Roe vs Wade and Echoes in India 

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I first came across the concept of abortion at the age of 17 when I watched the film “ Julie” where an Anglo Indian girl falls in love with a Hindu boy and gets pregnant with him. Abortion is briefly considered and equally quickly abandoned as it is a forbidden act for devout Christian. Eventually, Julie is sent away before the pregnancy becomes obvious to a distant convent. There she gives birth and gives up the baby for adoption before being permitted to return home.

Ever since I have come to understand abortion and the legal and ethical frameworks around it, I have become familiar with the term of  Roe v. Wade, the iconic supreme court verdict in the US. The case is often used informally as shorthand for abortion access in the United States. Although the verdict was delivered in 1973, the case was originally filed in 1970. It is not known if India’s Medical Terminal of Pregnancy Act of 1972 was influenced by the arguments in the US courts. After all, abortion was and is as contentious an issue in India as it is in the US, and this tension cuts across all faiths.

The decades-old verdict could now be potentially reversed by the US Supreme Court which is dominated now by conservative judges who are expected to be “pro-life” in their thinking and attitudes.  The leak of an initial draft majority opinion of the US Supreme Court voting to overturn the decision has sent shockwaves, globally. The draft decision seems to hold that “Roe was egregiously wrong from the start” and proposes to “heed the Constitution and return the issue of abortion to the people’s elected representatives”, leaving it to the legislatures across states to criminalise or legalise abortion as they deem appropriate.

The 1973  verdict was the outcome of an unmarried woman’s crusade for bodily autonomy. The Court then had declared unconstitutional, a provision of the Texas Penal Code that permitted only those abortions that were “procured or attempted by medical advice to save the life of the mother”. The decision simultaneously recognised the state’s interest in protecting the life of the foetus as also the life of the mother. In devising a trimester framework for legally permissible abortions, Roe held that as the pregnancy progressed and the foetus became increasingly viable, the state’s interest in protecting potential life became compelling.

Much later, in 1992, the US Supreme Court in Planned Parenthood v Casey reaffirmed the woman’s right to terminate her pregnancy before viability as the “most central principle” of Roe. While locating the right of privacy within the guarantee of personal liberty enshrined in the fourteenth amendment of the American constitution, Roe underlines a constitutional right to abortion that originates from this right of privacy.

The overturning of Roe is more than the mere declaration of the court to deprioritise individual rights over the thinking and beliefs of an ideology.— It would also mean legitimisation of state incursions into women’s right to abort and consequently their right to bodily autonomy and liberty, in addition to forcing them to move to states with enabling laws to procure abortions, leading to issues of access and affordability of abortions.

While the impact of Roe’s absence would most profoundly be felt in the US, it is likely to embolden conservative anti-abortion voices across the world. The Indian Supreme Court has alluded to the Roe vs Wade verdict.  The decision in KS Puttaswamy v Union of India, where Justice Chandrachud referred to Roe and Planned Parenthood while reading the right to privacy into the existing framework of constitutionally protected fundamental rights subject to “just, reasonable and fair” restrictions.

What do terms like “ right to privacy “ and “ pro-life “ mean for the Indian woman? Do the words have the same understanding and currency as they do in the US where they became popular? Do Indian women enjoy the Right to Privacy in its most basic form? According to a WaterAid report, With more than 355 million women and girls still waiting for access to basic sanitation, India tops the list for the longest queue for the toilet. In fact, it would stretch around the Earth more than four times! Forget the outdoors,  Indian women, in general, do not have privacy in their homes. Their lives are always “watched over” by their parents, elders, husband, or even children.

The word “pro-life” in an abortion context for Indian women looks and sounds contrived when used. The term assumes that a woman has chosen to get pregnant of her own free will by exercising her choice to sleep with a man and by avoiding contraception, getting pregnant. But once the conception has occurred, the foetus becomes the “property” of the State and it has the responsibility to nurture that foetus and allow it to be born.

When I was working for india’s leading organisation promoting birth control and population stabilisation, I learned that in vast swathes of India, abortion is used as a de facto means of contraception by women. Although the nearest chemist or clinic will tell about various female contraceptives available in the market, social taboos around sexuality and mobility concerns mean that very few Indian women outside the educated class have access to them.

Given that only  1 in 10 Indian men use condoms, and that it is perfectly legal (and common) for men to force themselves on their wives, the only option that many women have to eject the pregnancy is to abort it. That too, usually in the shack of a local dai or midwife using tools and concoctions that are unsafe and unsanitary putting  Global NGO Ipas found in a study that 80 percent of abortions in India happened due to lack of knowledge or absence of contraceptives.

The concept of pro-life in an Indian context has to prioritise the life of the woman who has often no agency or control over her body and has no way to exercise her reproductive rights, even though reproductive rights have been recognised as human rights, rather than only harp over the rights of an unborn foetus.

All these may seem irrelevant to India at the moment. As of today, India’s abortion law is relatively liberal in comparison with Asian countries. Under the 1971 Medical Termination of Pregnancy (MTP) Act, abortions can be performed by a registered physician in a government-approved hospital or facility (MTP centre) during the first 20 weeks of pregnancy. According to Ipas, an NGO dedicated to spreading awareness on safe abortions and sexual reproductive health, despite this act and its provisions, an estimated 60 percent of abortions performed in India are unsafe. Not just this, a woman in India dies every two hours because of an abortion gone wrong.

It can be safely said that abortion in India is certainly not sanskari. Religious leaders like Shankaracharya and even assorted Sadhus and Sants have made their own “ pro-life” statements urging Hindu women to have up to 10 children so that the community remains in a majority. And clearly, every aborted foetus is one “ missed opportunity “ for a Hindu to be born. In its own twisted way, it is not inconceivable that a court verdict influenced by conservative American Christian values may find an echo in India.

Dr Shantanu Dutta , a former Air Force doctor is now serving in the NGO sector for the last few decades.

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