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JURISPRUDENCE PROJECT

ON

RIGHT TO ABORT: A JURISPRUDENTIAL ENQUIRY

National University of Study and Research in Law, Ranchi

SUBMITTED TO: SUBMITTED BY:

Dr. Rabindra Pathak Lavanya Pathak

Faculty of Law Semester V, Section B

NUSRL, Ranchi Roll no. 688


Right to Abort: A Jurisprudential enquiry

RIGHT TO ABORT: A JURISPRUDENTIAL ENQUIRY

We're always going to argue about abortion. It's a hard choice and it's
controversial, and that's why I'm pro-choice, because I want people to make their
own choices.

-Hillary Clinton

Abortion is an issue overshadowed and shrugged with glaring questions of morality, infanticide,
suicide, ethics, religious beliefs and women's rights. To what amplitude, abortion should be
permitted, encouraged, restricted or repressed is a social issue that has effectively divided
theologians, philosophers, legislators and general mass.1

Whose life is more important, whether of woman or of fetus who is yet to come to this world.
Proponents of abortion states that when it is woman who decide to conceive, then it should be only
sole prerogative of that woman whether to terminate the same or not, this argument seems to be
apt with regards to administrative law that those who can appoint can terminate as well but
however it can be juxtaposed in the matters concerning life is an issue of great importance. Some
of the several facets of the question, by their very nature, would fail to turn up with any one answer
under the scrutiny of any court — normative questions of when life truly begins, whose life is
more valuable and the relative “sanctity” of human life, potential and existence.

The justifiability of the ground on which law assumes such a responsibility is best left untouched,
as it is to invite in itself a new discourse. However, there had been an outright rejection of a Right
to Privacy by the Supreme Court of India, as laid down in the case of M.P Sharma v. Satish
Sharma, District Magistrate, Delhi,2 and Kharak Sing v. State of Uttar Pradesh,3 inter alios and
in the meanwhile in the Initial 70s, a law was brought in the form of Medical Termination of
Pregnancy Act, 1971 which prohibits the abortion of fetus beyond 20 week, the reason behind this
particular piece of legislation is to protect the health of the women as well as of the Unborn.
However, the same has been attacked on the ground of violation of right to privacy, but since there
was no such recognized right, the same has been fallen flat. But now the circumstances has been

1
Subhash Chandra Singh, Faculty of Law, M.G. Kashi Bidyapeeth, “Right to Abortion: A New Agenda”, AIR 1997
Jour 129
2
1954) SCR 1077
3
(1964) 1 SCR 332

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Right to Abort: A Jurisprudential enquiry

changed and with the historic pronouncement of Hon’ble Supreme Court which formally
recognizes the Right to Privacy as a fundamental right. 4 Therefore, in the light of same, there is a
need to establish the link between the Right to pregnancy (not taking negative connotation
“abortion”) and right to privacy.

In order to understand both, the scope and importance of the right to Privacy, revisiting its origins
becomes a matter of integral importance.

John Stuart Mill,5 gave expression to the need to preserve a zone within which the liberty of the
citizen would be free from the authority of the state. While speaking of a “struggle between liberty
and authority”, he posited that the tyranny of the majority could be reined by the recognition of
civil rights such as the individual right to privacy, free speech, assembly and expression.

The Greek philosopher Aristotle spoke of a division between the public sphere of political affairs
(which he termed the polis) and the personal sphere of human life (termed oikos). This dichotomy
may provide an early recognition of “a confidential zone on behalf of the citizen”6 Austin,7 spoke
of the distinction between the public and the private realms: jus publicum and jus privatum as well.
this distinction can be regarded as providing a basis for restricting governmental authority to
activities falling within the public realm and they are more appropriately reserved for “private
reflection, familial relations and self-determination while William Blackstone,8 spoke about this
distinction while dividing wrongs into private wrongs and public wrongs.

James Madison,9 while speaking of the Castle Doctrine, said that;

A man’s conscience is more sacred than his castle, or to withhold from it that debt
of protection, for which the public faith is pledged, by the very nature and original
conditions of the social pact.

4
K.S. Puttaswamy v. Union of India, 2017 SCC OnLine SC 996 (India).
5
John Stuart Mill, On Liberty, Batoche Books (1859), at page 13
6
Michael C. James, “A Comparative Analysis of the Right to Privacy in the United States, Canada and Europe”,
Connecticut Journal of International Law (Spring 2014), Vol. 29, Issue 2, at page 261
7
Austin, Lectures on Jurisprudence (1869)
8
William Blackstone, Commentaries on the Laws of England, (1765)
9
James Madison, “Essay on Property”, in Gaillard Hunt ed., The Writings of James Madison (1906), Vol. 6, at
pages 101-103.

