Abstract:
This research paper examines the nuances of abortion legislation in many nations, looking at their development, variances, and consequences for society. We assess the effects of legislative frameworks on maternal health, gender equality, reproductive rights, and public opinion by looking at things like access limitations and gestational caps. This study aims to offer insights on the success of various abortion rules in forming societies and defending women’s rights by a study of court judgements, legal theories, and ethicalconcerns. Important conclusions emphasise the value of evidence-based policy choices for promoting healthier, more equal societies.
Keywords: Abortion laws, Comparative study, Societal impact, Reproductive rights, Gender equality.
Introduction
Abortion concerns are influenced by various factors such as existing laws, religious beliefs, societal norms, family situations, customs, and relationships. As being at contrast with human rights values, harsh abortion laws have frequently come under fire from human rights organisations.[1] Pro-life activists believe women should have complete control over their reproductive life, while pro-lifers view the death of an unborn child as a social death. The article uses J.S. Mill’s quote to illustrate the moral, legal, and ethical dilemmas that arise from abortion, “women as having complementary talents should be valued equally.”
Millions of women undergo abortions annually, with abortion rates estimated to be around 28 per 1000 women of reproductive age worldwide. Statistics show that 50% of all pregnancies are unplanned, with 50% ending in abortions.[2] Women have various personal reasons for choosing abortion over adoption or parenthood, including awareness of parenthood responsibilities, limited resources, and lack of a supportive husband.
Abortion bans disproportionately affect children, with women who abort in the second trimester more likely to be teenagers, economically underprivileged women, unaware of their pregnancy, and facing barriers to accessing safe abortion services. The countries that allow abortion on demand without limitations have the lowest death rates, indicating that the only way to abolish unsafe abortion is by getting rid of all legal restrictions and guaranteeing that everyone has access to safe abortion.
Research Methodology
This analysis is based on secondary data gathered from reputable published sources such as books and websites on the internet, newspapers, articles, and numerous international journals and magazines, and all of the information was analysed using quantitative and qualitative methods.
Literature Review
Christopher Kaczor’s book “The Ethics of Abortion: Women’s Rights, Human Life, and the Question of Justice”it provides a detailed philosophical analysis of the ethical issues surrounding abortion. Kaczor analyses a range of ethical arguments for and against abortion, including those based on feminism, personhood, and natural law. The ethical hypothesis, which maintains that the moral and ethical ramifications of the issue are essential to the development of abortion law, is supported by the author’s study.
Paul Hunt’s article “Reproductive Health and Human Rights: Integrating Health and Human Rights Frameworks”which promotes including human rights and health factors while establishing abortion legislation. According to Hunt, because the rights to health and to reproductive autonomy are intertwined, barring access to safe and legal abortion services violates both of them. His stance on abortion law is consistent with the human rights perspective, which contends that social fairness and human rights principles must guide the formulation and implementation of abortion policy.
Analysis of American and Indian Laws and Landmark Judgements on Right to Abortion
India and the USA do not explicitly recognize abortion, despite its legal status in the US. This is due to the “liberty protected under due process clause” in the US, which may have been inspired by Article 211 of the Indian Constitution[3]. However, India has not given abortion rights the same emphasis as the West, particularly the USA. This highlights the debate surrounding abortion legislation in India.
American Position On Abortion
Pro-choice and pro-life factions oppose each other in the American abortion issue, with pro-choice supporters asserting women’s right to choose their own abortions and pro-life supporters believing a foetus has a “constitutional person” status and a right to life. Before the early 1970s, abortion laws were influenced by English Common Law, the Lord Ellenborough Act of 1803[4], and anti-abortion legislation added to US Common Law in the 1820s. Doctors began opposing abortions in the mid-19th century to eliminate competition from healthcare providers. By 1900, most states had to enact anti-abortion legislation. Cultural events like the Rubella epidemic and Thalidomide caused proponents of abortion law change.[5]
The Roe v. Wade[6] decision legalized abortions for pregnant women in all 50 US states. Justice Blackmun argued that forbidding abortions breached a woman’s privacy, and the state should balance this against protecting unborn children. According to the trimester test established by the court, government control is permitted during the first and second trimesters but is prohibited during the third trimester unless absolutely required.
