Women’s right to abortion: Unpacking Dobbs v. Jackson Women’s Health Organization and the law in India

On June 24, the United States Supreme Court, in the matter of Dobbs v. Jackson Women’s Health Organization, overturned Roe v Wade and Planned Parenthood of Southeastern Pa. v Casey by a 6:3 majority.

The Court has in effect ended the Constitutional right to abortion and held that the authority to regulate abortion now vests with the individual states.

In this article, we analyse the judgment as well as the two landmark decisions it has overturned, and offer a glimpse of the law regulating abortion in India.

Roe v. Wade (410 US 113)

In 1969, a 25-year-old single woman, Norma McCorvey, using the pseudonym "Jane Roe", challenged the criminal abortion laws in Texas. Roe, who was a resident of Texas, wanted to abort her third child which was conceived through rape. At that time, Texas laws prohibited abortion unless the women’s life was in danger. Roe sued the State. Defending the anti-abortion law was Henry Wade, the District Attorney for Dallas County.

Roe's case was eventually rejected and she was forced to give birth. Thereafter, in 1973, her appeal to the US Supreme Court was heard along with the case of a 20-year-old Georgia woman, Sandra Bensing, challenging the abortion law in the State of Georgia. Both argued that abortion laws in Texas and Georgia went against the US Constitution because they infringed a woman's right to privacy.

The US Supreme Court by a majority of 7:2 held against the State. It was ruled that governments lacked the power to prohibit abortions and that a woman's right to terminate her pregnancy was protected by the US Constitution.

Planned Parenthood of Southeastern Pa. v. Casey (505 US 833)

The next major case heard by the US Supreme Court on the issue of abortion law was in the year 1992, when the right to abortion was reaffirmed. The US Supreme Court again spoke about the importance of a women’s right to choose at least until the point of viability i.e. the point at which the foetus can survive outside the womb, usually between 24 to 28 weeks after conception.

The 1992 decision established the right of states to regulate abortion services before viability as long as the regulation does not place an “undue burden” on women seeking an abortion.

Dobbs v. Jackson Women’s Health Organization

The case arose in March 2018, when the Mississippi State Legislature adopted the Gestational Age Act (HB 1510), which prohibited almost all abortions after 15 weeks of pregnancy, well before the point of foetal viability, which usually occurs at about 24 weeks.

On the day that HB 1510 was to take effect, the Jackson Women’s Health Organization, the only licensed abortion clinic in Mississippi, filed a suit in the federal district court, challenging the constitutionality of the law and requesting a temporary restraining order, which was later issued. The district court granted the clinic’s motion for summary judgment.

In December 2019, a three-judge panel of the US Court of Appeals for the Fifth Circuit upheld the district court’s ruling, reaffirming a woman’s right to choose abortion before viability. It was held that states may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman’s right, but they may not ban abortions.

The Fifth Circuit’s ruling was then appealed before the Supreme Court. The State of Mississippi contended that the constitutionality of the state law that prohibits abortion after the 15^th week of pregnancy be upheld. In defending this law, the State’s primary argument was that the Court should reconsider and overrule its earlier decisions of Roe and Case arguing that both decisions were “egregiously wrong” in finding a right to pre-viability abortion in the Constitution, where abortion is nowhere mentioned.

The respondents, on the other hand, argued that Roe and Casey be reaffirmed. It was contended that allowing Mississippi to prohibit abortions after 15 weeks of pregnancy, “would be no different than overruling Casey and Roe entirely.”

The US Supreme Court by a 6:3 majority held that there is no constitutional right to abortion and that Roe and Casey must be overruled. Justice Samuel Alito delivered the Court's majority opinion joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Chief Justice John Roberts filed an opinion concurring in the judgment. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan delivered a dissenting opinion.

By the majority opinion, it was held that Roe and Casey must be overruled. It was held that the Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely – the due process clause of the Fourteenth Amendment. It was held that the said provision had been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be "deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty." It was held that it was time to heed the Constitution and return the issue of abortion to the people's elected representatives.

The Court also held that Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision had damaging consequences. Far from bringing about a national settlement of the abortion issue, Roe and Casey had "enflamed the debate and deepened division," the majority held.

Justices Breyer, Sotomayor, and Kagan, in their blistering dissent, noted the feelings of many as under:

"With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent."

Some of the other relevant passages from the dissenting opinion are as under:

“In overruling Roe and Casey, this Court betrays its guiding principles.”

