ABORTION: FROM LEGAL PERSPECTIVE

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1 CHAPTER THREE ABORTION: FROM LEGAL PERSPECTIVE 3.1 INTRODUCTION The term abortion, in criminal law, is ordinarily used to describe an intentional termination of pregnancy. Miscarriages or spontaneous abortions, however labelled by the medical professions, are not regarded by law as abortions at all. In the common law and in most early abortion statutes, guilt for a criminal abortion lay with the abortionist that is, the individual who performed the procedure or who supplied the pregnant woman the materials for it. The woman who sought the abortion or employed the materials furnished to her by the abortionist was not covered by the law 1. However, the definition of what constitutes the crime of abortion has changed frequently and dramatically between the common law era and the present day. Religion and shifting mores have, ofcourse, contributed to these alterations in the law. Demographic concerns have exerted an influence as well. But the evolution of modern abortion law also reflects the evolution of obstetric medicine and scientific understanding of the gestational process. Even the United States Supreme Court s 1973 invalidation of the abortion restriction of almost every state and the congressional debates that followed turned, in large part, on differing medical assessments of human reproduction 2. Throughout history, we find that women have practised forms of birth control and abortion. These practices have generated intense ethical, political and legal debates since abortion is not merely a techno-medical issue but the 32

2 fulcrum of a much broader ideological struggle in which the very meanings of the family, the state, motherhood and young women s sexuality are contested 3. Women have covertly resorted to abortion, but their access to services has been countered by the imposition of social and legal restrictions many of which have their origin in morality and religion. The norms governing the ethics of abortion have been constantly remoulded to suit the times and the social contexts in which they are set. Despite the dissimilarities in their construct, intent and orientation, these norms have invariably been directed to the fulfilment of social needs that do not recognise women s right to determine their sexuality, fertility and reproduction. Thus, for various reasons, abortion has at times emerged as a controversial subject in different societies because of the moral and ethical issues that surrounded it. Abortion law is legislation which pertains to the provision of abortion. Though abortion has been a controversial subject, considerations such as a state s pro or anti natalist policies, questions of inheritance and patriarchy, also dictate abortion law and regulation. It has been regularly banned or otherwise limited, though abortions have continued to be common place in many areas where it is illegal. Almost two/thirds of the world s women currently reside in countries where abortion may be obtained on request for a broad range of social, economic or personal reasons. Abortion laws vary widely from country to country, ranging from those in Chile, Elsalvador, Nicaragua, Malta which ban the procedure entirely to those in Canada, the United States and other places where there is no restriction in the provision of abortion. Both supporters and opponents of legal abortion believe their position addresses fundamental human right, either that of a woman being her right to abortion, or a fetus being denied its right to life. 33

3 Actually, the problem of abortion is as much a public policy issue as it is a moral issue. Naturally, what one thinks about the moral permissibility of abortion will affect how one thinks about what the states can or should do by way of regulating abortion. For example, if one thinks that abortion is murder, then the person will be strongly inclined to argue that the state should prohibit all abortions: how could a state allow citizens to take innocent lives? On the other hand, if one thinks that abortion is morally innocuous, an activity akin to cutting one s hair, then one will be strongly inclined to argue that, the states have no business in interfering with pregnant women who seek abortions or with physicians who provide them. The formulation of public policy would be a relatively simple matter if either of these extreme positions about the moral permissibility of abortion were widely held. But most people s views about abortions are much more complex. Thus the question may arise about the moral permissibility of abortion, as well as argument conserving what public policy we ought to adopt with respect to abortion. There are (at least) two errors which we should be careful to avoid. In the first place, we cannot, in any straight forward way read off what abortion policy should be from a claim about the moral impermissibility of abortion. In the second place, we must recognize that an argument for liberal abortion laws, although it may embody certain moral assumption, need not itself be an argument for the moral permissibility of abortion. (Neither needs an argument for restrictive abortion laws, as an argument for the moral impermissibility of abortion.) Much of the current public debate about abortion is characterised by confusion over precisely these matters, so it is worthwhile to explore them in a little more detail. 34

