Mission abort gets a life!

TThe SC’s new abortion ruling is not just a win for women, but also for the LGBTQ+ community as it lays emphasis on reproductive autonomy, the right to equality and privacy, writes Kanav Narayan Sahgal

India and the United States appear to be moving in opposite directions as far as abortion jurisprudence is concerned. With the US Supreme Court’s 2022 abortion ruling in Dobbs vs Jackson Women’s Health Organisation, the United States became the fourth country in the world to roll back abortion rights since 1994 — joining El Salvador, Nicaragua, and Poland.

Interestingly, one day before India’s top court handed down its abortion decision in X vs The Principal Secretary, Health and Family Welfare Department, thousands of women marched in protest in Italy, fearing a rollback of abortion rights in their country after discovering that far-right politician, Giorgia Meloni’s party was victorious in Italy’s general election. The day of the Italian protest was quite ironically, international safe abortion day.

In the Dobbs case, the US Supreme Court invalidated two previous landmark abortion rulings, the first was Roe vs Wade (1973) which granted women the constitutional right to an abortion by grounding it in the right to privacy, and the second was Planned Parenthood vs Casey (1992) which upheld Roe’s central holding but instead appeared to root the right to an abortion within the ambit of women’s liberty. Finally, in 2022, the reconstituted conservative-leaning Supreme Court ruled 6-3 that both Roe and Casey needed to be overruled because privacy and abortion were never explicitly mentioned in the text of the US constitution — and so the issue of abortion has now gone to individual US states, with some having already enacted extreme anti-abortion laws that make — no exceptions for rape or incest and others having become ‘safe havens’ for abortion seekers. In his concurring opinion in Dobbs, Justice Clarence Thomas went a step further, stating that previous rulings on same-sex marriage and same-sex intimacy should also be re-evaluated by the Court because they too emanated from a similar “substantive” reading of the US constitution as Roe and Casey.

The Supreme Court of India, however, has read the issue of abortion completely differently — rightfully so because the two jurisdictions are different, yet, the timing of both judgements is eerily close. While multiple aspects of India’s top Court’s judgement deserve merit, there are certain attributes in its text that make it significant for not just women, but also the LGBTQ+ community.

Transformative judgement

To start off, the Court does not conduct a “textual” or “originalist” reading of the Indian Constitution. In fact, several previous cases were cited for stressing the “transformative nature” of the Constitution (eg: Navtej Singh Johar vs Union of India, 2018); furthermore, the court impressed upon the fact that statutes in modern times should be “always speaking” to the “changing needs of the times” (Dharni Sugars and Chemicals Ltd vs Union of India, 2019 and Badshah vs Urmila Badshah Godse, 2014).

Landmark judgements on LGBTQ+ rights in the past have also come from a similar reading of the constitution, prominent among them are Navtej, which invalidated parts of a 156-year-old colonial statute that criminalised consensual, private, and adult same-sex activity, and the National Legal Services Authority vs Union of India (2014) which granted legal recognition to transgender people as the “third gender” — paving the way for further rights and recognition as in the case in question Principal Secretary, Health and Family Welfare Department — where the Court explicitly defined “women” as including “persons other than cis-gender women” who may require reproductive care such as transgender men and non-binary individuals. This is a welcome step given the ongoing attack on transgender rights in jurisdictions around the world, most notably in the United States.

Atypical relationships

In addition to extending abortion rights to LGBTQ+ persons, the Court also recognised the need to acknowledge “modern or atypical forms of family relationships,” such as it did in S Khusboo vs Kanniamma (2010) wherein the Court stressed the need to avoid using criminal law as a means to “unduly interfere with the domain of personal autonomy”.

While the matter of atypical relationships in Principal Secretary, Health and Family Welfare Department dealt with opposite-sex live-in relationships and those engaging in pre-marital sex, Navtej expanded the ambit of personal autonomy to include homosexual people while simultaneously removing it from the hold of criminality.