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Right to Abort: A Jurisprudential enquiry

Dworkin,10 was of the opinion that judges should decide how widely an individual’s rights extend
and said;

The different clauses of the Bill of Rights, like the due process and equal protection
clauses, must be understood as appealing to moral concepts rather than laying
down particular concepts; therefore, a court that undertakes the burden of applying
these clauses fully as law must be an activist court, in the sense that it must be
prepared to frame and answer questions of political morality…”

This inexctricably leads us to conclude that certain spheres of life are so integral to the life, dignity
and conscience of a person that its “inviolability” is necessary. In light of this, it becomes pertinent
to examine how the courts have found the issue to termination of pregnancy after 5 months, to fit
in the wide but nonetheless cautiously narrow scope of the Right to Privacy on a balance with
morality, public health and all relevant grounds that may comprise a compelling state interest.

In the words of the K.S. Puttaswamy Judgment11, An invasion of life or personal liberty must meet
the three-fold requirement of (i) legality12, which postulates the existence of law; (ii) need, defined
in terms of a legitimate13 state aim; and (iii) proportionality14 which ensures a rational nexus
between the objects and the means adopted to achieve them.15

Thus, to examine in whose favor do these three tests lean, we may examine the judicial and
legislative attitude towards this question.

In the United States, the official report of the U.S. Senate Judiciary Committee issued in 1983 after
extensive hearings on the Human Life Amendment, stated 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.16

10
Ronald Dworkin, Taking Rights Seriously, Duckworth (1977)
11
K.S. Puttaswamy v. Union of India, 2017 SCC OnLine SC 996 (India).
12
MICHEL ROSENFELD, THE OXFORD HANDBOOK OF COMPARATIVE CONSTITUTIONAL LAW 967 (1st ed. 2012).
13
Chapman v. United Kingdom (2001) 33 E.H.R.R 18.
14
Parenthood v. Casey, 505 U.S. 833.
15
K.S. Puttaswamy v. Union of India, 2017 SCC OnLine SC 996 (India).
16
Committee on the Judiciary Report, U.S. Senate, on Senate Joint Resolution 3, 98th Congress, 98-149, June 7, 1983,
¶6.

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Right to Abort: A Jurisprudential enquiry

In Jane Roe v. Henry Wade,17 upheld the right of a married woman to terminate her pregnancy as
a part of the right of personal privacy. The judgment indicated a constitutional recognition of the
right to be let alone:

A common law country like U.K. allowed termination of a pregnancy at any time if there was a
significant risk of the baby being born seriously disabled,18 and it is solely upon the opinion of the
doctors, if they in good faith think that continuance of pregnancy poses a risk to the life of the
woman.19

In Australia, abortion law is a State subject, is legal and there is no need for spousal consent nor
counselling.20 In Canada,21 France,22 and South Africa,23 there is absolutely no legal restriction
and abortion is the sole prerogative of the woman. In Denmark also, after the 12th week of
pregnancy has elapsed, a woman domiciled in there may be granted authorization for an abortion
in case there is a danger that, on account of a hereditary condition or of an injury or disease during
embryonic or fetus life, the child will be affected by a serious physician or mental disorder.24

In Ireland, a lesson came hard but changed for the good nonetheless. The death of an Indian Origin
women named Ms. Savita Halappanavar, in 2012 at age 31 from septicemia, an infection she
contracted after she was denied an abortion during a miscarriage, set off outrage across the country
and gave momentum to a growing call for change,25 to repeal one of the world’s more restrictive
abortion bans, sweeping aside generations of conservative patriarchy and dealing the latest in a
series of stinging rebukes to the Roman Catholic Church.26

In India, the Bodily Autonomy of a woman has been a question of much jurisprudential debate.

