On Thursday, a three-judge bench of the Supreme Court expanded the interpretation of a section of the abortion law that gave only certain categories of women the right to terminate pregnancies between 20 weeks and 24 weeks, enlarging the right of women to have abortions. The court held that the law cannot discriminate between married and unmarried women.
In addition, the court made significant pronouncements on the right to abortion of minor girls and members of the transgender community.
A 25-year-old unmarried woman who was around 22 weeks pregnant from a consensual relationship petitioned the Delhi High Court for permission to terminate her pregnancy. On July 15, the Delhi High Court denied her permission. It said that the petitioner, being an unmarried woman, was not covered under the law.
In 2021, the Medical Termination of Pregnancy Act, 1971 and its rules, which govern abortions, were amended to increase the maximum permissible time for abortion from 20 weeks of pregnancy to 24 weeks.
The law said that any pregnant woman could get an abortion up to 20 weeks as long as a registered medical practitioner was of the opinion that the pregnancy would either involve a risk to the woman’s life or her mental or physical health, or the child, if born, would suffer from abnormalities.
For pregnancies between 20 weeks and 24 weeks, the consent of two medical practitioners is required on the same grounds. However, this provision can only be availed of by the categories of women prescribed in the Medical Termination of Pregnancy Rules, 2003: rape survivors, minors, women with physical disabilities or mental retardation, women who became widows or divorcees during pregnancy, and women in disasters or emergencies.
The court said that since these rules were constitutional and excluded unmarried women, it could not allow the petitioner an abortion. This was appealed before the Supreme Court.
The Supreme Court
On July 21, the Supreme Court passed an interim order allowing the woman to terminate her pregnancy, after getting the required medical approval under the law. Her abortion was safely carried out.
However, since the case involved a “substantial question of law” – on the interpretation of the law regarding abortion for women who are between 20 weeks and 24 weeks pregnant – the court on Thursday clarified the law on this issue.
Married unmarried distinction
The court looked at the 2021 amendment and noted that the rationale behind allowing more time to categories of women, such as minors or change in marital status, was because they may recognise their pregnancy late or experience a “change in their environment” that impacts their decision about continuing with the pregnancy.
However, the court said that there may be other reasons, such as losing a job or domestic violence, which may also change a woman’s material circumstances to have a child. Prohibiting single or unmarried women from using these benefits would be discriminatory under Article 14, which guarantees the right to equality. Such an interpretation would extend the stereotypes about “permissible sex” in society.
However, instead of striking down the provision, the court said that it has adopted a “purposive interpretation” where the law is interpreted broadly to fulfill the purpose for which it was enacted. Looking at the 2021 amendment and its supporting documents, the court arrived at the conclusion that Parliament did not want to discriminate between married and unmarried women.
“The rights of reproductive autonomy, dignity, and privacy under Article 21 [right to life] give an unmarried woman the right of choice on whether or not to bear a child, on a similar footing of a married woman,” the court said.
While expanding this scope, the court also made a significant observation. It said that the term “woman” also includes persons other than “cis-gender woman” who may want to terminate their pregnancies, thus paving way for members of the transgender community to also get abortions.
Abortion for minors
The court has also made it easier for minors to get abortions.
The Protection of Children from Sexual Offences Act 2012, criminalises any sexual activity between those who are below 18 years of age. The 2012 law requires anyone who has the knowledge, or even an apprehension, of sexual activity between minors, to report it to the police. Not doing so is punishable.
Thus, when minors approach a medical practitioner for abortions, they would need to inform the authorities.
However, the court said that for the purposes of termination of pregnancy, a medical practitioner need not inform authorities if the minor and their guardian request so. It also said that the practitioner is exempted from disclosing the identity of the minor in any criminal proceedings that follow after the practitioner reports sexual activity.
With this verdict, even married women have more access abortions.
The abortion law states that if a pregnancy is alleged to be caused by rape or sexual assault, it will be presumed that it “constitutes a grave injury to the mental health of the pregnant woman”, making it mandatory for the medical practitioner to terminate a pregnancy.
The court also noted that this would include non-consensual sexual intercourse by a husband. At present, the Indian Penal Code carves out an exception to say forcible sex by a husband on his wife does not constitute rape. However, the Supreme Court noted that, for the purposes of abortion, the term “rape” or “sexual assault” would include marital rape.
The court also said that it is not a necessity to have formal legal proceedings or a first information report to show that rape, incest or sexual assault has taken place.
Woman’s consent material
Further, the court noted that the law on abortion is conditional on getting an approval from a registered medical practitioner. However, the practitioners often deny this consent, leading to either women approaching courts or having an abortion in unsafe conditions.
It said that medical practitioners often ask for “extra-legal conditions” such as consent from the “family, documentary proofs or judicial authorisation”. These conditions have “no basis in law”, the court said, emphasisng that only the woman’s consent is material while deciding on abortion.
In assessing whether there is a threat to the mental or physical health of a woman, the court said that the practitioner must place “significant reliance…on each woman’s own estimation of whether she is in a position to continue and carry to term her pregnancy”.
It said that terms like mental health should not be “confined to medical terms or medical language but should be understood in common parlance”.