“The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them. The majority thereby substitutes a rule by judges for the rule of law.”

“No language in today’s decision stops the Federal Government from prohibiting abortions nationwide, once again from the moment of conception and without exceptions for rape or incest. If that happens, the views of [an individual State’s] citizens will not matter.”

“Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and their status as free and equal citizens”

Reflecting on the majority opinion, it was observed,

“It eliminates a 50-year-old constitutional right that safeguards women’s freedom and equal station. It breaches a core rule-of-law principle, designed to promote constancy in the law. In doing all of that, it places in jeopardy other rights, from contraception to same-sex intimacy and marriage. And finally, it undermines the Court’s legitimacy."

The dissenting judges further recorded the following:

“Power, not reason, is the new currency of this Court’s decision making.” Payne, 501 U. S., at 844 (Marshall, J., dissenting). Roe has stood for fifty years. Casey, a precedent about precedent specifically confirming Roe, has stood for thirty. And the doctrine of stare decisis—a critical element of the rule of law—stands foursquare behind their continued existence. The right those decisions established and preserved is embedded in our constitutional law, both originating in and leading to other rights protecting bodily integrity, personal autonomy, and family relationships. The abortion right is also embedded in the lives of women— shaping their expectations, influencing their choices about relationships and work, supporting (as all reproductive rights do) their social and economic equality. Since the right’s recognition (and affirmation), nothing has changed to support what the majority does today. Neither law nor facts nor attitudes have provided any new reasons to reach a different result than Roe and Casey did. All that has changed is this Court.”

Before 1971, abortion was criminalized under Section 312 of the Indian Penal Code, 1860, and was described as intentionally "causing miscarriage". Except in cases where abortion was carried out to save the life of the woman, it was a punishable offence and criminalized women/providers, with whoever voluntarily caused a woman with child to miscarry facing three years in prison and/or a fine, and the woman availing of the service facing seven years in prison and/or a fine.

Abortion has been legal in India for more than 50 years with the introduction of Medical Termination of Pregnancy (MTP) Act in the year 1971. The MTP Act was recently amended in the year 2021 to facilitate the termination of pregnancies beyond the period of 20 weeks, up until 24 weeks; and in the case of substantial foetal abnormalities, even beyond the 24 weeks period.

Who may terminate a pregnancy?

Section 3(2) the MTP Act provides that pregnancy can be terminated only by a registered medical practitioner (RMP) as defined under Section 2(d) of the MTP Act. Such RMP must meet the following requirements:

(i) has a recognized medical qualification under the Indian Medical Council Act;

(ii) whose name is entered in the State Medical Register;

(iii) who has such experience or training in gynaecology and obstetrics as per the MTP Rules.

When can the pregnancy be terminated?

Section 3 of the MTP Act provides for the circumstances under which termination of pregnancy may be permitted.

Situation 1: Where the length of pregnancy does not exceed 20 weeks

Termination of pregnancy is permissible on the opinion formed in good faith, of a single registered medical practitioner:

i. That the pregnancy would cause risk to the life of the pregnant woman or grave injury to her physical or mental health; or

ii. If there is a risk that upon birth of the child, it would suffer from serious physical or mental abnormality.

Situation 2: Where the length of the pregnancy exceeds 20 weeks but not 24 weeks

In these cases, the same opinion is to be garnered, but by two registered medical practitioners.

Explanation 1 to Section 3(2)(b) provides that the anguish caused by any pregnancy which occurs on account of a failure of any contraception device or method may be presumed to constitute a grave injury to the mental health of the woman.

Explanation 2 states that the anguish caused by any pregnancy effected by rape will also be deemed as grave injury to the mental health of the woman.

While Explanation 2 applies to both situations, failure of contraception applies only to Situation 1.

Situation 3: Where the length of the pregnancy exceeds 24 weeks

Under Section 3(2B), the limitation of 20 weeks or 24 weeks would not be applicable if the termination is necessitated due to a diagnosis by the Medical Board that the foetus suffers from substantial foetal abnormalities. The state government is required to constitute a Board for this purpose. Such a Board shall mandatorily consist of a Gynaecologist, a Paediatrician, a Radiologist or Sonologist and any other members as may be notified by the state government.

It is relevant to note that Section 5 relaxes the rigours of Section 3(2) in a case where the termination of the pregnancy is immediately necessary to save the life of the pregnant woman.

