An Important First Step On The Road to Reproductive Justice, But Safe Abortion Remains Out Of Reach

01 Oct 2022 21 min read  Share

The Supreme Court’s 29 September 2022 decision on abortion has provided legal armour for many pending cases on reproductive justice related to, among others, surrogacy, assisted reproduction and marital rape. But its impact on access to safe abortion will be limited.

Central Wing of the Supreme Court of India where the Chief Justice's courtroom is situated/WIKIMEDIA COMMONS

Bengaluru: X* is a 25-year-old woman from Manipur, the eldest of five siblings and the daughter of farmers. She was living in Delhi with her unmarried partner. In June, 2022, X found out that she was pregnant and was set to marry her partner. 

At the last minute, her partner refused to marry her. 

X was 22 weeks pregnant. Worried about the “social stigma and harassment” that single parents face and without the means to support a child, she sought to terminate her pregnancy. 

But the Medical Termination of Pregnancy Act (MTP Act), 1971, does not allow terminations for unmarried women in X’s situation. This is how her case landed up before the Supreme Court.   

Seeking and providing abortion is a crime under the Indian Penal Code (IPC) 1860 unless the abortion is meant to save the life of a pregnant woman. The MTP Act provides additional circumstances in which abortion is permitted. 

Despite these restrictions, a third of all pregnancies in India are aborted. Of these, around 12.3 million abortions or 78% of all abortions are illegal solely because they violate the terms of the MTP Act, even though they may otherwise be safe. 

At the same time, as the World Health Organization has recognised, abortion-restrictive laws impede access to safe abortion services, and significantly increase maternal mortality and morbidity. Unsafe abortions are the third-largest contributor to maternal mortality in India: eight women die from unsafe abortions every day. 

Women and girls who are impoverished, not literate, live in rural areas, or belong to minority religions or oppressed castes, are at a significantly higher risk of having unsafe abortions and abortions outside the terms of the MTP Act, thus placing them at a heightened risk of adverse health outcomes as well as criminal liability. 

This context underscores all that is praiseworthy about the Indian Supreme Court’s decision in X vs Government of NCT, Delhi. Decided on 29 September 2022, this judgment expansively interpreted the provisions of the MTP Act to bring otherwise excluded persons within the scope of the law. 

In arriving at its decision, the Court foregrounded the lived reality of women in negotiating the medico-legal complex that determines access to abortion. 

By placing reproductive decisions within constitutional rights to dignity, autonomy, privacy, and health, and interpreting the provisions of the Act in light of these values, the decision has provided legal armour for many pending cases on reproductive justice in India, including challenges to the constitutionality of the MTP Act, the Surrogacy Act, the Assisted Reproductive Techniques Act, and the marital rape exemption, amongst others. 

However, given the limited factual ambit of this case, the Court’s decision could not touch the fundamental problem with accessing safe abortion in India—the criminalisation of abortion. 

Although the Court’s decision is likely to have limited impact on the ground in ensuring better access to abortion services, this is an important first step on the road towards reproductive justice in India.

I expand on these arguments by examining the judgment in light of a 2021 report that I co-authored: “Legal Barriers to Accessing Safe Abortion Services in India: A Fact Finding Study.”  

Criminalization Of Abortion

Consistent with British laws and mores of the time, the IPC prohibited abortion unless it was performed to save the life of the pregnant person. This resulted in significant maternal mortality and morbidity from unsafe abortions. 

In 1971, Parliament enacted the MTP Act as an exception to the prohibition in the IPC. This law provided for certain additional circumstances in which abortion could be permitted. 

In 2021, on the 50th anniversary of the MTP Act, Parliament comprehensively revised the Act ostensibly to ensure “access of women to safe and legal abortion without compromising on the safety and quality of care,” along with securing “dignity, autonomy, confidentiality and justice for women who need to terminate pregnancy”.

Despite these changes, the MTP Act does not provide abortion on request to pregnant persons. Abortion access is only through registered medical practitioners (RMPs)—doctors who meet certain qualifications—and can be provided only to protect the life or health of the pregnant person, or in cases of substantial foetal anomalies. 

The Act places different requirements for accessing abortion depending on the gestation period, as follows:



Thus, under the MTP Act, the decision to abort is not that of the pregnant person alone. One or more doctors must be satisfied that the grounds for abortion under the Act are made out. 

