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Context

Around 36 million women across the US are on the verge of losing their right to legal abortion.
A draft document, leaked a couple of weeks ago, suggests that the Supreme Court has decided to overturn the 1973 Roe v. Wade decision which legalized abortion across the country.

What will be the implications if Roe v Wade is struck down? How will the decision reverberate around the world? Let us analyse.

The Roe vs. Wade case: Upholding the Right to Abortion

Roe, short for Jane Roe, is the pseudonym for a Texas woman who in 1970 sought to have an abortion when she was five months pregnant.
Texas then had ban on abortions except to save a mother’s life. The case then went to the US Supreme Court (SCOTUS).
The 7-2 majority opinion of the SCOTUS written in 1973, paved the way for the recognition of abortion as a constitutional right in the US considering foetal viability.

[Foetal viability is the point at which a foetus can survive outside the womb, at the time considered to be around 28 weeks, but today is closer to 23 or 24 weeks owing to advances in medicine and technology.]

Right to Abortion Judgment: Key takeaways

Based on the Roe vs Wade case, the framework of regulations that applied towards the right to abortion:

Almost no limitations could be placed on that right;
Only limitations to abortion rights that were aimed at protecting a woman’s health were permitted; and in the third trimester,
State governments had greater leeway to limit the right to abortion except for cases in which the life and health of the mother were endangered.

What is the debate?

The abortion debate is the ongoing controversy surrounding the moral, legal, and religious status of induced abortion.

The sides involved in the debate are the self-described “pro-choice” and “pro-life” movements.

Pro-choice emphasizes the woman’s choice whether to terminate a pregnancy.
Pro-life position stresses the humanity of both the mother and foetus, arguing that a fetus is a human person deserving of legal protection.

Ethical questions raised

(1) The primary questions

The moral debate about abortion deals with two separate questions:

Is abortion morally wrong?
Should abortion be legal or illegal?

(2) The secondary questions

But those two questions don’t end the debate.

If we conclude that abortion is not morally wrong, that doesn’t mean that it’s right to have an abortion;
We need to ask whether having an abortion is the best thing (or least bad thing) to do in each particular case.
If we conclude that abortion is morally wrong, that doesn’t mean that it’s always impermissible to have an abortion; we need to ask whether having an abortion is less wrong than the alternatives.

Why is there a possibility of the judgment being overturned?

Foetuses feel the pain: If the foetus is beyond 20 weeks of gestation, gynaecs assume that there will be pain caused to the foetus.
Biblical gospel: The Bible does not draw a distinction between foetuses and babies. By the time a baby is conceived, he or she is recognized by God.
Abortions cause psychological damage: Young adult women who undergo abortion may be at increased risk for subsequent depression.
Abortions reduce the number of adoptable babies: Instead of having the option to abort, women should give their unwanted babies to people who cannot conceive. Single parenthood is also gaining popularity in the US.
Cases of selective abortion: Such cases based on physical and genetic abnormalities (eugenic termination) is overt discrimination.
Abortion as a form of contraception: It is immoral to kill an unborn child for convenience. Many women are using abortion as a contraceptive method.
Morality put to question: If women become pregnant, they should accept the responsibility that comes with producing a child. People need to take responsibility for their actions and accept the consequences.
Abortion promotes throwaway culture: The legalization of abortion sends a message that human life has little value and promotes the throwaway culture.
Racial afflictions: Abortion disproportionately affects African American babies. In the US, black women are 3.3 times as likely as white women to have an abortion.

Arguments in favour for Abortion Rights

Upholding individual conscience and decision-making: The US Supreme Court has declared abortion to be a fundamental right guaranteed by the US Constitution.
Reproductive choice empowers women: The choice over when and whether to have children is central to a woman’s independence and ability to determine her future.
Foetal viability occurs post-birth: Personhood begins after a foetus becomes “viable” (able to survive outside the womb) or after birth, not at conception. Abortion is the termination of a pregnancy, not a baby.
No proof of foetal pain: Most neuroscientists believe that the cortex is necessary for pain perception. The cortex does not become functional until at least the 26th week of a foetus’ development.
Preventing illegal abortions: Access to legal, professionally-performed abortions reduces maternal injury and death caused by unsafe, illegal abortions.
Mother’s health: Modern abortion procedures are safe and do not cause lasting health issues such as cancer and infertility.
Child’s health: Abortion gives pregnant women the option to choose not to bring fetuses with profound abnormalities to full term.
Prevents women’s exclusion: Women who are denied abortions are more likely to become unemployed, to be on public welfare, to be below the poverty line, and to become victims of domestic violence.
Reproductive choice protects women from financial disadvantage: Many women who choose abortion don’t have the financial resources to support a child.
Justified means of population control: Many defends abortion as a way to curb overpopulation. Malnutrition, starvation, poverty, lack of medical and educational services, pollution, underdevelopment, and conflict over resources are all consequences of overpopulation.

Indian Case: Medical Termination of Pregnancy (MTP) Act

Abortion in India has been a legal right under various circumstances for the last 50 years with the introduction of Medical Termination of Pregnancy (MTP) Act in 1971.
The Act was amended in 2003 to enable women’s accessibility to safe and legal abortion services.
Abortion is covered 100% by the government’s public national health insurance funds, Ayushman Bharat and Employees’ State Insurance with the package rate for surgical abortion.

The idea of terminating your pregnancy cannot originate by choice and is purely circumstantial. There are four situations under which a legal abortion is performed:

If continuation of the pregnancy poses any risks to the life of the mother or mental health
If the foetus has any severe abnormalities
If pregnancy occurred as a result of failure of contraception (but this is only applicable to married women)
If pregnancy is a result of sexual assault or rape

These are the key changes that the Medical Termination of Pregnancy (Amendment) Act, 2021, has brought in:

The gestation limit for abortions has been raised from the earlier ceiling of 20 weeks to 24 weeks, but only for special categories of pregnant women such as rape or incest survivors. But this termination would need the approval of two registered doctors.
All pregnancies up to 20 weeks require one doctor’s approval. The earlier law, the MTP Act 1971, required one doctor’s approval for pregnancies upto 12 weeks and two doctors’ for pregnancies between 12 and 20 weeks.
Women can now terminate unwanted pregnancies caused by contraceptive failure, regardless of their marital status. Earlier the law specified that only a “married woman and her husband” could do this.
There is also no upper gestation limit for abortion in case of foetal disability if so decided by a medical board of specialist doctors, which state governments and union territories’ administrations would set up.

Way forward

A search for the middle path perhaps the right of a woman to choose what to do with the foetus has to be balanced with the right of the foetus to survive.
It is only that a foetus does not have the ability to exercise an option while the person who carries it does.
There could be no two opinions that a victim of rape shall be allowed the choice to abort.
Rather than banning abortion, lawmakers must focus on counselling, employment security, social welfare, and financial support to persuade pregnant women to give birth to their children.
We must achieve some degree of protection for the unborn by obtaining voluntary recognition of personal responsibility and respect for the personhood of the unborn.