A tale of two Supreme Courts

In a moment with major repercussions for the future of reproductive rights around the world, the Supreme Courts of India and the United States issued historic rulings on abortion only a few months apart. In the U.S., the fall of Roe v. Wade in June unleashed havoc on the country’s health care system. Yet, in India, the story has unfolded far differently.

Last month, the Supreme Court of India held that a distinction made in Indian law between married and unmarried women and their access to abortion up to 24 weeks was arbitrary and should be abolished. The ruling in the case X v. The Principal Secretary, Health & Family Welfare Department further expanded the right to abortion by clarifying that the listed set of circumstances that allow women to receive abortions up to 24 weeks under current law is not exhaustive. As a result, the right to abortion should be extended to all women who undergo a change in their material circumstances. The court further explained that this could include instances such as financial insecurity caused by losing a job or being diagnosed with a chronic illness.

Unlike the U.S. Supreme Court in Dobbs v. Jackson Women’s Health Organization that overturned Roe, the Indian court was not faced with the question about the existence of the right to abortion, which has been codified in India through the Medical Termination of Pregnancy Act in 1971. However, the diametrically opposite approaches the courts took in addressing (or failing to address) women’s interest in having the right to abortion is telling.

The Indian court emphasized the physical cost of having to carry an unwanted pregnancy to term. While the court discussed pregnancy-related side effects such as swelling, body aches and morning sickness — as well as further complications that may pose a risk to the woman’s life — it acknowledged that a “mere description of the side effects of a pregnancy cannot possibly do justice to the visceral image of forcing a woman to continue with an unwanted pregnancy.” The court recognized that the impact of pregnancy on a woman’s life is so enormous that the decision to terminate a pregnancy or carry it is “firmly rooted in the right to bodily autonomy and decisional autonomy of the pregnant woman.”

While this judgment signifies a win for the reproductive rights of Indian women, there still remains a myriad of issues — including social stigma, dearth of infrastructural facilities and lack of confidential care — that force women to seek unsafe abortions. Moreover, unmarried women in India may face additional hurdles linked to stereotypes about women’s sexual autonomy outside of marriage.

However, the Indian court went beyond expanding the right to abortion by touching upon the social and economic barriers that might prevent women from differing backgrounds from accessing abortion. It recognized that the cost of abortions at hospitals could be prohibitive for those who may not be able to afford the treatment. The court also noted that public hospitals in rural areas might not have the requisite infrastructure to provide treatment free of cost. Recognizing that reproductive autonomy requires that abortion services are accessible in practice, the court outlined that the right to abortion would be violated if a woman was unable to access care due to reasons related to caste or other socio-economic factors.

In stark contrast, the U.S. Supreme Court’s decision in the Dobbs case made little note of the physical and mental costs a woman bears as a result of an unwanted pregnancy. While the Dobbs’s majority opinion pointed out the “important concerns” raised by the dissenting judges about the “effects of pregnancy on women, the burdens of motherhood, and the difficulties faced by poor women,” in the next breath, it criticized the dissent for not having a similar concern for prenatal life. This lack of consideration given to the impact of an unwanted pregnancy proved to be devastating for American women, as dozens of clinics across 15 states stopped offering abortion soon after the court’s ruling.

Hence, in the U.S., the majority decision essentially ignores a woman’s liberty and equality interest in deciding to get an abortion or carry a pregnancy to term. There seems to be no meaningful consideration of the manner in which denial of abortion takes away the woman’s agency to choose motherhood and its timing. In the same vein, there is total silence on how forced motherhood could exacerbate women’s economic, social and political inequality.

Of course, much like in India, abortion access in the U.S. is intertwined with other intersectional issues like poverty and race. Yet, there is little to no consideration in Dobbs given to the issues that women from different socio-economic backgrounds might face in accessing abortion. The Indian judgment may then be an important starting point as discussions for codifying Roe gain momentum. Simply having the right to terminate a pregnancy is not enough. The right to abortion must be rooted in a positive right to bodily autonomy, ensuring women of all socio-economic backgrounds can enjoy their human right to reproductive health care.

Ashita Alag is a legal adviser at the Global Justice Center, where she works on gender equality issues. Alag is a lawyer trained in India and she recently received a master’s in law from Harvard Law School. She also has clerked at the Supreme Court of India and assisted the social justice bench.