Abortion Rights: Role of Law, Challenges and Solutions

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Published On: 18th June, 2024

Authored By: Shardul Khanolkar
ILS Law College, Pune

Abstract

In March, France became the first nation to pass a constitutional amendment that made Abortion a fundamental right1. This is a very positive move forward especially after the Roe v. Wade judgement that was anti-abortion. This development has brought the issue of Abortion rights to the forefront as the fact that women must have autonomy over their bodies and also have the right to safe termination of pregnancy was again emphasized. All this also includes the removal of societal pressures, states not forcing women to have more children to maintain the fertility rate, and prioritizing the rights of a woman over the rights of a fetus. In this article, we will analyze the origin of the struggle for abortion rights, the evolution of the movement, the challenges it faces and finally provide certain prospective solutions on the same.

Introduction

Abortion has been a right of the women’s movement from the time of the 18th century. It was a part of the feminist movement to obtain rights for the development and prosperity of women as a social class. Since then the struggle for abortion rights has been going on and is still far from over. The basic concept behind abortion rights is that a woman goes through a serious amount of pain to bring a child into this world. Therefore it should be at the woman’s discretion if she wants to go through with the process. But reproductive power being vested with women is something that is responsible for keeping the human generations alive. Therefore to keep the generations going various societal restraints have been put on the process of abortion primarily via the medium of religion which has most of the time decreased the women’s autonomy on their own bodies. This being said, in a time when the fertility rate in multiple developed nations is going down or stabilizing and there is a scarcity of new workers the issue of abortion rights becomes quite important as there is a need to strike a balance between the population needs of various countries and women’s autonomy over their own body. This article will try to deal with this issue by looking at this issue in a comprehensive way and will try to provide a probable solution for it.

Background

When one studies the rise of the feminist movement one can analyze the waves in which the movement has evolved. The first wave talked about primarily the voting rights for women via which political representation can be streamlined. It is fair to say that the right to vote for women is more or less given internationally due to that struggle and actually in nations like India women are the deciding factor in the elections. The second wave was the time when the concept of abortion rights came into the picture2. Abortion is a practice that has been done since ancient times by employing various methods that differed from culture to culture and from time to time. However, the social stigma associated with abortion, the fact that women didn’t have much say in it, and also the problems that women due to all this pressure are some of the reasons why women resorted to unsafe ways of abortion as doing it the normal medical ways needed financial and mental support and acceptance. Sighting this, abortion rights became highly important as the feminist movement wanted an equal world and for them if a woman doesn’t have authority over her own body how can one expect her to develop and make her own decisions? In addition to all this abortion is a highly complex process that if not done properly can lead to death and worse the impairment of the woman which condemns her to a life of horrible suffering. Therefore conducting abortions with proper healthcare methods and under the supervision of professionals is highly important. Thus providing abortion rights was seen as a way to create awareness and normalize abortion as something that is not a taboo so that women don’t opt for ways that are outside of the medical sphere. But factors like Patriarchy, religious beliefs notions against abortion, and many more factors were for not allowing abortion rights to women. This struggle has been going on till today wherein many nations have still not completely recognized the abortion rights of women. Most nations have a ban on abortion as a whole while others allow it in very specific circumstances like if the life of the mother is in danger or if the fetus has some deformity or mental disease recognized in it. But this short-handed freedom to abortion is far from enough in today’s times as women are rising as a social class with a high amount of potential to contribute to society and in such a situation not allowing them autonomy on their own body is not going to be helpful for women to reach their potential. The reasons for the same are given below.