17
410 US 113 (1973)
18
Section 1(1)(d), United Kingdom's Abortion Act, 1967.
19
Ibid, Sec. 1(1).
20
R. v. Davidson, 1969 VR 667; R. v. Wald, (1971) 3 DCR 25; R. v. Bayliss & Cullen, (1986) 9 QLR 8 (Aust)
21
Morgentaler v. R., (1976) 1 SCR 616; R. v. Morgentaler, (1988) 1 SCR 30
22
The Act that decriminalised abortion is the Veil Law of 1975
23
The Act that authorises termination of pregnancy on demand is Choice on Termination of Pregnancy Act, 1996
24
Ch. 25, Denmark Health Act, 2005.
25
NY Times, How Savita Halappanavar’s Death Spurred Ireland’s Abortion Rights Campaign, May 27, 2018.
https://www.nytimes.com/2018/05/27/world/europe/savita-halappanavar-ireland-abortion.html (last accessed on
10/25/2018)
26
NY Times , Ireland Votes to End Abortion Ban, in Rebuke to Catholic Conservatism, May 26, 2018,
https://www.nytimes.com/2018/05/26/world/europe/ireland-abortion-yes.html?module=inline (last accessed on
10/25/2018)

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Right to Abort: A Jurisprudential enquiry

The case of Sharda v. Dharampal,27 clearly shows that the till the year 2003 the Women right to
privacy was not explicitly recognized and thus further her say in medical examination or in
terminating pregnancy was also denied.

But not for long, as women were granted sexual autonomy as a part of their privacy,28 and this
needs to commensurate with a right to decide to reproduce.29 There cannot be a justification for
forced pregnancy as it is a modified form of servitude in which the body of the woman is owned
by others for sexual and reproductive purposes and in many ways resembles the slavery system of
the earliest times for new roles and responsibilities of irrevocable nature are attached with the
woman as mother and this continues for the better years of her life.30 Abortion should be available
for any woman without insolent inquisition or ruinous financial charges, for their own bodies are
their own.31 A woman has a right to conceive and it was unequivocally affirmed in the Madras
High Court decision.32

In the case of Suchita Srivastava v. Chandigarh Administration,33 it was envisaged by the Court
that,

“There is no doubt that a women’s right to make reproductive choices is also a


dimension of “personal liberty” as understood under Art. 21 of the Constitution of
Indiana. It is important to recognize that reproductive choices can be exercised to
procreate as well as to abstain from procreating. The crucial consideration is that
a women’s right to privacy, dignity and bodily integrity should be respected.”

The most recent and welcoming development regarding the women choice of pregnancy is the
judgement of the Hon’ble Supreme Court decided on 28.10.2017, Justice Chouhan stated that;

“Nobody can interfere in the personal decision of the wife to carry on or abort her
pregnancy which may be due to the reason that an effort to live together under one
roof has failed. A woman is not a machine in which raw material is put and a

27
(2003) 4 SCC 493
28
State of Maharashtra v. Madhukar Narayan Mardikar, (1991) 1 SCC 57.
29
Henry Roe v. Wade, 35 L Ed 2d 147
30
Subhash Chandra Singh, Faculty of Law, M.G. Kashi Bidyapeeth, “Right to Abortion : A New Agenda”, AIR 1997
Jour 129
31
Stella Brown, “Review of the Abortion Problem”, 128 Journal of the American Medical Assn. 472 (1945).
32
V. Krishnan v. G. Rajan, (1994) 1 LW (Cri) 16 (Mad)
33
(2009) 9 SCC 1, ¶ 22.

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Right to Abort: A Jurisprudential enquiry

finished product comes out. She should be mentally prepared to conceive, continue
the same and give birth to a child. The unwanted pregnancy would naturally affect
the mental health of the pregnant woman...”34

Nevertheless, on the contrary, the decision laid in Roe,35 has been followed in a plethora of cases.36
By this rationale, the State would get a compelling interest after the stage of viability which begins
after twentieth week to preserve the life for the societal benefit augmented by the fact that abortion
after such stage is fatal to the life of the woman. The fetus after the stage of viability is not a
prenatal life but a potential life that could be beneficial to the society.37

The operation of the Art. 21, insofar as it imposes a procedural limitation on law that affects
personal liberty,38 commences as soon as interference with personal liberty commences and ends
only when that interference ceases. Also, in Art. 21 of the Constitution, it is trite law that justice
should not only be done but is should be seen to have been done.39

Furthermore, we must also ask the question regarding the life of fetus, to arrive at a meaningful
conclusion of all factors relevant. The Himachal Pradesh High Court has taken the view that the
fetus is a part of the body of the deceased and no separate compensation is admissible on the
ground of loss of fetus.40 Also, The Bombay High Court, held that unborn child in the womb is not
a person within the meaning of Sections 165 and 166 of the Motor Vehicles Act41. Different claim
petitions were filed for the death of the pre-pregnant woman with 28 weeks old fetus in her womb
out of which one was rejected holding that unborn child in the womb will not be included in the
word “person”.42

