Protecting the Abortion Laws: An Insight into the Indian and American Economies

I. Introduction

It has been seen that abortion laws have gained so much importance in lives of people living in different countries in the world. Though in the last two century there has been a massive rise in the protecting the rights of the women in relation to abortion and with rise in education globally, people have started realizing and valuing the right they own and more importantly to know how to protect them. Deciding to have a child in the family is a very big decision for parents both mentally and economically. Developing economies where people can barely afford the minimum standards of living cannot afford to have un wanted or unplanned pregnancies. Talking about India specifically, the need for abortion has arrived due to the desire to have a smaller family or developing this robust mentality of only giving a birth to a boy.

In colonial America, abortion was not only permitted by law but also widely practiced, accepted, and documented in both legal and medical documents. The first official abortion regulations in the United States were not passed until 1821, and quickening abortion was not made criminal until the 1860s. No legal, societal, or religious barrier would have stood in the way of an abortion for a woman in New England in the 17th or 18th centuries.

According to the World Health Organization (WHO), 20 million of the 42 million abortions performed annually around the world are either illegal or covert. The WHO estimates that unsafe abortion results in 65,000 to 70,000 maternal fatalities annually1, with 99 percent of these deaths occurring in underdeveloped nations. Worldwide, maternal conditions whether related to abortion or not cause 1.9 percent of deaths among women and girls. Frequently, there is no birth attendant present, the hospital environment is unhygienic, there aren't enough emergency facilities or supplies, the doctors aren't prepared to handle trauma, and basic surgical and medical supplies like antibiotics and sterile gloves are hard to come by or aren't even available. These risks to pregnant women exist whether a pregnancy ends in an abortion or is carried to term.

(A) Literature review

According to the World Health Organization (WHO), 20 million of the 42 million abortions performed annually around the world are either illegal or covert. The WHO estimates that unsafe abortion results in 65,000 to 70,000 maternal fatalities annually1, with 99 percent of these deaths occurring in underdeveloped nations. Worldwide, maternal conditions whether related to abortion or not cause 1.9 percent of deaths among women and girls. Frequently, there is no birth attendant present, the hospital environment is unhygienic, there aren't enough emergency facilities or supplies, the doctors aren't prepared to handle trauma, and basic surgical and medical supplies like antibiotics and sterile gloves are hard to come by or aren't even available. These risks to pregnant women exist whether a pregnancy ends in an abortion or is carried to term.

Roe v. Wade² is the one of the landmark Supreme court judgement that formed the base for the present abortion laws in the United States. The Supreme Court came to a conclusion that women have a constitutional right to abortion, and that this right was founded on an implicit right to personal privacy derived from the Ninth and Fourteenth Amendments (the Ninth Amendment (Amendment IX) to the United States constitution addresses rights, retained by the people, that are not specifically enumerated in the Constitution and the Fourteenth (Amendment XIV) to the United States Constitution was adopted on July 9, 1868 addresses citizenship rights and equal protection under the law and was proposed in response to issues related to former slaves following the American Civil War.) The Supreme Court ruled that a fetus lacks constitutional rights since it is not a person but rather "potential life." The court while ruling this decision believed that during the first trimester of any pregnancy women have the maximum right over the fetus and decide whether they would like to give birth to it not.

In the case of Doe vs Boulton³, Georgia's recently passed criminal abortion laws were contested on constitutional grounds. The conditional limit sections of the Georgian state law was deemed unconstitutional by a three-judge panel of the United States District Court, but the court sustained the medical approval and residency of the patient. Unsatisfied with the decision of the district court, the plaintiff appealed to the Supreme Court. Most of the other restrictions of the Georgia abortion legislation, such as the medical permission and residency requirements, were rejected by the same 7-2 majority (Justices White and Rehnquist dissented) that invalidated the landmark Texas abortion law in Roe v. Wade. The outcome of the suit was that abortion was established as a constitutional right and which implicitly struck down the major anti-abortion laws in other US states.

