Baba’s Explainer – Abortion debate

  • IASbaba
  • June 28, 2022
  • 0
Ethics, International Relations, Social Issues
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  • GS-1: Women Issues
  • GS-2: Effect of policies and politics of developed and developing countries on India’s interests.
  • GS-IV- Ethics

Context: When a democracy rolls back a constitutional right that has been in place for almost half a century, it must consider itself as treading backwards.

The U.S. stands at this juncture now, after its Supreme Court, in a 6-3 majority, overturned the 1973 ruling in Roe vs Wade, and took away the constitutional right to abortion.

What is abortion debate?
  • The abortion debate deals with the rights and wrongs of deliberately ending a pregnancy before normal childbirth, killing the foetus in the process.
  • Abortion is a very painful topic for women and men who find themselves facing the moral dilemma of whether or not to terminate a pregnancy.
  • The moral debate about abortion deals with two separate questions:
    • Is abortion morally wrong?
    • Should abortion be legal or illegal?
  • On one side are those who call themselves ‘pro-life’. They say that intentionally caused abortion is always wrong (although it may on very rare occasions be the best thing to do).
  • On the other side are those who call themselves ‘pro-choice’ or ‘supporters of abortion rights’, and who regard intentional abortion as acceptable in some circumstances.
  • There is also the issue of silent victim. People feel particularly strongly about abortion because there is no way of getting any opinion from the foetus – the potential ‘victim’ – about the issue (as there is when considering euthanasia), and because the foetus can easily be portrayed as an entirely innocent and defenceless being.
  • The non-religious argument about abortion covers several issues, such as:
    • what gives a being the right to life?
    • is a foetus a human being?
    • is a foetus the sort of being that has a right to life?
    • is a foetus a separate being from its mother?
    • if the foetus has a right to life, does that right take priority over the mother’s right to control her own body?
    • Under what circumstances, if ever, can we take an ‘innocent’ human life?
    • Is any other right more important than the right to life – for example, a woman’s right to decide what to do with her own body?
    • If the woman’s life is in danger because of the pregnancy, how do we decide whose rights should prevail?
What is the case against abortion?

The most common form of the case for banning abortion goes like this:

  • deliberately killing innocent human beings is wrong
  • a foetus is an innocent human being
  • abortion is the deliberate killing of a foetus
  • therefore abortion is the deliberate killing of an innocent human being
  • therefore, abortion is wrong

There is also other moral argument laid out which makes case against abortion which goes like

  • the right to life outweighs another person’s right to control her own body
  • therefore, abortion is wrong unless it serves some greater right of the mother than the right to control her own body
  • the only such right is the mother’s right to live
  • therefore, abortion is wrong unless it is to save the life of the mother
What are the arguments in favour of abortion?
  • Abortion is an important element of women’s rights because women are more affected by the abortion debate than men, both individually (if they are considering an abortion) and as a gender.
  • Pregnancy has an enormous effect on the woman It disrupts her body. It disrupts her education. It disrupts her employment. And it often disrupts her entire family life.
  • Therefore, abortion matter which is of such fundamental and basic concern to the woman involved that she should be allowed to make the choice as to whether to continue or to terminate her pregnancy.
  • Banning abortion forces ‘the unwilling to bear the unwanted’. It would also put women at risk by forcing them to use illegal abortionists
  • the right to abortion should be part of a portfolio of pregnancy rights that enables women to make a truly free choice whether to end a pregnancy
  • Many people regard the right to control one’s own body as a key moral right. If women are not allowed to abort an unwanted foetus they are deprived of this right.
  • This argument basically reminds us that we should regard the woman as a person and not just as a container for the foetus. We should therefore give great consideration to her rights.
    • Opponents of this argument usually attack the idea that a foetus is ‘part’ of a woman’s body. They argue that a foetus is not the same sort of thing as a leg or a liver: it is not just a part of a woman’s body, but is (to some extent) a separate ‘person’ with its own right to life.

Anyways, Pro-choice women’s rights activists do not take a casual or callous attitude to the foetus; the opposite is usually true, and most of them acknowledge that choosing an abortion is usually a case of choosing the least bad of several bad courses of action

What was status of abortion in US?

The abortion debate in US culminated in US Supreme Court which decided & gave a verdict in Roe Vs Wade case way back in 1973 itself.

Roe Vs Wade Case, 1973

  • A 25-year-old single woman, Norma McCorvey using the name “Jane Roe”, had challenged the criminal abortion laws in Texas, USA. At the time, abortion was illegal in Texas unless it was done to save the mother’s life.
    • Henry Wade was the district attorney favouring the anti-abortion stance.
  • It was a crime to get an abortion or to attempt one in 30 of the 50 states in USA.
  • In January 1973, the US supreme court ruled that a woman’s right to terminate her pregnancy was a private matter and protected by the US constitution.

