While abortion has been a hotbed of controversy in America for decades, many states, especially those governed by conservatives, have lately expressed interest or have introduced bills and laws to significantly restrict abortion. The recent highlight is the draft of Dobbs v. Jackson Women’s Health Organization’s judgment by the US Supreme Court leaked by Politico. In the draft opinion, the landmark judgments of Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), which upheld women’s abortion rights, are overruled. Though this is not the final decision, the leaked document has felt like a nightmare for many since it would provide US states almost unfettered authority to legislate as they please, foreshadowing a grim future.
Meanwhile, in India, due to a multitude of reasons, the situation is starkly dissimilar. Both the US law on abortion (Roe and Casey) and the Indian law on abortion, i.e., the Medical Termination of Pregnancy Act, 2021 (MTP Act) place similar restrictions on abortions. While in India, the right to abortion can be terminated only after a registered medical practitioner’s opinion, states in the USA can restrict abortions when performed for non-medical reasons. In America, the states have placed varying levels of restrictions on abortion over the decades. Some have passed trigger laws that would come into effect if and when Roe is overturned. Meanwhile, certain states have placed severe legal restrictions on abortion like the infamous Texas Heartbeat Act, which bans almost all abortions post 6 weeks of pregnancy. Contrast this with the Indian scenario where discussions of legalizing abortions started in the 1960s, when only 15 other countries had done so. The MTP Act, 1971 was progressive for its time, and the 2021 Act further relaxed abortion restrictions. The Indian courts have played their part in upholding women’s rights too. In multiple instances, the courts have let women terminate their pregnancy at times well past the statute-imposed threshold.
The authors of this article have argued that when it comes to abortion rights, the Indian legal framework is more progressive than that of the USA. While the legislative framework and court rulings surrounding abortion rights back the argument of India being a progressive state in this matter, this article further delves into the historical, political, religious, and scientific reasons which must have propelled the lawmakers of an orthodox country to depart from anti-abortion sentiments. This article engages with the aforementioned reasons to draw a comparative analysis between the Indian and American abortion rights framework. It then concludes that the potential switch in the US judicial position post Dobbs v. Jackson is unlikely to be transposed into the Indian legal system.
Rights of the Fetus vs. Rights of the Woman Debate
Firstly, we can observe differing stances adopted by both countries on the rights of the fetus vs. the rights of the woman. After analyzing the American and Indian laws, court judgments, and parliamentary discussions regarding abortion, it is evident that the USA seems more concerned with the issue of fetal viability and striking a balance between the rights of the fetus and the mother. In contrast, India emphasizes a woman’s right to bodily autonomy.
Fetus viability is when the fetus develops the potential to survive outside the mother’s womb, at which time the rights of the woman and fetus can be separated. In the USA, Casey moved the standard of abortion regulation to one based explicitly on fetal viability, i.e., abortion was generally allowed before viability and restricted afterwards. However, recently, 18 states have tried to ban abortion before viability, and if the US Supreme Court serves a double whammy by overturning Roe v. Wade, 26 states are expected to ban abortion before viability. This reflects how US states have leaned towards prioritizing the fetus’ rights. While the Indian Acts are also primarily based on fetal viability, the overall discourse has favoured the reproductive rights of women. One instance is Murugan Nayakkar v. Union of India, where abortion was permitted after the statutory provision of 24 weeks on the grounds of rape and age of the minor.
When Does Life Begin: A Religious Conception
Secondly, the distinct attitudes between the two countries may be attributed to their religious differences. The religious angle of the abortion debate concerns the profoundly complicated and personal question of ‘when does life begin’. Justice Harry Blackmun, the author of the Roe judgment, pointed out that abortion will remain a hotly debated issue because it depends on an individual’s perception of when life begins. According to Catholicism, the majority religion in the US, life begins at conception. The recent anti-abortion state laws and the leaked draft judgement signal a dangerous teetering towards the religious catholic angle. In Hinduism, however, there exists no singular viewpoint on the conception of life. Beliefs range from beginning before conception to beginning at the seventh month, with concepts like karma and ahimsa contributing to diverse opinions. This ambiguity makes the Indian stance on the morality of abortion more lenient than the dominant catholic viewpoint, thus explaining the lack of similar anti-abortion agitations from the majority Hindu community in India.