In addition, the MTP Act and Rules provide a range of restrictions on who can provide abortion services, where such services can be provided, infrastructural facilities and regulatory approvals required for providing abortion services, consent and documentation to be secured before providing abortion, etc. 

Many of these restrictions are not in tune with the current standards of scientific development or the overall safety of the bulk of abortion procedures. Abortion is highly over-regulated compared to other more significantly complicated healthcare interventions. 

It is clear that the restrictions on abortion are not based on achieving better health outcomes for pregnant persons but are for purposes of controlling and limiting access to abortion. 

In X’s case, she was 22 weeks pregnant and unmarried. Since she was not covered under the “change in marital circumstances” ground, she argued before the Court that the exclusion of unmarried women from this clause violates the right to equality. 

On this short yet significant point, the Court held that if the law did exclude women from seeking abortion on the basis of their marital status, it would violate the right to equality. 

However, the Court interpreted the clause as permitting abortion for unmarried women, by interpreting the requirements of the MTP Act consistent with constitutional principles of dignity, autonomy, privacy, and the right to health. 

Constitutional Values & The Regulation of Abortion 

The Court built upon its previous decisions, especially the right to privacy judgment, in placing pregnant persons’ reproductive decisions within a constitutional framework. 

The judgment interpreted the provisions of the MTP Act in light of the right to reproductive and decisional autonomy, privacy, dignity, and the right to the highest attainable standard of health. 

In particular, the Court emphasized the right to decisional autonomy in matters of reproduction and held that “it is the woman alone who has the right over her body and is the ultimate decision maker on the question of whether she wants to undergo an abortion”. 

The Court recognised that women do not make decisions on abortion lightly. Such decisions, it said, are based on “complicated life circumstances, which only the woman can choose on her own terms without external interference or influence. Reproductive autonomy requires that every pregnant woman has the intrinsic right to choose to undergo or not to undergo abortion without any consent or authorization from a third party”. 

For a judgment that explicitly recognises the unequal physical and social burdens of pregnancy and childrearing upon women, the stereotyping, gendered role assumptions, stigma, and gendered violence associated with sexual and reproductive behaviour, the Court is silent on the constitutional principle of equality, which adds an important dimension of protection to access to safe abortion.

In light of the constitutional values at play, the Court read the provisions of the MTP Act expansively to bring various hitherto excluded persons within the folds of the law. 

Locating reproductive decisions within this constitutional framework provides the reproductive justice movement with a valuable resource in advocating for barrier-free access to sexual and reproductive health rights within and outside courts. 

Barriers To Safe Abortion

A key aspect of the Supreme Court’s judgment is that it brought the larger constitutional values of autonomy, dignity, privacy, and right to health into conversation with the legal, social, structural, and material barriers that women face in accessing safe abortion care. 

The Court recognised that “[t]hese barriers include insufficient infrastructural facilities, a lack of awareness, social stigma, and failure to ensure confidential care…. [and] gender stereotypes about women’s sexual autonomy outside marriage. … Such barriers may contribute to a delay in accessing abortion services or a complete denial of such services, consequently negating women’s right to reproductive autonomy”.

The most significant barrier to accessing safe and comprehensive abortion care in India is that the MTP Act makes RMPs the gatekeepers of abortion and also makes them criminally liable if they provide unauthorised access.

As such, (a) women cannot access abortion on request; ultimately, the decision depends on one or more doctors agreeing that the grounds under the law are satisfied, and (b) abortion is a crime, with exceptions, and non-compliance with the requirements of the law can lead to criminal prosecution for RMPs and pregnant persons. 

RMPs do not face any consequences for denying an abortion. If they do choose to provide an abortion, however, they open themselves up to criminal liability. 

This criminal liability has a chilling effect on RMPs, and they either refuse to provide abortion, or practice extremely defensive medicine. As the Court recognized, “[a] fear of prosecution under this complex labyrinth of laws, including linking of the MTP Act with the IPC, acts as a major barrier to safe abortion access, by having a chilling effect on the behaviour of RMPs”.

RMPs who decide to provide abortion often seek extra-legal consent, documentation, identity proofs, and other requirements to insulate themselves from potential legal liability. 

