CIA-3

A COMPARATIVE ANALYSIS OF THE ABORTION

LAWS IN INDIA AND THE USA

SUBMITTED TO:
Ms Snigdha Singh,
Assistant Professor,
School of Law,
CHRIST (Deemed to be University)

SUBMITTED BY:
Aankit N Krishna 2250501
Anse Roy 2250503
Francis Ron Averev 2250508
Harsh 2250510
Jayesh Prasad 2250513 2 BBA LLB-B,
Johan Biju Varghese 2250515 School of Law,
Roshan Rajesh 2250523 CHRIST (Deemed to be University)
 A COMPARATIVE ANALYSIS OF THE ABORTION LAWS IN INDIA
AND THE USA

Introduction

Each reproductive decision is one that solely affects the individuals who are choosing it directly
and most significantly. like a union and it is a decision-making area that is typically left to the
discretion of the individual, unlike other elements of family life that have a limited impact on
the community. Hence, by definition, the right to reproductive freedom is a component of the
right to privacy or to be left alone. In some cases, women may be forced to have a baby without
their consent or be forced. So as a result, women frequently use illegal or risky abortion
techniques as a result. According to studies, millions of women have abortions annually, and
more than half of those procedures take place in extremely dangerous settings 1. The right to
procreative freedom or even the broader notion of the right to privacy is not expressly
recognised by either the Indian or the American constitutions. The main objective here is to
provide detailed contextual descriptions of the different systems and policies under the topic
of abortion. We are inclined on informing the readers about the present conditions of abortion
law in India and the USA while emphasizing the importance of such laws with suitable
examples.

The Legal Problem of Abortion

Unsafe abortion is one of India’s biggest causes of leading death, which shows the Nation’s
situation. Proper safety measures must be given out to people and they are informed about
them. Even powerful and developed countries like the USA have issues where women’s
choices are being taken away. A person’s body is their choice, which must be respected by
everyone, but the USA didn’t realize the importance of this.2 So, a few states now have banned
abortion, so the women there can’t get aborted safely. Whereas in India abortion is legal, even
though many aren’t informed and educated about it. Raising a child is not an easy task &
requires social & emotional commitment coupled with financial resources. 3 As such if a person
feels they are not ready for a child, it means the pregnancy is unwanted & resultant allowing a
fetus to grow into a child is worse than abortion since the resultant child will grow in a non-

1
Assistant Professor, P.E.S. Modern Law College, Pune 411016
2
Prakhar Raghuvanshi & Chaaru Gupta, "Why Do You Care About My Body?" - An Analysis of Abortion Laws
in the USA and India, 9 NLIU L. REV. 198 (2019).
3
K.D. Gaur, Abortion and the Law in India, XV Cochin University LR, 123-143, (1991)
conducive & destructive environment without the love, care & stability that a child needs.
These are the problems that are taken into consideration while highlighting the situation of
abortion laws in both India and the USA.

History of the USA Abortion Laws

Being a nation in North America, the US has always been influenced by Western culture, which
made its way into the fabric of its society. Even though Western culture influenced the country
in its early years, it exhibited a conservative nature. Abortion was one of several areas where
the nation was less progressive than it is now. comprehending the development of US abortion
laws throughout the years and their history is essential. As the US has one of the largest
Christian populations in the world, we can trace our roots back to early Christianity, when the
church was insistently against abortion in any stage of pregnancy. Theological disagreements
were not as prevalent in the western portion of the church as they were in the eastern section.
As the church gradually grew in power, there are differences and contradictions in the penalties
it imposes for the sin of abortion. Two Anglo-Saxon catholic penitentials from the eighth
century illustrate this inconsistency. 4 Prior to gaining freedom, the US was influenced by
Europe and had a conservative view on abortion. In addition to the punishments prescribed by
the Christian church, the common law created secular rules for abortion. Due to the fact that
the ecclesiastical court regarded abortion as a deadly offence, there have also been cases of
harsh penalties for the crime. Between Lord Ellenborough's Act and Lord John Russell's nine
reform measures, which were adopted during the 19th century, the whole world witnessed
stricter laws relating to abortion. The common law system was upheld by the country even after
independence. In 1821, Connecticut became the first state in the US to enact an abortion statute;
prior to this point, there was no such legislation in the nation. This was a significant
development in the history of abortion laws and paved the path for other states to pass
legislation. An anti-abortion initiative emerged in America during the restrictive era of 1860 to
1967, prompting several states to either amend or add to their existing laws. The first abortion
legislation was established in Pennsylvania in 1860. Later, Connecticut amended its abortion
law, and many other states followed the pattern by outlawing abortion at any stage of
pregnancy, including Colorado, Nevada, Arizona, Idaho, and Montana in 1864. 31 states made
an effort to make changes and modifications to their laws between 1860 and 1880. People were
forced to undergo illegal abortions or have undesired children during this restrictive time.

