Abortion

Abortion is one of the most complex topics of constitutional adjudication even today. It is
because abortion is the focal point of various rights, claims and interests of various multiple
stakeholders which gets so entangled with each other that the issue requires judicial
intervention. The issue very crucial because it raises fundamental questions about human
existence itself, such as when the life begins and what makes us human. It finds itself right in
the centre of complex issues like right of women to control their own bodies, the nature of the
State’s duty to protect the unborn, the tension between secular and religious views of human
life and the individual and society, the rights of spouses and parents to be involved in the
abortion decision, and the conflicting rights of the mother and the fetus.

● There are two conflicting rights in abortion matters

o right to women - individual interest and

o right of the foetus - state interest.
● State in interest has the basis on parens patriae rule- the need to protect life; taking away
of life is a criminal offence.

FR involved: The most important fundamental right which is involved in any abortion debate
is the Right to Life. Under the Indian Constitution, Article 21 guarantees the right to life and
personal liberty of a person whereas under the US Constitution, the Fourteenth Amendment
secures the same. Any Constitutional Court has to determine between the conflicting right to
life and personal liberty of both the foetus and the pregnant woman. In addition to Right to
life and Personal liberty, abortion issue also raises questions concerning Right to Equality as
well.

Role of state in protecting individual rights:

There are two premises:

● Premise 1- state has an active role in protecting everyone’s life

● Premise 2- state need to only make guidelines as to when life can be taken away legally.

 As per Indian constitution what was intended was premise 2. This is clear from the
wordings that Article 21 uses is “procedure established by law”. But judicial activism stepped
in and has now asserted that state has an active role to protect individuals (through RC
Cooper case, maneka case etc.) Judicial activism has also played other way round, like in
Puttuswamy where the individual autonomy is given more value.

The issue of abortion always raises the conflict between pro-life advocates and pro-choice
advocates. The pro-life standpoint affords the status of a person to a fetus so as to grant it
right to life. The test of personhood was thoroughly discussed in the case of Roe v Wade1
by Justice Blackmun who had concluded that it was not possible to defend the position of
foetus as a person from the Constitutional provisions as it did not have the capacity to act as a
rational human being. A person must be held responsible for his/her actions and must have
moral obligations as well. There exists a number of different opinions concerning the point at
which a foetus becomes a human being. The moment of conception argument, The argument
of continuity, The moment of quickening, The foetal viability stage (unborn child is capable of
separate and independent existence regardless the fact that it is still inside mother’s womb).
The US Supreme Court affirmed several times in its constitutional practice that at the
moment of viability the state is free to prohibit the abortion except when it is necessary to
protect the mother’s health and life. In all these stages except the moment of viability and
birth afterwards, it is possible to afford only a status of potential personhood to the unborn
child and not that of a person.

Pro-choice persepective: One of the most common perspective is that abortion must be
permissible as part of a woman’s privacy. The scope of the term privacy has been interpreted
to mean the right of the individual to be free from state intervention in matters which are
fundamentally affecting a person. In addition to the right to privacy of a person, prohibiting
abortion will have serious consequences on a woman’s right to choose whether to have a
child or not. (Reproductive autonomy) Social and economic conditions of a woman may have
huge impact on her pregnancy and will affect the quality of life she will be able to provide for
her child. While trying to achieve a balance between the pregnant woman’s right to have an
abortion with that of the unborn child, one viewpoint is that right to life of the foetus must not
extend to using the body of another person without their permission. They consider Anti-
abortion laws have the effect of violating a woman’s fundamental constitutional right of
bodily integrity. Thus, From a pregnant woman’s perspective, the right to life and personal
liberty shall include within its scope right to health, right to live with dignity, right to
privacy and right to reproductive autonomy as well. Undue restrictions on abortion, in
addition to violating the personal liberty, is also violative of the Right to equality guaranteed
1
410 U.S. 113, 1973
under the Constitution. Laws imposing undue restrictions on abortions will have the effect of
restricting a woman to equally participate in the social, political and economic spheres of the
nation. It’s because the extent of their participation will de depended on their to right to
control their reproductive lives. The US Supreme Court in Planned Parenthood of South-
eastern Pennsylvania v. Casey,2 invoked equality concerns to make sense of the Due Process
Clause and based its decision to a great extent on the equality values. It stems from the idea
that the state must not impose its stereotypical views on a woman’s role.

