The Debate Regarding Abortion – Explained, pointwise

Introduction

An abortion is a medical procedure that ends a pregnancy. It is a basic healthcare need for millions of women, girls and others who can become pregnant. Recently, there were reports in the US newspapers that the US Supreme Court will overturn its landmark Roe vs Wade Judgment (1973). This Judgment had made abortion a Constitutional Right for women in the US. This judgement was also instrumental in abortion related legislations around the world. The news has re-ignited debate regarding rights of the women to bodily autonomy vis-a-vis abortion.

What is abortion?

It is a simple health care intervention that ends a pregnancy. It can be effectively managed by a wide range of health workers using medication or a surgical procedure. Comprehensive abortion care includes the provision of information, abortion management and post-abortion care. 

It encompasses care related to – (a) Miscarriage (spontaneous or missed abortion); (b) Induced abortion (the deliberate interruption of an ongoing pregnancy by medical or surgical means); (c) Incomplete abortion as well as fetal death (intrauterine fetal demise).

What is the Roe V. Wade Case?

The Judgment struck down the laws that made abortion illegal in several US States. It ruled that abortion would be allowed up to the point of ‘foetal viability‘, that is, the time after which a foetus can survive outside the womb. Foetal viability is often seen as the point at which the rights of the woman can be separated from the rights of the unborn foetus. The Judgment tried to establish a balance between the Right of Women to ‘bodily autonomy’ vis-a-vis the ‘Right to Life’ of the foetus. (Pro-choice vs Pro-life debate).

Foetal viability was around 28 weeks (7 months) at the time of the Roe judgment. Experts now agree that advances in medicine have brought the threshold down to 23 or 24 weeks (6 months or a little less), and newer studies show this could be further pegged at 22 weeks.

Despite the Roe Judgment, several US States have enacted laws that put restrictions on abortion e.g., the State of Texas passed a law in 2021, that restricts abortion after the detection of ‘foetal heartbeat’ (6 weeks). The State of Mississippi in the US had restricted it beyond 15 weeks. This has been challenged in the US Supreme Court. The draft Judgment has been leaked and it is said to have overturned the Roe Judgment.

What would be the impact of overturning of Roe Judgment?

The Roe Judgment is said to have a major impact on global discourse on abortion and the related laws. In 1955 only the Soviet republics (of USSR) had legalized abortion on request. By 1990, 30+ countries had legalized abortion on request, as pro-choice activists often relied on this judgment to mobilize the public opinion. So overturning of the Judgment could have a major impact on the pro-choice movement.

First, there is no federal law protecting the right to abortion in the US. The overturning of Roe would leave the related laws entirely up to the states. Many States might ban it and poorer women would bear the brunt in most cases

Second, the number of legal abortions in the US could fall by at least 14%. It could force women to resort to unsafe and illegal practices thereby threatening their life. Women will face issues of access and affordability of abortions.

Third, It will raise fundamental questions on the limits of judicial activism aimed at protecting the rights of persons and classes, which do not find explicit mention within a country’s constitutional framework. For instance, in the Indian context, the overturning could be seen as a setback to the celebrated doctrine of transformative constitutionalism. It sees the Indian Constitution as a “living document” that moulds, adapts and responds to changing times and circumstances. Similarly, recognition of the right to privacy as a fundamental right could also come under the radar in India.

What is the current status of legislation on abortion globally and in India?

India’s Medical Termination of Pregnancy Act, 1971 allowed abortion until 20 weeks of pregnancy. Through an amendment in 2021, the ceiling was raised to 24 weeks, but only for special categories of pregnant women such as rape or incest survivors. The approval of two registered doctors is mandatory in this case. 

In case of foetal disability, there is no limit to the timeline, but that is allowed by a medical board of specialist doctors set up by the governments of states and union territories.

Women can now terminate unwanted pregnancies caused by contraceptive failure, regardless of their marital status. Earlier the law specified that only a “married woman and her husband” could do this.