Decisions of the Supreme Court of India

1. In Suchita Srivastava v. Chandigarh Administration, while dealing with the case of termination of pregnancy of a rape victim, it was held that a woman’s right to make reproductive choices is also a dimension of ‘personal liberty’ as contemplated in Article 21 of the Constitution of India.

2. The aforesaid view was reiterated by the Supreme Court in the case of Mrs. X and Ors v. Union of India, where termination of the pregnancy of the petitioner after 24 weeks of gestation was allowed on account of the fact that the foetus was diagnosed with the serious medical conditions of bilateral renal agenesis and anhydramnios.

3. In Tapasya Umesh Pisal v. Union of India & Ors, the petitioner, who was 24 years of age, had approached the Supreme Court seeking permission to undergo medical termination of her pregnancy which had progressed to 24 weeks, as the foetus had been diagnosed with tricuspid and pulmonary atresia, a cardiac abnormality. The Supreme Court directed constitution of a Medical Board to examine the medical condition of the petitioner. The Board reported that the treatment of the abnormality in the foetus would require foetal surgery, which carried the risk of high mortality and that even if the surgery were to be successful, such children usually remain physically incapacitated and have a limited life span. The Supreme Court observed that, except for the time period i.e. the duration for which the pregnancy had continued, the case would fall within Section 3(2)(b) of the MTP Act.

4. In Sarmishtha Chakrabortty v. Union of India, the pregnancy had reached 25 weeks, and based on the report of the Medical Board which recorded that even if the child would be born, it would have to undergo complex cardiac surgery stage by stage and there was high morbidity, the petitioner’s prayer for medical termination of her pregnancy was allowed.

5. In Nisha Suresh Aalam v. UOI, the Supreme Court considered allowing the medical termination of pregnancy in the 28th week of pregnancy. As per the medical report placed before the Court, the foetus was said to be suffering from multiple serious neurological and skeletal anomalies. The Supreme Court allowed the medical termination of the pregnancy, placing reliance on the medical report which opined that while the termination of the pregnancy at that stage would not be more hazardous than spontaneous delivery at term, the continuation of the pregnancy would cause mental anguish to the petitioners.

It would be relevant to note that though the decision in Dobbs v. Jackson Women’s Health Organization has not banned abortion and has left it to the individual states to regulate abortion, the dissenting opinion has further noticed the fear in the minds of the people in the following words:

“A State will be able to impose its moral choice on a woman and coerce her to give berth to a child...A State can of course impose criminal penalties on abortion providers…But some States will not stop there."

In fact, the judgment itself records that the Mississippi law was enacted in 2018 and the other states quickly followed suit. Between 2019 and 2021, eight other states banned abortion procedures after six to eight weeks of pregnancy, and three states enacted all-out bans.

The 1973 judgment in Roe v Wade was considered a watershed moment in the fight for abortion rights in the United States of America. However, the US Supreme Court, in reversing 50 years of precedent, has discarded the balance struck for half a century between “respecting a woman as an autonomous being” and “protecting the life of a foetus”. The US Supreme Court has decided that the government and not the person who is pregnant should make a private health decision and has denied women the right to control their own bodies and futures.

The US Supreme Court has thus abandoned its duty to protect fundamental rights, and for the first time in history, it has taken away a fundamental right. One hopes that the said decision is overturned sooner rather than later.

The World Health Organisation has lauded India’s legal framework regarding abortion, particularly the 2021 amendment to the MTP Act, which makes abortions even safer. But before we pat ourselves on the back too hard, we must remember some frightening statistics as to the reality of pregnancy and abortion in India. A study of pregnancy and abortion in six of our largest states - Assam, Bihar, Gujarat, Madhya Pradesh, Tamil Nadu and Uttar Pradesh - using data from 2015 found that “about half of all pregnancies (43–55%; Figure 5.1) in the six states are unintended.”

Shockingly, many primary care centres and even higher level facilities do not offer abortion after as little as 12 weeks - way below the legal limit. Well over half the abortions in these states are conducted in an unsafe manner. Amongst the many factors that deter Indian women from getting an abortion are societal disapproval, lack of pre and post abortion facilities at the primary healthcare centre (where most rural and lower-income women get their health care) and lack of access to proper contraception. This pushes women to seek out quacks, home remedies and generally unsafe methods to get an abortion.

Therefore, while our laws are certainly laudable, their implementation, as is often the case, leaves lot to be desired.