United States of America ('USA') is touted to be one of the most progressive countries in the world. The country is lauded for its pro-liberty stance on the rights of citizens. However, the state of Alabama in USA is in the news for passing legislation that curbs liberty and autonomy of women, by banning abortion even in cases of rape and incest (except in cases where there is a serious health risk to the mother). The Bill although does not make the woman criminally liable for the abortion, it carries imprisonment up to 99 years for the doctor performing it.
Abortion has been a controversial issue in the USA, as the states controlled by the Republicans (having a conservative ideology i.e. greater state control in private lives of citizens) call for ban on abortions whereas the Democrats (having a liberal ideology i.e. no state control in private lives) call for lifting of regulations on abortions. Many believe that once Alabama's Bill is passed, it will immediately criminalize abortion barring the exception of a serious health risk to the mother.
Such a position is legally unsound, as the existing law in America makes abortion a constitutional right for women. I shall explain the said laws in the present post and analyze their application on the Alabama legislation. A brief discussion on the position in India shall also be undertaken.
At the outset, a brief overview of the federal system in USA would be beneficial to understand the controversy at hand. USA follows a strict federal setup of governance wherein the federal government (US Const. art. 1 § 8) and the state governments have respective designated fields on which they can make laws. The fields for the federal government are limited and the remaining fields fall within the domain of the states, making them more powerful, unlike India. It should be noted that unlike India, USA has two Constitutions i.e. a federal Constitution and a separate state constitution, for every state. The latter is valid as long as it conforms to the general principles of the Federal Constitution.
As per the Constitution, every state has a Supreme Court which adjudicates on matters of the state Constitution. The Federal Constitution provides for a Federal Supreme Court which adjudicates disputes concerning the Federal Constitution and federal laws. As per the Supremacy Clause in the Federal Constitution (US Const. art. VI), the states and their Courts are bound by the Federal Constitution, federal law and the decision of the Federal Supreme Court.
As mention above, states in USA have greater leeway in making legislations that govern them. Abortion has been an area where state governments have made respective state legislations to govern the procedure. Till 1973, few states in USA permitted abortion whereas the others termed it illegal in all circumstances. However, the position changed with the decision of Roe v. Wade in 1973.
Roe v. Wade-
It should be noted that central to the debate surrounding legality of abortion is the argument of autonomy versus life. The side which argues for legalizing abortions believes that women should have the autonomy to take their medical decisions including whether to give birth to a baby or not, whereas the other side argues on the lines of protection of 'life' which includes a prenatal life as well. The US Supreme Court in Roe v. Wade had to choose between these two arguments.
The Court in Roe sided with the autonomy argument to hold that a woman had the right to make her medical decisions including whether or not to terminate the pregnancy. The right was read in the Constitution's Fourteenth Amendment (equal protection of laws) and the Ninth Amendment (rights in addition to the Bill of Rights), making it a Federal Constitutional Right, enforceable against the states as well.
The Court however, stopped short from making the right absolute, and called for balancing the right with the state's interest to protect life. The test provided by the Court is as follows (called the trimester test):
The rationale behind the test is the safety of the mother. In the first trimester, abortion is considered safe. In the second trimester, risk to mother's health increases, whereas in the third, abortion is dangerous to the woman's health. The life of the viable foetus that may become a child also played a role in the Court's stance on the third semester.
The right to abortion of women as laid down in Roe has been upheld unanimously by the subsequent precedents in America. However, the nature of state regulation on the same was modified by later decisions.
In Planned Parenthood v. Casey, the Court modified the trimester test to the viable foetus test (viable foetus stands for the ability of the foetus to survive outside the uterus). The Court stated that given the medical advancements a foetus could be considered viable at 23-24 weeks as against 28 weeks in Roe.
As per the test, the state can proscribe abortion except for preservation of the life or health of mother, at the point of viability of the foetus. However, prior to viability, the state can merely show concern for fetal development, but it cannot pose an undue burden on a woman's fundamental right to abortion. Undue burden here means, a legislation creating hurdles for the woman to exercise her choice of abortion.
Aftermath of Roe-
The effect of Roe and Casey was that every woman in USA had a constitutional right to abortion, which means that states could not proscribe abortion at least till the viability of the foetus. However, the states did pass legislations constricting women's right to abortion, citing 'concern for the foetus development' as provided for in Casey.