In Planned Parenthood of Southeastern Pa. v. Casey⁴ the Supreme Court ruled that states could demand parental permission for an abortion on a minor which mandated a waiting period before seeking and getting an abortion, and following a procedure where the risks arising out of abortions are minimalistic. The court ruling stated that the pregnant women is not bound to sign a statement stating that she informed her spouse in advance of the surgery. The Court in its judgement upheld that the source of a woman’s right to have an abortion, was the Due Process Clause of the Fourteenth Amendment. Individual decisions about abortion, family planning, child rearing, etc. are a part of person’s dignity and autonomy. The Court through active discussions came to a conclusion that the mother's freedom and bodily integrity did not give a lesser importance to the father's interest in the unborn child in the context of the spousal notification requirement.

Indians are credited with preserving and incorporating traditional social standards. Given that parenthood is a crucial responsibility for women, being a mother is a lovely honour for an Indian woman. The belief that a woman must have as many children as possible was maintained because to the abundance of money in India, often known as the Golden Bird. For a mother, though, the birth of a boy was a more important occasion. It was believed that abortion was a terrible "crime or sin."

The right to privacy was defined by our Supreme Court in Article 21 of the Indian Constitution. It asserts that "no individual shall be deprived of his life or personal liberty except in the manner provided by law." It implies an equal right to life for both the mother and the foetus. With great hoopla, we inscribed in the Indian Constitution's Article 51A(e) a fundamental obligation "to abandon practises insulting to the dignity of women" in 1976. On the other hand, we have investigated and created a new derogatory practice—sex determination and the destruction of a female foetus.

The Supreme Court's decision in Samar Ghosh v. Jaya Ghosh, has complicated consent laws by declaring that a wife may commit mental cruelty by ending a pregnancy without her husband's knowledge or consent, which is grounds for divorce. Although this decision does not alter the permission necessary to have an abortion, it does infer that a woman's spouse has a "stake" in her reproductive health. The key elements of this ruling have not been implemented in practise; providers frequently request spouse approval.⁵

II. Growth of abortion laws in the united states

Talking about the United States, Abortion was frequently performed, usually with the aid of midwives and other female healers and herbs. Since the medical industry started progressing and the Americans got hand on the chemicals that could aid the process of abortion, the law making authorities decided to responded to this sudden change in the people by passing some of the first anti-abortion legislation as poison control regulations. The first anti-abortion advocates in the United States were male physicians who sought to make abortion illegal to push out competition from midwives and female healers. However, most states had laws prohibiting abortion by the late 19th century, with the exception of saving a pregnant person's life or health. Abortions were outlawed for a number of reasons. Initially, it was a response to the expanding women's rights movement, which promoted "voluntary motherhood." The demand for birth control, posed a danger to male domination in the American society. When the males in the society took control of the newly formed medical profession, they decided to control women and limit them to a conventional childbearing role, abortion restrictions were implemented.

Despite the legal restrictions had been brought by the medical association, the women in America still got abortions, although covertly. The embarrassment which they experienced during this process took a toll on their lives, their health, and their families. While there were safe practitioners, a woman's ability to find one frequently depended on her background, race, and location. Women with money may occasionally travel abroad or locate a doctor who would do the procedure for a considerable cost. Women of race and those in poverty suffered more than average. Looking at the history of the abortion laws in America lets analyze some landmark judgments in past revolving around protecting the rights of women in correlation to abortion.

III. Growth of abortion laws in india

Prior to the Medical Termination of Pregnancy Act of 1971 (MTPA), women who sought an abortion and those who provided abortion services could both receive sentences of up to 3 years in prison. Only in situations where the life of the pregnant lady was in danger was there an exception to this rule. Over the period of time many abortion-related legislation were passed for a variety of reasons. Adolescent girls were protected from sexual assault by some laws, while women who met certain requirements were given easier access to abortion by others. However, under certain conditions, adolescents who have abortions may be subject to both sets of regulations, which causes contradictions and disputes. For instance, the POCSO Act declares that any sexual contact with a child is a sexual offence and labels everyone under the age of 18 as a child in need of protection , regardless of age or developing capacities.

