[Vidhispeaks] Abortion Rights in North America and India: A comparative socio-legal analysis

By Kanav Narayan Sahgal

Abortion access is a hotly contested issue around the globe. The Catholic Church continues to exert significant influence over abortion politics in Western democracies even today, and those jurisdictions with a strong Catholic influence- such as Ireland- continue to harbor restrictive abortion policies and/or negative attitudes towards women’s reproductive rights.

Meanwhile, in Asia, the concerns manifest a bit differently. While poverty and economic inequality continue to impede women’s equitable access to reproductive care in this part of the world as well, what is different is the reduced influence of the Catholic Church in abortion policymaking.

Instead, factors such as the negative attitudes of healthcare providers, poorly designed health systems, substandard health services, and the lack of decision-making power in the hands of women play a major role in restricting women’s access to abortion.

This article examines abortions rights in three jurisdictions: The United States and Canada (colloquially and collectively referred to as North America) and India to broadly look at similarities, dissimilarities, contestations, and contradictions in the ways in which abortion rights debates have panned out in these regions.

More specifically, this article examines three landmark cases: Roe v Wade (1973) in the US, R v Morgentaler (1988) in Canada, and the Medical Termination of Pregnancy (MTP) Act (1971) in India.

What is interesting is that the politics of abortion rights regulations in each of these jurisdictions were cemented at almost the same time (between the late 1970s and 1980s). However, differing socio-cultural values and histories have forced each of these regions to reckon with the abortion question differently.

I chose the US and Canada to highlight that despite their geographical proximity as neighbouring countries and shared histories, lawmakers and politicians have dealt with the abortion question very differently. While abortion rights remain one the of most politically polarizing issues in American politics today, it is almost a settled issue in Canada.

I contrast these politics with those of India- a country with one of the most progressive abortion laws in South East Asia, yet one that poses unique challenges to its women. It is my endeavour that lawmakers learn from one another and understand that just as there is no universal answer to the question of the origin of life, so too, there may be no universal answer to the question of what constitutes proper abortion law. However, the closer we arrive at these answers, the better it will be for women and families seeking abortions.

Abortion Rights in India

Unlike in North America, where there exists a legal schism between the rights of the unborn and those of the mother, almost all abortion laws in Asia exist solely to save women’s lives.

And yet, countries like India which legalized abortions five decades ago still have high rates of unsafe abortions. A study of 1.87 million pregnant Indian women aged 15-58 from nine states in the Indian Annual Health Survey (2010–2013) tried to explain this conundrum. The study found that 3.1% of these 1.87 million women had an unsafe abortion.

Furthermore, younger women (20-24), rural women, Christian women, Muslim women, and those whose religion was declared as 'other' were more prone to unsafe abortions than older women (35-44), urban women, and Hindu women.

Education and caste location were also inversely associated with unsafe abortions – i.e. those with lower levels of education and those who were lower in the caste hierarchy had higher rates of unsafe abortions. Other factors such as a requirement for several doctors’ signatures and a lack of accessible clinics also play a role in impeding abortion access.

To mitigate some of these issues, the Union Cabinet of India, chaired by Prime Minister Narendra Modi, approved the MTP (Amendment) Bill, 2020 to amend the MTP Act, 1971 with the intention of providing women safe access to abortion. The new Act increased the gestation period during which women could seek pregnancies and also recognized, for the first time, pregnancies outside of traditional marriages.

While these changes are laudable, there is still a long way to go. For instance, while the law recognizes pregnancies in married and unmarried women, it does not refer to transgender, lesbian, and/or gender-non binary people.

Moreover, abortion care remains neglected in the public sector and has led to the mushrooming of private sector services which are largely expensive and inaccessible.

Another issue that crops up in conjunction with abortion access is that of sex-selective abortions. In 2000, Dr. Sabu George and the NGOs CEHAT and MASUM filed a Public Interest Litigation in the Supreme Court against the Government of India for failing to implement The Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act (PNDT Act); a policy review meeting was held later and one suggestion that came up was to allow abortion only up to 12 weeks of pregnancy.

However, this idea was shot down, and the focus remained on strengthening the PNDT Act while upholding a woman’s right to access care under MTP. The two issues- sex-selective abortion and abortion access were seen as distinct- as they should be.

Abortion Rights in North America

Lawmakers in the United States and Canada view abortion rights very differently. In Canada, abortion was prohibited without exception in 1869. This restrictive law was subject to a series of changes between 1939 to 1969 and finally culminated in a landmark Supreme Court decision in 1988 (R v Morgentaler) which gave women the right to abortion on request without restrictions by overturning the then-existing criminal abortion law.

Although the Canadian legislature soon tried to re-criminalize abortion, these attempts failed. And as it stands now, Canada is currently among only four countries in the world to allow abortion at any stage of pregnancy.