The case created the “trimester” system allowing:

  • an absolute right to an abortion in the first three months (trimester) of pregnancy
  • some government regulation in the second trimester
  • states to restrict or ban abortions in the last trimester as the foetus nears the point where it could live outside the womb.

Roe v Wade also established that in the final trimester, a woman can obtain an abortion despite any legal ban only if doctors certify it is necessary to save her life or health.

What has changed now in USA?

US Supreme court has overturned the earlier Roe Vs Wade verdict in its recent Dobbs vs Jackson Women’s Health Organisation case, 2022

  • The Supreme Court has ruled in favour of Mississippi’s ban on abortions after 15 weeks.
  • The US supreme court, therefore, overturned Roe v Wade, allowing individual states to ban it.
  • The logic of Dobbs judgement was that abortion is not mentioned in the U.S. Constitution and is not covered by the landmark 14th Amendment of 1868 that safeguards liberty.

Even before the US Supreme Court’s latest ruling, anti-abortion campaigners had been regaining some ground.

  • In 1980, the court upheld a law that banned the use of federal funds for abortion except when necessary to save a woman’s life.
  • Then in 1989, it allowed states to prohibit abortions being carried out in state clinics, or by state employees.
  • The biggest impact came from the top court’s ruling in Planned Parenthood v Casey in 1992.
    • It said states could restrict abortions even in the first trimester for non-medical reasons.
    • As a result, many states already have restrictions in place, such as requirements that young pregnant women involve their parents or a judge in their abortion decision.
How to analyse the recent US Supreme Court Judgement?
  • Against Women’s Rights: By removing constitutional right to abortion, U.S. Supreme Court is on wrong side of liberty. SC withdrew from women anywhere in the US country their right to reproductive and bodily autonomy.
  • Reflects Politicization of Judiciary: The fight over abortion has been U.S.’s most passionately waged ideological battle between Republicans (against abortion & pro-life) and Democrats (pro-choice & for abortion). Majority of US Supreme Court members who delivered the recent judgement are appointed by Republican Presidents reflecting the political leanings influencing decision making.
    • Six Judges appointed by Republican Presidents voted in favour of case (overturning the Roe vs Wade case), while three appointed by Democrat Presidents opposed the judgement.
    • There were only three woman on the panel which was deciding on such critical aspect relating to women.
  • Transfer of responsibility to Executive: The judgement reads that authority to regulate abortion rests with the political branches, not the courts. States can now decide whether to ban abortion, and at what stage in a pregnancy and under what circumstances
  • Legislations for implementing judgement: Some Republican-ruled States have started banning abortion, with trigger laws in place in anticipation of such a judgment. Other Republican states will follow.
    • Thirteen states, mainly in the South and Midwest of USA, already have laws on the books that ban abortion in the event Roe is overturned (Trigger laws)
  • Denied Access: Abortion access is expected to be cut off for tens of millions of women of reproductive age.
  • Impact on US Federalism: The decision has in effect divided the U.S. territorially — States where women have the right to abortion, and those where they do not. This will make already-bitter partisan polarisation worse.
  • Will increase the cost of abortion: Women with unplanned or unwanted pregnancies in states where abortion is illegal, may have no option but to seek medical assistance in other states, which becomes expensive for such woman.
    • The Supreme Court ruling will inevitably worsen the problem for women living in states that ban abortion.
  • May lead to Unsafe abortions: Many women in USA may be left with no option other than clandestine, unsafe abortions nearer home.
  • Misuse of law: Chillingly, there is fear that miscarriages could be subject to criminal investigations.
  • Against Global Conventions: Multiple global frameworks, the UN Human Rights Committee, and regional human rights tribunals, such as the European Court of Human Rights, have recognised access to abortion as a human right. The judgement is considered as violation of such frameworks.
  • Adversely impacts maternal health: Unsafe abortion has adverse implications on maternal mortality. It is estimated that the annual number of pregnancy-related deaths would increase by 21% overall by the second year after a ban
  • Sets bad precedent across world: The erosion of abortion rights in the USA has been replicated in several other countries around the world, where the increase of pro-life motions has happened to coincide with radical, political or societal shifts.
What is the current status of abortions?
  • According to the World Health Organization (WHO), every year, approximately 73 million abortions are performed globally. This equates to approximately 39 abortions per 1000 women worldwide, a proportion that has remained roughly constant since 1990.
  • Between 1990–94 and 2015–19, the average abortion percentage in states where abortion is apparently legal (excluding China and India) fell by 43%. In comparison, in nations with strict abortion regulations, the average abortion percentage rose by around 12%.
