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Thursday, December 8, 2022

Women, married or unmarried, are entitled to safe and legal abortion

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The Supreme Court said all women are entitled to the right to abortion. A bench headed by Justice DY Chandrachud held that unmarried or single women cannot be excluded from seeking a safe abortion of pregnancies up to 24 weeks under the Medical Termination act and the rules. 

Equality before the law and equal protection of law 

The court stated that prohibiting single or unmarried pregnant women with pregnancy from accessing abortion while allowing married women would fall foul of the spirit guiding Article 14.

Progressive judgment

The judgment signifies the development of the law in modern times. It is shedding the notion that marriage is a precondition for the rights of persons. The law must not remain static and must keep in mind changing social realities.

In this case, the supreme court had earlier passed an order to allow the petitioner, an unmarried woman to abort her pregnancy of 24 weeks subject to a medical board constituted by the AIIMS Delhi determining that the fetus can be aborted without risk to the life of the woman.

Abortion law in the US

In times when the western world pretends to be liberal and more progressive the U.S. Supreme Court recently overturned Roe v. Wade, the 1973 decision that had provided a constitutional right to abortion. The ruling leads to abortion bans in roughly half the states in the US. India on the other hand is only inclusive of various dimensions of the current society and grants recognition to the rights of its citizens. 

Medical Termination of Pregnancy Act, 1971 (MTP Act)

The court noted that the object of section 3(2)(b) of the MTP Act and rule 3B is to provide for abortion between 20 and 24 weeks, which is rendered unwanted in case of a change in the material circumstances of women. Given the object, there is no rationale to exclude unmarried or single women who face change in material circumstances from the ambit of rule 3B.

A liberal interpretation of the statue 

According to the court, the law shouldn’t decide the beneficiaries of a statute based on narrow patriarchal stereotypes on what constitutes permissible sex. The court has said that rights of reproductive autonomy, dignity, and privacy under article 21 give an unmarried woman the right of choice whether or not to bear a child on a similar footing as a married woman.

Marital rape also rape in case of abortions

In an important development, the Supreme Court has also held that the meaning of rape must be understood to include marital rape. Expressing concerns over unsafe abortions, the apex court said that unsafe abortions continue to be the third leading cause of maternal mortality. 60% of abortions carried out in India are unsafe. By denying access to safe abortion services, restrictive abortion practices lead to unsafe abortions.

Recognizing the grievance of marital rape the court said that married women may also form part of the class of survivors of sexual assault or rape. A woman may become pregnant as a result of non-consensual sex with her husband.

No need to disclose the identity of the practitioner

The Supreme Court said that registered medical petitioners need not disclose the identity of a minor if she seeks an abortion under the POSCO Act.

The court has said that the state must ensure that information regarding reproduction and safe sexual practices is disseminated to all parts of the population and that all segments of society are able to access contraceptives to avoid unintended pregnancies and plan their 

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