Our 2021 study found that despite there being no such requirement in the law, doctors often ask for familial or spousal consent, consent from courts or the police, or even from the civil surgeon or other district health authorities, before providing an abortion. 

In many parts of India, it is extremely difficult for an adult woman to get an abortion without some form of consent from some other person or state authority, even though such consent requirements are not part of the law. RMPs also impose cooling-off periods upon pregnant persons, or require them to undergo mandatory counselling against abortion. 

For the first time, the Court too recognised and rejected  such extra-legal behaviour. 

The Supreme Court directed doctors to “refrain from imposing extra-legal conditions on women seeking to terminate their pregnancy in accordance with the law… [and] only ensure that the provisions of the MTP Act (along with the accompanying rules and regulations) are complied with”. 

In particular, the Court clarified that there is no requirement for third-party authorisations under the MTP Act, that doctors should not place extra legal barriers to accessing abortion, and that they should not insist on filing first information reports (FIR)s before providing abortion access (a common practice in many parts of the country, especially in late-term abortions or abortions by unmarried women). 

When a woman alleges rape, her allegation is sufficient to meet the requirements under the law. She does not have to produce proof of a conviction, or even the filing of a FIR before her pregnancy is terminated. 

Another factor that affects the decisions of doctors in providing or denying abortion is their own views on the ‘morality’ of abortion. 

This view is shaped by hetero-patriarchal assumptions about the sexual and reproductive behaviour of women, their expected role within the family and in society, their capacity to make reliable and informed decisions and stereotypes about women from different social classes. 

Medical textbooks too reinforce the most regressive forms of abortion stigma such as linking abortion to social deviance and sexual ‘promiscuity.’ 

Patriarchy, Bias Among Doctors

We found multiple references in leading medical textbooks (here, here and here) to sex outside marriage as ‘illegal sex’ and pregnancy outside marriage as ‘illegal pregnancy’; RMPs around the country parroted these phrases to us in discussing abortions. 

Single women who seek abortion services routinely face ridicule, shaming, and denial of services from RMPs and other health-care professionals. Doctors’ training on abortion suffers from the same lack of trauma-informed and rights and gender-affirming education prevalent across the board in the medical curriculum. 

We found that many RMPs believe that the MTP Act is ‘too liberal.’ RMPs routinely counsel pregnant persons against abortion, very often on ostensible ‘health’ grounds that have no scientific basis (such as that if the first pregnancy is aborted, it will be difficult for the pregnant person to get pregnant in the future). 

We also found that regardless of the categories of exceptions in the MTP Act, RMPs provide access to abortion based on their own sense of when abortion is ‘justified.’ 

The reasons for abortion that support women’s gendered role expectations within a heterosexual, monogamous, marital framework are likely to find greater support from RMPs. 

For example, spacing reasons, when a woman’s ability to care for her existing children is likely to be compromised, is often considered a good reason for abortion. However, a married woman with no children who wants an abortion is likely to face a lot of opposition from RMPs.

Decriminalisation Necessary But Not Sufficient

The attitude of RMPs towards abortion indicates that decriminalisation is necessary but not sufficient in securing access to safe abortion services. 

There is an urgent need to audit the medical curriculum to ensure that medical students are trained in providing rights-affirming abortion care. An affirmative rights-based law that secures access to abortion consistent with a pregnant person’s right to life with dignity, autonomy, and equality, and also consistent with current scientific standards, is needed to ensure that the biases and prejudices of service providers to not limit access to abortion. 

Ultimately the barriers to accessing safe abortion arise because the law places the decision to provide abortion within the hands of RMPs, and within the framework of criminal law. 

Though the Supreme Court recognised that “the spectre of criminalization casts a chilling effect” on abortion access, given the limited ambit of this case, the Supreme Court could not go into the larger question of the constitutionality of such criminalisation. 

Without decriminalisation, many of the progressive elements of the Court’s judgment may have limited impact on the everyday reality that women face in negotiating the labyrinth of medical and legal barriers to accessing safe abortion. 

Expanding The Scope Of The MTP Act

Though the Court could not address the larger issue of criminalization of abortion, it sought to expand the scope of the MTP Act, and bring within its ambit a range of hitherto excluded persons and circumstances. 

