On 24 June, the landmark Roe vs Wade ruling was overturned by the US Supreme Court, allowing states to severely limit and outright ban abortion access. Several protests broke out in the US, and people worldwide expressed their anger and offered solidarity to all the abortion seekers.
In India, people took to social media platforms to express relief and pride for being a country that has legalised termination of pregnancies – till 24 weeks of gestation period.
However, does legalisation equate to the absolute right to abortion? Does it mean that in India, abortion is readily and easily accessible?
India's Laws Does Not Recognise Pregnant Person's Autonomy
India legalised certain abortions in 1971 under the Medical Termination of Pregnancy (MTP) Act. The MTP Act is generally perceived as a liberal and progressive law. However, despite being 50 years into the enactment, our legal framework, and social setting, continue to make abortion a privilege.
The reproductive justice and its related human rights are not centreed within the law – which centres the medical providers and the state protocols instead of the pregnant person’s autonomy.
The conflation of the act with other laws, such as the Protection of Children from Sexual Offences Act (POCSO) and Pre-Conception and Pre-Natal Diagnostic Techniques Act (PCPNDT), pose another barrier that enables uninterrupted access to reproductive justice.
How Some Messaging Furthers Stigma Against Abortion
For example, in Punjab, where the cases of pre-natal sex- determination continue to be a challenge highlighted by the state authorities, the stringency of one law adversely affects unconditional access to pregnant persons.
Posters in government clinics and offices highlights ‘abortion’ as an issue instead of son preference and sex-determination being the issue to target on. Such messaging strengthens the social stigmatisation of abortion.
Similarly, under POCSO it is mandatory to report any instance of child sexual abuse. This has resulted in making sexual and reproductive health service access like HIV testing or abortion to people below 18 years difficult.
For actualisation of complete rights, laws like POCSO which are important for protection from sexual abuse, must ensure that it does not take away the sexual autonomy of young people or criminalise consenting relationships of young people.
Within the MTP Act, the usage of ‘women’ and not ‘pregnant persons’ is the exclusion of queer and trans* community from the current abortion discourse, thereby perpetuating harmful medical and social practices.
The entire Act talks about abortion using only in terms of ‘women’s bodies’ which then leaves out all pregnant persons who identify as trans* and gender non-conforming.
The Reliance on Local Midwives for Abortion
In one of the studies conducted by The YP Foundation to understand the perception on abortion, the tea-garden community from Assam shared how the majority rely on local midwives for abortion.
With the district hospital being far from the community and a costly affair, the hospitals are an option only when it comes to emergencies and health crises. The midwives induce abortion through vigorous massages, which puts the health and life of the pregnant person in danger.
“It’s only while interacting with other women that we have come to know that doctors are often reluctant to provide abortion and ask for detailed reasons for the same, making the entire process difficult for the person who is seeking an abortion. The people who are seeking an abortion sometimes have to face verbal mistreatment. Their tone is very harsh and critical, indirectly suggesting that they shouldn’t do an abortion. ASHA workers tell the same thing about doctors demanding detailed reasons for seeking an abortion, making the process difficult for both the person seeking abortion and ASHA workers seeking information.”Community Health Worker to YP Foundation
The Stigma Over Pre-Marital Sex
The MTP (Amendment) 2021 Act extended the services to unmarried and single women on the ground of contraceptive failures, and the consent of the pregnant person to seek abortion. However, in practice, doctors continue to seek spousal or guardian consent, and stigmitising pre-marital sex.
The lack of confidentiality, trust in the health system, and stigma often constitute a major reason for the prevalence of unsafe method to terminate pregnancy.
In the last one year, the YP Foundation has also conducted audits of health facilities offering abortion services by young people and noted the lack of legal knowledge among service providers remains a significant barrier to the effective implementation of the MTP Act.
For example, instances faced by the researchers included doctors suggesting the administration of the two-finger test for pregnancy verification, using unmarried status to deny essential medical services, or insisting on parental consent for an adult woman.
Intersection of Caste & Abortion
Past studies have also highlighted that intersection of caste also being one of the reasons for denial of services.
For example, a backward caste married woman from a traditional fisherfolk community of Kerala told the YP Foundation that she had repeatedly sought abortion services at a government facility only to be denied. She was instead advised to continue with the pregnancy as it was a ‘blessing from God’ since the conception was a result of contraceptive failure.
The health inspector also ordered the concerned ASHA worker to ensure that the woman does not make any effort to obtain the service from elsewhere.
Availability Does Not Always Mean Accessibility
Bodies are often sites of oppression. We know now that approximately 50 percent of abortions in India are estimated to be unsafe. At least 20 percent of maternal deaths is attributed to unsafe abortions – making it the third-most common reason behind such deaths.
We have made some inroads with the law being in force in India, but we cant ignore the lacunae in access, bias of service providers, and affordability.
In 2020, The Guttmacher Institute showcased that “abortion rates are similar in countries where abortion is restricted and those where the procedure is broadly legal (i.e., where it is available on request or on socioeconomic grounds)” – also indicating the availability of services does not often mean accessibility to services.
The inability to access government-approved and affordable health facilities sustains unsafe and alternative methods to prevail. For many young people, financial cost implications have a direct bearing sometimes on their decision to choose to continue their pregnancy.
However, the law does not accommodate non-medical concerns over the economic costs of raising a child, or its effects on career decisions, or any other personal considerations that might impact their choice directly.
In India, where we have direct cash transfer schemes and other financial covers in the form of insurance and pre-post natal care for pregnant persons, there are no such coverages for people who choose to willingly terminate the pregnancy.
This is not only an example of lack of financial coverage but also depicts the perception of how law and policies allude to the glorification of motherhood as against choice-based pregnancy.
While we acknowledge the prevalence of law in our country, we cannot stop at this stage as access to abortion is not absolute. Anyone who has worked on ground can tell you that societal pressure, insensitivity of medical practitioners, making the law almost exist just on paper and not on ground.
Its time we change this narrative – and not just demand safe abortion for everyone, but also recognition of the pregnant person's right to choose – above everything else.
(Vinitha Jayaprakasan works in the Safe Abortion for Everyone (SAFE) programme at The YP Foundation. Prabhleen Tuteja is a feminist leading The YP Foundation. Their organisation focuses on conducting evidence-based research and capacitating young individuals in abortion rights advocacy. This is an opinion article and the views expressed are the author's own. The Quint neither endorses nor is responsible for them.)
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