4 The mere fact that some practice is morally impermissible does not entail, that practice ought to be made illegal. Whether the moral impermissibility of abortion is sufficient to justify governmental restrictions or prohibitions on abortion depends, in part, upon why abortion is morally impermissible. One might argue that abortion is impermissible because it is murder. If that is so, then governmental or legal prohibition would appear to be in order, perhaps mandatory. On this view, even abortion in cases of pregnancy due to rape should be illegal. But suppose one thinks abortion is morally impermissible because it is a form of self-mutilation, like certain type of tattooing or body piercing. In those cases, it is considerably more difficult to argue for state prohibition of abortion on these grounds, because we generally hold that, people should be free to pursue their lives as they see fit as long as they do not harm others. But in such cases certain restrictions might be legitimate, for example, the imposition of mandatory waiting periods to encourage women to consider some of the consequences of having an abortion. In short, if one wants to argue for the prohibition of or the imposition of restriction on abortion, one will need to do more than simply assert that abortion is morally impermissible. Now, let us consider woman s rights in this problem. Women are, obviously, human persons. They make up the majority of human persons. Human persons have the right that an embryo or fetus does not have until its personhood can be established. For various reasons, as shall see later, the personhood of a fetus is generally understood to commence between twenty-two and twenty-four weeks. This is the point at which the neocortex develops, and it is also the earliest known point of viability the point at which a fetus can be taken from the womb 35

5 given the proper medical care, and still have a meaningful change of long term survival. The government has a legitimate interest in protecting the potential rights of the fetus, but the fetus itself does not have rights prior to the viability threshold. So, the central thrust of Roe V. Wade (which will be discussed later on in detail) is this: women have the right to make decisions about their own bodies on the basis of privacy right. The argument is based on the woman s right to make decisions about her own reproductive system. Thus, in short, abortion, it will be argued, is legal for two reasons: first, because women have the right to make decisions about their own reproductive systems and, second they possess the power to exercise that right regardless of government policy. Before entering into the detailed discussion of these rights, let us first make a brief survey of the history of abortion law in the next section. 3.2 HISTORY OF ABORTION LAW The history of abortion law dates back to ancient times and has influenced men and women in a variety of ways in different times and places. It was enacted by the sixth Babylonian King, Hammurabi. 4 The code required monetary compensation for causing a woman to miscarry. But laws regulating acceptable forms of abortion were found with the Romans. However, widespread regulation to have an abortion did not begin until the thirteenth century. There were no laws against abortion in the Roman Republic and early Roman Empire, as Roman law did not regard a fetus as distinct from the woman s body, and abortion was (not infequently) practised to control family size or to maintain one s physical appearance. In 211 A.D. at the intersection of the reigns 36

6 of Septimius Severus 5 and Caracalla, 6 abortion was outlawed for a period of time as violating the rights of parents, punishable by temporary exile. However, late Roman legislation is generally derived from a concern for population growth, and not as an issue of morality. Historically, it is unclear how often the ethics of abortion (induced abortion) was discussed, but widespread regulation did not begin until the eighteenth century. One factor in abortion restrictions was a socio-economic struggle between male physicians and female mid-wives. In the eighteenth century English and American Common law 7 allowed abortion if performed before quickening. By the late nineteenth century many nations had passed laws that banned abortion. In the latter half of the twentieth century most western nations began to legalize abortion. According to English Common law 8 abortion after fetal movement or quickening was punishable as homicide, and abortion was also punishable if the fetus was already formed but not yet quickened. Let us now turn to discuss the history of abortion in a chronological order saw the first victory of an abortion reform movement with the passing of liberalizing legislation in Colorado. The legislation was based on the Model Penal Code. Between 1967 and 1973, approximately one-third of the States had adopted, either in whole or part, the Model Penal Code s provisions allowing abortion instances other than where only the mother s life was in danger. In 1973, the court ruled in Roe and Doe that Texas and Georgia statutes regulating abortion interfered with a woman s right whether to terminate her pregnancy. The 37

7 decisions rested upon the conclusion that the Fourteenth Amendment right of personal privacy encompassed a woman s decision whether to carry a pregnancy to term. The U.S. Supreme Court, in Roe V Wade, declared all the individual States ban on abortion during the first trimester to be unconstitutional, allowed States to regulate but not proscribe abortion during the second trimester, and allowed states to proscribe abortion during the third trimester unless abortion is in the best interest of the woman s physical or mental health. The court legalized abortion in all trimesters when a woman s doctor believed that the abortion was necessary for her physical or mental health. In 1989, the court indicated in Webster V. Reproductive Health Services, 492, U.S., 490, that while it was not over ruling Roe and Doe, it was willing to apply a less stringent standard of review to state restrictions respecting a woman s right to an abortion. Then, in 1992, in Planned Parenthood of Southeastern Pennsylvania V. Casey, 505, U.S., 833 (1992), the court rejected specifically Roe s Strict Scrutiny Standard and adopted the undue burden analysis. The Supreme Court of the United States overturned the trimester framework in Roe V. Wade, making it legal for states to proscribe abortion after the point of fetal viability, excepting instances that would risk the woman s health. Finally, in 200, the court in Carhart N. Stenberng, 530 U.S., 914, 120 S. ct (2000), determined that Nebraska Statute prohibiting the performance of partial-birth abortion is unconstitutional, without providing exceptions to preserve a woman s health INTERNATIONAL REPORTS RELATING TO ABORTION Article 1 of the American Declaration of Rights and Duties of Man and the Inter-American Commission of Human Rights says that, abortion is legalized until 38

