Why India’s landmark decision on abortion could reverberate around the world | women’s rights

On September 29. the Supreme Court of India made a key decision which promises to actually lead to reproductive autonomy for Indian women, particularly through access to abortion.

While the main question before the court was whether unmarried women could legally seek an abortion — the justices affirmed that they could — the decision also spoke to a number of deeper concerns about abortion and women’s rights over their bodies. It could potentially even pave the way for criminalization of marital rapewhich is currently not punishable in India.

Basically, the court did something long overdue: it approached the critical legal question of abortion from the perspective of women’s own experiences, possibly for the first time. And he set an example that could—and should—resonate beyond India.

Obstacles to abortion, lived experiences of women

Currently, Indian law allows women to terminate a pregnancy in certain circumstances with the approval of a registered medical practitioner. If the woman’s life or health is in serious danger, there is a significant risk that the child will be born with physical or mental abnormalities, or if the pregnancy is the result of rape or failed contraception, abortion is legal – usually up to 20 weeks’ gestation, although abortion is permitted later in exceptional cases circumstances.

However, studies demonstrate that women’s ability to access abortion is determined by factors beyond their control, including availability of abortion services, information and awareness; prevailing moral norms in society; economic costs and – most importantly – supplier attitudes. Women from less privileged castes and class groups, women with disabilities, transgender and non-binary people, sex workers, people living with HIV/AIDS and adolescents face particular challenges when it comes to accessing abortion.

UX v NCT in Delhi (PDF), the case the Supreme Court was just dealing with, the judges acknowledged these obstacles by turning to the “lived experiences” of women.

Crucially, the decision also takes into account legal barriers to abortion. The circumstances under which abortion is permitted derive from a 1971 law, the Medical Termination of Pregnancy Act, and are exceptions to the broader ban on abortion that still exists under the Indian Penal Code (IPC).

The court referred to the chilling effects of the continued criminalization of abortion – with the burden on women to prove, and on doctors to certify, that the conditions for legal exemption from the ban are met. More than half a century after the enactment of the MTP Act, the fear of criminal liability still hangs over service providers. This has led to the proliferation of informal rules or extra-legal requirements such as requirements for third-party authorization from courts or government officials, husband or family consent, and insistence that women provide proof of identity, marriage, and residence.

The court also considered other legal barriers to abortion. For example, the child sexual abuse law imposes mandatory reporting, which deters minors in consensual relationships from seeking legal abortions.

By placing women’s experiences at the center of its decision-making process on abortion rights, India’s Supreme Court has sent a clear message to all stakeholders, from the government and doctors to the country’s citizens: Women will be heard.

Criminalization of marital rape

But the high court’s decision affects more than abortion rights. Indian law does not criminalize marital rape unless the woman is a minor or the husband and wife are living separately by court order. In all other cases, a married woman cannot prosecute her husband for non-consensual sex. The marital rape exception has survived major revisions to the IPC and constitutional challenges before the courts. Earlier this year, the exemption was challenged in the Delhi High Court on the grounds that it violated the fundamental right to equality. The court issued a split verdict.

In X v NCT of Delhi, the Supreme Court challenged this exception and drew attention to the reality of sexual and gender-based violence perpetrated by intimate partners or family, and how this further complicates access to abortion for women in abusive relationships. The court argued that, regardless of the relationship between the victim and the perpetrator, all non-consensual sexual relations fall within the “ordinary meaning of rape”. Citing the constitutional guarantee of “equal protection of the laws,” the court has now extended abortion benefits to survivors of marital rape.

Although this decision is limited to the context of abortion, this recognition of marital rape by the Supreme Court is significant and will hopefully lead to its criminalization.

A global message

Historically, the global legal agenda on abortion rights has tended to be set by a few influential Western countries, particularly the United States and Germany. India did not participate in this exercise. This could be because India’s abortion law is not a product of recognizing (and affirming) women’s rights as abortion decision makers. Instead, it is motivated, at best, by the state’s desire to save pregnant women from unscrupulous backstage abortions, and at worst by a desire to control India’s growing population.

However, we are now at a tipping point. The US is going back five decades on constitutional protection of abortion rights. India, on the other hand, is constantly building its constitutional arsenal on these rights. A recent decision by the Indian Supreme Court is a key milestone in this evolution.

The decision of the Supreme Court of the USA in Dobbs v. Jackson, overturning the abortion rights previously guaranteed by Roe v. Wade, spurred global consideration of adding explicit abortion rights to human rights texts to prevent backsliding. However, the Indian Supreme Court has shown that even if these rights are not explicitly stated in the constitutional texts, they can still be protected.

The Supreme Court of India in its recent decision placed the personal freedom and dignity of women at the heart of the right to abortion. He rejected the stereotype that sexuality is limited to marriage or that after marriage a woman loses her power over her body, while recognizing the broader political, social and economic structures that limit her status in society and the family. The court cemented the woman’s place as – in the judge’s own words – the “final” person who makes the decision on abortion.

Most importantly, the court went beyond simply asking the state to shy away from women’s rights. Instead, he made it clear that the state is responsible for proactively eliminating barriers to abortion access. The state, in other words, must help a poor woman exercise her rights if she cannot afford an abortion.

Yet for all these gains, abortion rights in India remain exceptions to the overall criminal ban, with abortion available only in prescribed circumstances. As long as there is a crime, the Supreme Court’s emphatic rights-based assessment risks remaining constitutional rhetoric.

Over the past two years, Colombia, MexicoArgentina, South Korea and South Australia have partially or fully decriminalized abortion, with Sierra Leone, Nepal and Chile is also moving in that direction.

It is time for India too to take the next bold step.

The views expressed in this article are the author’s and do not necessarily reflect the editorial position of Al Jazeera.