We see that the attitude of the Indian Constitutional Court keeps changing as to whether to allow
the pregnancy beyond the statuary limit of twenty (20) weeks as stated under Sec.3 of the MRTP

34
Live Law, SC Upholds Punjab and Haryana HC’s Ruling That A Woman Does Not Need Her Husband’s Consent
To Abort... /http://www.livelaw.in/sc-upholds-punjab-haryana-hcs-ruling-woman-not-need-husbands-consent-abort/,
(last accessed on 10/25/2018)
35
410 US 113 (1973
36
Doe v. Bolton, 35 L Ed 2d 201: 410 US 179 (1972); H.L. v. Matheson, 67 L Ed 2d 388: 450 US 398 (1981); City
of Akron v. Akron Center for Reproductive Health, 76 L Ed 2d 687: 462 US 416 (1983); Planned Parenthood v.
Danforth, 49 L Ed 2d 788 : 428 US 52; Doe v. Smith, 100 L Ed 2d 909 : 486 US 1308 (1988).]
37
Prashanth S.J., “Right to Life of Foetus”, AIR 2005 Jour 209.
38
Sheela Barse v. State of Maharashtra, AIR 1983 SC 378
39
Maneka Gandhi v. Union of India, AIR 1978 SC 597, ¶ 6.
40
Rakesh Kumar v. Prem Lal, 1996 A.C.J 980, ¶23.
41
Motor Vehicles Act of Indiana, Pari Materia to Motor Vehicles Act of India (Herein after referred as MVA)
42
Margappa Shethappa Vadar v. Proctor and Gamble India, 2008 ACJ 2802, ¶4.

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Right to Abort: A Jurisprudential enquiry

Act.43 There is no statutory backing either under the MRTP Act or under the Constitution of India
which empowers the Court to allow the pregnancy beyond the period of twenty (20) weeks. There
is one Art.142,44 which can be invoked by the Supreme Court in the larger interest of the justice,
astonishingly it is surprising that the Hon’ble Court didn’t use the same in any of its judgments.

Cases of allowing Termination of Pregnancy beyond twenty (20) weeks, though in paucity must
be examined. In the case of Ms. Z v. State of Bihar,45 the Hon’ble Supreme Court by invoking the
Doctrine of “Best Interest” and “Parens patriae”, allowing to terminate the pregnancy of a 24-
week-old fetus and held that;

“It is important to note that the Court’s decision should be guided by the interests
of the victim alone and not those of the other stakeholders such as guardians or the
society in general. It is evident that the woman in question will need care and
assistance which will in turn entail some costs. However, that cannot be a ground
for denying the exercise of reproductive rights.”

Also, in the very recent case of Ms. Z v. State of Himachal Pradesh,46 the Himachal Pradesh High
Court allowed the termination of pregnancy of 32 weeks of a 19th year girl by stating has every
right to take all steps necessary to preserve her own life against the avoidable danger to it & it is
also necessary to protect and preserve her life.

In the case of Murugan Nayakkar v. Union of India,47 the supreme court allowed the termination
of pregnancy of 32 weeks of a 13-year-old rape survivor by stating that;

“Considering the age of the petitioner, the trauma she has suffered because of the
sexual abuse and the agony she is going through at present and above all the report

43
Sec. 3-(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical
practitioner shall not be guilty of any offence under that code or under any other law for the time being in force, if any
pregnancy is terminated by him in accordance with the provisions of this Act.
44
Art.142 of Constitution of India: Enforcement of decrees and orders of Supreme Court and unless as to discovery,
etc ( 1 ) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary
for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall
be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by
Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.
45
Civil Appeal no. 10463 of 2017, Supreme Court of India.
46
CWP No. 2250 of 2017, Himachal Pradesh High Court, decided on 17.10.2017
47
Writ Petition(s)(Civil) No(s). 749/2017

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Right to Abort: A Jurisprudential enquiry

of the Medical Board constituted by this Court, we think it appropriate that


termination of pregnancy should be allowed.”