8 the end of First trimester. Right to life is protected from the moment of its conception by Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR). Article 2 of the European Convention of Human Rights and Article 4 of the African Charter of Human and People s Right; but they are silent on the issue of when does life begin. But the interpretations have forced us to believe that the child is not to be protected from the time of its conception. The right to life of the fetus has to be balanced with the rights of the mother. International courts tribunals have addressed the difficult philosophical issue of when life begins, but have focused on the meaning of the language used in the relevant treaties. The right of a woman to her private life has been the basis on which a number of international bodies have upheld the right of a woman to have an abortion option. The right to access abortion may also be based on the right of a woman to decide freely and responsibly on the number spacing of her children. 3.3(a) ABORTION AS A HUMAN RIGHT Human right is universal moral right, something which all men, everywhere at all times ought to have; something of which no one may be deprived without a grave affront to justice; something which is owing to every human simply because he is human. 10 An alternative explanation was provided by the philosopher Kant. He said that human beings have an intrinsic value that is absent in inanimate objects. To violate a human right would, therefore, be a failure to recognize the worth a human life

9 Different countries ensure these rights in different ways. In India they are contained in the constitution as fundamental rights i.e. they are guaranteed statutorily. In the U.K. they are available through precedence, various elements having been laid down by the courts through case laws. In addition international law and conventions also provide certain safeguards. Let us now clarify these concepts a little. Human right (a) (law) any basic right or freedom to which all human beings are entitled and in whose exercise a government may not interfere (including rights to life and liberty as well as freedom of thought and expression and equality before the law). (b) (right) an abstract idea of that which is due to a person or governmental body by law or tradition or nature; they are endowed by their creator with certain inalienable rights, certain rights can never be granted to the government but must be kept in the hands of the people a right is not something that anybody can take away 12. The most important right of humans is the right to life. It is the supreme human right. It is inalienable. The Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR) prohibit the arbitrary deprivation of life but there are some controversial issues related to this supreme right. One issue is the question of abortion. Among other rights of woman it is believed that, every mother has a right to abortion but the rights of the mother are to be balanced with the rights of the unborn. Earlier the right to abortion was not permitted and it was strongly opposed by the society. The termination of pregnancy was termed to be a murder of the 40

10 fetus. But due to the change in time and technology, now-a-days this right has been legally sanctioned by most of the nations after the famous decision of Roe V Wade by the US Supreme Court. But the oppositions are still present and people do believe that it should be legally prohibited. Throughout history induced abortions have been a source of considerable debate and controversy. An individual s personal stance on the complex ethical, moral and legal issues has a strong relationship with the given individual s value system. A person s position on abortion may be described as a combination of their personal beliefs on the morality of induced abortion and the ethical limit of the government s legitimate authority. It is a woman s individual right, right to her life, to her liberty and to the pursuit of her happiness that sanctions her right to have an abortion. A woman s reproductive and sexual health shape her reproductive choices. Reproductive rights are internationally recognized as critical both to advancing women s human rights and to promoting development. In recent years, governments from all over the world have acknowledged and pledged to advance reproductive rights to an unprecedented degree. 3.3 (b) INFORMATION ON LEGAL STATUS OF ABORTION A. COMMON PERCEPTION The history of abortion law shows that it is not a recent practice. So, the question naturally arises, does the abortion law allow every women to abort her fetus under any situation? In general a woman has a right to abortion if: The continuance of the pregnancy would involve risk to the life of the pregnant woman greater than if the pregnancy were terminated. 41

11 The termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman. The continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman. There is substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped. In emergency situations certified by the operating practitioner as immediately necessary to save the life of the pregnant woman. But, in this respect, it must be remembered that abortions are only legal upto twenty four weeks, and after that point, they are only legal to save the mother s life. Thus we may summarise the view in the following way: a woman and her doctor may freely decide to terminate a pregnancy during the first trimester. State governments can restrict abortion access after the first trimester with laws intended to protect the woman s health. abortions after fetal viability must be available, if the woman s health or life is at risk; state governments can prohibit other abortions. B. TRUTH In 1993 the US Supreme Court in the case of Roe V. Wade held that, the right of privacy grounded in the concept of personal liberty, guaranteed by the ninth and fourteenth amendment to the US constitution, included a woman s right to decide whether or not to have an abortion. The Court recognised the state s interest in protecting maternal health and preserving the life of the fetus, but 42

