With its decision to end constitutional abortion protections in the recent case of Dobbs vs. Jackson Women’s Health Organization, the Supreme Court of the United States has made this country a world exception in terms of abortion law and policy. At a time when many governments around the world are liberalizing their abortion care regulations, the United States has opened the door to an outright ban on legal abortion.
India, where the Medical Termination of Pregnancy Act was recently amended to allow abortion procedures up to 24 weeks gestation, and even later in cases of “substantial fetal abnormalities”, appears to be occupying the first place. the opposite end of the abortion regulation spectrum. However, the contrast between a supposedly liberal law in India and a more restrictive law in the United States is not so straightforward.
Even 50 years after legalization, there remain severe restrictions on access to safe and legal abortion care in India. As a result, deaths from unsafe abortions still constitute 10% maternal mortality.
This stems from the fact that India’s abortion law does not recognize abortion care as a basic right of women and those who might become pregnant. Nor does it include abortion as an essential element of women’s rights to reproductive, bodily and sexual autonomy. These limitations considerably reduce the scope and meaning of the right to abortion.
India’s abortion landscape today sits within long histories of criminalization of abortion care and control of population growth, which have shaped reproductive policies since the colonial era. Recognizing this historical context can help to understand the current contradictions between an apparently liberal position in law and restrictions on abortion care in practice.
In the early 19th century, under the rule of the East India Company, legal authorities were only interested in abortion when the procedure resulted in the death of a pregnant woman. This approach was in line with British common law, which took a relatively lenient approach to abortions before the pregnant woman could feel fetal movement, known as “acceleration”.
The Indian Code of Criminal Procedure, which came into effect in 1862, had a stricter stance. He criminalized all abortions and instituted harsher penalties. This change was in line with changes in British common law in the late 19th century, which began to place greater priority on the life of the fetus and to ignore “acceleration” as an important marker.
Although abortion was a crime under colonial law, authorities rarely prosecuted cases where a pregnant woman survived the procedure. Yet the criminalization of abortion undoubtedly limited women’s ability to receive safe abortion care and entrenched the idea that abortion was not a legitimate practice.
Colonial abortion laws remained unchanged for more than a century. Finally, in 1971, the Medical Termination of Pregnancy Act legalized abortion up to 20 weeks gestation if performed with the approval of a licensed physician specifically licensed for the procedure. The law outlined the reasons a legal abortion could be performed and authorized the licensed physician to determine whether the procedure was warranted.
Legislation on medical termination of pregnancy has not brought about these changes on the basis of women’s rights. Nor did he make a person’s decision not to have a child the basis for a legal abortion. Instead, the government argued that legal reform was needed for “humanitarian, health and eugenic reasons”.
During the Lok Sabha debates on the bill, lawmakers noted that pregnancies resulting from rape cause great harm to women and called for legal abortion as a humanitarian remedy against sexual violence. They expressed concern that women were risking their health and sometimes dying as a result of unsafe abortions.
The eugenic reasons for the law to legalize abortion centered on disability. Lawmakers claimed the new law would allow abortions when a “fetal abnormality” was detected, and implied it would improve the health of children, families and the nation’s population itself.
More than introducing abortion as a fundamental reproductive right, the law on medical termination of pregnancy was developed and implemented in the context of a draconian policy population control campaign in India. From the 1960s, as global and Indian fears of a “population bomb” took hold, the Indian government aimed to regulate female reproduction in order to curb population growth.
The desperate desire to control the population has been the impetus for the use of new contraceptive technologies, such as the intrauterine device or surgical sterilization, on a large scale. It also shaped the delivery of reproductive health care by prioritizing family planning goals over maternal and child health. Target and incentive systems disregarded women’s own reproductive choices and could have coercive effects.
Ultimately, population control programs made women’s bodies an instrument for other purposes, as the government insisted that reducing India’s total fertility rate was essential to development. economic.
The Medical Termination of Pregnancy Act 1971 was passed during this period of great public concern. Although the government did not list population control among its explicit “objects and reasons” for the new law, it did make contraceptive failure a legally valid reason for abortion.
Lok Sabha members seized on this provision to argue that couples seeking to limit family size needed an abortion in case other family planning measures were unsuccessful. They suggested that a country aiming to control the size of its population could not simultaneously ban abortion.
The legalization of abortion by law was part of a logic of demographic control that did not take into account the health and rights of women in order to regulate their reproduction at all costs. The law gave doctors, rather than pregnant women themselves, the ability to decide when and if a person was eligible for legal abortion. Like a recent investigation report showsthese restrictions severely limited access to abortion and caused people to seek out unsafe procedures.
The law on medical termination of pregnancy has not even fully decriminalized abortion. It only legalized abortion procedures if performed by an appropriate provider and for specific reasons. All other abortions remained criminal acts.
In 2021, an amendment to the law extended the time in which a person can obtain an abortion to 24 weeks gestation. In the case of “substantial fetal anomalies”, abortions can occur even later in pregnancy.
However, the broader framework of abortion law remains unchanged. Legal abortion remains an exception to the general criminalization of the procedure. Doctors and medical boards still exercise decision-making power over whether a pregnant person can obtain an abortion. Eugenic assumptions continue to devalue disabled lives and determine who receives abortion care. Ultimately, abortion is not part of a pregnant person’s reproductive rights or bodily autonomy.
Compared to the United States, where many state legislatures are rush to completely ban abortion, even this narrow path to legal abortion in India may seem more progressive. But limiting the possibilities to either American-style restrictions or Indian-style legalization offers a false choice.
The catastrophic effects of the Dobbs decision in the United States suggest the fragility of the right to abortion and the need to guarantee it on more solid grounds. Recognizing the fundamental role of abortion in our broader rights to reproductive health care and autonomy is now even more urgent.
Mytheli Sreenivas is a historian of modern India and her research focuses on Indian reproductive politics. His most recent books are Reproductive politics and the making of modern India.