Though this expansive reading may have limited impact on the ground, where doctors have to continue to decide, in the larger context of criminalisation of abortion, whether to provide abortion or not, it is an important first step in the road towards decriminalization and more comprehensive and inclusive access to safe abortion care. The Court expanded the scope of the MTP Act in the following ways:


The MTP Act provides for termination of pregnancies by women. The Court clarified that women also include “persons other than cis-gender women who may require access to safe medical termination of their pregnancies.” 

This is an important recognition because as the Supreme Court has itself noted in the past, those who do not conform to the binary notions of sexual orientation and gender identities face a range of exclusions in accessing health care. 

Our study found that though trans persons face stigma, exclusion, violence, and ridicule in accessing reproductive health services, such concerns were almost entirely absent from deliberations within communities of doctors, health experts, and policymakers.

'Mental Health'

As I noted earlier, the MTP Allows for termination of pregnancies when it causes grave injury to the pregnant person’s mental health. The Court held that mental health is not as an absence of mental illness, but the presence of mental well-being. 

Mental well-being depends on a range of contextual factors and a person is the best judge of their state of mental well-being. Therefore, “the term mental health cannot be confined to medical terms or medical language, but should be understood in common parlance”. 

In the context of abortion, the Court endorsed the views of the Bombay High Court that continuing with an unwanted pregnancy has an adverse impact on the mental health of the pregnant person, and this can by itself be a ground for abortion. 

This is an important recognition, especially since in the past RMPs, courts, and medical boards have conflated “mental health” with “mental illness” and have refused to consider the mental health impacts of denying abortion in the absence of mental illness. 

The MTP Act requires that in determining the mental health impact of carrying the pregnancy to term, doctors are required to consider the pregnant woman’s “actual or reasonably foreseeable environment”. 

Interpreting this requirement consistent with the right to decisional autonomy, the Court held that “significant reliance ought to be placed on each woman’s own estimation of whether she is in a position to continue and carry to term her pregnancy.” 

Thus, the Court emphasised that doctors should trust women to be the best judges of their own circumstances and affect their health of carrying an unwanted pregnancy to term. 

However, the ultimate decision under the MTP Act remains that of the doctors, and it is unlikely, given potential criminal liability as well as their own biases about women’s decision-making capacities, that RMPs will leave such determination in the hands of pregnant persons.   

“Marital Rape” 

The Indian Penal Code excludes from its definition of rape, forced sexual intercourse by a man with his wife. This is the “marital rape exemption” the constitutionality of which is pending adjudication before the Supreme Court. 

The MTP Act permits terminating a pregnancy on the ground that it resulted from rape. The Court recognized that intimate partner violence is a reality, including women’s lived experiences of rape within marriage. 

So, the Court held that for the purposes of the MTP Act, a woman alleging that she was raped by her husband, would also be entitled to abortion, even though such an act is not considered rape for the purposes of the Indian Penal Code. 

This recognition is likely to be particularly important for married women. According to the latest available date from the latest National Family Health Survey (2019-2021), 5.2% of married women faced sexual violence within marriage in the last 12 months. 18% of married women did not feel they could say no to their husbands if they do not want to engage in sex. 

Thus, sexual autonomy within marriage is both factually and legally restricted. In this context, recognising sexual violence within marriage as rape, and recognizing women’s ability to seek abortion on this ground is likely to open up larger conversations about women’s rights within marriage, apart from providing much-needed access to abortion to women.

Mandatory Reporting

If the marital rape exemption limits women’s sexual autonomy within marriage, the Protection of Children from Sexual Offences Act, 2012 (POCSO) limits sexual autonomy for all minors. Under the Act, the age of consent for sex is 18 years, and all sexual activity under that age is a crime, regardless of consent. 

Further, the Act requires anyone with information or apprehension that sexual activity has taken place is required mandatorily to inform the police. 

Doctors who provide abortion, and other sexual and reproductive health services to minors are covered under this mandatory reporting requirement. This means that when a minor approaches a doctor for an abortion, the doctor is required by law to inform the police. 

Minors and their guardians who do not want to go through the criminal justice process are pushed into seeking unsafe abortion to avoid the criminal justice system. 