12 said that a woman s right to privacy was a paramount fundamental right and could be interfered with only if the state could show a compelling interest. The Court analysed the right to abortion based on different states of pregnancy. (1) During the first trimester, a woman has a right to have an abortion free from interference by the state or the federal government; the decision is between the woman and her physician. (as we have discussed before). (2) During the second trimester, due to dangers to the health of the mother, the state can establish licensing requirements for facilities in which the procedure is to be preformed and requirements concerning reporting and record keeping. (3) During the third trimester, the viability of the fetus allows the state s compelling interest in the protection of fetal life to be dominant over the mother s right to privacy. A basic legal rule for medical practice is that, a procedure cannot occur without first obtaining consent from the patient for which the latter must be told of the risks, benefits and alternatives to any procedure. The Supreme Court regards parent s consent over child s abortion as constitutional, while spousal consent is unconstitutional. Thus, on the ground of right to privacy, abortions are legal, without state interference, virtually any time the mother chooses during the nine months of pregnancy. 43

13 3.4 THE HISTORIC DECISION OF ROE V. WADE (1973) A. BACK-ALLEY ABORTIONS The prohibition of legal abortion from the 1880s until 1973 came under the same anti-obscenity or Comstock Laws that prohibited the dissemination of birth control information and services. Criminalization of abortion did not reduce the number of women who sought abortions. In the year Roe V. Wade, the estimates of illegal abortions ranged as high as 1.2 million per year. 13 Although accurate records could not be kept, it is known that between the 1880s and 1973, many thousands of women were harmed as a result of illegal abortion. Many women died or suffered serious medical problems attempting to self-induce their abortions or going to untrained practitioners who performed abortions with primitive methods or in unhygienic conditions. Some women were able to obtain relatively safer, although still illegal, abortions from private doctors. This practice remained prevalent for the first half of the twentieth century. The rate of reported abortions then began to decline, partly because doctors faced increased scrutiny from their peers and by hospital administrators who were concerned about the legality of their operations. Between 1967 and 1973 (as mentioned in previous section) one-third of the states liberalized or repeated their criminal abortion laws. However, the right to have an abortion in all states was only made available to American women in 1973 when the Supreme Court struck down the remaining restrictive state laws with its ruling in Roe V. Wade. 44

14 B. ROE V. WADE (1973) No decision of the Supreme Court in the twentieth century has been as controversial as the 1973 Roe V. Wade decision holding that women have a right to choose to have an abortion during any time in her pregnancy. The 1973 Supreme Court decision in Roe V. Wade made it possible for women to get safe, legal abortions from well trained medical practitioners. This led to dramatic decrease in pregnancy related injury and death. January 22, 1973 is a day that, in the eyes of many modern feminists, marked a giant step forward for women s rights on the ground that the U.S. Supreme Court announced that women have the right to make decisions about their own bodies. The decision strikes down state laws that made abortion illegal. Fetuses, prior to viability, do not have rights. Therefore, until the fetus is old enough to have rights of its own the woman s decision to have an abortion takes precedence over the interests of the fetus. The specific right of a woman to make the decision to terminate her own pregnancy without state interference is generally classified as a privacy right implicit in the Ninth and Fourteenth Amendments, but there are other constitutional reasons why a woman has the right to terminate pregnancy. The Ninth Amendment states that, certain rights not specified in the first eight amendments, are reserved for the people. The Fourteenth Amendment, for example, specifies that citizens have the right to be secure in their persons, the Thirteenth specifies that {n}either slavery nor involuntary servitude... shall exist in the United States. Even if the privacy right cited in Roe V. Wade were dismissed, there are numerous other constitutional arguments that imply a woman s right to make decisions about her own reproduction process. 45

15 Roe V. Wade s decision became one of the most politically significant Supreme Court decisions in history, reshaping national politics, dividing the nation into pro-choice and pro-life camps and inspiring grass roots Supreme Court decision establishing that most laws against abortion violate a constitutional right to privacy, thus overturning all state laws outlawing or restricting abortion that were inconsistent with the decision. Jane Roe, the plaintiff wanted to terminate her pregnancy because she contended that it was a result of rape. Relying on the current state of medical knowledge, the decision established a system of trimesters that attempted to balance the state s legitimate interests with the individual s constitutional rights. The court ruled that the state cannot restrict a woman s right to an abortion during the first trimester; the state, however, can regulate the abortion procedure during the second trimester in ways that are reasonably related to maternal health. In the third trimester, democrating the viability of the fetus, a state can choose to restrict or even to prescribe abortion as it sees appropriate. In response to Roe V. Wade, several states enacted laws limiting abortion, including laws requiring parental consent for minors to obtain abortions, parental notification laws, laws requiring abortion to be performed in hospitals but not clinics, laws barring state funding for abortions, laws banning most very late term abortions. The Supreme Court struck down several state restrictions on abortions in a long series of cases stretching from mid 1970s to late 1980s. 46