Maternal Penalty

Netflix series ‘Explained’ in Season 1 Episode 33 talks about the wage gap between men and women and some real empirical reasons why it exists; in analyzing the reasons it puts out a reason as a maternal penalty a term which is not new but is not nearly famous. It says that women are not paid less because they are less efficient but they are paid less as they opt to be mothers. This is what is called a maternal penalty; the episode is a very simple audio-visual representation of the concept but when we go through the various literature in context to this topic we find that this maternal penalty prevails in most societies and acts as a factor that confines women to households and forces them to do caretaking jobs. The most common way in which this manifests is that unmarried women are preferred over married ones when it comes to giving jobs; the second thing that happens is that when a woman gets pregnant she has to go on maternity leave and most of the time also opts out of the job for a couple of years to take care of the child. In such a scenario her colleagues who once worked in the same position as her now have spent more time than her in the working field and thus they get promoted or their salaries get increased. At the same time when the woman wants to get back to her workplace, there are problems of vacancy, there is increased competition and if not that then she has to start all over from where she left off. In all these scenarios the position of a woman in any corporate workplace deteriorates and she fails to get equal pay, position, and respect not because she is not capable but because her pregnancy creates such conditions which gives rise to disparity. In many cases, women are ok with this as they are satisfied with their children and don’t mind the sacrifice of their careers. But the same is not true for every woman. A woman may value her career equally if not more than her having a child. Moreover, the patriarchal notions in most societies of the world label the ‘sacrifice of a woman’s career to take care of the child’ as a moral obligation instead of a choice while completely ignoring the role that a man has to play in the job of caretaking of a child. In such a world abortion rights become highly important as a woman is already not completely free to choose if she wants a child or not as it can, in most cases, hurt her career, and if even the law doesn’t support her power of choice that also over her own body then the dream of gender equality and women empowerment will always be a dream. This is because the world that we live in considers child care and house care as comparatively easy jobs in comparison to say working in a corporate firm when in reality both jobs are equally difficult and in some cases, the former deserves more respect than the latter. Unfortunately, that is not so, and reaching that point of progressiveness is possible but it is going to be a long and step-by-step process in which putting women in an equal position when it comes to careers is an immediate step that we must take and the right to abortion is needed so that the autonomy of choice is with the women and she is not merely suppressed by the general societal notions. In this context, the law has a huge role to play as it can push society in the right direction as it has done many times before when it has come to the issue of women like in cases of the right to vote, right to fight election, etc.

Unsafe abortions

Maternal penalty is a structural problem in society and abortion rights can be one of the ways to solve it. But there are also other more immediate reasons why we need abortion rights. Unsafe abortions using non-medical techniques done under the supervision of quacks is one of the biggest problems associated with abortion as a whole. To illustrate in India we have the Medical Termination of Pregnancy Act 1971 which was recently amended in 2020 that governs abortions. It is a highly progressive law wherein proper specifications have been given and most of the permutation combinations in which abortion may be needed that range from the failure of contraceptives to rape victims all have been considered and adequately dealt with in the law. The law came out specifically to reduce the amount of unsafe abortions in India. But the same has not fully materialized today. According to an article by the National Library of Medicine4 around 56% of abortions were conducted in an unsafe way and this was the main reason why the Rajya Sabha proposed the 2020 amendment as even after 50 years of enactment of the MTP Act 1971 the situation had not changed much. Reasons for this are multi-fold ranging from the shortage of medical practitioners, lack of awareness about the MTP Act, the religious and cultural notions associated with abortion, the lack of accessibility and infrastructure for safe abortions in rural and remote areas, etc. Thus, we can see that in spite of a progressive law in place a nation like India is one of the biggest pharma producers and exporters in the world and is hailed for its cheap, affordable, and good quality medical services so much so that medical tourists come here from Europe and the US is not able to solve the problem of unsafe abortions. In this context providing abortion as a fundamental right can be a move towards the right way, if it is given the status of a fundamental right then the government is obligated to put extra effort into ensuring that safe, good quality, and affordable abortion services are available in every part of India. This same thing has worked in the case of education wherein once it was added as a fundamental right in the constitution the government had to make efforts under the Right to Education Act, 2005.

The problem of the fertility rate

Abortion rights have always been associated with the topic of controlling the population of a particular nation. To illustrate the Soviet Union was the first one to legalize abortions but at the time of World War Two when there was a threat that they would lose to Nazi Germany they removed this legalization and banned abortion5. Now realistically the war went on for nearly 6 years the Soviets were not fighting against Germany from the start but still in such a scenario Soviets thought that they needed to ensure that more babies were born for the future of the nation and thus they removed abortion rights. This may have been the right thing to do in those times as awareness regarding these things was less then and it is a fact that the Soviets lost a huge chunk of their population in the war. But today we are not living in the 1900s. All those arguing that fertility rates are going down globally and the situation is alarming and therefore we should not give abortion as a legal right let alone a fundamental right are pushing for a wrong argument. Firstly fertility rates of most nations are seen in a stabilizing position and nations like Japan and South Korea which are facing problems of less workforce are working vehemently to remedy that problem and at the same time curbing the rights of women over their bodies an effective way of maintaining the fertility rate. In my opinion, it is not as here only quantity is taken into consideration and not quality. Imagine a world where women get pregnant and are forced to have babies as they don’t have abortion rights, in such a case a woman who has been forced to have a child won’t be highly enthusiastic about raising that child. Thus there is a high possibility that there are problems in the upbringing of the child. If the same thing recurs, the fertility rate will be stable or high but still, the quality of the population will be worse than before as we have antagonized women, taken away their choices, and most probably hindered their dreams. Being the first and primary socializer of the society it cannot be realistically expected that they will do a decent job as even though some of them want to they won’t be able to as raising a child is no joke. There is a need for a huge amount of willpower that is sourced out of the parent’s will to have a child. But here we are forcing women to have children, not explicitly against their will in all the cases, but actually by creating an environment wherein their family, society, religion, and even law strips them of their choice to not have a child by depriving them of abortion rights.

