Table of Contents
Introduction
Pregnancy, the life of an embryo and its termination remains a sensitive discourse throughout the world. Whether the embryo has a right to life and should not be killed, or whether termination of pregnancy should be allowed as it gives the mother right to a dignified life and freedom over her body? It is a question that grapples courts in a tussle between considering women’s freedom over their bodies and preventing voluntary termination of pregnancy that would amount to culpable homicide, or even murder in certain cases.
Abortion refers to termination of pregnancy which may be induced through medical intervention such as surgery or medication. Spontaneous abortion, which occurs on its own, is called miscarriage. According to The Centres for Disease Control (CDC), a legally induced abortion is “an intervention performed by a licensed clinician (e.g., a physician, nurse-midwife, nurse practitioner, physician assistant) within the limits of state regulations that is intended to terminate a suspected or known ongoing intrauterine pregnancy and that does not result in a live birth.”1
Abortion may be required for several reasons, including minor pregnancies, rape pregnancies and in cases where continuing the pregnancy may either be fatal for the mother, or the child might have conditions that endanger the child’s life or affect its life post birth. In such case, it is settled that abortion may be justified. It is the discourse on accidental pregnancies, such as those caused by contraceptive failure, that raise debates. Should pregnancies that might be healthy biologically, and are not caused by absence of consent (rape or minor), be allowed to be terminated merely on the grounds that they were not intended in the first place?
Countries differ in their outlook towards the issue with 24 countries altogether prohibiting it such as El Salvador and Poland, 50 countries restricting it to danger to the mother’s health such as Libya and Indonesia while others such as India, Japan, Canada and France have easier access to abortion.2This article explores the legislative landscape of Abortion rights in India, France and USA’s state of Louisiana. Only one of the states of the USA is considered since the case of Dobbs v. Jackson Women’s Health Organisation3provides for each of the states to individually decide on abortion rights. The article attempts to draw parallels and contradictions in the laws of these 3 countries while addressing the overarching debate of abortion rights.
The rationale behind the choice of these three countries is their position on the spectrum. Recent developments in the laws of both France and Louisiana (USA) make them ideal standpoints for comparative analysis. While France has granted abortion the status of constitutional right in March 2024, Louisiana has recently changed the categorisation of two drugs used for abortion to be included as drugs which cannot be bought without prescription. There are two reasons behind choosing India as one of the countries: one being its almost balanced approach (at least an attempt to strike a balance can be observed), but simultaneously the flaw of lack of efficient implementation of an almost idealistic approach towards Abortion laws.
India
India has a relatively liberal outlook towards Abortion. Abortion is governed in India by the Medical Termination of Pregnancy Act, 19714 which provides for the ambit within which abortion would be legal in India. The MTP Act itself has undergone evolution with the amendment in 20215 which not only has increased the gestational limit for abortion (from 12 weeks to 20 weeks and 20 weeks to 24 weeks with permission of one and two registered medical practitioners respectively) but has also changed the nomenclature in Explanation 2 to Section(2) of the MTP Act, 1971 from “married woman and her husband” to any woman and her partner, thus safeguarding the freedom of unmarried women as well.6
Explanation 2 to Section (2) includes failure of contraceptive and unintended pregnancies as a grave injury to mental health due to the anguish caused by it, thus providing for abortion of pregnancies which are unintended and may cause social, cultural or economic implications on the couple bearing the child. This liberal thought is in contrast to various countries which only allow for abortion in cases of grave injury to the physical health only, and not mental health. Another major development in safeguarding women’s rights is Section 5A, which protects the privacy of the woman whose pregnancy is being terminated by prohibiting divulsion of her details to anyone except to a person authorised by any law in force for the time being.
Apart from the MTP Act which is a special law designated for the purposes relating to abortion, there are provisions in the Bharatiya Nyaya Sanhita, 20237 (earlier IPC, 1860) for offences of causing miscarriage u/s 86-90 of the BNS, 2023. A brief description of these provisions is as follows:
Section 86: Person carrying out voluntary miscarriage not done in good faith, including by the woman, is liable to up to 3 years imprisonment or fine or both, and in case of woman with a quick child (in advanced stage of pregnancy with movement of foetus), is liable to imprisonment of up to seven years, and shall also be liable to fine. This provision may include cases of female foeticide, where the miscarriage of the pregnancy has not been carried out in good faith.
Section 87: If the miscarriage under Section 86 is done without the consent of the woman, the person shall be liable to life imprisonment or up to 10 years of imprisonment and/or fine.
Section 88: punishes people who intending to cause miscarriage, also cause the death of the pregnant women with imprisonment up to 10 years and fine.