16 C. U.S. SUPREME COURT S REACTION ON RIGHT TO PRIVACY WHICH INCLUDES ABORTION In deciding Roe V. Wade, the Supreme Court related that a Texas Statute forbidding abortion except when necessary to save the life of the mother was unconstitutional. The Court arrived at its decision by concluding that, the issue falls under the right to privacy. In its opinion it listed several landmark cases where the Court had previously found a right to privacy implied by the constitution. The Court did not recognize a right to abortion in all cases: State regulation protective of fetal life offer viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to prescribe abortion during that period, except when it is necessary to preserve the life or health of the mother. The Court held that, a right to privacy existed and included the right to have an abortion. The Court found that a mother had a right to abortion until viability 14, a point to be determined by the abortion doctor. After viability a woman can obtain an abortion for health reasons, which the court defined broadly to include psychological well-being. A central issue in the Roe case (and in wider abortion debate in general) is whether human life or personhood begins at conception, birth, or some point in between. The court declined to make an attempt at resolving this issue, noting: We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man s knowledge, is not in a position to speculate as to the answer. Instead, it 47

17 choose to point out that, historically, under English and American common law and statutes, the unborn have never been recognized... as persons in the whole sense and, thus, the fetuses are not legally entitled to the protection afforded by the right to life specifically enumerated in the Fourteenth amendment. So rather than asserting that human life begins at any specific point, the court simply declared that, the state has a compelling interest in protecting potential life at the point of viability. Following viability, the state s interest permits it to regulate and even prescribe an abortion except when necessary, in appropriate medical judgment, for the preservation of the life or health of mother. D. PLANNED PARENTHOOD V. CASEY In 1992 planned parenthood V. Casey became the vehicle for overturning Roe case. Roe established that the right of personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation. Roe established a trimester system of increasing state interest in the life of the fetus corresponding to its increasing viability over the course of a pregnancy, such that states were prohibited from banning abortion early in pregnancy, but allowed to impose increasing restrictions or outright bans later in pregnancy. That decision was modified by the 1992 case Planned Parenthood V. Casey, which upheld the central holding in Roe that, there is a fundamental right to privacy encompassing the decision about abortion, but replaced the trimester system with the point of fetal viability as defining a state s right to override the woman s autonomy. Casey also lowered the legal standard to which states would be held in justifying restrictions imposed on a woman s rights. Roe 48

18 held this to be strict scrutiny the traditional Supreme Court test for impositions upon fundamental constitutional rights, whereas Casey created a new standard referring to undue burden, specifically to balance the state s and the woman s interests in the case of abortion. COMPARISON OF ROE AND CASEY REGULATORY FRAMEWORKS ROE FRAMEWORK NO REGULATION PERMITTED CAN REGULATE ABORTIONS TO PROTECT THE HEALTH OF MOTHER STATE FREE TO BAN ABORTIONS TO PROTECT FETAL LIFE MONTHS OF PREGNANCY CASEY FRAMEWORK CAN REGULATE ABORTIONS IF NOT UNDUE BURDEN ON RIGHT VIABILITY STATE FREE TO BAN ABORTIONS TO PROTECT FETAL LIFE MONTHS OF PREGNANCY 3.5 LIFE BEFORE ROE: A BRIEF SURVEY OF U.S. ABORTION LAW BEFORE THE 1973 DECISION Yet because the facts surrounding abortion and abortion law in the first 200 years of history are not common knowledge, many are not aware that for nearly all of our world s existence, taking the life of a baby in the womb was prohibited. In fact, to those who have grown up in the post Roe era, who have been taught little history, and who listen to pro-abortion rhetoric, the opposite may 49

19 seem true. To these young people, it may appear that the United States was founded upon and has always guaranteed freedom of choice in abortion. Until 1973, however, the pre-born baby was protected by American law. In the years prior to and immediately after the American Revolution, colonist and citizens followed the rule of law brought by British settlers. Rather than being a code of statutes passed by a legislature and printed in a book, the common law was a set of legal standards established in England through Court decisions and legal custom. According to Sir William Blackstone, the renowned eighteenth century English jurist, under common law, the abortion of a quickened fetus was a very heinous misdemeanor. At that time the penalty for misdemeanors could be severe loss of a limb, confiscation of property or life in prison. Quickening when a pregnant woman first feels her child move generally occurs in the fourth month. Scholars have noted that the common law requirement of a quickened baby for the crime of abortion was probably based on a very practical consideration. Since there were no pregnancy tests in the eighteenth century, evidence that a baby s movement had been felt might have been the only way to establish with any certainty in a Court of law, that a pregnancy had exited. The first U.S. law against abortion, adopted by Connecticut in 1821, criminalized the administration of poison or of any destructive substance to induce a miscarriage. It applied only to cases where the baby had quickened. In 1840, however, Maine became the first state to pass a law that expressly protected all babies, quick or not. The abandonment of the quickening 50