4
Anthony Nathan Cabot, History of Abortion Law, 1980 ARIZ. St. L.J. 73 (1980).
Following the restricted era, the reform movement took place from 1952 to 1973. Prior to 1950,
there were no substantial initiatives in the nation to alter its draconian abortion regulations. The
initial spark for abortion reform arose in 1952 with the assistance and work of several birth
control organisations. A draft of the model penal code was released in 1959 by the American
Law Institute. The abortion reform movement garnered its greatest support from the medical
profession in June 1967 when the American Medical Society's House of Delegates passed a
resolution condoning abortions under three circumstances: When documented medical
evidence shows that the pregnancy (1) may threaten the life or health of the mother, (2) may
result in an infant born with an incapacitating physical deformity or mental deficiency, or (3)
occurred as the result of rape or incest and constitutes a possible threat to the mental or physical
health of the woman. 5

From 1973 to 1980, American legislation was liberalised. During this period, the United States
Supreme Court issued a landmark ruling that altered the direction of the country's abortion
laws. Understanding the evolution of abortion reform in the US requires an understanding of
Roe v. Wade. The state's legislation was invalidated by the court, which determined that the
constitutionally guaranteed "right of privacy" is broad enough to encompass a woman's
decision whether or not to terminate her pregnancy, and that state regulation of the abortion
decision "may be justified only by a 'compelling state interest. While the decision was a major
victory for the groups which supported the woman's right to choose abortion, it did not proclaim
the right as absolute. Instead, the Court stated that the right of the woman with her physician
to decide whether or not to terminate her pregnancy is not unqualified and must be considered
against important state interests in regulation6.

Present Status of the USA Abortion Laws

States in the United States have different abortion laws, some of which are more restricted and
others of which are more lenient. However, a few federal restrictions also affect women's access
to abortion. The Roe v. Wade 7 decision by the Supreme Court established the constitutional
right to an abortion at the federal level in 1973, but successive court rulings and legislative acts
have eroded this right. The legality of abortion in the United States is currently a topic of heated
political and legal discussion. While lawmakers have tried to increase access to surgery in
certain areas, others have imposed more stringent limits on abortion. The following describes

5
Id. at 108
6
Id. At 112
7
Roe v. Wade, 410 US 113 (1973)
the state of abortion legislation in the US as of December 2022. Abortion is prohibited in
numerous places, including Texas, Mississippi, and Arkansas, after six weeks of pregnancy or
even sooner.8 There are worries about vigilantism and harassment because several of these laws
let private persons sue abortion clinics and anybody who helps or abets a person seeking an
abortion. Other states, including Vermont and New York, have approved legislation to
safeguard and even increase access to abortion. For instance, the Reproductive Health Act,
which was approved in New York in 2019 and codifies the right to an abortion while removing
some limitations, was signed into law. Some states have recently passed laws that are even
stricter, such as those that outlaw abortions after a certain stage of pregnancy, so-called
"heartbeat bills," which prohibit abortions once a foetal heartbeat is discovered (commonly at
around six weeks), and regulations that make doctors who perform abortions criminals. In
states like Alabama, the Alabama legislature approved a measure that severely limited the
state's resident’s ability to seek abortions. The "Alabama Human Life Protection Act" outlawed
all abortions barring circumstances in which the woman's life was in danger. There were no
rape or incest-related exclusions to the law. A doctor performing an abortion in the state would
now be guilty of a felony and face up to 99 years in jail. Women who obtain abortions are not
subject to criminal repercussions under the legislation. At the federal level, the Biden
administration has taken steps to reverse some of the restrictions on abortion access put in place
by the previous administration. For example, the Department of Health and Human Services
has proposed a rule to eliminate a Trump-era regulation that allowed healthcare providers to
refuse to provide services, including abortions, based on religious or moral objections.

