In a far-reaching judgment expanding and re-affirming the right to abortion, the Supreme Court (SC) on Thursday upheld the equal status of married and unmarried or single women, and reproductive autonomy, while providing a purposive interpretation of the Medical Termination of Pregnancy Act (MTP).
Here are the key takeaways from the historic decision of the SC in the case of X v The Principal Secretary Health and Family Welfare Department, Delhi NCT Government.
- Equal Status of both married and unmarried women
The Court ruled that the MTP Rules cannot be read narrowly in order to deprive an unmarried woman of the right to an abortion after 20 weeks. This is tantamount to a violation of Article 14 of the Constitution, guaranteeing equal protection of laws within the territory of India.
The Court observed that the phrase ‘married woman’ has been replaced by ‘any woman’ and the word ‘husband’ has been replaced by ‘partner in the recent amendment to the MTP Act. This is a clear indication that the legislature did not intend to leave out unmarried women from the scope of the Act.
The court went further and clarified, “If the Rule was to be interpreted such that its benefits extended only to married women, it would perpetuate the stereotype and the socially held notion that only married women indulge in sexual intercourse, and that consequently, the benefits in law ought to extend only to them. This artificial distinction between married and single women is not constitutionally sustainable..”
Thus unmarried women have an equal right to seek an abortion as is granted to a married woman.
- Marital rape falls within the definition of ‘rape’ for purpose of the MTP Act.
In a first, the Apex Court recognised the realities of intimate partner abuse and the possibility of unintended pregnancy when it escalates to rape. In order to protect women against forced pregnancies, it was decided that marital rape must be regarded as falling under the definition of “rape” for the purposes of the MTP Act.
- Removal of archaic procedural barriers to access safe abortion facilities
The Court stated in no uncertain terms that it is only the woman’s consent (or her guardian’s consent if she is a minor or mentally ill) which is material, before performing a termination of pregnancy. Registered medical practitioners must refrain from imposing extra-legal conditions on women seeking to terminate their pregnancy in accordance with the law. These conditions include demanding consent from the woman’s family, documentary proof, or judicial authorization, which are in contravention of the right to privacy and dignity enshrined under Article 21 of the Constitution.
Furthermore, these archaic conditions are counterintuitive. They do not result in the reduction of the number of abortions but create further barriers to safe abortion.
- Importance of mental health of the pregnant women
While alluding to the status quo, the Court remarked that the burden of an unintended or incidental pregnancy always rests on the pregnant woman, having an impact on both her physical and mental health. Furthermore, the court held that the best person to determine the strain an unwanted pregnancy has on one’s mental health is the pregnant woman herself. In determining if there is a threat of “grave injury to her physical or mental health” it is important to consider a woman’s environment, as well as her social, economic, and cultural background. Significant weightage must be assigned to the opinion of the woman herself.
- Access to healthcare including reproductive care
The Court held that “Reproductive rights include the right to access education and information about contraception and sexual health, the right to decide whether and what type of contraceptives to use, the right to choose whether and when to have children, the right to choose the number of children, the right to access safe and legal abortion, and the right to reproductive healthcare.”
In conclusion, the liberal interpretation of the MTP Act signals a decided shift in the top court’s attitude when dealing with cases of termination of unwanted pregnancies and anatomical independence of women. It is a step forward in the right direction and especially welcome when countries in the western hemisphere such as The United States of America seem intent on turning back the clock when it comes to recognizing the inherent autonomy of women over their bodies.