20 requirement coincided with the nineteenth century discovery of how conception takes place. The public, lawmakers and jurists became aware of the scientific fact that life begins when a sperm enters an ovum. In the mid-19 th Century, the newly formed American Medical Association undertook to organize physicians and medical societies in support of laws against abortion. An 1859 AMA committee investigating abortion stated in its conclusions that one reason for... the frightful extent of [abortion in the U.S] is found in the grave defects of our laws, both common and statute, as regards the independent and actual existence of the child before birth, as a living being. These errors, which are sufficient in most instances to prevent conviction, are based, and only based upon mistaken and exploded medical dogmas. In the twenty years following this AMA report, aided by lobbying from the medical profession, 31 states passed or amended their laws on abortion to protect pre-term infants at all stages of gestation. Pro-abortion historians claim that, these laws were passed primarily, if not solely, to protect women from possibly total abortions. All surgeries at that time involved substantial risks of death. If legislators were motivated to pass anti-abortion statutes only to protect women, why did they not protect other patients by banning other potentially dangerous fatal elective surgeries? Coincidentally or not during this period, the pro-life legislative activity congress was passed and 28 states rectified the 14 th Amendment, prohibiting any state from depriving any person of life, liberty, or property without the due process of law

21 In 1967, state abortion laws began to change, but only after years of organized campaigns and by pro-abortion forces. The American Law Institute (ALI) proposed, in its 1959 model criminal code for all the states, a reformed abortion law. The model, approved by ALI in 1962, declared that abortion should be permitted for the physical or mental health of the mother, for fetal abnormality, and for rape or incest. While the leaders of the American legal community promoted radical changes in state abortion law, a 1962 case in Arizona generated sympathetic press coverage of the notion of justifiable abortion. Mrs. Sherri Finkbine, a married mother, made public her intention to abort her fifth child. She had taken some sleeping pills (which are associated with birth defects) and aborted her baby. In June 1967, the American Medical Association voted to change that body s long-standing opposition to abortion. With a new resolution, the AMA now condoned abortion for life or death of the mother, for a baby s incapacitating physical deformity or mental deficiency, or for cases of rape or incest. The same year, Colorado, North Carolina, and California became the first states to adopt versions of the ALI reformed abortion law. By 1970, though, four states New York, Alaska, Hawaii and Washington passed laws that basically allowed abortion on demand. Of those four, New York s was the only law without a residency requirement and the state quickly became the nations abortion capital. The pro-abortion onslaught began to face opposition, as pro-life forces organized. In 1972, the New York legislature voted to repeal the state s liberal abortion law, but Governor Nelson Rockefeller vetoed the repeal. 52

22 Just as pro-lifers were beginning to turn the tide, the Supreme Court banned Roe V. Wade in January With one judicial stroke, over 200 years of legal protection for the unborn, was rendered null and void. For the first time in American history, abortion was the Law of the land ABORTION LAW FROM WESTERN PERSPECTIVES A. COUNTRIES WHICH ENTIRELY BAN ABORTION Chile is one of the four countries, with EL Salvador, Malta and most recently Nicaragua, where there is no legal exception to the ban on abortion to save the woman s life, which creates serious dilemmas and vulnerabilities for both women and medical practitioners. The Chilean abortion law is considered the most restrictive in the world. Current laws against abortion are modified in the penal code articles 342 to 345 under the title crimes and offences against Family order, Public morality and Sexual Integrity. The current penal laws consider a woman s life to be subordinate to that of the fetus in gestation. The country s constitution in article 19-1, states that the law protects the life of those about to be born. Abortion in EL Salvador is also illegal. The law formerly permitted abortion to be performed under some limited circumstances, (a) if the pregnant woman s life was endangered and abortion was the only means to preserve it, (b) if her pregnancy had resulted from rape or statutory rape, or (c) if a serious congenital disorder 16 was detected in the fetus. The government also provided reduced penalties for a woman of good standing if she had consented to an illegal 53