In 1989, the US Supreme Court supported the foetal viability test in Webster v. Reproductive Health Services[7], arguing it benefited the state’s interest in life protection. However, the trimester test was rejected as impractical, allowing the state to control abortions at any stage. In Parenthood v. Casey[8], the court partially overturned Pennsylvania’s abortion law, preserving other criteria like waiting time and informed consent.
In 2007, Gonzales v. Carhart[9] contested the 2003 Partial Birth Abortion Ban Act[10], which forbade intact dilation and extraction. Justice Kennedy accused the Supreme Court of taking a conservative turn and curtailing the extent of the right to an abortion. Since the Roe v. Wade and Doe v. Bolton decisions, states have been developing abortion legislation.
Indian Position On Abortion
Abortion is illegal in India, similar to the UK’s Act of 1861, with Section 312 IPC[11] allowing abortions in “good faith” to preserve the woman’s life. The Shah Committee, led by medical authority Dr. Shantilal Shah, was established in 1966 to recommend legal amendments to the Medical Termination of Pregnancy Act (MTP) of 1971[12]. The 1971 Act adopted the committee’s recommendations, but it still does not repeal the 1971 Act.
The 1971 Act allows abortions up to 20 weeks and up to 24 weeks before the 2021 amendment. The main objective of the Act was to provide access to safe abortions to prevent “wastage of the mother’s health, strength, and, occasionally, life.” However, the Shah Committee refuted the Act’s intention to encourage family planning and control population growth.
The 2021 amendment legislation gave the law a more liberal bent by changing the definition of “married woman and her husband” to “any women and her partner.” The law requires informed consent from the woman before terminating a pregnancy, and a minor or mentally ill woman’s guardian must provide their consent.
If the medical board discovers a “substantial foetal abnormality” or if there is a “substantial risk to the woman’s life,” a pregnancy may still be terminated after 24 weeks. In these circumstances, even one medical professional’s judgement would suffice.
In 2021, a change to the MTP Act of 1971 included section 5A[13], making exposing a pregnant woman’s identity unlawful unless specifically authorized by law. This change was based on the Justice K. S. Puttaswamy v. Union of India[14] case, which recognized female reproductive autonomy as a component of her right to privacy.
Liberalization ofAbortion Laws
After Signing ICPD
The 1994 signing of the Conference on Population and Development Programme of Action (ICPD) by 179 countries marked a significant milestone in global history. Since then, legislation extending abortion authorization has been adopted in around 50 countries, with half of policy liberalization occurring within the past decade. This anti-liberalization movement’s loss underscores a rising worldwide agreement that safe, legal abortion access is important for both human rights and public health.[15]
Albania, Cambodia, Cyprus, Guyana, Ireland, Luxemburg, Maldives, Mozambique, Nepal, Portugal, Sao Tome and Principe, South Africa, Spain, Switzerland, and Uruguay whose laws have been modified to allow abortion on demand. Nepal and Sao Tome and Principe, switched from outright bans to demand-based abortion rights. Guyana, Cambodia, and Ireland that legalised abortion on demand after previously forbidding it unless it might save the woman’s life. After abortion was made legal in 18 countries, their legal systems were altered to permit the operation in a range of circumstances. In five countries, only abortions carried out to preserve a woman’s life or for certain circumstances like rape or incest are currently lawful.
Reforms By States
Since 1965, abortion has been available on demand in Cuba’s national health system up to the tenth week of pregnancy. The Penal Code, adopted in 1979, prohibits abortions without consent, unsafe, or for profit.[16] Cuba was the first Latin American and Caribbean country to reform its abortion law in favour of women.
