September 22, 2016

Concerns: The Expansion of Abortion Rights


The decision of the Bombay High Court in the case of High Court On Its Own Motion vs The State Of Maharashtra decided on 19 September, 2016, has been widely spoken of as a progressive decision, and in many ways it is although it does also leave some questions unanswered.

Para14. reads: "A woman's decision to terminate a pregnancy is not a frivolous one. Abortion is often the only way out of a very difficult situation for a woman. An abortion is a carefully considered decision taken by a woman who fears that the welfare of the child she already has, and of other members of the household that [sic] she is obliged to care for with limited financial and other resources, may be compromised by the birth of another child. These are decisions taken by responsible women who have few other options. They are women who would ideally have preferred to prevent an unwanted pregnancy, but were unable to do so. If a woman does not want to continue with the pregnancy, then forcing her to do so represents a violation of the woman's bodily integrity and aggravates her mental trauma which would be deleterious to her mental health."

The recognition of a woman's right to make decisions about her own body and whether or not to have a child is, of course, progressive. What isn't entirely clear is why, despite this recognition, the Court itself seems to have effectively differentiated between women. It states, in Paras. 12 and 13: "As per Explanation 2, if the pregnancy is accidental on account of failure of device or method used by married woman or her husband for the purpose of limiting the number of children, then the said pregnancy if unwanted, it may be presumed to constitute grave injury to mental health of the pregnant woman. [....] We need to interpret Explanation 2 which is restricted only to a married couple. However, today a man and a woman who are in live-in-relationship, cannot be covered under Explanation 2 whereas Explanation 2 should be read to mean any couple living together like a married couple."

The Court has clearly read "married women" in Explanation 2 to include women who are in live-in relationships. Perhaps the wording of the law prevented an even more expansive reading in the Court's eyes but this hasn't been made clear in the decision, and the question of whether the Court's expansive interpretation of who would fall under the provision related to "married women" remains although it appears that the expansive interpretation adopted by the Court is limited to women in live-in relationships even though the Court, immediately after articulating its reading states: "A woman irrespective of her marital status can be pregnant either by choice or it can be an unwanted pregnancy."

As such, the expansive reading by the Court sets up two categories of unmarried women on the basis of their domestic arrangements: those in live-in relationships on one hand, and, on the other hand, those who are not in live-in relationships whether or not they are in relationships at all. It isn't entirely clear why this has been done, and whether the differentiation between various kinds of unmarried women based on their domestic arrangements can be considered to be fair and constitutional especially given that it potentially accords diminished access to abortion to unmarried women who are not in live-in relationships.

Strangely, the decision clearly intends to accord the same abortion rights to all women but still differentiates between women itself. It states, in Para. 16: "Women in different situations have to go for termination of pregnancy. She may be a working woman or homemaker or she may be a prisoner, however, they all form one common category that they are pregnant women. They all have the same rights in relation to termination of pregnancy."

What is troubling is that the decision of the Court appears to hinge on the rights which should be granted to women viewed through, one might suspect, a patriarchal lens. There appears to be no conception of women who may become pregnant without being in a committed relationship and without being raped, and the Court voices an age-old conception of the devastating effect of rape stating, without explaining what the basis of the statement is, in Para. 12: "If pregnancy is due to rape, then there is bound to be complete mental break down of a victim." What a woman could be subject to by law on account of a 'complete mental break down' which is simply assumed to exist by the Court, if the assumption were to be carried over to other contexts such as to determine a woman's competence to contract, doesn't bear thinking. Further, it is also unclear if reading marital relationships to include live-in relationships is an interpretation susceptible to being applied in other contexts (potentially generally making, for example, the rape of one's live-in partner non-criminal through a similar expansive reading being made applicable to the marital rape exemption in the Penal Code).

As such, the decision of the High Court takes abortion law several steps forward when it is considered in broad strokes. However, the devil, as they say, is in the details, and it appears that the decision has the potential to have unpleasant and unintended consequences for some women, and possibly not just women in prison in relation to whom the decision has been drafted.