Abstract:
The debacle around individual autonomy as viewed through the prism of abortion laws has gained much limelight in recent times. The debate regarding the legality of abortion can be summarized as a tussle between the idea of pro-choice versus the concept of pro-life. Abortion is seen as one of the controversial liberties in many of the developing countries around the world and India is no exception. On one hand, while defending the mother’s right to health, some restrictions are imposed on stated human rights, on the other some even limit it by the defence of the right to life of the embryo. The present research paper aims to diagnose this very aspect by resorting to a comparative study method, with a special focus on the laws governing the subject in India and the United States of America.
Keywords: Abortion Laws; Individual Autonomy; Reproductive rights; India; United States of America
- INTRODUCTION
Despite being a touchy topic owing to its ethical, social, cultural, customary, legal and religious implications the discussion around the subject of Abortion[1] has been much debated about in both international and national fora in the recent times. Derived from the Latin term ‘aboriri’meaning ‘failure to be born,’ the term abortion in common parlance means a procedure to end pregnancy. There however has been a constant oscillation in ideas and judicial decisions between the autonomy or choice of a woman over her body and the status and rights of a foetus/embryo.[2] Whether precedence should be given to the mother or the unborn child still remains a debatable issue. Nevertheless, while the Indian Courts have taken divergent stands, of late the American courts, in popular terms, have taken a regressive approach, taking away the autonomy of a woman over her body, contrary to a practice of almost 50 long years,[3] thus falling on the opposite side of the spectrum.
If one were to look into the Indian scenario, one must lay their foundational argument upon the Constitution of India which envisages the right to life under Art. 21.[4] The right to abortion is well included within the ambit of the said provision by virtue of judicial interpretations. The concept of right to privacy included the right to abortion which was read into the right of personal liberty.[5] Additionally, the right to a safe abortion is codified under the Indian laws along with its rules and regulations.[6]
The United States of America does not have a uniform set of laws when it comes to abortion, owing to its federal structure. Resultantly, each state propounds its own laws, with some recognizing the right of abortion, while others have imposed a partial or a complete ban on it.
According to the World Health Organization, “6 out of 10 unintended pregnancies end in induced abortion. Abortion is a common health intervention. It is very safe when carried out using a method recommended by WHO, appropriate to the pregnancy duration and by someone with thenecessary skills. However, around 45% of abortions are unsafe. Unsafe abortion is animportant preventable cause of maternal deaths and morbidities. It can lead to physical and mental health complications and social and financial burdens for women, communities, and health systems. Lack of access to safe, timely, affordable, and respectful abortion care is a critical public health and human rights issue.”[7]
Given the contrary standpoints the judiciary in both India and United States of America have been faced with the herculean task of balancing the multi-faceted dimensions of abortion and its effects both socially and legally. However, while India has been lauded for its progressive approach on the subject, the United States of America found itself alienated with its much debatable decisions in the recent past. It is therefore, essential to delve into the jurisprudence pertaining to abortion in both the countries, analysing the rationale behind the same in order to better regulate this socio-legal phenomenon.
[1] Termination of pregnancy by the removal or expulsion from the uterus a foetus or embryo resulting in or causing its death. Abortion can be classified into two types which are the following:
- Spontaneous Abortion
- Induced abortion which could further be classified into Therapeutic and Elective Abortion respectively.
[2] Both terms would denote an unborn child.
[3] Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___ (2022)
[4] Article 21: “Protection of Life and Personal Liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law.”
[5] Justice K S Puttaswamy vs Union of India (2017) 10 SCC 1
[6] The Medical Termination of Pregnancy Act, 1971
[7]https://www.who.int/news-room/fact-sheets/detail/abortion