The IPC, which raised the consent age to 18 years in 2013, likewise reflects this policy stance (8). As a result, a young woman seeking an abortion would be assumed to have experienced rape or other penetrating sexual assault, and the healthcare provider would be required to notify the authorities of this (16). Furthermore, there are glaring contradictions about confidentiality and the circumstances under which a doctor can terminate a teen patient without risking legal repercussions. These topics will be covered in the sections that follow.⁶

The Universal Declaration of Human Rights, which is the most significant document, asserts that "All human beings are born free and equal in dignity and rights. They should behave toward one another in a brotherly manner since they have reason and conscience. 2 Article 14 of the Indian Constitution also states the same thing, "The State shall not deny to any individual within the territory of India, equality before the law or the equal protection of the laws." 3 However, in reality, this privilege is only applicable to books, which poses a challenge when questions about its applicability emerge in a certain context. Particularly when it concerns the abortion.⁷

IV. Protecting the rights of the unborn child in both the nations

Very few countries in the world actually look out for protecting the rights of an unborn child or infants and one of them is United States of America. Over the period of time, as there has been a revolution in the abortion laws, the law making authority in USA has always tried protecting the unborn children against any kind of harm or injury. To ensure that the citizens of the country do not cause any form of harm to the unborn children, the Unborn Victims of Violence Act, 2004 was drafted and then implemented. Under this Act, the definitions has been provided form various terms of an unborn child for example the term ‘unborn child’, which means a child in utero and the term ‘child in utero’ or ‘child, who is in utero’ means a member of the species homo sapiens at any state of development who is carried in the womb.⁸

It defines that whoever engages in conduct that violates any of the provisions of law as listed in subsection (b) and hence causes death or bodily injury to a child who is unborn at the time, i.e. is in utero at the time the conduct takes place, is guilty of a separate offense under this section.⁹

It also mentions that apart from as provided in the paragraph, punishment for those separate offenses is the same as the punishment provided under Federal Law for that conduct which results in injury or death to the unborn child’s mother. The act specifies that an offense under these sections does not require that the person causing the harm must be aware or have knowledge that the victim of the offense is pregnant or have intentions to cause death or injury to the unborn child.¹⁰ In India, despite there not being any legislation or statute that specifically defines the rights and the position of an unborn child under the law of several statutes.¹¹

Indian legislation regarding abortion is covered under Sections 312 to 316 of the Indian Penal Code, 1860, as well as the Medical Termination of Pregnancy Act, 2002. The Medical Termination of Pregnancy Act outlines the various guidelines governing the procedure as well as the ability of how and when women can obtain an abortion if necessary. Up until 12 weeks of pregnancy, a Registered Medical Practitioner had to sign off and agree to the abortion regardless of the woman's choice, and between 12 and 20 weeks of pregnancy, a Registered Medical Practitioner had to agree to perform an abortion.¹² The act stipulates the conditions under which and on whom abortions may be performed. The fundamental problem with this law is that it ignores the existence of a sizable population segment that is not covered by the aforementioned provisions but may still require abortions. Additionally, it denies every expectant mother the right to privacy and choice that should be guaranteed by the law, which states that abortions should only be performed for strictly medical reasons.¹³

The MTP Act's pronounced medical bias has drawn significant criticism. Mid-level healthcare providers and practitioners of alternative systems of medicine are not covered by the "physicians only" policy for providers. Access is further hampered by the demand for a second medical opinion for second trimester abortions, particularly in remote locations. According to the MTP Act, the State is required to offer abortion services at all public hospitals. However, the public sector is immune from the same regulatory procedures that apply to the private sector because there is no requirement for approval for public health facilities. The same stringent standards should be imposed as in the private sector and subject to the same audit processes as are expected of the private sector in the setting of low quality abortion care in the public sector. Ironically, however, the private sector in India is still largely unregulated and frequently lacks the discipline required to uphold the legal quality requirements.¹⁴