In the case of Mamta Verma v. Union of India,48 the Hon’ble Supreme Court held that;

“Upon evaluation of the petitioner, the aforesaid Medical Board has concluded
that her current pregnancy is of 25 weeks and 1 day. The condition of the fetus is
not compatible with life. In the circumstances, we consider it appropriate in the
interests of justice and particularly, to permit the petitioner to undergo medical
termination of her pregnancy.”

The Supreme Court allowed the termination of 24 weeks of pregnancy since the fetus was without
skull.49

On the contrary, The Supreme Court did not allow a woman to abort her 26-week fetus set to be
born with ‘down syndrome’ noting that there is no danger to the life of the mother or the fetus.
Down syndrome is a congenital disorder which causes intellectual impairment and physical
abnormalities.50 Supreme Court declined to order termination of pregnancy since substantial
amount of time (32 weeks) was passed due to negligence of authorities.51

Pitiful instances include those when, Punjab and Haryana High Court didn’t allow the termination
of pregnancy of 26 weeks of 14-year-old rape survivor considering the impact on her health,52 it
rejected the petition filed by a 10-year-old rape survivor to terminate her pregnancy of 32 weeks
by stating that it is neither in the interest of the child nor in fetus, which is 32 weeks old,53 however,
the medical board noted that Continuation of pregnancy is less hazardous for the girl child and
fetus than termination of pregnancy at this stage.54 Lastly, The Supreme Court denied a 20-year-

48
WRIT PETITION (CIVIL) NO.627 OF 2017
49
Meera Santosh Pal v. Union of India, WPC No. 17 of 2017
50
Live law, SC Refuses permission to abort 26-week fetus. https://www.livelaw.in/sc-refuses-permission-woman-
abort-26-week-foetus-syndrome (last accessed on 10/25/2018).
51
Ms. Z v State of Bihar, Civil Appeal No. 10463 of 2017
52
Sikander v. State of Haryana, CWP No. 21291 of 2018.
53
Alakh Alok Srivastva v. Union of India, WP(C) No. 565 of 2017
54
Ibid, ¶ 2

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Right to Abort: A Jurisprudential enquiry

old woman permission to terminate her 25-week-old pregnancy, stating that aborting a healthy
fetus that is unlikely to affect the mother’s physical health amounted to murder.55

Supporting this view, Richard Posner,56 argued that privacy is protected in ways that are
economically inefficient, privacy when manifested as control over information about oneself, is
utilised to mislead or manipulate others.

Robert Bork, in ‘The Tempting of America: The Political Seduction of the Law’,57 has been severe
in his criticism of the protection of privacy by the US Supreme Court. In his view, Justice Douglas
in Griswold did not derive privacy from some pre-existing right but sought to create a new right
which has no foundation in the Bill of Rights, thereby overstepping the bounds of a judge by
making new law and not by interpreting it.

As a feminist response to the privacy, Catherine MacKinnon in a 1989 publication titled


‘Towards a Feminist Theory of the State’58 adverts to the dangers of privacy when it is used to
cover up physical harm done to women by perpetrating their subjection. Yet, it must also be noticed
that women have an inviolable interest in privacy. Privacy is the ultimate guarantee against
violations caused by programs not unknown to history, such as state imposed sterilization
programs or mandatory state imposed drug testing for women.

Ergo, Right of Life means to live life with liberty and dignity, a woman should be at liberty whether
to continue the pregnancy or not. One of the important facet of the privacy is the bodily integrity
and thus no one can be given the right to make intrusion into the private space of the body of
female. The State can be at the liberty to analyze the medical consequences but if the same permits,
the woman should not be stopped to exercise her fundamental right over her body. The decision
whether to continue the pregnancy or not should be look by the same mirror as the right of women
to conceive a fetus. The woman thus should be at liberty to even terminate her pregnancy even
after 20 weeks as permitted by Medical Termination of Pregnancy Act, 1971.

55
Hindustan Times, Aborting healthy fetus akin to murder, says SC rejecting plea to terminate pregnancy, July 17,
2018, Available at https://www.hindustantimes.com/india-news/aborting-healthy-foetus-akin-to-murder-says-sc-
rejecting-plea-to-terminate-pregnancy/story-j49knvQai1CbtheqeSZYiK.html (last accessed on 10/25/2018).
56
Richard Posner, The Economics of Justice, Harvard University Press (1981).
57
Robert Bork, The Tempting of America: The Political Seduction of the Law, Simon and Schuster (1990).
58
Catherine MacKinnon, Toward a Feminist Theory of the State, Harvard University Press (1989).

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