Section 89: punishes offence of killing of the child at birth or right after birth, if such act has not been done in good faith with imprisonment up to 10 years or fine or both. This provision may include cases of female infanticide.
Section 90: states that act of causing death under the above stated circumstances would amount to culpable homicide and causing the death of a quick unborn child would be punishable with imprisonment up to 10 years and fine.
The laws relating to abortion are therefore extensive in India. Even though abortion is not a constitutional right per se, the laws in India are of the nature that secure a woman’s fundamental right to freedom, and life with dignity.
USA (Louisiana)
The Supreme Court of the United States of America in the case of Dobbs v Jackson Women’s Health organisation8 overturned the case of Roe v. Wade9 in 2022., which granted abortion the status of a constitutional right, along with the assertion that an unborn child was not to be considered a person. The 2022 case made provisions for all the states to have their own individual rights to govern abortion laws respectively. In this light, the state of Louisiana banned abortion which remains illegal in the state as of August 202210.
The stance of Louisiana towards abortion is strict, to the extent that there were proposals to criminalise abortion seekers in addition to abortion providers, which was strongly opposed by both parties: in favour of and against abortion.11 The law makers even rejected pleas for exceptions of rape and incest in 202312, making Louisiana’s abortion ban one of the strictest in the country. Only a few exceptions exist, including miscarriage management; termination of ectopicpregnancies; abortions to prevent death or “serious, permanent impairment of a life-sustaining organ; ”and abortions of “medically futile” pregnancies (children with acute congenital or chromosomal anomalies).13Any offences in these matters are heavily penalised.
A new law in 2024 classified Mifepristone and misoprostol as Schedule IV substances14, which necessitates heightened supervision owing to the potential for misuse or addiction. Thus, abortion tablets have become equivalent to the anti-anxiety drugs which fall under the category at risk of drug abuse. Possession without a prescription or outside the scope of professional medical practice would be a criminal offense punishable by fines of up to $5,000 and imprisonment for a period of one to five years. This situation increases the danger for residents of Louisiana, who are already subject to an almost complete prohibition on abortion, when they bring in abortion pills from out of state or purchase them online without a prescription.
Imposing restrictions on abortion with strictness to the extent that does not allow exceptions to rape and incest, and has classified abortion pills in a Schedule IV category, will hinder the freedom of women over their bodies, since these restrictions block all possible ways in which a woman would be able to legally abort her child in necessary circumstances. This will lead to two situations: either women will resort to illegal abortion, potentially putting their health in danger at the disposal of quacks, or they will migrate to other states to get abortion. In both the cases, the law does not really prevent abortion, only creates difficult situations for women who would potentially resort to wrongful means in the desperation to get abortion, especially when it might be a cause of grave injury to their mental health.
France
France strongly supports abortion where it is a matter of public health than politics.15 In March 2024, it became the first country in the world to grant abortion as a constitutional right. It was a narrative being pushed forth by the feminist groups in France16, which finally bore fruit by guaranteeing abortion as a right in the constitution, which would not leave the law making at the whims of the government, thus ensuring the freedom of women to choose and make decisions about their bodies.
This decision has faced its fair share of criticism. Critics have asserted that while the decision is not wrong, it is unnecessary. The President has also been accused of ulterior motive of strengthening his left wing political stance.17Theright wing has also vehemently opposed the new law by considering abortion as an action that takes away life18along with questions also being raised about ”abortions of convenience”19
Abortion laws through the lens of Reproductive justice: Conclusion
A universal solution cannot be created, but a universal question can be raised: What is the extent of the rights that women have over their bodies? Abortion should not be used as a contraceptive technique at the disposal of everyone to abuse the rights however they wish to. A life ends, when a pregnancy is terminated. This measure must therefore only be resorted to, when it’s absolutely necessary. However, what’s “absolutely necessary” must account in for the woman’s mental health, her environment and circumstances which might make it difficult for her to raise the child in a manner ensures the right to life with dignity, both to the child and the mother.
While USA (Louisiana) is too restrictive in its notion and outlook towards abortion, France’s move though not wrong, may be unnecessary. India attempts to strike a balance between the two extremes of the spectrum, but fails in implementing measures for safe and legal abortions, with a significant percentage of the abortions in India being illegal.
Abortion may not therefore be either a right or a crime, but should be a tool of last resort meant to protect the freedom of women and their right to life with dignity, with it being allowed in necessary circumstances with sufficient penal provisions to prevent its misuse. Abortion may therefore not be asserted as a right by the women, but become a pathway to reproductive justice, when it may be so required.
This article is authored by Katyayini Rana, a student at Institute of Law Nirma University.
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