Also written by Sunita Sheel Bandewar
In less than a year, pregnant women were made to go through two extremes by the Supreme Court. On September 29, 2022, a three-judge bench of the SC headed by the Chief Justice of India (CJI), in a case seeking permission for abortion, took a strongly principled stand by pronouncing that, “The right of every woman to make reproductive choices without undue interference from the state is central to the idea of human dignity. Deprivation of access to reproductive healthcare or emotional and physical well-being also injures the dignity of women” (X vs Principal Secretary, MoHFW, GoI).
The optimism due to the recognition of self-determination to abortion lasted for just about a year. On October 16, another three-judge bench headed by the CJI, refused a woman the choice to undergo abortion because her pregnancy had crossed the 24 weeks of gestation — the foetus was medically normal and her mental health condition, though severe, was pronounced to be manageable. The court seems to have privileged a narrow medical opinion against the principled position of giving primacy to the choice of abortion by the pregnant woman.
In the US, anti-abortion activists and conservative judges juxtaposed the rights of pregnant women against the equal right of the foetus to deny the right to abortion. In India, the courts have, by and large, not gone into the issue of conflicting rights. On the contrary, as in the SC’s 2022 verdict, the judiciary has entertained petitions to help pregnant women extend the boundaries of their reproductive right to abortion. This activism recently contributed to the eventual amendment of the law to make available medical termination from 20 to 24 weeks of gestation, and thereafter, on the advice of a medical board in cases of foetal deformity or risk to the woman’s life.
The SC’s latest verdict seems to signal the limit of judicial activism for extending the right to abortion beyond 24 weeks of gestation. Even if the safe-abortion activists in India take this limitation in their stride, the exchanges between doctors, lawyers and judges give out a few dangerous signals for the right to abortion in India.
The 24+ week pregnant woman had approached the SC on October 6 with a request for an abortion. The AIIMS medical board in its report had clearly stated that the foetus did have any defect and was viable. On October 9, the two-judge SC bench of Justices Hima Kohli and B V Nagarathna, upheld the woman’s choice. It referred to last year’s verdict and allowed the termination of the viable foetus. The termination was to be carried out in AIIMS on October 10. However, one doctor in the medical board sent an email to the ASG saying that the October 9 judgment would require “a foeticide (stopping the foetal heart)… before the termination”. The two-judge bench, when requested by the CJI to decide on this isssue, could not come to unanimity. Justice Kohli changed her position and declined abortion while Justice Nagarathna reinforced her position to allow abortion by focusing on the woman as the sole agent.
The first danger signal is that the courts are reinforcing the primacy of a limited medical opinion at the expense of the self-determination of a pregnant woman. In this case, it was established that the woman had given birth to a child only a year back and since then was suffering from severe postpartum depression — this became persistent due to the failure of contraceptive protection afforded by the lactational amenorrhea. She appealed that her physical, mental, and emotional condition would get worse if the abortion was not granted. Ironically, medical professionals, who are supposed to care for her, did not consider her opinion to be in her best interests. The judiciary’s efforts to interrogate the medical opinion seem inadequate.
The second danger signal is the excessive reliance on the viability of the foetus — the conversation seems to have veered toward discussions on a cut-off point, when the foetus, if born, could survive. This again puts decision-making in the hands of medicine and its technologies at the expense of women’s self-determination. Also worrying is the sudden concern for “foeticide,” and “beating heart”. All abortions are foeticides and all foetuses above six weeks have “beating hearts”. This is an attempt to tilt the concern in favour of the foetus — who is accorded personhood — while the full-fledged adult woman as a person is ignored. Such a tilt was the basis of the US Supreme Court’s June 24, 2022, judgment overturning the women’s right to abortion.
Last year when the US judgment on abortion came out, many in the Indian establishment — legal and medical — expressed pride that India has a liberal abortion regime. This pride will come to nought if the seriousness of the danger signals emanating from the medical and judicial episode described above are not recognised and taken care of.
Sheel Bandewar is a bioethicist and Secretary General, Forum for Medical Ethics Society and Jesani is Editor, Indian Journal of Medical Ethics