Restrictive laws like, requiring abortion providers to meet the standards of an ambulatory surgical center; prohibition of use of state funds for abortion; mandated counseling before abortion; mandated use of ultrasound before abortion; required waiting periods; parental involvement for minors; and restriction of coverage of abortion in private insurance plans etc.
Certain states even passed 'Trigger Laws' (i.e. laws that are not active unless Roe v. Wade is overruled) banning abortion. Such laws would ensure abortion would be automatically illegal, once Roe is overruled and states are allowed to ban abortion.
The Alabama legislation makes it a crime to perform abortion on a woman at any stage of pregnancy i.e. pre or post viable foetus barring the exception. The legislation goes against the decision in Roe, which clearly provided for an absolute right for abortion before a viable foetus. Given the Supremacy Clause in the Constitution, the legislation is subservient to the federal laws including the decisions of the Federal Supreme Court and hence, unconstitutional.
What is interesting to note is that Republicans who have passed the law are aware of the same and have made it clear that their intention is for the law to be challenged, so that the Supreme Court can reconsider the decision in Roe and possibly set it aside.
In India, the right to abortion is governed by the Medical Termination of Pregnancy Act, 1971. Under the Act, pregnancy can be medically terminated only by a "registered medical practitioner" at a medical facility (government-owned or private) registered as a medical termination of pregnancy center.
As per the Act, the grounds for abortion are limited to:
o Where continuance of pregnancy would cause risk to the life of the pregnant woman or cause grave injury to her physical or mental health [rape is considered as an act that causes grave injury to the mental health of the women]; or
o Where there exists a substantial risk that if the child is born it would suffer from such physical or mental abnormalities as to be seriously handicapped [§ 3].
Abortion can only be undertaken till 12 weeks of pregnancy (where a medical practitioner needs to certify the application of the above grounds) or 20 weeks (where two medical practitioners need to certify application of the above grounds). The Courts have time and again reiterated that abortion can be undertaken only on the grounds listed above (S.K. Ayesha v. Union of India, 2018 SCC Online Bom 3034). Abortion on any other ground is a criminal offence and attracts imprisonment for ten years (§ 313, Indian Penal Code). If the women consents for such an abortion, she is also criminally liable (§ 312, Indian Penal Code).
The justification for granting abortion on limited grounds in India was provided by the Court in Suchita Srivastava v. Chandigarh Administration, where it opined:
"There is no doubt that a woman's right to make reproductive choices is also a dimension of 'personal liberty' as understood under Article 21 of the Constitution of India. It is important to recognize that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman's right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman's right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods. Furthermore, women are also free to choose birth-control methods such as undergoing sterilization procedures. Taken to their logical conclusion, reproductive rights include a woman's entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children. However, in the case of pregnant women there is also a `compelling state interest' in protecting the life of the prospective child. Therefore, the termination of a pregnancy is only permitted when the conditions specified in the applicable statute have been fulfilled."
In a nutshell, the Courts in India recognize the right to autonomy of woman in matters of reproductive choices; however, the right is limited when it comes to abortion, due to the state's interest in protecting the life of a prospective child. This is in stark difference to the US position, where an absolute right to abortion exists before the viability of the foetus.
Autonomy allows an individual to decide how she/he wants to lead her/his life. Sexual autonomy conventionally includes the choice of sexual partners, choice of consensual participation in sexual activities, the choice to use contraceptives or birth controls. In the author's opinion autonomy should also include the right of a woman to decide whether to birth a child or not.
Due to the competing rights in this debate i.e. autonomy v. protection of life, an 'absolute' approach of one over the other, would lead to no fruitful result. Therefore, I believe a harmonious balance needs to be maintained. The Court in Roe achieved that balance, by promoting a woman's autonomy in pre-viability stage and protection of prenatal life post-viability stage.
I hope the legislature in India takes into account the progressive changes in women right's jurisprudence in the world. It should grant more autonomy to the women citizens in making reproductive choices for themselves, rather than the state doing so.
The author is a Fifth Year, Constitutional Law (Hons.) student at National Law University, Jodhpur (India). The article was first posted on the author's personal blog "The 'Basic' Structure".
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]