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Abortion: Access to All

In a laudable verdict, the Supreme Court said it was unconstitutional to distinguish between a married and unmarried woman with regard to her right to safe abortion between 20 and 24 weeks

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“No woman can call herself free until she can choose consciously whether she will or will not be a mother.”  

—Margaret Sanger, American activist

In a significant ruling recently, the apex court held that it was unconstitutional to distinguish between a married and unmarried or a single woman for the purpose of the right to access to safe and legal abortions between 20 and 24 weeks under the Medical Termination of Pregnancy (MTP) law.

A three-judge bench, comprising Justices DY Chandrachud, AS Bopanna and JB Pardiwala, was dealing with a plea by a 25-year-old unmarried wo­man challenging the MTP Act and the rules framed thereunder. One of its provisions is that unmarried women are excluded from the ambit of the law governing termination of pregnancy.

The woman had approached the Delhi High Court in July this year for termination of her pregnancy arising out of a consensual relationship after her partner refused to marry her at the last stage. The woman’s case was that the continuation of the unwanted pregnancy would involve a risk of grave and immense injury to her mental health. The High Court declined her plea observing that being an unmarried woman whose pregnancy arose out of a consensual relationship she was not covered by the MTP law.

The aggrieved woman approached the top court challenging Section 3(2)(b) of the MTP Act, 1971, and Rule 3B of the MTP Rules 2003, which exclude unmarried women whose pregnancy arise out of consensual relationships from the ambit of terminating their pregnancies during 20 to 24 weeks. 

The MTP Act is a legislation dealing with termination of certain pregnancies by registered medical practitioners and specifies requirements to be fulfilled for doing so. This lists the persons who are competent to perform the termination procedure, circumstances when abortion is permissible and places where the procedure may be performed.

A crucial amendment was brought into the Act in 2021 by way of which the upper gestational limit for terminating pregnancies under “certain specified conditions” was increased. The scope of terminating a pregnancy up to 20 weeks arising due to the failure of contraception was extended to all women and not just married ones.

Section 3 of the Act provides for circumstances where pregnancies can be terminated by registered medical practitioners. Section 3(4) stipulates that a pregnancy shall not be terminated except with the consent of the pregnant woman, and if she is below 18 years or mentally ill, with the consent of her guardian. Subject to the requirement contained in sub-section (4), sub-section (2) of Section 3 provides that a pregnancy may be terminated by a registered medical practitioner subject to the conditions laid down therein. Section 3(2)(a) of the MTP Act permits the termination of a pregnancy where the length of the pregnancy does not exceed 20 weeks, while Section 3(2)(b) permits it where the length of pregnancy is between 20 and 24 weeks.

Rule 3B of MTP Rules, 2003, governs categories of women whose pregnancy may be terminated beyond 20 weeks, but up to 24 weeks, which includes survivors of sexual assault, rape or incest, minors, women whose marital status changes during the pregnancy (widowhood and divorce), women with physical/mental disabilities, foetal malformation that has substantial risk of being incompatible with life or if the child will suffer such physical or mental abnormalities to be seriously handicapped and women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the government.

Observing that the High Court took an unduly restrictive view of the provision, the top court allowed the woman to abort her 24-week-old foetus subsequent to the report of a medical board constituted at the All India Institute of Medical Sciences indicating that the foetus could be aborted without danger to the woman’s life. 

“We are of the view that allowing the petitioner to suffer an unwanted pregnancy would be contrary to the intent of the law enacted by Parliament. Moreover, allowing the petitioner to terminate her pregnancy, on a proper interpretation of the statute, prima facie, falls within the ambit of the statute and the petitioner should not be denied the benefit on the ground that she is an unmarried woman,” observed the top court in its July 21 order.

The Court had also appointed senior counsel and Additional Solicitor General Aishwarya Bhati as amicus curiae to assist it in the matter. She argued in support of extending the right of abortion to unmarried or single women by stating that women enjoy the right to bodily integrity and autonomy, as well as reproductive rights.

Imparting a purposive interpretation to Rule 3B, the apex court held that the intention of the legislature was never to restrict the benefit of Section 3(2)(b) and Rule 3B only to women who may be confronted with a material alteration in their circumstances in the limited situations enumerated in Rule 3B. Rather, the benefit granted by Rule 3B must be understood as extending to all women who undergo a change of material circumstances. “It is not possible for either the legislature or the courts to list each of the potential events which would qualify as a change of material circumstances. Suffice it to say that each case must be tested against this standard with due regard to the unique facts and circumstances that a pregnant woman finds herself in,” the Court clarified in its ruling.

The Court also said that the MTP Act and rules framed thereunder must be read in consonance with the evolution in society. “In the evolution of the law towards a gender equal society, the interpretation of the MTP Act and MTP Rules must consider the social realities of today and not be restricted by societal norms of an age which has passed into the archives of history. As society changes and evolves, so must our mores and conventions. A changed social context demands a readjustment of our laws. Law must not remain static and its interpretation should keep in mind the changing social context and advance the cause of social justice,” observed the Court. 

Recognising a woman’s right to reproductive autonomy and the right to undergo or not to undergo abortion without any consent or authorisation from a third party, the Court held that all women (other than cis-gender women) are entitled to safe and legal abortions. “Prohibiting unmarried or single pregnant women (whose pregnancies are between twenty and twenty-four weeks) from accessing abortion while allowing married women to access them during the same period would fall foul of the spirit guiding Article 14,” ruled the top court. 

It stressed that the distinction between married and single women in accessing abortion is constitutionally unsustainable as it perpetuates the stereotype and socially held notion that only married women indulge in sexual intercourse.

The Court went on to expand the scope of the provision to include married women to form part of the class of survivors of sexual assault or rape. In other words, it noted that in order to save married women from forceful pregnancy, marital rape has to be considered as falling within the meaning of “rape” for the purposes of the MTP Act and any rules and regulations framed thereunder.

“The ordinary meaning of the word ‘rape’ is sexual intercourse with a person, without their consent or against their will, regardless of whether such forced intercourse occurs in the context of matrimony. A woman may become pregnant as a result of non-consensual sexual intercourse performed upon her by her husband. We would be remiss in not recognizing that intimate partner violence is a reality and can take the form of rape. The misconception that strangers are exclusively or almost exclusively responsible for sex- and gender-based violence is a deeply regrettable one. Sex- and gender-based violence (in all its forms) within the context of the family has long formed a part of the lived experiences of scores of women,” the Court underscored. 

It, however, made it clear that the issue regarding the constitutional validity of marital rape under Exception 2 to Section 375 Indian Penal Code, which is pending consideration before a different Bench of the Court, is left to be decided in the appropriate proceeding. 

“It is only by a legal fiction that Exception 2 to Section 375 of the IPC removes marital rape from the ambit of rape, as defined in Section 375. Understanding ‘rape’ under the MTP Act and the rules framed thereunder as including marital rape does not have the effect of striking down Exception 2 to Section 375 of the IPC or changing the contours of the offence of rape as defined in the IPC,” the Court said.

In order to enable women to realise their right to reproductive autonomy, the Court directed the State to undertake active steps to help increase access to healthcare and ensure that information regarding reproduction and safe sexual practices are disseminated to all parts of the population. It further directed the State to ensure that all segments of society are able to access contraceptives to avoid unintended pregnancies and plan their families.

The Court’s ruling has broadened a woman’s right to evaluate her life and arrive at the best course of action when it comes to her reproductive choices. 

—By Banshika Garg and India Legal Bureau

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