On abortion, Supreme Court has listened to Women

October 3, 2022 | Jayna Kothari

CLPR Executive Director Jayna Kothari writes for the Indian Express on the recent Supreme Court judgement which expanded the abortion rights of women and persons who require safe medical termination of pregnancies. She argued that the judgement upheld the right of all women and girls to make reproductive choices for themselves, without undue interference from the state. She emphasised that any deprivation of reproductive healthcare services negatively affects the dignity of women.


Excerpt from the Article:


The judgment of September 29, 2022, which was symbolically pronounced just after International Safe Abortion Day, has made a huge leap for women’s reproductive rights. It has shown us this is a court that is evolved and aware of the emerging issues around gender equality. For starters, the judgment mentions that all references to “women” and its interpretation of the Medical Termination of Pregnancy Act, 1971, would include persons other than cis-gender women who may also require access to safe medical termination of their pregnancies. Access to safe reproductive health services, including termination of pregnancies is required by trans persons, and there is no recognition of the complete denial of sexual and reproductive healthcare services to trans persons, especially transmen.


On the question of abortion access, the Supreme Court takes the bull by the horns in the new amendment to the Medical Termination of Pregnancy Act (MTP Act) and the Rules. The 2021 amendment to the MTP Act extends the time limit for termination of pregnancy from 20 to 24 weeks. This extension is provided only to certain categories of women as prescribed under the Rules. The 2021 Rules list out the women eligible for termination of pregnancy up to 24 weeks and this includes women who are survivors of sexual assault/rape/incest, minors, women with disabilities, women with foetal malformation, women in disaster or emergencies and women who have had a change of marital status during the pregnancy (widowhood and divorce). Thus, technically, single or unmarried women would not get the benefit of the extension of the 24-week window for abortion.


This has been a long-pending issue that women’s rights activities have been raising over the last several years. Single women who need abortion services are subjected to shaming, harassment and violation of their privacy by medical practitioners before being provided abortion services, and in many cases are even denied an abortion even up to 20 weeks. This is due to the stigma that women face in Indian society, even today, on account of being single, unmarried, divorced or widowed. The single status of women is not recognised as being worthy of equal respect and dignity and they are not considered of equal worth. By giving a broad and purposive interpretation to Rule 3B, the Court held that the Rule could not be limited only to married women. This would make it discriminatory towards unmarried women who would be denied access to abortions during the period of 20 to 24 weeks of their pregnancy and be violative of Article 14 of the Constitution, which guarantees equality before the law and equal protection of laws.


Jayna Kothari, 'On abortion, Supreme Court has listened to Women' (Indian Express, 03 Oct 2022) <https://indianexpress.com/article/opinion/columns/on-abortion-supreme-court-has-listened-to-women-8182765/> accessed on 23 Jun 2024