  • As countries around the world have continued to expand the reasons on which individuals can access reproductive health care, the safety standards of abortion care, as well as maternal survival, have gotten better.
  • However, the safety of abortion methods varies greatly between states where abortion is apparently lawful and nations where abortion is strictly prohibited.
    • Almost 90% of abortions in states with liberal abortion legislation are deemed safe, compared to only 25% in states where abortion is prohibited.
  • As per the WHO, complications from unsafe abortions account for nearly 5–13 % of maternal casualties globally, with the vast majority occurring in developing nations.
What does abortion law look like in other countries?
  • Even though the legal position of abortion differs widely by region, the vast number of nations allow abortion in some conditions; globally, 24 states outright prohibit abortion.
    • Approximately 90 million (5%) women of reproductive age come from states that outright prohibit abortion.
    • The procedure is unrestricted in the majority of industrialised nations.
  • Around a 100 countries have few prohibitions, typically allowing abortion only in limited cases, such as socioeconomic factors, threat to the woman’s physical or psychological health, or the existence of foetal anomalies.
    • However, language of the law regarding foetal impairment exclusions is frequently ambiguous, leaving healthcare experts unsure whether certain abortions are legitimate.
  • Abortions are legal in over 50 nations and territories, but only when the woman’s health is put at serious risk.
    • Some just refer to physical wellbeing; others include mental wellbeing.
    • Libya, Iran, Indonesia, Venezuela, and Nigeria are among them.
    • Others make an exception for sexual assault, child abuse, or foetal abnormality.
    • For instance, abortion is unlawful in Brazil, except in cases of sexual assault, threat to the mother’s life, or when the foetus has anencephaly (an absent part of the brain or skull).
  • In January 2021, Poland imposed a complete prohibition on abortion, permitting the process only in instances of sexual assault, child abuse, or when the mother’s life is in danger.
  • As per the Center for Reproductive Rights, over half of reproductive age women can securely access abortion in states ranging from Japan to India to Canada, and also at the majority of Europe and the United States
  • Abortion is legal in 72 nations, including France and Germany, relating to gestational time limits, the most prevalent of which is 12 weeks.
    • Even in these regions of the world, there are frequent exceptions that enable abortions to be performed later.
    • In the United Kingdom, for instance, abortion is prohibited after 24 weeks, but if the foetus has an impairment such as Down’s Syndrome, the pregnancy can be terminated until birth.
What is India’s legal stance on abortion?
  • Until the 1960s, abortion was illegal in India under Section 312 of the Indian Penal Code, 1860. “Causing miscarriage of a woman” was a punishable crime with imprisonment of up to three years and/or a fine.
  • In the mid-1960s, the government set up the Shantilal Shah Committee under the leadership of a medical professional, Dr Shantilal Shah, to look into the issue of abortions and ascertain if the country needed a law in this regard.
  • The Committee reviewed the medical, legal, and socio-cultural aspects of abortion in India and recommended legalised abortion along with a law on comprehensive abortion care in 1964.
    • The recommendations were based to reduce unsafe abortions and maternal mortality rates.
  • Based on the report of the Shantilal Shah Committee, the Medical Termination of Pregnancy (MTP) Act, 1971 came into force in 1972 that applied to all of India except Jammu & Kashmir at that time.

Provisions of the MTP Act

  • The MTP Act allowed for the medical termination of pregnancies alone. It was founded on the principles of the British Act passed by its parliament in 1967.
  • In essence, it Act attempts to regularise medical practices and institutions concerning abortion and, consequently, allows medical liberalisation to supersede medical criminalisation.
  • It is quite evident from the preamble that abortion would be allowed in certain circumstances. According to the ACT, a pregnancy may be terminated by a registered medical practitioner in the following circumstances:
    • a) where the length of the pregnancy does not exceed 12 weeks
    • b) where the length of the pregnancy exceeds 12 weeks but does not exceed 20 weeks, in this situation by the views of the two medical professionals in good conscience
    • c) where the prolongation of the pregnancy can pose a significant risk to a woman’s health if the doctor’s opinion is formed in good faith
    • d) when there is an apprehension that an infant born out of this pregnancy would be vulnerable to adverse well-being and will be impaired, depending on the doctor’s opinion
  • The Act allows for the termination of a pregnancy if “it is alleged by the pregnant woman to have been caused by rape” or “where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children”.

Mains Practice Question -Discuss the ethical issues of the abortion debate. 

Note: Write answers to this question in the comment section.


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