Case Laws: USA

Roe v Wade(1973): [CSI-Strict Scrutiny-First Trimester Test] recognized the

constitutional right to abortion with 7:2 majority. In this case, an unmarried pregnant woman
had challenged the constitutionality of the Texas Criminal Abortion Laws and demanded a
right to secure legal abortion. The court recognized the right to abortion mainly on the
premise of right to privacy inherent in the Due Process Clause of the Fourteenth Amendment
of the US constitution.3 The court held that during the first trimester of the pregnancy, the
pregnant woman has the right to decide on abortion without any state interference.

Standard adopted: The court held that right to privacy is a fundamental constitutional right
and that in order restrict that right the state must show compelling state interest. It was
pointed out that the state had two compelling state interests, which were protection of the
women’s health (the state can take action in regulating conditions to allow no possibility for
putting a pregnant woman’s life in any kind of jeopardy) and protection of pre-natal life.
Thus, the right to abortion is not absolute and at some point, in the gestation the state’s
interest in woman’s health and in prenatal life, must prevail. The compelling state interest is
found to increase at later stage in the pregnancy. The court held that during the first trimester,
there is no compelling state interest warranting interference by the state and hence during this
period, a pregnant woman can in consultation with the physician, decide if the pregnancy is
to be terminated. The court held that state interference in pregnancy is justifiable in the
second trimester only to protect maternal health, since at this point, the risks of abortion are
greater than those associated with childbirth itself. It was observed that the compelling state
interest in respect of foetal life starts from the moment of viability. It is clear that the court
applied the strict security principle and the test came to be called the First Trimester Test.

2
505 U.S. 833 (1992).
3
The 14th Amendment to the US Constitution: '... nor shall any Slate deprive any person of life, liberty or
property, without Due Process of Law’.
Planned Parenthood of South-eastern Pennsylvania v. Casey (1992)- [Undue Burden
Test]- a new constitutional framework was developed regarding the women’s “abortion
liberty. It did not overrule Roe, but rather set up a new standard for ascertaining abortion
rights and reaffirmed the fundamental principles in the earlier judgement. In this case, the
court struck down part of the Pennsylvania’s abortion statute which provided that married
women must notify their husbands before having an abortion except in certain limited
circumstances. The court discarded the first trimester rule and adopted the Undue Burden
Test in order to determine validity of abortion restriction laws.

Standard adopted- This test is adopted to understand whether the state regulations places
substantial obstacles in the path of a pregnant woman who is seeking an abortion. If so, then
the statute must be unconstitutional. The court in this case reaffirmed the essential holding in
Roe by providing that states cannot prohibit abortion prior to viability while rejecting the
trimester test and the use of strict scrutiny for evaluating government regulation of abortions.
At the same time, the court held that the state can enact legislations that pursue childbirth
over abortion, so long as it was limited to persuasion and not hindrance. The court recognized
that there exists a legitimate state interest to protect the potential life of the foetus.

Stenberg v. Carhart(2000)- challenged the Nebraska law that made partial birth abortion
illegal unless procedure was necessary to save mother. The law imposed huge penalty on the
doctors who performed it- was challenged by a doctor that it violates the liberty of doctor
which was protected by due process(14 th amendment) and is also an undue burden on
woman and doctor.

Held- Yes, the law is in violation of rights of doctor; puts undue burden on the woman as
well.The Undue burden test was adopted by the SC to declare a Nebraska statute which
prohibited “partial birth abortion” as unconstitutional. Subsequent to this decision, the
Congress passed the Partial Birth Abortion Ban Act, 2003 which criminalized partial birth
abortions.

In the case of Gonzales v. Carhart(2007)4, when the validity of the Act came up before the
SC, the . Held- not unconstitutional -because the ban was only on a particular method of
abortion, that is Partial Abortion method. Th case distingushed Stenberg v Carhart but did not
overrule.

4
550 U.S. 124 (2007)
court applied the Undue Burden test to hold that the Act did not impose undue burden on a
woman’s right to abortion based on its overbreadth or lack of a health exception with a
majority of 5:4

Whole Woman’s Health v. Hellerstedt (2016)5- Facts- 2013 Texas bill had provision
provision required that any physician performing an abortion have admitting privileges at a
hospital within 30 miles of where the abortion was performed, and another provision required
that all abortion clinics comply with standards for ambulatory surgical centers.