Demographic Differences Steering the Abortion Debate
Thirdly, in the USA, the debate seems stuck around whether abortion should be legal or not in the first place. Strong Catholic beliefs on the conception of life and ‘abortion as a sin’ significantly influence the American abortion debate. However, in India, this moral-legal debate on abortion has never attracted much interest. After the decriminalization of abortion in 1971, the discourse around abortion has graduated. The question in India is not so much as should abortion be legalised but to what extent abortion should be legalized, i.e., should women possess an unrestricted and absolute right to abortion?
To understand this disparity in debates, one must travel back to the liberalization of Indian abortion laws in 1971. The initiation of family planning programs coupled with mass sterilization policies seems to be linked with the MTP Act, 1971’s enactment. All these measures were targeted to solve the overbearing issue of overpopulation in a country where the population was the reason behind a multitude of problems, unlike the USA. This seems to explain why such an early and liberal move to legalize abortion was taken in a country mired in religion and orthodoxy. In fact, this link remains, just as observable in 2016 in a Post Abortion Family Planning report by the government, which noted that the foundation of family planning programs is that “women’s control over their own childbirth forms the foundation of reproductive rights.”
Thus, while the 1973 move to legalize abortion in the USA showcases an attempt to balance pro-life and pro-choice activists; in India, the corresponding legislative intent was not concerned as much with abortion per se as with the larger issue of population control and family planning. This helped India graduate from the morality debate and, in subsequent years, allowed abortion to be viewed from the prism of furthering women’s rights.
Conclusion
Though the Indian legislature and judiciary have constantly viewed abortion rights from a liberal perspective, we must not portray them as faultless. Despite the fact that the MTP Act, 1971 was progressive at the time of enactment, the 2021 Act was long overdue. The latter expanded its ambit to include unmarried women and took into account medical advancements in the field to decide the abortion threshold. Additionally, the right to privacy was recognised in the USA in 1891, and in 1973, in Roe v. Wade, the right to abortion was read into the woman’s right to privacy. In India, both the right to privacy under Article 21 and the right to abortion as a facet of the right to privacy were recognized as late as 2017. Despite these hiccups, the noteworthy fact remains that India is set on the right track.
From the analysis, it is evident that with the leaked Politico judgment and the increasingly restrictive state laws in anticipation of the same, the USA seems to be going down a regressive road. On the other hand, India has adopted a relatively more progressive stance from the beginning. This is evident from India being a pioneer in legalizing abortion, the parliamentary debates stressing the right to bodily autonomy of women, the numerous court judgments going against the MTP Act to uphold the right of the women over the fetus, and the strong and vocal demands for progression from a need-based to a want-based approach. Hence, India has been proactive in upholding women’s rights to abortion and is only marching ahead with no traces of such regressive judgements or legislation in the near future. We hope the US Supreme Court draws inspiration from the Indian conceptualization of abortion rights and refrains from passing an anachronistic judgment, and proceeds in tune with the present century.
Gayatri Kondapalli and Akarshi Narain are law students at NALSAR University of Law in Hyderabad, India.
Suggested citation: Gayatri Kondapalli and Akarshi Narain, USA and India on Abortion Rights: Falling on Opposite Ends of the Spectrum, JURIST – Student Commentary, May 26, 2022, https://www.jurist.org/commentary/2022/05/gayatri-kondapalli-akarshi-narain-abortion-roe-v-wade-india-us-reproductive-rights/.
This article was prepared for publication by Rebekah Malkin, a JURIST staff editor. Please direct any questions or comments to she/her/hers at commentary@jurist.org
