All Women, Married or Unmarried, Have Right to Safe and Legal Abortion: Supreme Court

NEW DELHI: The Supreme Court, in a historic judgment taken on Thursday, said all women are entitled to choose abortion.

The apex court said this while pronouncing the judgement in the medical termination of pregnancy (MTP) case.

This path-breaking decision is taken by a bench led by Justice D.Y. Chandrachud pried open the restrictive grip of a 51-year-old abortion law which bars unmarried women from terminating pregnancies which are up to 24-weeks old. The Medical Termination of Pregnancy Act of 1971 and its Rules of 2003 prohibit unmarried women who are between 20 weeks to 24 weeks pregnant to abort with the help of registered medical practitioners.

"The rights of reproductive autonomy, dignity and privacy under Article 21 of the Constitution gives an unmarried woman the right of choice as to whether or not to bear a child on a similar footing as that of a married woman," Justice Chandrachud said.

The court declared that prohibiting single or unmarried pregnant women with pregnancies between 20 and 24 weeks from accessing abortion while allowing married women with the same term of pregnancy to access the care was violative of the right to equality before law and equal protection.

The court said a single or unmarried woman may suffer the same "change in material circumstances" or injury to mental health that a married pregnant woman may have. She may be abandoned or lose a job or subject to domestic violence during an ongoing pregnancy. She may not want to give birth to the child with her former partner. She may also be in danger of her life due to foetal abnormalities. A single woman may also have been exploited or the cause of her pregnancy may simply be due to contraceptive failure, affecting her mental health.

The source of her pregnancy may also be the same vulnerability that applies to other women. There is a need to have a forward-looking interpretation of the law, the court said.

"The law should not decide the beneficiaries of a statute based on narrow patriarchal principles about what constitutes permissible sex. This would create invidious classifications," Justice Chandrachud said in the judgment which happen to coincide with the International Safe Abortion Day.

The court said the Medical Termination of Pregnancy (Amendment) Act of 2021 has addressed the "continuing crisis" of unsafe abortions. Close to eight women die everyday in India due to unsafe abortions. Sixty-seven per cent of the abortions carried out in the country between 2007-2011 were classified unsafe by studies. One of the reasons, the Parliament was aware, was that women outside marriages and in poor families were left with no choice but use unsafe or illegal ways to abort unwanted pregnancies. Hence, to address this issue, the 2021 amendments had included the word 'partner', showing that the law was not just concerned about women who undergo pregnancy within marriage, but outside marriage too. After all, the medical risk was the same for both married and unmarried women.

The court said the artificial distinction between married and unmarried women was not constitutionally sustainable. "The benefits of law extend equally to single and married women… If women with unwanted pregnancies are forced to carry them out to term, the state would be stripping of their right to determine the immediate and long-term paths their lives would take and deprive women of autonomy not only over their bodies but also over their lives. This will be an affront to their dignity," Justice Chandrachud observed in the verdict.

The court held that reproductive autonomy required every pregnant women to have the intrinsic right to choose to have or not have to undergo abortion without any consent or authorisation from a third party.

"The decision to carry a pregnancy to its full term or terminate it is firmly rooted in the right to bodily autonomy," Justice Chandrachud observed, linking reproductive rights of women to their bodily autonomy.

The judgment expanded the ambit of the term "reproductive rights". It was not restricted to to have or not have children. 'Reproductive rights' of women included a "constellation of rights, entitlements and freedoms for women".

"Reproductive rights include the right to access education and information about contraception and sexual health. The right to decide whether or what type of contraceptives to use. The right to choose whether or when to have children. The right to choose the number of children. The right to choose safe and legal abortion. The right to reproductive health care. Women must also have the autonomy to make decisions on these rights, free from coercion or violence," Justice Chandrachud underscored.

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