into the idea that gender is natural. These elements are drawn from various sources, including religious, medical, psychological, and biological conceptions of truth.[21] To undermine the success of the constative, Butler proposes one should show that the constative itself is merely a performative.[22]

II. Abortion Laws in India

 Due to the prevailing Covid-19 pandemic, close to 18.5 lakh women across India have had no access to abortion facilities, despite abortion being an essential service.[23] Coupled with the current lockdown situation that increases the cases of domestic violence and marital rape (which is not criminalised in India), women are forced to continue with unwanted pregnancies.[24] Many of them are worried that they will surpass the statutory limit of 12 weeks of legally terminating a pregnancy (now increased to 24 weeks in some instances)[25] due to the continuing crisis and will be denied an abortion. Limits imposed on abortion continue to harm the vulnerable sections of uneducated women, in abusive households, and women from low-income backgrounds where they have no access to ultrasound facilities and often face barriers before they can access abortion services. Hence, it is pertinent to revisit abortion laws in India to assess their relevance from a postmodern framework.

Legal provisions

The Medical Termination of Pregnancy Act, 1971 ( “the Act”) was introduced as an exception to Sections 312 and 313 of the Penal Code, 1860[26], which penalised “intentionally causing miscarriage”, irrespective of the women’s consent.[27] The Act imposed a limit of twelve weeks within which a woman had to decide to terminate her pregnancy to prevent sex-selective abortions that led to female foeticides, which were common in Haryana and Rajasthan.[28]  However, technology has advanced since then, and identifying the sex of a child before twelve weeks is also possible, making the limit imposed redundantly.[29]  An additional extension up to twenty weeks was allowed, but only after consultation with two registered medical practitioners and only in case the pregnancy involved a risk to the life of the pregnant woman or child born would have congenital abnormalities.[30]

 III. Critical Analysis of the Application of Abortion Laws in India

Abortion law in India is riddled with various attempts to control women’s right over her reproductive functions. The problem is twofold, (i) the legal text of the Act itself enforces a gender script that deprives women of meaningful reproductive choice; and (ii) the interpretations adopted in abortion cases have oscillated between strictly applying the law or breaking the moulds of these norms and amplifying women’s reproductive choice.

i. The Medical Termination of Pregnancy Act, 1971

As Butler points out, a law produces specific subjects and decides whose body will be monitored, regulated, and controlled.[31]  In this case, the Act primarily deals with four main subjects – women (married/unmarried), women with fetus abnormalities, rape victims and women of unsound mind or minors.

Each of these subjects has a varying degree of agency over their bodily integrity and reproductive choice. A married woman is allowed abortion even in cases of contraceptive failures. In contrast, an unmarried woman is allowed abortion only if it poses a severe risk to her well being or there exists a fetal abnormality.  Butler would argue that such segregation would result in diminishing the subject’s social intelligibility and ongoing repetition of such culturally acceptable norms under duress; punitive social or legal consequences would result in specific gendered performances.[32] Here, it induces the idea that only a married woman in consultation with her husband can decide on her abortion. Whereas, an unmarried woman will not receive the same privilege for she chose to engage in sexual intercourse outside of marriage and should face social sanctions. Hence, Butler would propose that to ensure a society where women’s right to bodily integrity and reproductive choice is valued, the Act should remove the word “married” and “husband” from the legal text.

To change the way society perceives them, one ought to change the way laws are drafted for they provide the premise in the form of “constatives”. Austin proposes that these constatives lead the audience to develop the same beliefs as the speaker; here, the speaker is the Government; the audience is the citizens of India.[33]  Butler’s solution is to deconstruct the premise itself by publically advocating for reproductive rights that would provide all women with the reproductive choice to abortion at any time during their pregnancy. Advocating for their reproductive rights is an opportunity to reconfigure the hegemonic gender identities.[34]

ii. Case Laws on Abortion and Reproductive Rights in India

In India, Judges have had contrasting views on women’s reproductive rights. A few cases like Samar Ghosh v. Jaya Ghosh[35], the courts have undermined a woman’s right to terminate the pregnancy by making abortion an act amounting to mental cruelty and hence a ground for divorce. Butler would argue that this amounts to dilution of a women’s right to bodily integrity as this promotes cultural hegemonies that imply a wife to be subordinate to her husband. [36]

Foucault proposes that the subjects should recognise the possibility of opposing the power that subjects them and create an alternative discourse that would amplify the subversive repetitions of who is a “woman”.  A few judgments like Suchita Srivastava v. Chandigarh Admn.[37] and Laxmi Mandal v. Deen Dayal Harinagar Hospital[38], the courts affirmed women’s right to choose in the context of continuing her pregnancy. They read this as a fundamental right to privacy and bodily integrity as enshrined in the Constitution under Article 21.[39] Such an unusual interpretation of reproductive rights under Article 21 is what Foucault refers to as an alternative discourse. Butler would argue that such subversive repetitions can occur through the process of claiming rights.  Hence, the process of rights claiming can be viewed as performative contradictions that would open up the space for increased subversive performativity in general society.