Held: it is a substantial burden; in finding if its substantial burden, court must weigh  the
extent to which the laws in question actually serve the stated government interest against the
burden they impose. the court adopted the undue burden test to hold that a statute which has
the effect of placing a substantial obstacle in the path of a woman’s choice while furthering a
valid state interest cannot be considered as permissible means of serving its legitimate ends.

India

The judiciary in India has recognized the reproductive autonomy of a woman as part of her
fundamental rights guaranteed under the constitution. The judicial attitude towards right to
abortion has significantly evolved over the years. The courts have recognized the right to
reproductive choice which is inherent at the core of liberty and personal choice guaranteed
under Article 21 of the Indian Constitution.

Suchitra Srivastav v UOI (2009),6 which is the most landmark decision of the SC with
respect to abortion rights, the court recognized the right of a woman to choose whether to
conceive and carry pregnancy to its full term or to terminate, is it at the core of one’s privacy,
dignity, personal autonomy, bodily integrity, self-determination and right to health as
guaranteed under Article 21 of the Constitution.

Facts- mentally retarded women-raped-pregnant-19 weeks pregnant.

Question of law- reproductive right of mentally retarded person and consent.
HELD- regard must be given to personal autonomy of the mentally retarded person.
At the same time, the court held that in case of a pregnant woman, there is a compelling state
interest to protect the life of the unborn child and upheld the restrictions imposed by the MTP
Act as reasonable. Unlike the position adopted by the Constitutional Courts in USA, the

5
136 S. Ct. 2292, 2309 (2016)
6
(2009) 9 SCC 1
Indian Courts has adopted a view point where the state has a compelling interest since the
beginning of the pregnancy.

V Krishnan v G Rajan (Madras High Court 1993) - The question is whether the guardian
of a minor girl is entitled to an order from the Court directing the termination of the
pregnancy of his ward when the pregnant girl is not agreeable for such termination.

Held : No -High Court ruled after eliciting the desire of the pregnant girl that she was
capable of understanding the world as well as the consequences of the pregnancy. The court
said that if termination of pregnancy was to be ordered against the girl’s will, it would harm
her mental health and might also affect her physical health. The court asserted that it was her
fundamental right to have a child having become pregnant.

Germany cases:

Abortion decision 1- 1975

Facts- Germany had a liberal abortion law with very less restriction imposed by the state.
The law was challenged on the ground that right of foetus should also be given consideration.
Question- Whether right to foetus should be provided under Article 1 and 2.

Held- Article 2 provides right to life for everyone and this includes foetus as well. Court held
Roe v. Wade to be inconsistent with german law and morals. They also held that it is duty
of mother to take carry of the child and it is the duty of the state to protect the child. The
court also gave independent legal value to the foetus. Thus, changed from liberal to restrictive
approach.

Abortion decision ii- 1993:

Relaxed certain restrictions on abortion; regulated abortion in trimester system was brought;
but is still very regressive.

IRELAND (uk)

Attorney General v X (1992)

Facts: A girl was raped and she became pregnant. She suffered from mental health issues,
was suicidal. Abortion was illegal at her place so the parents decided to travel to England
with the girl to abort the child. Attorney general passed an injunction order restraining the
travel and abortion of child. This law preventing abortion was challenged the law.
Held: can abort the fetus- The court laid down the reasoning of real and substantial risk to
the life of the mother including real and substantial risk of suicide – but the threat should be
risk of life and not merely health. This law was amended in the 8 th amendment to include
due regard to health of mother.

A,B and C v. Ireland-2000

Facts- three persons A, B and C filed case against the abortion law on different grounds-

A – she claimed that she already has children in care of the state so doesn’t want another
child (financial issue.)
B - does not prefer to have kids (right to choose)
C - has risk of cancer (health issue)
Held: Irish law prohibiting abortion in all cases except risk to life of the mother - not violate
Article 8 of the ECHR - But did violate the Article 8 rights of the third plaintiff cuz she
believed her life might be at riskg .
Significance: ECHR emphasised there is no straightforward right to an abortion under the
Convention, - given the violation of applicant C's right to privacy, the result placed pressure
on Ireland to further clarify whether and under which circumstances an abortion may be
performed to save the life of a pregnant woman.