V. How the modern amendments protect the rights of the women

Under the Medical Termination of Pregnancy (Amendment) Bill, 2020, the upper pregnancy limit has been increased from 20 to 24 weeks for specific groups of women, who will be defined in the modification to the MTP guidelines and include "vulnerable women such as rape victims, rape women, and other vulnerable women," children, and others. The maximum foetal limit does not apply in cases where the Medical Board has ruled that the foetal abnormality is sufficiently fatal. When appropriate, a pregnant woman's identity and other personal details shouldn't be revealed to anyone who isn't legally permitted.¹⁵ The Supreme Court ruled that Rule 3B must apply to unmarried women who experience a change in their relationship (even though they are not married), whether as a result of their partners' desertion, separation, or death. This is so that pregnancies that become undesirable due to material or psychological changes in the lives of the women can be terminated in accordance with the Medical Termination of Pregnancy Act of 1971 (MTPA) and its regulations.

According to the MTPA, the legal justification for abortion known as "grave impairment to mental health" has usually been limited to rape- or foetal anomaly-related undesirable pregnancies or cases of psychological disease. The Supreme Court correctly said in X v. NCT that a woman's mental health may be negatively impacted by "any undesired pregnancy," in addition to mental disorder as a whole. The court also noted how the criminalization of abortion under the IPC has a "chilling effect" on medical professionals who perform abortions because they interpret the MTPA cautiously to avoid facing criminal charges. This acceptance might serve as the foundation for India's eventual abortion decriminalisation.

Recently the U.S Supreme court overruled the historic judgement with a vote of 5-4 given in the case of Roe v. Wade¹⁶, which established the constitutional right to an abortion in the United States in 1973. The court's contentious but anticipated decision grants individual states the freedom to enact their own abortion regulations without worrying about breaking Roe, which had legalised abortions during the first two trimesters of pregnancy. This decision in the united states has brought out a lot of criticism all over world since one of the most educated democracies in the world has failed to protect the rights of the women and have left them at the mercy of the state governments. The Mississippi state law that prohibits abortions beyond 15 weeks has been upheld by the Supreme Court. As a result, millions of US women no longer have the constitutional right to an abortion. Now, specific states might outlaw the practise once more. It's anticipated that half of the US states will enact additional limitations or prohibitions.

VI. Conclusion

In comparison to many other nations, such as the United States, where abortion prohibitions are strictly enforced both historically and currently, India's legal system is generally regarded as progressive. Furthermore, public policymaking needs to be seriously rethought in order to accommodate all the stakeholders and put a priority on women and their reproductive rights rather than setting boundaries that doctors cannot cross while performing abortions. In the opinion of the researcher, all women should have access to medical care, excellent health, and, of course, motherhood, which is one of life's greatest joys. However, that very moment may cause the wife to suffer unintentionally. It is past time for Indian women to launch a feminist campaign for equal access to abortion services for all.

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VII. References

1. Hirve, S. S. (2004). Abortion law, policy and services in India: a critical review. Reproductive health matters, 12(sup24), 114-121.

2. Duggal, R. (2004). The political economy of abortion in India: cost and expenditure patterns. Reproductive Health Matters, 12(sup24), 130-137.

3. Anand, T., Chauhan, A., Sharma, M., & Jha, R. S. (2022). Abortion Laws In India: A Critical Analysis. International Journal of Mechanical Engineering, 7(6).

4. Visaria, L., Ramachandran, V., Ganatra, B., & Kalyanwala, S. (2004). Abortion in India: emerging issues from qualitative studies. Economic and Political Weekly, 5044-5052.

5. Cook, R. J., Dickens, B. M., & Bliss, L. E. (1999). International developments in abortion law from 1988 to 1998. American Journal of Public Health, 89(4), 579-586.

6. Pabayo, R., Ehntholt, A., Cook, D. M., Reynolds, M., Muennig, P., & Liu, S. Y. (2020). Laws restricting access to abortion services and infant mortality risk in the United States. International Journal of Environmental Research and Public Health, 17(11), 3773.

7. Minkoff, H. L., & Paltrow, L. M. (2006). The rights of" unborn children" and the value of pregnant women. Hastings Center Report, 36(2), 26-28.

8. Janoff, A. F. (2004). Rights of the Pregnant Child vs. Rights of the Unborn under the Convention on the Rights of the Child. BU Int'l LJ, 22, 163.

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