Abortion laws in Japan were first focused on eugenics and became the main form of birth control in the nation in 1948. Eugenics references were removed from the Act in 1996, and abortion is now permitted in situations of sexual offences to safeguard women’s health and economical concerns. Abortion remains the main contraception method, with most occurring in the first trimester of pregnancy.[17]
The requirement that women demonstrate suffering was removed from the Penal Code in 2014 when the abortion was legalised up to 12 weeks of pregnancy in Luxembourg. Regulations controlling abortions have also been revised.[18]The 1975 Veil Law in France was changed to open access and lessen restrictions. Women do not need to be in distress in order to obtain an abortion. The “reflection period” of seven days between the request and process was eliminated. Recent developments include midwives conducting medical abortions and complete coverage of all abortion costs.[19]
One of the world’s most lax abortion laws is found in Sweden. Abortion is available uponrequest up to 18 weeks;however, it needs to be sanctioned by the National Board of Health andWelfare. Providers and venues for abortions are governed, and anybody who performs anabortion without a valid medical licence faces a fine or a year in jail. With the majority beingmedical abortions, government support for abortion resulted in 95% of operations occurringbefore 12 weeks and almost none beyond 18 weeks. The majority of abortions are medical[20].Canada has been legalizing abortion since 1988 and is available on request. Mifepristone wasapproved slowly and abortion is difficult to obtain in rural areas[21], but opposition to abortionhas never gained traction. The advantages of no legislation for women are obvious[22].
The Dilemma of “Legalization” or Decriminalization”
Politicians and activists have long debated whether to support decriminalisation or legalisation of certain behaviours, with many individuals supporting decriminalising abortion. However, no human rights body has typically argued for its acceptance. Movements have called for “safe and legal abortion,” while recent suggestions have called for “decriminalisation of abortion.” Legalizing abortion may keep it within the law, while decriminalizing it removes the criminal penalties associated with it. A Supreme Court decision in 1988 decriminalised abortion in Canada, the only country to do so. All but a few countries have made abortion legal in some form. Despite its liberal legal changes, no other country has been prepared to completely ban abortion.
Right to Safe and Legal Abortion
The World Health Organisation (WHO) emphasises the significance of determining what poses a threat to a woman’s life, recognising that both societal circumstances and physical disorders may do so. The WHO suggests adding medical conditions to the list of conditions that are deemed to be life-threatening. States shouldn’t discount a doctor’s assessment of a woman’s risk to her life.
The right to a safe abortion is recognised as a fundamental human right in state constitutions as well as international and regional human rights agreements. The rights to life, liberty, privacy, equality, non-discrimination, and freedom from torturous, inhumane treatment have been created the cornerstone for safe abortion by these laws.[23]
Women alone should have the power to determine whether to have children and how to raise them, according to activists. They support empowering women to control their own pregnancies rather than managing pregnancy outcomes.
Changing the Law to Benefit Women
Legal discourse is crucial to protect women’s bodies from legal hazards, as they are exposed to various risks. It is essential to specify which abortions should remain illegal and establish appropriate penalties, as legal arguments for abortion can vary depending on the case. The question of who decides and on what basis current legislation is changed remains.
Risk has various meanings and cannot be predicted, and it is difficult to anticipate great behaviour that puts a person’s life, physical, emotional, and unborn child at risk. Christian Fiala, director of the GynmedAmbulatorium in Austria, believes that a woman’s life is in danger after she has passed away. Word choice is essential when discussing a person’s fundamental rights.
Further exploring the relevance of language in regard to the medical reason for abortion where ReedBoland said that The health indications for abortions vary across countries due to the language and legal traditions involved. Abortions are legal in Great Britain if the pregnancy carries a higher risk of harming the woman’s bodily or mental health. In Burkina Faso, the Penal Code permits abortions if the pregnancy endangers the woman’s health. In some countries, medical or health reasons are required, such as “good medical reasons” in Vanuatu, “therapeutic reasons” in Djibouti, and “necessary treatment” in Pakistan. These concepts may not always be the same.[24]
Conservatives frequently argue that action must be taken to preserve the foetus because it hasa right to life. “Not to abort it” is what she must do.
If the woman owns her body, it may be claimed that an abortion of an unborn child is a takingback of something to which the foetus did not have a fundamental right, at least in theparadigmatic situations of abortion on demand. Because it has a right to the things it needs tosurvive or a right to be protected, the unborn child has a right to the mother’s body.