History of Indian Abortion Laws

India has a very complicated history with abortion, with legality and accessibility being hot
topics of conversation. The current legal structure in India evolved over time with a number of
case laws and legislative developments. The Medical Termination of Pregnancy Act (MTP)
which was passed in 1971, made abortion legal in India under certain specific circumstances. 9
If the pregnancy is the result of rape or if the pregnancy poses a risk to the woman’s life or
health the legislation permits abortion up to 12 weeks into the pregnancy. Also, if 2 doctors
concur that the pregnancy poses a risk to the life or health of the woman then the legislation
authorizes abortion up to 20 weeks. The MTP Act, which provides women access to safe and

8
An overview of abortion laws (2023) Guttmacher Institute
9
Medical Termination of Pregnancy Act, 1971, No. 34, Acts of Parliament, 1971 (India).
legal abortion marked a very crucial point in India's history of abortion law. However, the law
put forward certain restrictions as well. Many felt that the 12-week limit was excessively strict
since it did not account for the social and economic elements that can influence a woman's
decision to end a pregnancy. In the case of Suchita Srivastava V. Chandigarh government, the
supreme court of India rendered a significant judgment in the year 2017. 10 A woman has a right
to end a pregnancy up to 24 weeks if there is a risk to their life or health, or the pregnancy is a
consequence of rape or incest, this judgement gave the 20-week restriction of abortion to
arbitrary in the MTP Act. This verdict was a landmark judgement in abortion cases in India.
Even after all these legal advancements India still struggles to provide access to safe and legal
abortion.11 It is difficult for women to receive a safe and legal abortion in some locations due
to a shortage of skilled medical professionals and infrastructure, and many women suffer social
and financial barriers to getting abortion services. Hence, key judicial rulings and legal reforms
have shaped India's history of abortion law. Although the MTP Act and Suchita Srivastava
ruling have broadened the scope of abortion rights in India, there is still a long way to go before
all women in the nation have access to safe and legal abortion.

Present Status of Indian Abortion Laws

The number of recorded MTP cases has increased in India since the Medical Termination
Pregnancy (MTP) Act, which legalised abortion, was introduced in 1972. The number of
accredited institutions offering MTP facilities has grown, going from 1,877 in 1976 to 7,121 in
1991, according to the data that is currently available. Similar to this, there were just 25 MTP
instances documented in 1972–1973; by 1991–1992, there were 632, 526 cases. These
numbers, however, merely represent the tip of the abortion iceberg in India, where an additional
5–6 million abortions are thought to be performed annually by private doctors. The majority of
these instances are conducted in rural regions with poor facilities, which results in unsanitary
and unreliable methods. Since all such abortions performed in unlicensed clinics are regarded
as illegal, no statistics are kept on them. An important factor in India's persistently high rates
of maternal illness and mortality is these illegal abortions performed by inexperienced local
doctors. About 15000–20000 abortion-related deaths are reported in India each year. According
to the ICMR report from 1989, septic abortions caused 13% of maternal deaths as a result of
unsafe abortion practices. While a different study places this number at roughly 20% (Coyaji

10
Suchita Srivastava v. Chandigarh Administration, Writ Petition (Civil) No. 133 of 2015 (India).
11
Pratigya Campaign for Gender Equality and Safe Abortion, “Abortion Laws in India: A Brief History and
Commentary,” (2020)
1994). It is interesting that despite MTP being legal for 24 years, its availability, especially in
rural areas, is still quite low. Recently, however, there has been a growing awareness of the
critical need to increase safe MTP facilities in both urban and rural regions, in order to provide
a woman with access to sanitary and secure abortion facilities should she want to end her
pregnancy. Such facilities are essential, both from a family planning standpoint and, more
critically, as a safeguard for safe childbirth. Perhaps identifying the nature and locations of the
gaps in this project would be the first step. Questions like why has it been impossible to offer
a safe abortion service to a woman who wants one even after 2.5 decades of liberalised law are
still attempted to be answered in the current paper. The analysis is mostly based on official
figures that have been made public, as well as articles that have been published and a substantial
database on abortion services that CORT has collected from its numerous MTP studies in
Gujarat, Maharashtra, Tamil Nadu, Uttar Pradesh, and Bihar. 12