23 abortion, or self-induced one, in the interest of protecting her reputation. But in 1998, all exceptions were removed when a new abortion law went into effect. El Salvador also amended its constitution in January 1999 to recognize human life from the moment of conception. Similarly, abortion in Malta was completely banned in 1981, changing a prior law which allowed it to be performed to save the lives of pregnant woman. Abortion in Nicaragua is completely illegal. Prior to a change in the law, which took effect on 18 November 2006, the law allowed pregnancies to be terminated for therapeutic reasons, so long as the woman and three doctors consented to it. It applied to cases in which the pregnant woman s life is endangered. B. COUNTRIES WHICH PLACE NO RESTRICTIONS ON ABORTION Canada is one of the only few nations with no legal restrictions on abortion. In 1969 Parliaments passes amendments to Section 251 of the criminal code, decriminalizing contraception, and allowing some abortions under extremely restricted conditions. But on January 28, 1988, the Supreme Court of Canada struck down Canada s abortion law as unconstitutional, because the law is found to violate section 7 of the chapter of Rights and Freedom, because it infringed upon a woman s right to life, liberty and security of a person. The Supreme Court of Canada refused the claim that the fetus has a constitutionally guaranteed right to life. In this context the federal government introduces Bill C- 43, an amendment to the criminal code that would prohibit abortion unless a doctor finds the pregnancy as a threat to the woman s physical, mental or psychological health. 54

24 United Kingdom also considered abortion to be a crime for long time, under the offences against the person Act of This changed in 1929 with Infant Life (Preservation) Act, which allowed an abortion to be carried out when the life of the mother was at risk. The biggest change to U.K. law with regard to abortion was the Abortion Act (1967), introduced by the liberal MP David Steel, which allowed a woman to have an abortion if there was risk of injury to her, or her existing children s physical or mental health, in consent or with the permission of two doctors. 3.7 ABORTION LAW IN INDIA A. LEGALISING ABORTION IN INDIA Abortion in India is illegal. The Indian Penal code, enacted in the nineteenth century declared abortion as a crime for which the mother as well as the abortionist could be punished, except where it had to be induced in order to save the life of the mother. Thus Indian law, like its Western counterpart, allows abortion only in special circumstances, that is, if the continuance of pregnancy involves a risk to the life of the pregnant woman or grave injury to her physical or mental health. Abortion was practised earlier by many, though in a clandestine manner since it was illegal. The passing of the Act made medical termination of pregnancy legal with certain conditions for safeguarding the health of the mother. In India the issue of abortion is governed by the Medical Termination of Pregnancy Act The purpose of enacting the said law was to liberalize the provisions relating to the termination of pregnancy on the following grounds in section 3 of the said Act: 55

25 (a) As a health measure where there is a danger of life or risk to physical or mental health of a woman. (b) On humanitarian grounds such as when pregnancy arises from a sex crime like rape or intercourse with a lunatic or contraceptive failure etc. (c) Eugenic grounds where there is a substantial risk that the child, if born, would suffer from serious deformities and diseases. Under the Act, a pregnancy may be terminated in a hospital established or maintained by the Government or in a place approved by the Government. A pregnancy may be terminated by a registered medical practitioner where the length of the pregnancy does not exceed twelve weeks. To terminate a pregnancy, the medical practitioner must have formed the opinion in good faith, that the continuance of the pregnancy would involve a risk to the life of the pregnant woman or involve grave injury to her physical or mental health, or that there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. (If any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the pregnancy is presumed to constitute a grave injury to the mental health of the pregnant woman. Where the pregnancy does not exceed twelve weeks it may be terminated by a registered medical practitioner, provided that at least two registered medical practitioners, in good faith have decided on the above. In all cases of termination of pregnancy, the consent of the pregnant woman had to be taken. However in case the pregnant woman is below the age of eighteen, or who, having reached the age of eighteen, is a lunatic, the written consent of her guardian is necessary. 56

26 Section V of the Act provides that a pregnancy can be terminated by a registered medical practitioner at a place other than a government hospital or a government approved place at any stage (that is even if a pregnancy is more than twelve weeks), if the registered medical practitioner forms an opinion in good faith, that the termination of such pregnancy is absolutely necessary to save the life of the pregnant woman. B. LEGAL PROVISION UNDER MTP ACT The Medical Termination of Pregnancy Act of 1971, which went into effect on 1 April 1972, significantly liberalized abortion laws in India. The Bill was passed by both the Houses of the Parliament and received the assent of the President of India on the 10 th August, It came on the Statute Book as the The MTP Act, This law guarantees the Right of women in India to terminate an unintended pregnancy by a registered medical practitioner in a hospital established or maintained by the Government or a place being approved for the purpose of this Act by the Government. Prior to enactment of the legislation, the Indian Penal Code (Act no. 45 of 1860) permitted abortion only when it was justified for a good faith with the purpose of saving the life of the woman. Article 312 of the penal code provided that any person, performing an illegal abortion, was subject to imprisonment for three years and /or payment of fine, if the woman was quick with child ; the punishment was imprisonment for up to seven years and payment of a fine. The same penalty applied to a woman who induced her own miscarriage. 57