The POCSO poses a significant barrier to securing abortion access for minors. The latest National Family Health Survey (2019-2021) indicates that 7% of girls in the 15-19 age bracket are pregnant; 39% of women in the 25-49 age bracket had their first sexual encounter before the age of 18. 

Thus, adolescent sexual activity is extremely prevalent, and can often result in an unwanted pregnancy. However, the mandatory reporting requirement drives minors away from accessing safe abortion services.

The Court balanced the mandatory reporting requirement under POCSO with the confidentiality requirement under the MTP Act. 

It held that the doctor who provides an abortion to a minor does not have to disclose the name of the minor while reporting to the police, or in any subsequent court case. 

Though this is a salutary outcome, it might not be enough protection for minors and their guardians since the requirement to report the matter to the police remains untouched, and if the police were to discover the identity of the minor or their partner through other means, they may be dragged into the criminal justice system against their will. 

Further, a minor who wants to continue with a pregnancy will still have to be reported, but a minor seeking abortion will be protected. This may, paradoxically, drive minors towards abortion, and deny them the reproductive autonomy that they desire. 

More broadly, the mandatory reporting requirement upon doctors restricts access to a range of sexual and reproductive health services including contraceptive counselling, treatment for sexually transmitted diseases, antenatal and postnatal care, etc. 

The Court’s recognition of the concerns with mandatory reporting has laid the grounds for a challenge to this provision, as well as for seeking recognition of sexual autonomy for minors consistent with their evolving capacities.

'Change in Material Circumstances'

The Court looked at all the circumstances in which abortion is permitted within the 20-24 weeks period and held that a common thread running through many of these grounds is that abortion is permitted when there is a change in material circumstances, so that the pregnancy is no longer wanted. 

The Court held that the circumstances mentioned in the rules are just an illustrative and non-exhaustive list of grounds and that other changes in material circumstances can also be included in this list. 

According to the Court, “[i]t is not possible for either the legislature or the courts to list each of the potential events which would qualify as a change of material circumstances. Suffice it to say that each case must be tested against this standard with due regard to the unique facts and circumstances that a pregnant woman finds herself in.”

Again, while potentially expanding the scope of access to abortion for pregnant persons, the impact of this provision on the ground is likely to be limited. Two RMPs have to decide whether an abortion in the 20-24 week period is permissible. 

Within the context of criminalisation of abortion, they cannot be expected to take an expansive interpretation of the provisions, unless there is an explicit rule to this effect. 

So, in most cases, the implementation of the Court’s holding on changed material circumstances will require moving courts for enforcing the right to abortion. 

Since access to courts is, if anything, even more restricted than access to abortion, the expanded definition will directly benefit only a small number of people. This again is a consequence of the criminalization of abortion and the ultimate denial of reproductive autonomy to pregnant persons under the MTP Act. 

Towards Decriminalization

Though the judgment did not, and could not, address the larger context of criminalisation of abortion, it is pathbreaking in many respects. It has provided a constitutional vocabulary for reproductive justice in India, and has given legitimacy and legal armour to the movement towards decriminalization of abortion in India. For this reason alone, it is an important first step on the road toward reproductive justice.

At the same time, the Court has recognised that the decriminalisation of abortion will not be enough in securing access to safe abortion in India, or reproductive autonomy more broadly. 

It has recognised the need to remove structural and social barriers to abortion through positive state action directed at securing social justice in the domain of reproductive health. 

Thus, the Court has said that the “reproductive autonomy of every pregnant woman to choose medical intervention to terminate her pregnancy ... [i]mplicitly, … also extends to a right of the pregnant woman to access healthcare facilities to attain the highest standard of sexual and reproductive health. It is meaningless to speak of the latter in the absence of the former". 

From 2009 onwards, the Court has expressly acknowledged a right to reproductive autonomy as part of the right to life and personal liberty under the Constitution. 

What the Court has done differently in X vs GNCTD is to tease out the implications of such a right for access to safe abortion services in India, and for sexual and reproductive health and rights more broadly. 

This judgment will hopefully provide an important constitutional resource for the struggle for reproductive justice in India—inside and outside courts. 

(Aparna Chandra is an Associate Professor of Law at the National Law School of India University, Bengaluru and member of the Article 14 editorial board.)