Constitutional but Criminal

In the last two years, India has witnessed significant changes in the legal regulation of abortion. In 2021, Parliament comprehensively amended the Medical Termination of Pregnancy Act, 1971 (“MTP” Act) to ensure “access of women to safe and legal abortion without compromising on the safety and quality of care,” along with securing “dignity, autonomy, confidentiality and justice for women who need to terminate pregnancy.” Additionally, in September 2022, the Supreme Court of India delivered a path-breaking judgment on abortion, locating access to safe abortion within the fundamental rights to dignity, autonomy, privacy, and health. Despite these changes, the law and practice of abortion continue to deny pregnant persons access to safe and comprehensive abortion care.

Studies suggest that about 48.1 million pregnancies occur in India annually. Of these, a third are aborted. Around 12.3 million abortions – 78% of all abortions – are illegal solely because they violate the terms of the MTP Act, even though they may otherwise be safe. At the same time, eight women die from unsafe abortions in India every day. Women who are socio-economically vulnerable are at a significantly higher risk of having unsafe or illegal abortions.

In this post, I describe how India’s laws on abortion and their implementation deny pregnant persons their fundamental rights by creating barriers to accessing safe and comprehensive abortion care.

The Criminalization of Abortion

The Indian Penal Code, 1860 criminalizes seeking and providing abortion, except to save the life of a pregnant woman. Such a near-complete prohibition on abortion forced women to seek unsafe abortions and resulted in significant maternal mortality and morbidity. In 1971, the Indian Parliament enacted the Medical Termination of Pregnancy Act (“MTP Act”) to “liberalise” access to abortion by providing additional circumstances in which abortion is permitted. This law was motivated by concerns of maternal health, on “humanitarian grounds” such as when the pregnancy results from rape, and “eugenic grounds” such as when “there is substantial risk that the child, if born, would suffer from deformities and diseases.” Fifty years after its enactment, the MTP Act was comprehensively amended in 2021, to ensure “access of women to safe and legal abortion without compromising on the safety and quality of care,” along with securing “dignity, autonomy, confidentiality and justice for women who need to terminate pregnancy.”

Despite recognizing that access to safe abortion implicates women’s fundamental rights, the MTP Act does not provide for abortion on request. A pregnant woman can access abortion only through Registered Medical Practitioners (“RMP”) – doctors who meet certain prescribed qualifications – and only to preserve the life or mental or physical health of the pregnant woman, or in cases of substantial foetal anomalies. The Act imposes different preconditions for accessing abortion depending on gestational age. Abortion can be accessed at any gestational age to save the life of the pregnant woman. The 2021 amendment extended the gestational limit for abortion from 20 to 24 weeks in certain circumstances (such as when the pregnancy results from rape, the pregnant person has mental or physical disabilities, is situated in humanitarian or disaster settings, has had a change in marital circumstances, or the fetus has severe malformations). Beyond 24 weeks, abortion is permitted in case of severe fetal anomalies, with the prior approval of Medical Boards constituted under the Act.

The MTP Act and Rules also contain provisions regarding the qualification of RMPs who can provide abortion services, where such services can be provided, and the infrastructural facilities and regulatory approvals required for providing such services. Despite medical advances and the wide availability of medical methods of abortion (through pills as opposed to surgery), the law insists on abortion in facilities. It provides that medical abortions can take place only till 9 weeks of gestation. Medication can be provided in RMPs’ clinics as long as the RMP has access to prescribed healthcare facilities. Medical methods of abortion are not approved for pregnancies beyond 9 weeks, which can be terminated only in healthcare facilities that meet certain criteria. The Act has no provision for self-managed abortions. At any gestational stage, abortion care can only be provided by doctors who have to fulfil certain criteria to qualify as RMPs under the Act and Rules. Contrast these with the WHO guidelines which recognize that abortion can safely be self-managed through medical methods up to 12 weeks, that medical methods of abortion are safe till later stages of gestation, and that at early gestational stages, medical methods of abortion can be provided by a range of health care workers, not necessarily doctors. Thus, the restrictions and qualifications in the MTP Act and Rules are neither consistent with current standards of scientific knowledge nor are they necessary for protecting the health of pregnant persons. They serve the purpose of controlling and restricting access to abortion.

The regulatory compliances required under the MTP also severely limit the ability to secure access to legal abortion. The qualifications for RMPs, infrastructural requirements for facilities to be approved for providing abortion services, and registration and inspection-related regulations burden an already under-resourced healthcare system in the country. The compliance requirements for providing abortion services under the MTP Act and Rules are significantly more burdensome than those for more complex and risky medical procedures, again demonstrating that these regulations are not so much for securing the safety of abortion services, as they are for restricting access to abortion.