27 It is an Act to provide for the termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental there to Be it enacted by Parliament in the twenty-second year of the Republic of India as follows: A brief note on the MTP Act of 1971:- It extends to the whole of India except the state of Jammu and Kashmir. It shall come into force on such date as the central Government may, by notification in the official Gazette, appoint. This Act, unless the context otherwise, requires (a) guardian means a person having the care of the person of a minor or a lunatic; (b) Lunatic has the meaning assigned to it in section 3 of the Indian Lunacy Act, 1912 (4 of 1912), (c) minor means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875), is to be deemed not to have attained his majority; (d) registered medical practitioner means a medical practitioner, who possesses any recognized medical qualification as defined in C.I (h) of section 2 of the Indian Medical Council Act, 1956 (102 of 1956), whose name has been entered in a state Medical Register and who has such experience or training in gynaecology and obstetrics as may be prescribed by rules under this Act. The Act involves following conditions for termination of pregnancy: (1) Not withstanding anything contained in the Indian Penal code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under the 58

28 code or under any other law for the time being in force, if under that law pregnancy is terminated by him in accordance with the provisions of this Act. (2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner (a) where the length of the pregnancy does not exceed twelve weeks or (b) where the length of the pregnancy exceeds twenty weeks, if and at least two registered medical practitioners have, formed their opinion, in good faith, that (i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or would involve grave injury to her physical or mental health; that (ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. As rejoinders to the above, the MTP also involves: (1) In determining whether continuance of the pregnancy would involve a risk of injury to the health of the pregnant woman, the Act allows that account should be taken of the woman s actual or reasonably foreseeable environment including the anguish caused by a pregnancy resulting from rape, incest etc. (2) Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman. 59

29 (3) In determining whether the continuance of pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account should be taken of the pregnant woman s actual or reasonable foreseeable environment. (4)(a) No pregnancy of a woman, who has attained the age of eighteen years, or, who having attained the age of eighteen years, is a lunatic, shall be terminated except with the consent in writing of her guardian. (b) Save as otherwise provided in CI. (a), no pregnancy shall be terminated except with the consent of the pregnant woman. The Act involves following grounds/places where pregnancy may be terminated No termination of pregnancy shall be made in accordance, with this Act at any place other than (a) a hospital established or maintained by Government, or (b) a place for the time being approved for the purpose of this Act by Government. Now, let us consider the grounds where or when section 3 and 4 cannot be applied. 1. The provisions of section 4 and so much of the provisions of sub-section (2) of section 3 relate to the length of the pregnancy and the opinion of not less than two registered medical practitioners, the termination of a pregnancy by the registered medical practitioner in case where he is of opinion, formed in good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman. 2. Not withstanding anything contained in the India Penal Code (45 of 1806), the termination of a pregnancy by a person who is not a registered medical 60

30 practitioner shall be an offence punishable under that code, and that code shall, to this extent stands modified. Now let us see who have the power to make rules and regulations: Power to make rules (1) The Central Government may, by notification in the official Gazette, make rules to carry out the provisions of this Act. (2) In particular, and without prejudice to the generality of the power, such rules may provide for all or any of the following matters namely: (a) the experience or training, or both, which a registered medical practitioner shall have if he intends to terminate any pregnancy under this Act; and (b) such other matters as are required to be or may be, provided by rules made under this Act (3) Every rule made by the Central Government under this Act shall be laid, as soon as it is made, before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two successive sessions, and if, before the expiry of the session which it is so laid or the session immediately following both Houses agree that any modification in the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; however, any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule. Power to make regulations (1) The State Government may have the power to make regulations, 61

31 (a) require any such opinion as is referred to in sub-section (2) of section 3 to be certified by a registered medical practitioner or practitioners concerned in such form and at such time as be specified in such regulations, and the preservation or disposal of such certificates. (b) require any registered medical practitioner, who terminates a pregnancy to give intimation of such termination and such other information relating to the termination as may be specified in such regulations. (c) prohibit the disclosure, except to such persons and for such purposes as may be specified in such regulations, of intimations given or information furnished in pursuance of such regulations. (3) The intimation given and the information furnishes in persuance of regulations made by virtue of CI(b) of sub-section (1) shall be given or furnishes, as the case may be, to the chief Medical Officer of the state. (4) Any person who wilfully contravenes or wilfully fails to comply with the requirements of any regulation made under sub-section (1) shall be liable to be punished with fine which may extend to one thousand rupees. Now, by the following discussion we can know how to protect the action taken in good faith: Now suit or other legal proceedings shall lie against any registered medical practitioner for any damage caused or likely to be caused by anything which is done in good faith or intended to be done under this Act. 62