Data Lab | India’s Supreme Court gives nod to abortion, regardless of marital status

Only a few weeks after the United States Supreme Court issued a contentious ruling allowing individual states to outright ban or severely restrict the ability of pregnant women to seek abortions, news of a similar case made headlines in India.

The 1973 Roe v. Wade decision was overturned in the US, which was seen as "a massive step back for women's rights," while Thursday's verdict by the Indian Supreme Court is being welcomed as "historic" and "a big stride ahead" for women's rights.

The Indian apex courtsaid that all women, even those who are not married and those who are not cisgender women, have equal rights to abortion, which is undoubtedly progressive in a nation where 73 million unmarried women reside.

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Abortion statistics in India

The decision was made in response to a petition filedin July by a 25-year-old single woman who had been in a consenting relationship and was 22 weeks pregnant.

The woman claimed that carrying an unborn child would expose her to "social stigma and persecution" asher partner had abruptly declined to marry her.

She also claimed that because she didn't have a career and didn't come from a wealthy household, she couldn't afford to raise a child and that she wasn't psychologically ready to do so. After the Delhi High Court denied her request for an abortion, the woman went to the top court.

The regulations were so strict that even survivors of rape, including minors who were unaware of their pregnancy, had to go to court to request authorisation to end a pregnancy if it was found after 20 weeks.

The case of ‘bodily autonomy’

The Indian court said that a woman's right to bodily autonomy and the freedom to determine the course of her own life lay "firmly rooted" in the decision of whether to carry a pregnancy to term or end it. It said that an unintended pregnancy could negatively impact a woman's entire life "by interrupting her education, her career, or affecting her mental well-being."

The court further stated that single women's exclusion would encourage them to seek unsafe abortions, which kill a startling number of women in India. The UN Population Fund estimates that every day in the nation, some eight women pass away due to complications from unsafe abortions.

Single women have sex too. Period.

Women's rights advocates from all over India have applauded the decision, and a reading of the verdict demonstrates why it is crucial on a number of levels.

In addition to granting all women the same rights and freedoms, the court also recognised that single women can have relationships that involve sex. This is a fairly novel idea in a country with a strongly patriarchal culture where women have little sexual autonomy, premarital sex is frowned upon, and some communities even require brides to take a humiliating "virginity test" to prove that they are "virgin" on their wedding night.

The judges emphasised that because Indian society and the family have changed significantly over time, laws cannot be interpreted based on "narrow patriarchal principles" about what is considered "permissible sex." Additionally, live-in relationships, premarital sex, and gay sex cannot be "seen through the lens of criminality."

Addressing marital rape

The judgment's statements regarding marital rape are another significant factor that has contributed to its media attention in India.

A petition to make rape within marriage a crime is currently being heard by the Supreme Court. According to an outdated colonial-era rule that still exists in India, sex "by a man with his wife" that is not a juvenile is not considered to be rape.

The judges made it very clear that if a woman became pregnant "due to a husband's act of sexual assault or rape, she should not be compelled to give birth to and raise a child with."

But as that issue was being heard by another bench," they did not intend their order to address the legality of marital rape.