Libertatem Magazine

Constitutionality Resolving Global Anti-Abortion Laws: A Comparative Study

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An Abortion is a procedure to end a pregnancy by using the Embryo or the Fetus from the Uterus. Abortion is stigmatized due to it being attributed to sacred institutions of religion, life, and marriage. Abortion was illegal in India before 1971 and was in turn punishable by Law. In 1971, the Medical Termination of Pregnancy (MTP) Act was introduced which allowed the termination of pregnancy at the discretion of a medically certified provider till 20 weeks of the gestation period, under certain conditions. The previous goals of the MTP Act were to control the population from unintended pregnancies and to reduce the increasing maternal mortality because of illegal and unsafe abortions. On the contrary, the objectives behind bringing the MTP Act were not achieved. 

  1. When the continuation of pregnancy is a risk to the life of the pregnant woman or could cause grave injury/inability to her physical or mental health.
  2. When there is a substantial risk that the child if born, would be seriously handicapped due to physical or mental abnormalities.
  3. When pregnancy is caused due to rape (presumed to cause grave injury to the mental health of the woman).
  4. When pregnancy is caused due to failure of contraceptives used by a married woman or her husband.

A study in the Indian Journal of Medical Ethics has observed that 10-13% of maternal deaths in India can be attributed to unsafe abortions. It roughly translates into at least six to seven women losing their life due to unsafe abortions every day. Many of those who survived such methods are compelled to live a life of pain compounded by infertility, sepsis, and other internal injuries. The report also observed that in around 15.6 million abortions are done in India, out of which approximately 80% of these abortions are not done in authorized hospitals due to their illegality and not being protected under the MTP Act which has caused the increase in the number of maternal deaths in India.

The major unfavorable issue surrounding MTP Act was the absence of a woman’s right to decide on her own body. It must be entirely the decision based upon the women’s will, either to abort the pregnancy or to give birth, irrespective of the health conditions of the child. The limit of 20 weeks is another obstruction, mostly women are unable to detect being pregnant or observe any abnormalities due to various medical characteristics which are very subjective, and therefore do not approach the doctor. In circumstances of rape, the social stigma associated with unwanted pregnancies, especially for unmarried women, and late detection of abnormalities creates huge pressure upon the decisiveness of the women. It ultimately makes the woman a victim for life. The lack of awareness and sufficient period fails to get protection under Law.

The legal route to get formal permission for termination after 20 weeks adds to the stress for the pregnant women already suffering from poor physical conditions of the baby. 

Medical termination of pregnancy (Amendment) Bill 2020  

Union Cabinet approved the Medical Termination of Pregnancy (Amendment) Bill, 2020. The bill amended the Medical Termination of Pregnancy Act, 1971 which needed alterations to suit the current modern society that has changed in the last fifty years when the act was originally introduced. Human and Women rights organizations had been struggling for a considerable time to bring the amendment to change the limit from 20 weeks to 28 weeks, as the average length of human gestation is 280 days (40 weeks), however, the government has increased the limit to 24 weeks only. The clause protecting only married women to abort due to failure of contraceptives was also contended against by these organizations and demanded the inclusion of unmarried women as well under this clause granting them the right to terminate an unwanted pregnancy due to failed contraception. The advancement in medical sciences and technological progress has made termination of pregnancy even at later stages of detection with minimal health complexities. The discovery of chromosomal abnormalities, vacuum aspirations, and abortion pills came in the late 19th century which has made it medically and legally capable of molding the outdated practices. The extension of the limit would ease the process, allowing the reliable and authorized system itself to take care of the women, delivering quality medical attention. The bill also demands no limit of gestational age in case of pregnancies with substantial fetal abnormalities, irrespective of the prescribed time limit. 

India is a religiously and culturally sensitive country with high moral intolerance is setting an example for other conservative countries by granting reproductive rights to women over their bodies. India will now stand amongst the highly progressive countries allowing legal abortions on a broad range of medical, therapeutic, humanitarian, and social grounds.

In 2003 the World Health Organization developed technical policy guidelines to help governments globally to pass progressive laws decided based on: 

  • Human Rights
  • The principles of solid science 
  • Advancements in technology

The above-stated parameters must just not be the factors in the formulation of Laws, there are other unforeseen circumstances in which women may choose to abort a pregnancy, such as, unforeseen economic problems, social conditions, divorce, job loss, death of the partner, a threat to her health, career aspirations, mental unpreparedness or just not being ready. 

In a landmark Judgment of the United States Supreme Court; Roe v. Wade,1973, it was held that the U.S. Constitution protects a woman’s right to terminate her pregnancy and defined viability as the ability to potentially live outside the mother’s womb, albeit with artificial aid. This judgment was of utmost importance in striking down the Anti-Abortion Laws that were prevalent in the dominion states of the United States. Regressive laws continue, the state of Texas in the U.S. recently banned abortion after 6 weeks due to the major influence of the Catholic Church. Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks. The limit for abortion in the United States is based varying upon the Viability of the fetus. At present, 26 countries including Egypt, Angola, Thailand, Philippines, Madagascar, and Iraq do not permit abortion even if they were raped affecting 90 million women and 39 countries including Brazil, Mexico, Sudan, Indonesia, and Sri Lanka permit abortion only when the women’s life is at risk affecting 360 million women and 56 countries only allow abortion only based on health. The majority of countries with such Anti-Abortion Laws are Latin American where the Catholic Church has immense influence. The Catholic Church believes abortion is murder, stated in Catechism.

The royal college of Obstetricians & Gynecologists tossed out the myth that a fetus feels pain stating that fetal perception of pain cannot occur before 24 weeks of gestation. The Turnaway Study in America stated that women denied abortions are more likely to suffer extreme depression and anxiety and stay tethered to an abusive partner.

Anti-abortion activists claim to be pro-life but are anti-life, anti-women, anti-equality, and anti-choice. The authority to dictate motherhood behind the curtains of religious sanctity is snatching women’s rights over their own body which is against the fundamentals of constitutional equality.


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