The Gatekeepers of Abortion

The MTP Act empowers RMPs to act as gatekeepers to abortion access. They have to determine whether, in the pregnant person’s “actual or reasonable foreseeable environment,” the requirements of the Act for terminating the pregnancy are met. However, RMPs’ decisions on whether to provide or withhold abortion services are influenced by a range of factors external to the health and autonomy interests of the pregnant person. RMPs who terminate a pregnancy have immunity from criminal liability only as long as they comply with the MTP Act; else, they can be prosecuted under the Indian Penal Code. RMPs who refuse to provide an abortion face no consequences. In an empirical study on legal barriers to accessing safe abortion services in India, published in 2021, my co-authors and I found that placing abortion access within a criminal law framework has a chilling effect on RMPs willingness to terminate a pregnancy. It creates a conflict between the RMPs own best interests (in avoiding criminal liability) and that of their patients. As a result, RMPs often either deny abortion services, or ask the pregnant person to satisfy a range of extra-legal requirements, in order to insulate themselves from potential legal liability. So for example, while the MTP Act only requires an adult pregnant woman’s consent for terminating her pregnancy, doctors routinely ask for spousal or parental consent even from adult women. Seeking other third-party authorizations, such as from the police, other state authorities, or even the courts, are common strategies that RMPs adopt to protect themselves. RMPs also seek additional documentation such as identity proofs, impose cooling off periods, or require the pregnant person to undergo mandatory counselling against abortion, as means of securing themselves against potential liability.

In addition to the MTP Act, other laws significantly impact a pregnant person’s ability to access safe abortion care. One such example is the Protection of Children from Sexual Offences Act, 2012 (“POCSO”) which prescribes 18 as the age of consent for sexual activity. The Act also requires mandatory reporting to the police of all offences under the Act. This implies that doctors are required, on pain of criminal penalty, to report adolescents under the age of 18 who approach them seeking abortion care. Minors and their guardians who fear entanglement with the criminal justice process are thus pushed into seeking unsafe abortion to avoid the criminal justice system.

Another law that severely limits the ability of pregnant persons to access safe abortion services is the Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994 (“PCPNDT”). This Act prohibits determining the sex of the fetus, with the aim of curbing sex-selection and thereby arresting a declining sex ratio in the population. While the Act itself focuses on sex-determination and not on abortions, the two are often conflated in the implementation of the Act. Authorities under the Act regularly enforce the Act through monitoring abortions, especially late term abortions. RMPs who provide second term abortions are likely to come under the scrutiny of the enforcement authorities under the Act. The Act prescribes a range of documentation, reporting, and other regulatory requirements, in addition to prohibiting sex determination. However, the stringent penal consequences under the Act are the same for all infractions under the Act. So, for example, a doctor who fails to stamp a document properly may face the same penalty as one who reveals the sex of the fetus to the pregnant person. The fear of falling foul of the Act for even a small infraction creates a strong disincentive for RMPs to provide abortion services, especially in the second term. Many qualified RMPs and health care facilities do not even register themselves for the license to perform second-term abortions to avoid facing scrutiny from the PCPNDT enforcement machinery.

The fear of sex-selection through abortion is also increasingly restricting access to abortion pills. PCPNDT authorities and drug controllers have been conflating access to such pills with seeking sex-selective abortion. Fearing scrutiny and harassment from drug controllers and PCPNDT authorities, pharmacists are increasingly wary of stocking MA drugs. Where they do stock such pills, they create extra-legal barriers in accessing such drugs such as seeking extra documentation, identity proofs, or authorizations before dispensing the medicines, even for those who have the requisite authorisation from their RMP.

Since the MTP Act allows RMPs to gatekeep access to abortion services, their own biases and prejudices mediate access to safe abortion services. RMPs and other service providers are also not immune from the general heteropatriarchal and ableist societal norms regarding women’s role in society. RMPs’ views on the morality of abortion are often shaped by hetero-patriarchal assumptions about women’s sexual and reproductive behaviour, their expected role within the family and in society, their capacity to make reliable and informed decisions, and stereotypes about women from different social locations. Medical textbooks and a medical curriculum that is not aligned to gender- and rights-affirming health care, reinforce abortion stigma. Single women, queer persons, persons with disabilities, persons from marginalized castes, religions, and communities face the brunt of such stigma, and are routinely shamed, ridiculed, and denied abortion services. In our study, many RMPs reported to us that they felt that the MTP Act was in fact ‘too liberal’ and required them to provide abortions in circumstances that they felt were unwarranted. This indicates that in a social context of rampant abortion stigma decriminalizing abortion will not secure access to safe abortion care by itself. In addition, laws or policies would have to secure an affirmative right to safe and comprehensive abortion care.

Securing Reproductive Justice – From Decriminalization to a Right to Abortion Care

There is a wide gap in India between the constitutional promises of dignity, reproductive autonomy, rights to bodily integrity and reproductive health, and privacy on the one hand, and laws, policies, and practices on abortion on the other. Without decriminalization, hortatory constitutional language will do little to increase access to safe abortion care on the ground. At the same time, decriminalization is not enough.

As the Supreme Court recognized in a recent decision, legal, social, structural, and material barriers impede pregnant persons’ access to safe abortion care.  Since the Court did not expressly hold the MTP Act unconstitutional, it is extremely unlikely that the Indian Parliament will heed the words of the Supreme Court and amend the MTP Act. However, this decision does provide constitutional ammunition for advocacy in future cases within and outside courts. Securing reproductive justice will require removing such structural and social barriers to abortion through positive state action directed at securing social justice in the domain of reproductive health. Further, without an affirmative rights-based law that secures access to abortion consistent with a pregnant person’s right to life with dignity, autonomy, and equality, and in consonance with current scientific standards, biases and prejudices of service providers will continue to limit access to abortion. Decriminalization of abortion in India is therefore necessary but not sufficient in securing reproductive justice for pregnant persons.