Solutions

Till now we have understood the need for abortion rights and have also seen that the fertility rate argument does more harm than good to society. So now we shall see some solutions that can be proposed in this context.

Progressive Interpretation of Existing Laws

In 2022 the Chief Justice of India passed a judgement in the case of X v. THE PRINCIPAL SECRETARY HEALTH AND FAMILY WELFARE DEPARTMENT & ANR6 in which the apex court allowed an unmarried woman to conduct an abortion. Here the High Court held that the provisions in Rule 3 B of the MTP Act that talk about the conditions in which pregnancy can be terminated don’t include the condition of the petitioner wherein she is an unmarried woman who got pregnant out of a consensual relationship. But the Supreme Court in Para 14 of its judgement held that the High Courts have taken a very restrictive view of the provision of rule 3 B. In the successive paragraphs, the court considered the legislative intent and at the same time interpreted the words in the provisions widely. At the same time, they did a situational analysis of the case wherein the partner of the woman had deserted her at the last stage and thus she was opting for abortion. In conclusion, the court allowed the abortion by saying that in such a situation when the law allows it forcing the woman to have the child will be putting an undue burden on her. Thus abortion rights to even unmarried women were allowed in this case by a Progressive Interpretation of Existing laws. Many such similar examples can be seen in modern times not just in India and this is an immediate and effective solution to the problems faced in the case of abortion rights.

Creating awareness

Bringing a Law or interpreting it progressively are very top-to-bottom approaches when it comes to solving a structural problem like that of abortion rights. Thus there is a need for change on the grass root level. Severing the religious notions around abortion and bringing scientific knowledge into the picture, making both women as well as men aware of the harms of unsafe abortions, having educational workshops for adults, and including this sensitive issue in the curriculum for the younger generations are some effective ways to create awareness about this issue so that change can also be stimulated from the bottom.

Encouraging women’s participation.

Living in a patriarchal world most of the policy decisions and law-making are still dominated by men. Thus there is an urgent need to foster the participation of women in the process of law-making and awareness creation as even though men who are given these responsibilities may be capable of carrying them out, still the pain that a woman goes through at the time of pregnancy, abortion and maybe also after pregnancy cannot be fully understood and felt by men. Therefore to solve a problem you need people who understand it to the core and in this situation those people are women. Due to this, streamlining the participation of women in the movement for a world with a right to safe abortion can be a very huge step towards making this dream a reality.

Conclusion

In the climax of all this, it can be understood that abortion though portrayed as a sin by many religions is actually a right that gives autonomy to women over their bodies and also gives them the liberty of choice. It can also be seen that curbing abortion rights can lead to forceful childbirth which again harms the mother and the child’s mental and even in some cases physical health as well. Finally, it is worth mentioning that only making laws and giving abortion the status of a fundamental right won’t do the job but it would surely push the society towards the right direction.

Reference(s):

1 https://www.senat.fr/leg/tas23-073.html

2 Feminism.pdf IGNOU BA Sociology Unit 6

3https://www.netflix.com/in/title/80216752?s=a&trkid=13747225&trg=cp&vlang=en&clip=81021371

4Kumari S, Kishore J. Medical Termination of Pregnancy (Amendment Bill, 2021): Is it Enough for Indian Women Regarding Comprehensive Abortion Care?? Indian J Community Med. 2021 Jul-Sep;46(3):367-369. doi: 10.4103/ijcm.IJCM_468_20. Epub 2021 Oct 13. PMID: 34759469; PMCID: PMC8575235. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC

5Hovey G. Abortion: a history. Plan Parent Rev. 1985 Summer;5(2):18-21. PMID: 12340403. https://pubmed.ncbi.nlm.nih.gov/12340403/

6 2022 Live Law (SC) 621 https://www.livelaw.in/top-stories/abortion-cant-be-denied-solely-because-woman-is-unmarried-supreme-court-allows-unmarried-woman-to-seek-termination-of-pregnancy-204394

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