However, it remains to be seen whether same-sex couples will indeed be granted the same marriage rights as their heterosexual counterparts — after all, the issue of legally recognising same-sex marriages in India is currently under litigation in the Delhi High Court.

The exception

Another key issue currently under litigation is the constitutional validity of Exception 2 to Section 375 of the Indian Penal Code, also called the “marital rape exception” which excludes marital rape from the legal definition of ‘rape’ as long as the bride is over fifteen years of age. However, in Principal Secretary, Health and Family Welfare Department, the Court held that in so far as the Medical Termination of Pregnancy Act is concerned, marital rape would count as rape. This is a huge win for women’s rights groups who’ve been fighting for decades to have Exception 2 repealed.

As it stands today, India is among 30 odd countries that still haven’t criminalised marital rape — in company with jurisdictions such as Pakistan, China, Bangladesh, Myanmar, Sri Lanka, Haiti, Laos, Mali, Senegal, Tajikistan, and Botswana — among others. Given that a few months ago, the Delhi High Court delivered a split verdict on the constitutional validity of Exception 2 (thus depicting two sharply polarising legal opinions on this issue), one hopes that this judgement by Principal Secretary, Health and Family Welfare Department paves the way for a complete repeal of this exception and gives married rape survivors due recognition under the law.

With an eye on women’s health

The most commonly discussed highlight of the Principal Secretary, Health and Family Welfare Department is the Court’s broad reading of Section 3(2) (b) of the MTP Act and Rule 3B —both of which, when read together, provided no real basis for excluding single and unmarried women from accessing abortions between twenty and twenty-four weeks of pregnancy; The exclusion of single and unmarried women was held to be “arbitrary” and “discriminatory” and rightfully so.

But what is not talked about is how this Court, unlike those in some other jurisdictions such as the United States, the Philippines, Egypt, and El Salvador to name just a few left no vagueness about the legal definition of “personhood” as understood in Indian law and the subject of protection in so far as abortion access is concerned (the ruling is clear that women’s health — both mental and physical — is of utmost importance).

One of the many reasons why abortion rights remain controversial in several parts of the world even today is because of the raging debate about when life begins and at what point a woman is entitled to end foetal life and whether she should be able to make that decision on her own and under what circumstances.

Respecting autonomy

Opinions and judgements on this issue are wide and varied. In the Dobbs verdict, the issue was quite simply a question of whether the US Constitution said anything about protecting the liberty of the mother and the life of the foetus — and the majority’s answer was no, partly because in 1973, the Roe court acknowledged that the government had a “compelling interest” to protect “potential life” and that it was the duty of the court to interpret the law in a way that balanced the woman’s liberty interest and the state’s interest in protecting such life — interestingly, that balance was drawn at viability, which is around twenty weeks — the same line drawn by the Indian Court today.

But while the US Supreme Court overturned that constitutional right, the Indian court further expanded it. And while every state has the right to protect foetal life even the Indian State (to prevent social vices such as female foeticide and prenatal sex determination), Principal Secretary, Health and Family Welfare Department recognised that the two issues are separate yet equally important.

And hence, pronounced a judgement that respected women’s bodily autonomy without infringing upon the state’s potential interest in protecting foetal life. Moreover, by granting the constitutional right to an abortion to all women (LGBTQIA+ included) and firmly grounding it under reproductive autonomy, the right to live a dignified life, the right to equality, and the right to privacy, this court has ensured that any potential “pro-life” litigation (like the now-infamous “Foetal Heartbeat Bills” in the US) will mostly be shot down in Indian courts, thereby preserving women’s right to abortion for years, if not decades to come.

September 29, 2022 should be remembered as an important day for women and LGBTQIA+ people across the country. And while the law may not change social attitudes overnight, it is at least a welcome start to a hopefully more progressive and brighter tomorrow.

(The author is a Programme & Communications Manager at the Vidhi Centre for Legal Policy and Nyaaya and can be reached at
[e-mail])