Comparitive Study of Abortion Rights in India and U.S.A
Author: Subhashini.S, SASTRA, School of Law
Abstract
Termination of the child in the womb is abortion. Throughout history, and even today, the abortion rights of woman are a debatable issue. The decision on this topic is a tough choice between the personal beliefs on morality of induced abortion and the limits set by the government for legal abortion. It is the individual right of the woman to pursue what makes her happy. A woman’s reproductive and sexual health, shape her reproductive choices. Reproductive rights are now internationally recognised as critical in both advancing woman’s rights and in promoting development. Government plays a crucial role in promoting reproductive rights of woman. They have formulated formal laws and policies. Every woman has an absolute right and control over her own body, known as bodily rights.
RIGHTS OF WOMAN IN INDIA AND U.S.A.
IN INDIA:
Under the following circumstances, the woman is allowed to abort legally.
- The woman can abort the child, if the medical practitioners feel that such pregnancy might cause grave injury to the woman, to both her mental and physical health.
- Where they feel that such continuation of the pregnancy will risk the life of woman.
- That, if they give birth to the child, the child may suffer physical or mental abnormalities.
- Where to save the life of the pregnant woman, or to avoid any permanent injury to the health of the woman.
IN U.S.A:
After the case ofRoe v. Wade[1] in the year 1973, abortion was legalised everywhere in U.S.A. and every state has at-least one abortion clinic. But there are nine states that still have the bans on abortion unenforced: Alabama, Arizona, Arkansas, Michigan, Mississippi, New Mexico, Oklahoma, West Virginia, and Wisconsin. In accordance with the US Supreme Court case of Planned Parenthood v. Casey (1992), states cannot place legal restrictions posing an undue burden for “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable foetus. States have passed laws to restrict late term abortions, require parental notification for minors, and mandate the disclosure of abortion risk information to patients prior to the procedure.
The official report of the US Senate Judiciary Committee, issued in 1983 after extensive hearings on the Human Life Amendment (proposed by Senators Orrin Hatch and Thomas Eagleton), stated:
Thus, the [Judiciary] Committee observes that no significant legal barriers of any kind whatsoever exist today in the United States for a woman to obtain an abortion for any reason during any stage of her pregnancy[2].
43 states prohibit abortion, except for cases where the life of the pregnant woman is at stake. Partial-birth abortion has laws in effect that prohibits it in 21 states of USA.
Facts of Abortion in USA
In May, Alabama’s governor signed into law a draconian bill that could punish doctors who perform abortions with life in prison. But in practice abortion is already inaccessible for many people in Alabama. It believes that “woman is known to be pregnant” and this statement has no exceptions in Alabama.
In 2014, it was found that 94% of the clinics in Alabama did not have the facility of abortion. And this is because, it does not include abortion in the list of health care service. This implies that people had to travel far, to get their abortion done. Even if they could travel, they should be able to afford these facilities.
Throughout USA, only six states allow for abortion, and the major twenty-seven states remain deserted about abortion.
TRAP laws are unnecessary licensing requirements which can make it difficult for abortion service providers to stay open, and this is followed in USA.
Georgia, Ohio, Kentucky, Mississippi and Louisiana have passed bills which prohibit abortion.
Restricting or banning abortion may lead to use of unsafe methods to end pregnancies.
People with low incomes – teenagers, people of colour, migrants and refugees – are hardest hit by abortion restrictions because it is more difficult for them to pay, travel or take time off work.
Abortion in India
Abortion gives woman an identity, a say in the society. In the chauvinistic society that we live in, there are no rights given to woman at reproductive senses. Including the right to abort, in laws and rules, helps in giving woman, power over their own sexual rights and sexuality. However, it is not possible to just leave the right to abort child without restrictions. That then becomes dangerous. It is very much necessary to restrict this right, because, excess of anything can be misused.
Section 3 of Medical Termination of Pregnancy Act (MTPA), says that there can be abortion done within 20 weeks of pregnancy, and not later that. However, section 5 states that, there should be acceptance given by at-least one registered medical practitioner if abortion is to be done within 20 weeks. And if it exceeds the limit, i.e. in extra-ordinary cases, two registered medical practitioners have to give the consent and state that abortion is necessary in such case.
Section 5 of MTPA has become an exception to section 3 of MTPA. Section 3 says that if any injury is caused to the woman or the child, the mother can abort the foetus. But section 5 puts a hold to this point saying that, the woman can abort only with the acceptance of registered medical practitioner.
It must be noted that the MTPA gives more priority to the right to personal liberty, privacy and reproductive choice of a woman in the case of termination within 20 weeks as it expressly permits the termination of pregnancy dangerous to her life or mental and physical health and also the termination pregnancy due to rape or failure of any contraceptive methods.
The MTPA correctly strikes a balance between the two by giving more priority to the right to life of the child than the right to personal liberty of the mother after the term of 20 weeks by when its vital organs would have developed.
[1] 410 U.S. 113.
[2] Report, Committee on the Judiciary, U.S. Senate, on Senate Joint Resolution 3, 98th Congress”.
La Senatus Scriptors 