Liberals reject Thomson’s individualism and the potentiality principle, which extends the right to life to foetuses, stating that it is ineffective. They acknowledge the freedom of college students to complete their education and the foetus’s right to continue developing personhood, highlighting the state’s motivations for preserving potential.
The Demand Of Equality
Women have the freedom to choose whether to have children, pursue jobs, care for their children, enrol in college, delay having children until emotionally and financially prepared, maintain steady employment, and marry at their discretion. This allows them to play an equal role in social, political, and economic life. However, women still have responsibilities, and increasing their education and economic independence can lead to fewer children and a more equal society.
Some problem with the rhetoric of rights, including the marginalization of gender disparities, still faces issues due to the emphasis on equality and inequality. Legal scholar Kimberle Crenshaw suggests that for rights claims to succeed, the definitions of rights and choice must be expanded and changed, including the social benefits of exercising any right, society’s responsibility to create circumstances for women to exercise their right to reproduce, and the choice to have children or not. The “de facto reality” of women’s subordination, including coercive pressures, necessitates an expansive definition of choice.[25]
To effectively articulate one’s moral liberties and reproductive rights, it is crucial to understand the complex histories of women’s battles for self-determination and reproductive autonomy.[26] Acknowledging collective histories and agencies is essential, as it helps question the complex webs of social interactions through which women talk and act. Angela Davis states that a failure to understand these histories can lead to racism in abortion-rights campaigns.[27]
The U.S. Supreme Court’s decision on abortion rights prioritizes individual rights over women’s rights. While both men and women have equal body decisions, only women have the capacity to become pregnant. Abortion rights organizations view the issue through women’s rights, but it’s not framed in legality or legislation.
Autonomy
A woman has a moral duty to weigh her options before carrying a pregnancy to term, and she is free to choose what she wants and is accountable for the outcome. Her decision to use her body to have children should be made alone, as it is too personal and important to be taken away from her. Adults are entitled to make their own choices, such as joining the military, donating blood or money to Save the Children, declining a life-saving blood transfusion, or operating a miniature fort on wheels. However, we must stand up for women’s moral autonomy and competence, especially when it comes to decisions regarding reproduction. Many “prolifers” view foetuses as morally inferior and paint women who want the right to make these choices as egotistical and immoral.
Bodily Integrity
Women should be in charge of their bodies since the law regards them as holy. The rights of prisoners are safeguarded against unjustified intrusions like body cavity searches. Even if it may aid in a murder suspect’s conviction, the state cannot make criminals undergo surgery in order to gather evidence. Parents cannot be made to agree to less harmful physical intrusions, such bone marrow donation, in order to save a living child. Body intrusion is evident when the state compels a woman to carry her pregnancy to term and give birth against her will.
Wantedness And Welcome
The freedom to have an abortion improves individual and social health, as criminal laws don’t prohibit it. Access to safe, legal abortion prevents violence or significant injuries and prevents unhealthful pregnancies. Pregnant women with medical conditions like cardiac, hypertension, or diabetes should have access to medically appropriate treatments without legal consultation.
Abortion As A Moral Choice
Institutional hostility to abortion is a component of a wider effort to undercut the independence and equality of women. Leaders think women are incapable of making morally significant judgements and find procreation-free sexuality disgusting. They favour making contraception an out-of-pocket expense for women while guaranteeing that insurance policies cover Viagra for males. They restrict access to abortion for low-income women and refuse to help them care for their children. Antichoice governments’ attitudes towards children are characterized by subjugation rather than saving a foetus.States with tight abortion restrictions spend less on promoting adoption, providing food to disadvantaged children, and teaching children in general.[28]
Conclusion & Suggestions
The study argues that abortion restrictions and legislation are absurd and only a small portion are effective. The majority of existing laws repeat the same restrictions. The book aims to provoke fresh thinking on the necessity of criminalizing abortion. Sweden and Canada have shown that criminal laws are impossible and excellent services can stop abortions beyond 18 weeks. The case is that all women should have access to free abortions at the point of care, starting very early in pregnancy.