Analysis of the Statutes and Legislation

Both India and USA have evolved in terms of abortion law over the past few years. Let’s take
into consideration the laws prevailing in India. Abortion or medical termination of pregnancy
was not legal in India until the Medical Termination of Pregnancy Act was brought into force
in the year 1971. This act talks about different instances and conditions in which medical
termination of an unborn baby would be legal under the eyes of the law. Certain Indian Penal
Code (IPC) provisions also talk about abortion. IPC Section 312-318 mentions penalties and
imprisonment if an abortion or miscarriage takes place when the said event happens outside
the purview and protection provided under the MTP act. The laws in India are more uniform
as compared to laws in the United States. In the USA, some of its states have laws more
restrictive in nature whereas some of them are more lenient in terms of abortion law. States
such as Texas, Mississippi, and so on prohibits abortion after six weeks of pregnancy. The
reproductive health act was approved in New York in 2019 which allows abortion while
removing certain limitations. A law called ‘heartbeat bills’ was also brought into force in certain
states which prohibits abortion after the heartbeat of a foetus is discovered. Another law called
the ‘Alabama Human Life Protection Act’ prohibited all abortions with exceptions only to those
cases in which the birth of a baby imposes a danger on his/her mother. After comparing the
laws in both countries, we could arrive at the conclusion that India has far better laws as

12
M.E. Khan, Abortion in India: Current Situation and Future Challenges, 1999
compared to the USA in terms of abortion. The laws in India are more uniform in nature
whereas laws in the United States vary from place to place.

The Outlooks of the Two Countries

The abortion controversy has one major source--religion--and two less important ones--
attitudes towards sexual permissiveness and women's employment.13 In the US, deductive
moral reasoning, which assumes that abortion violates the sanctity of life and is a rebellion
against God's design, authoritative moral reasoning, which invokes Catholic dogma, and
consequentialist moral reasoning, which sees abortion as a means of controlling sexuality and
restricting women's activities to the home, are the three types of moral reasoning that traditional
Christianity uses to support its opposition to abortion. Even in the absence of Christian faith,
adherence to conventional morality increases resistance to abortion on these consequentialist
grounds.14 While the USA looks into the religious side of it, India indulges in the socio-cultural
norms with religion playing a supporting role in the conservative mindset of how abortion is
basically murdering the child. India is widely known for using abortion for its vindictive acts
of female foeticide, which still prevails in rural areas. However, a wider opinion in both
countries as per surveys has showcased that many believe that the foetus is not legally or
scientifically a person or human being so abortion cannot be equated to murder or taking a life
since the fetus is not a person or alive. They don’t have a working brain and no self-
consciousness or self-awareness, so they can be considered not alive.15 Women would just seek
abortions through hazardous and illegal means if abortions were prohibited, it is better to offer
women safe and legal ways to have an abortion. 16

Conclusion

Ruth Bader Ginsberg stated that “A woman has the fundamental right to make a choice for
herself.” The controversy surrounding abortion laws has caused a divide which is yet to be
resolved. In conclusion, the contrast between abortion laws in India and the USA reflects the
diverse social, cultural, and legal contexts of the two countries. While India adopts a more
liberal approach with broad legal provisions for abortion, including for socioeconomic reasons
and up to 24 weeks of pregnancy, the USA has a more complex and contentious landscape with

13
Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992)
14
Debadyuti Banerjee and Ujwala Uppaluri, From Roe v. Wade to Fetal Pain Legislation: A Reflection of
American Jurisprudence on the Indian Milieu of Liberalised Abortion Policies, 2 NUJS L. Rev. 637 (2009)
15
Clifford Grobstein, Science And The Unborn: Choosing Human Futures 13 (1988)
16
United Nations, Department of Economic and Social Affairs, Population Division. Abortion Policies and
Reproductive Health around the World, UN publication, Sales No. E.14.XIII.11 (2014)
varying state-level regulations, legal challenges, and debates on reproductive rights. The
differing perspectives on abortion in India and the USA highlight the influence of cultural
norms, religious beliefs, political ideologies, and legal frameworks in shaping the approach
towards this contentious issue. The complex interplay of factors underscores the need for
ongoing discussions, debates, and policy reforms to strike a balance between reproductive
rights, public health, and individual autonomy.