Source: Center for Reproductive Rights, “The World’s Abortion Laws”

Why is lack of access to safe abortion a global healthcare issue?

According to the WHO, almost half of all pregnancies i.e 121 million pregnancies (every year) are unintended. Around 73 million induced abortions take place worldwide each year. Six out of 10 (61%) of all unintended pregnancies, and 3 out of 10 (29%) of all pregnancies, end in induced abortion.

Global estimates from 2010–2014 demonstrate that 45% of all induced abortions are unsafe. Of all unsafe abortions, one third are performed under the least safe conditions, i.e., by untrained persons using dangerous and invasive methods. Developing countries bear the burden of 97% of all unsafe abortions. More than half of all unsafe abortions occur in Asia, most of them in south and central Asia. 

In Latin American and Africa, the majority (approximately 3 out of 4) of all abortions are unsafe. In Africa, nearly half of all abortions occur under the least safe circumstances. 

Source: Guttmacher Institute (A pro-choice research organisation based in the US)

What are the consequences of lack of access to quality abortion care?

Undermines Right to Health and other Human Rights: The Supreme Court has recognized that Article 21 i.e Right to Life includes Right to Health as well. Unsafe abortions impact the fundamental rights of women to health as well as life. It impacts other basic human rights like; (a) Right to the highest attainable standard of physical and mental health; (b) Right to benefit from scientific progress and its realization; (c) Right to decide freely and responsibly on the number, spacing and timing of children; (d) Right to be free from torture, cruel, inhuman and degrading treatment and punishment.

Maternal Death and Morbidities: Each year, 4.7–13.2% of maternal deaths can be attributed to unsafe abortion. In developed regions, it is estimated that 30 women die for every 100 000 unsafe abortions. In developing regions, that number rises to 220 deaths per 100 000 unsafe abortions.

Economic Hardships: Estimates from 2006 show that complications of unsafe abortions cost health systems in developing countries US$ 553 million per year for post-abortion treatments. In addition, households experienced US$ 922 million in loss of income due to long-term disability related to unsafe abortion

What are the challenges in getting quality abortion care?

Financial Constraints: It is difficult for people below poverty line to access comprehensive abortion care that includes the provision of information, abortion management and post-abortion care. The situation becomes is worsened when a country’s healthcare system have gaps.

Geographical Barriers: It is quite possible that pregnant women reside in a region where there is dearth of quality maternity services. In such a situation (as seen in many Indian Villages), they have to resort to sub standard local clinics/informal institutions.

Debarred by Law of the Land: Many times countries crimanalize the practice as was done by Ireland till October 2019. This induces people to resort to unsafe abortion practices in secrecy. Due to this, the proportion of unsafe abortions are significantly higher in countries with highly restrictive laws than in countries with less restrictive laws.

Social Stigma associated with Abortion: In many religions, it is believed that child is created with god’s permission and abortion would result in disobeying god’s command. Due to this, women are unable to do abortion even in case of unwanted pregnancy.  

Son Preference: This practice is prevalent in patriarchal societies including in India. The preference for male child induces parents to go unregulated clinics for sex determination and subsequent abortion. 

What should be the way forward?

First, the countries should proactively work to reduce the hardships for women. The first step could be a reduction in unwanted pregnancies that can be achieved by improving access to contraceptive devices.

Second, there should be legalization of abortion in countries where it is still forbidden or the laws are very restrictive in nature. This would improve women’s education, participation in the labor market and contribution to GDP growth. It will also enhance children’s outcome as parents would be in a better position to invest in them.

Third, the global discourse and legislations on abortion should not change in the event of overturning of Roe Judgment.

Conclusion

Women and girls should have access to abortion care that is safe, respectful and non-discriminatory in nature. It is safe when carried out using a method recommended by WHO, appropriate to the pregnancy duration and by someone with the necessary skills. Countries must realize that access to abortion care is fundamental in meeting the Sustainable Development Goals (SDGs) relating to good health and well-being (SDG3) and gender equality (SDG5).

Source: Indian Express, Indian Express, The Hindu, WHO