Law Centrum
1 Jul 2022
Access to abortion is not a self-contained or independent right
"There is no longer a federal constitutional right to an abortion", the Supreme Court of U.S. ruled in Dobbs v. Jackson Women’s Health Organisation (2022 U.S. LEXIS 3057) on June 24, 2022 overturning and revoking Roe v. Wade (410 U.S. 113 (1973)), the 1973 seminal case. The court ruling further states that, unless Congress takes action, state laws will govern abortion rights. The court also overturned Planned Parenthood v. Casey case (505 U.S. 833) that upheld Roe.
The US Supreme Court upheld the contentious ban in 6-3 majority ruling after considering a challenge to a 2018 Mississippi legislation that attempted to effectively outlaw most abortions after 15 weeks of pregnancy.
The ruling, which could drastically alter how women's reproductive health is viewed in America, is the most significant Supreme Court decision ending 50 years of abortion rights in America.
Nearly half of the states have either passed or will soon adopt legislation outlawing abortion, while others have passed stringent regulations governing the procedure [1].
President Joe Biden on the Supreme Court Decision to Overturn Roe v. Wade has remarked [2] that “the Supreme Court of the United States expressly took away a constitutional right from the American people that it had already recognized. This landmark case (Roe v. Wade) protected a woman’s right to choose, her right to make intensely personal decisions with her doctor, free from the interference of politics. The health and life of women in this nation are now at risk. President believes that, Roe v. Wade was the correct decision as a matter of constitutional law, an application of the fundamental right to privacy and liberty in matters of family and personal autonomy”.
WHAT IS ABORTION?
An abortion is a medical procedure that terminates a pregnancy. It is a basic medical necessity for millions of women, girls and others who can become pregnant. It is estimated that every year, 1 in 4 pregnancies worldwide result in abortions [3]. According to World Health Organisation (WHO), Abortion is a simple health care intervention that can be effectively managed by a wide range of health workers using medication or a surgical procedure [4].
There are two methods of abortion [5]: 1) Medical abortion and 2) Surgical abortion.
1) Medical abortion - Involves taking abortion pill to cause an early miscarriage. No surgery or anesthetic is involved.
2) Surgical abortion – involves quick, minor operation
New guidelines on the provision of comprehensive abortion care were announced by WHO in March 2022. The suggestions covered three important areas: law and policy, clinical services, and service delivery. If an abortion is performed using a method that the WHO has approved, is appropriate for the gestational age, and is performed by a qualified individual, it is deemed safe. According to estimates, about 45 percent of abortions worldwide are considered unsafe, which is defined as a procedure for termination performed by someone who lacks the essential skills, in a setting that does not meet the bare minimum of medical requirements, or both [5].
IS ACCESS TO ABORTION A HUMAN RIGHT?
Access to abortion is not a self-contained or independent right, while it is fundamentally linked to the enjoyment of many other human rights, inter alia, the right to life, to health, to equality, to privacy, and to live free from discrimination. The term abortion or reproductive right is not explicitly mentioned in international human rights instruments. The reproductive rights are implicit to other fundamental rights. For instance, Article 17 (1) of the International Covenant on civil and Political Rights (ICCPR) stipulates that, “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation” [6].
CEDAW, or the Treaty for the Rights of Women
The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which advocates for access to "family planning," encourages abortion but leaves the issue unaddressed. Women are successfully using the Treaty on the Rights of Women as a tool to transform their circumstances all around the world.
This most comprehensive international agreement on the fundamental human rights of women, was adopted by the UN in 1979. The Treaty, which is frequently referred to as a "Bill of Rights" for women, establishes a global standard for defending and advancing the human rights of women. It is the only international document that covers women's rights in all aspects of political, civil, cultural, economic, and social life. 185 nations had approved CEDAW as of August 2009. Ironically, the US is not a signatory to the treaty.
The UN Working Group
According to the UN Working Group [7], "Women's human rights include the rights to equality, dignity, autonomy, information, bodily integrity, and respect for private life, as well as the highest attainable standard of health, including sexual and reproductive health, without discrimination; and the right to freedom from torture and cruel, inhuman, and degrading treatment." A woman's or girl's fundamental right to equality and privacy in matters involving their own bodies and reproductive systems, as well as their right to make autonomous decisions about these matters, is at the very heart of these rights. Thus, in the opinion of the group, “equality in reproductive health includes access, without discrimination, to affordable, quality contraception, including emergency contraception”.
ACCESS TO ABORTION - INDIAN STANCE
In India, abortion is legal in specific conditions and governed by Medical Termination of Pregnancy Act (1971). The law has been amended and new act came into force on 25 March 2021 which expanded the access to safe and legal abortion services on therapeutic, eugenic, humanitarian and social grounds to ensure universal access to comprehensive care.
WHO highlights that, “India’s Amended laws make abortion safer and more accessible”.
In India specific conditions under which abortion is allowed are as follows [8]:
Pregnancy can be aborted before 24 weeks for special categories of women, including survivors of rape, victims of incest and other vulnerable women (differently abled women, minors, among others). This can be done upon the opinion of doctors. The opinion of one doctor is required for the termination of pregnancy up to 20 weeks of gestation. Requirement of the opinion of two doctors for the termination of pregnancy from 20-24 weeks of gestation.
Extended MTP services under the failure of contraceptive clause to unmarried women to provide access to safe abortion based on a woman’s choice, irrespective of marital status.
REFERENCES
[1] Ariane de Vogue, Tierney Sneed, Chandelis Duster and Devan Cole, June 24, 2022, “Supreme Court Overturns Roe v. Wade, CNN Politics, available at: https://edition.cnn.com/2022/06/24/politics/dobbs-mississippi-supreme-court-abortion-roe-wade/index.html
[2] The White House (Washington, D.C.), “Remarks by President Biden on the Supreme Court Decision to Overturn Roe v. Wade”, Speeches and Remarks, JUNE 24, 2022, https://www.whitehouse.gov/briefing-room/speeches-remarks/2022/06/24/remarks-by-president-biden-on-the-supreme-court-decision-to-overturn-roe-v-wade/
[3] Editorial, Access to safe abortion is a fundamental human right, eClinicalMedicine, The Lancent, Volume 46, 101426, April 01, 2022,
[4] WHO, Abortion, 25 November 2021, available at: https://www.who.int/news-room/fact-sheets/detail/abortion#:~:text=Comprehensive%20abortion%20care%20is%20included,medication%20or%20a%20surgical%20procedure.
[5] British Pregnancy Advisory Service (BPAS), What is Abortion, https://www.bpas.org/abortion-care/considering-abortion/what-is-abortion/
[6] International Covenant on civil and Political Rights (ICCPR), https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights
[7] OHCHR, https://www.ohchr.org/en/special-procedures/wg-women-and-girls/womens-autonomy-equality-and-reproductive-health
[8] WHO, https://www.who.int/india/news/detail/13-04-2021-india-s-amended-law-makes-abortion-safer-and-more-accessible