The pro-life movement opposes abortion in any situation, while the pro-choice movement aggressively opposes legislative limits. Pro-life organizations frame abortion as a matter of morality[29] or “family values,”[30] while pro-choice organizations embrace it as part of a broader “rights” framework that includes women’s right to equality and gender-neutral freedom from government interference.[31] The degree of cultural resonance between opposing frames is measured by the correlation between opinions and attitudes.
In my opinion, pro-choice advocates uphold women’s autonomy over their bodies, including the decision to end a pregnancy. They acknowledge the various factors that may influence their choices and emphasize the importance of sex education and accessible healthcare. Pro-choice advocates believe in granting women the freedom to make private decisions without government interference, while ensuring the option is protected when necessary. While some may disagree, pro-choice advocates believe in promoting women’s rights.
Dhuli Biswasi
National Law University and Judicial Academy, Assam
[1]The world’s abortion laws, Center for Reproductive Rights (2023),https://reproductiverights.org/worldabortionlaws(last visited May 18, 2023).
[2]Intended and Unintended Pregnancies Worldwide in 2012 and Recent Trends, National Library of Medicine(2014) https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4727534/ (last visited May 18, 2023)
[3] INDIA CONST. art. 211
[4]Lord Ellenborough Act, 1803
[5]Eugene Quay, Justifiable abortion: Medical and legal foundations (1961).
[6]Roe v. Wade,93 S. Ct. 705
[7]Webster v. Reproductive Health Services,[106 L. Ed. 2d 410]
[8]Parenthood v. Casey, [505 U.S. 833]
[9]Gonzales v. Carhart,[127 S. Ct 1610]
[10]Partial Birth Abortion Ban Act, 2003
[11] Indian Penal Code, 1860, s.312
[12]Medical Termination of Pregnancy Act, 1971
[13]Medical Termination of Pregnancy Act, 1971, s.5(a)
[14]Justice K. S. Puttaswamy v. Union of India,AIR 2017 SC 4161
[15]Accelerating progress – center for reproductive rights,https://reproductiverights.org/sites/default/files/documents/World-Abortion-Map-AcceleratingProgress.pdf(lastvisited May 18, 2023).
[16]United Nations Population Division (2002, see note 1), country profiles: Cuba
[17]United Nations Population Division (2002, see note 1), country profiles: Japan
[18]In Pace http://www.wort.lu/, genealogy.com,
https://www.genealogy.com/forum/regional/countries/topics/luxembourg/6226/(last visited May 18, 2023).
[19]super@dmIVG, Ivg En France Infos IVG | IVG.net (2022), https://ivg.net/droits-des-femmes/ivg-en-france/(last visited May 18, 2023).
[20]Abortion in Sweden, Wikipedia (2023), https://en.wikipedia.org/wiki/Abortion_in_Sweden(last visited May
18, 2023).
[21]You searched for Canada., International Campaign for Women’s Right to Safe Abortion,
http://www.safeabortionwomensright.org/?s=Canada.(last visited May 18, 2023).
[22]The benefits of decriminalizing abortion, The Morgentaler Decision,
http://www.morgentaler25years.ca/benefits-of-decriminalization(last visited May 18, 2023).
[23]Tamara Thompson, Abortion (2015)
[24]Monmayee Basu, Hindu women and marriage law: From sacrament to contract (2001).
[25]Gerda Lerner, The creation of Patriarchy (1986) .
[26]Crenshaw cites the following cases: DeGraffenreid v. General Motors, 413 F Supp 142 (1976); Moore v.
Hughes Helicopter, 708 F2d 475 (1983); and Payne v. Travenol, 673 F2d 798 (1982).
[27]For a summary of Harrison’s arguments on behalf of the continuing importance of rights claims, see the essay”Our Right to Choose, “in Women’s Consciousness, Women’s Conscience (cited above, n. 18), pg 108
[28] Jean Reith Schroedel, Is the fetus a person?: A comparison of policies across the fifty states (2000).
[29]TracyA. Weitz, Pro-choice and pro-life movements, The Blackwell Encyclopedia of Sociology (2013).
[30]ibid
[31]Sara Diamond, Roads to dominion: Right-wing movements and political power in the United States (1995).