Context

Recently, a three-judge bench of the Supreme Court of India delivered a significant order, clarifying that the right to a medical abortion that was available to married women could not be denied to unmarried women.

Background of the case

• The SC’s order granting permission to undergo an abortion was passed in the case of a petitioner who was in a consensual relationship, and whose partner deserted her.
• The Delhi High Court had denied the petitioner’s right to terminate her pregnancy.
•  Rule 3B of the Medical Termination of Pregnancy Rules 2003, lays down the categories of women who are eligible for termination of pregnancy up to 24 weeks:
• Survivors of sexual assault or rape or incest; minors; where there is a change of marital status during the ongoing pregnancy (widowhood and divorce); women with physical and mental disabilities, women with pregnancies in humanitarian settings; foetal “malformations” that have a substantial risk of being incompatible with life, or which, if the child is born, may cause it to suffer from a serious physical or mental handicap.
• The High Court found that the petitioner had not undergone a “change in marital status”.
• The SC found that prima facie, the High Court had been too restrictive in its approach, and that the term “change in marital status” should be given a purposive interpretation.

Three key judgments

• The Supreme Court in this casebased this finding on the 2021 Amendment to the MTP Act, which no longer restricts itself to an unwanted pregnancy between a “husband” and “wife”, but to a woman and her “partner”, by marriage or not.
• The Court relied on three key judgements:
• 1] The 2010 S Khushboo case, which recognised the legality of live-in relationships and pre-marital sex.
• 2] The 2009 Suchita Srivastava case, which recognised that a woman’s right to make reproductive choices is part of the “personal liberty” guaranteed under Article 21.
• 3] The 2017 K S Puttaswamy case, which reaffirmed that women’s right to bodily integrity is part of the fundamental right to privacy.
• The Court observed: The statute has recognised the reproductive choice of a woman and her bodily integrity and autonomy.
• Contrast with rights in the US: The SC’s order attains significance in contrast to the recent Dobbs decision in the US.
• Constitutional rights are interconnected: Unravel one and the entire edifice of protections could fall apart.

Conclusion

The Supreme Court offers hope that right to abortion won’t be restricted by a woman’s marital status.

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