Thus, Butler’s performativity theory allows one to understand the social implications of abortion laws and provides for sustainable solutions to circumvent the hegemonic gender identities through strategies of rights claiming and publically challenging how a woman and her reproductive experiences are perceived in the society.

Conclusion

Butler provides an excellent structure for analysing gender identity through a postmodernist lens. The Indian legal system is plagued by archaic laws that propagate the community beliefs that result in the ostracisation of women from public places by making them docile and submissive subjects. Butler proposes we should deconstruct these performances and language scripts to expose these primitive beliefs. The deconstruction of gender will be the first step in regaining women’s agency in society. However, Butler is often criticised by new materialists for the theory of performativity delves in abstract and ignores the practical impact these laws create on the physical body.  New material feminism tries to combine the discursive and the material body and its social construction to gain agency of the matter. [40] Butler’s theory can be coupled with new materialists’ understanding of body to improve abortion laws in India.


* Fourth year law student, Jindal Global Law School. Author can be reached at 17jgls-pnaidu@jgu.edu.in

[1] Dennis Patterson, Postmodernism/ Feminism/Law, 77 Cornell LR 255, 271-275 (1992).

[2] Id., 260-262.

[3] Patterson, supra Note 2, 260-262.

[4] Judith Butler, Bodies that Matter: On the Discursive Limits of Sex, New York: Routledge (2011).

[5] Ibid.

[6] Santa Barbara & Peter Digeser, Performativity Trouble: Postmodern Feminism and Essential Subjects, 47 Sage Publications, Incat 655 (1994).

[7] Judith Butler, Gender Trouble: Feminism and the Subversion of Identity, 1990.

[8] Digeser, supra Note 6 at 657.

[9] Ibid.

[10] Butler, supra Note 7 at 75.

[11] Simone de Beauvoir, The Second Sex, New York: Vintage Books (1989).

[12] Patterson, supra Note 1 at 272.

[13] Santa Barbara & Peter Digeser, Performativity Trouble: Postmodern Feminism and Essential Subjects, 47 Sage Publications, Inc. at 655 (1994).

[14] Michel Foucault, The Subject and Power, Critical Inquiry 8 (4) 777-795 (1982).

[15] Ibid.

[16] Judith Butler, Gender Trouble: Feminism and the Subversion of Identity, 62 (1990).

[17] John A. Dinneen, What Austin does with Words, 32  Philosophy and Phenomenological Research, 514-523, 1972.

[18] Ibid.

[19] Jacobsen H. Klaus, The Philosophical Quarterly 21, No. 85 (October 1971), pp. 357-360 (1971).

[20] Butler, supra Note 16, 78.

[21] Klaus, supra Note 19, 358.

[22] Butler, supra Note 16, 78.

[23] Chetana Belagere, 18.5 lakh in india didn’t get access to abortion facilities in lockdown, Indian Express, June 2020.  <https://www.newindianexpress.com/states/karnataka/2020/jun/02/185-lakh-in-india-didnt-get-access-to-abortion-facilities-in-lockdown-2150999.html> (last visited June 2020).

[24] Roli Srivastava, India has Listed Abortion as an Essential Service, but Problems of Access Persist under Lockdown, Scroll.in, 2020.

[25] Vrinda Grover, The Amendments in the MTP Act Bill are Flawed| Analysis, Hindustan Times, 28-2-2020.

[26]Penal Code, 1860 http://www.scconline.com/DocumentLink/wNz74jV9, No. 45, Imperial Legislative Council, 1860.

[27] The Medical Termination of Pregnancy Act, 1971 (No. 34) Acts of Parliament of India, 1971.

[28] Siddhivinayak S. Hirve, Abortion Law, Policy, and Services in India: A Critical Review, Reproductive Health Matters, 12 Taylor & Francis, 114-121 (2004).

[29] Ibid.

[30]The Medical Termination of Pregnancy Act, 1971, No. 34, Acts of the Parliament of India, 1971 (India).

[31] Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (1990).

[32] Kathryn McNeilly, Framing Wrongs and Performing Rights in North Ireland: Towards a Butlerian Approach to Life in Abortion Strategisiing, 14 Journal of International Women’s Studies (2013).

[33] Judith Butler, Gender Trouble: Feminism and the Subversion of Identity, 62 (1990).

[34] Supra Note 32.

[35] (2007) 4 SCC 511

[36] Supra Note 32.

[37] (2009) 9 SCC 1

[38] 2010 SCC OnLine Del 2234

[39] Constitution of India, Article 21

[40]Donna Haraway, Situated Knowledges: The Science Question in Feminism and the Privilege of Partial Perspective, Feminist Studies, Vol. 14, No. 3 pp. 575-599 (1988).