Abortions & Judicial Support: How Do Our Courts Perform?

Where are the courts gong wrong in handling abortion cases?

The abortion debate has been long, tiresome, replete with constant back-and-forth, and unfortunately — stagnant. The pro-life and pro-choice binary has been made complex, nuanced, and more layered than ever before.

Amidst all this, we bring attention back to the basics: The law — and all those responsible to implement and change it.

A recent study by ‘Pratigya Campaign for Gender Equality and Safe Abortion’ traces Supreme Court and High Court judgements on Medical Termination of Pregnancy (MTP) requests from June 2016 to April 2019, in order to assess the patterns in the judiciary’s enforcement of the abortion law in India.

In the span of the study, a total of 194 writ petitions were filed at the courts to seek permission for abortion.

The Supreme Court

Out of the 194 petitions, 21 cases went to the apex court. The study gives data for 20 of these cases, and observes that 15 out of the total were allowed to abort. All these women were over 20 weeks pregnant (requiring them to approach the court according to the MTP Act, 1971).

Following the assessment of medical boards constituted to evaluate the cases, the five women were denied abortion. Among them, three were cases of fetal abnormalities (26-28 week gestation), and two were rape survivors (one of them a minor).

“In both the cases, the court was of the opinion that since the pregnancies crossed the statutory threshold of 20 weeks, MTP cannot be permitted. Pregnancies in both these cases had crossed 30 weeks.”

The report

An important observation in all these cases is that the court gave more (or almost complete) consideration to the assessment of the medical board, and not to the doctors’ the women had already consulted. “The court was being approached because of the legal impediment in receiving MTP, not because the women had not consulted doctors beforehand,” the report read.

The High Courts

A total of 173 cases went to the High Courts, with significant state-wise differences in numbers. Bombay recorded the highest (88) and Madhya Pradesh followed next with 22. In 139 of these cases, abortion was permitted.

A specific case needs mention here. The petitioner had cited mental trauma associated with the pregnancy due to marital troubles — and the court did not permit her an abortion. It argued that ‘no reason under the Act was put forward by the petitioner’.

In one case, a minor who had been raped, was forced to file a petition in the High Court even when her pregnancy was under 20 weeks. In another,

“The court rejected the MTP request, stating (among other things) that the delay in disclosing the incident of rape suggested that conception had not caused any discernible mental anguish. Furthermore, the court argued that there was a compelling state interest in protecting the life of the foetus.”

The report

It was observed, as with the Supreme Court, even High Courts tended to follow the medical boards’ opinions. The inconsistency apparent in the judgments prove that the MTP Act can ‘lend itself to a wide degree of interpretation’.

The report further delved into state-wise rates of abortion cases and judgements. This exhaustive analysis lead to some important findings:

1. Cases involving rape of minors were not addressed promptly or treated differently
2. The judiciary’s continued reliance on medical boards is cumbersome and complicated
3. In cases with fetal abnormalities, attention to the pregnant woman’s caring abilities have been ignored
4. Inconsistencies within the judiciary
5. Attributing ‘personhood’ to the foetus
6. Parameters across states do not work consistently
7. Selective use of ‘reproductive rights’
8. Inconsistent time periods
9. Lack of a current, cogent and comprehensive interpretation of the Act

One of the most worrying observations was the fact that women under the prescribed legal gestation limit of 20 weeks were also approaching courts. Speaking at the launch of the report, Mr. V.S Chandrashekar, Pratigya Campaign Advisory Group Member and Chief Executive Officer, Foundation for Reproductive Health Services India said, "These cases clearly defy the provisions of the MTP Act and represent major problems in the access to abortion. These women have to further face a long and tiring process, where they are subject to examination before the medical boards, despite having consulted their own providers. The entire process adds to the trauma for women and girls and is a violation of their rights.”

Other recommendations of the study include:

1. Table and pass the MTP Amendment
2. Harmonize the framework with other Acts like the Pre-Natal Diagnostic Techniques Act, 1994 and the Protection of Children from Sexual Offences Act, 2012
3. Time-sensitive adjudication
4. Avoid and reconsider over-reliance on medical boards (takes too much time and leads to inconsistencies)

The complications that have arisen in the implementation of the MTP Act are all a result of a failure to give complete and unconditional priority to the woman’s decision. If you just go with what she wants and what her own doctor is suggesting, there would be no room for judgement, confusion, inconsistencies and misinterpretations.

It’s as simple as that. Recognize the woman’s right to her body, give her the freedom to make decisions and acknowledge the advances in technology.