The Supreme Court justices grounded the right to abortion in Canada’s constitution, where the primary protection cited was women's right to “security of the person.”

The Court opined: “ State interference with bodily integrity and serious state-imposed psychological stress, at least in the criminal law context, constitutes a breach of security of the person. Section 251 clearly interferes with a woman's physical and bodily integrity. Forcing a woman, by threat of criminal sanction, to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference.”

No abortion restrictions have been passed since this ruling, making it settled law.

In the United States, the situation is a bit different because abortion continues to be fiercely contested between the two major parties: The Democrats (liberals) and the Republicans (conservatives).

Following two landmark Supreme Court decisions in 1973 (Roe v. Wade and Doe v. Bolton) abortion remains permitted in all states in America subject to varying restrictions. However, the limits of these protections are routinely tested by lawmakers.

In 2021, the state of Texas passed the “Texas Heartbeat Act” also called SB 8, which banned almost all abortions in the state after about six weeks of pregnancy, even in cases of rape, sexual abuse, and incest.

The Texas legislature was able to circumvent Roe and Bolton because of a legal “trick” which deputized private individuals - not the Texas government - to enforce the law, making it impossible for opponents of SB 8 to sue the Texas government immediately till such time a private citizen didn’t sue someone in Texas for breaking the law.

The law had an immediate chilling effect with abortion clinics shutting down overnight. And while this law was temporarily blocked by US District Court Judge( Robert Pitman), activists remain concerned that abortion may eventually be re-criminalized all across America given that the current conservative Supreme Court bench braces itself to hear oral arguments in Dobbs v. Jackson Women’s Health Organization- a case from Mississippi that challenges Roe directly.

Unlike in Canada, there exists a strong ‘pro-life’ movement in America that advocates for the rights of the unborn. These groups, backed by Republicans, view a woman’s right to abortion as antithetical to the unborn’s right to live- making abortion access a fiercely polarizing moral, ethical, and religious debate.

US Congress’ inability to codify Roe into law makes the abortion debate even more complicated. After all, the exact origins of life and the meanings attributed to “personhood” remain contested in America- this was something that even the Roe court acknowledged close to 50 years ago.

Comparative contestations across the three jurisdictions

Abortion rights have never been as politically divisive an issue in India as it has in North America, specifically in America. Over the years, the Supreme Courts and High Courts of India have been taking consistent “pro-choice” positions, allowing women the right to terminate their pregnancies even after 20 weeks- especially in cases of rape.

Given the absence of a strong “pro-life” lobby in the Indian Parliament, the amended MTP Act was passed with ease in 2021 to increase the abortion limit to 20 weeks for all women and 24 weeks for “special categories” of women.

A 2016 Post Abortion Family Planning report by the Ministry of Health and Family Welfare (Government of India) also points out that the mainstay of family planning programmes in India is the fact that “women’s control over their own child birth forms the foundation of reproductive rights”- leaving no ambiguity in the government's position on abortion access. Interestingly, past and present governments at both the centre and the State level have focused on increasing abortion access to women.

On the other hand, some States in the US are rolling back on abortion laws because of the mass support of pro-life lobbyists and politicians. Texas’s near-total abortion ban is just a recent example.

In Roe V Wade, the landmark US Supreme Court ruling that legalized abortions in America, the court opined that the word “person” as described in the Fourteenth Amendment did not include the unborn. Moreover, the Court opined “the unborn have never been recognized in the law as persons in the whole sense.”

But this does not mean that the unborn could never be accorded rights and privileges similar to those who are born. In fact, the Court also argued that state interest did include protecting prenatal life as well. Thus, the Roe judgment finely balanced the life of the mother with that of the unborn, yet placed greater emphasis on the mother.

It is precisely this balance that conservative lawmakers are trying to tip- by shifting the focus of constitutional protection from the mother to the unborn.

In R. v. Morgentaler, the Canadian Supreme Court took a different approach. Here, it was argued that the unborn fetus' "life, liberty, and security" was not protected under the Canadian Charter. The Courts reasoned that protecting women’s rights was paramount and relevant provisions of the Canadian Criminal Code had to be struck down which interfered with her right to access abortion.

Abortion will remain a contested legal issue in the years to come. As secular democracies modernize, and as scientific advances in healthcare continue to occur, polarizing debates about the true origins of life and questions about state intervention will continue. Till such time these debates remain unresolved, so will the constitutional question of abortion rights.

Kanav Narayan Sahgal is Samvidhaan Fellowship Programme Manager at Vidhi Centre for Legal Policy.

Vidhispeaks is a fortnightly column on law and policy curated by Vidhi. The views expressed are of the fellow and do not reflect the views of Vidhi or Bar & Bench.