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SC’s judgment on abortion law shows how courts play crucial role in upholding inclusivity

Campus Voice is an initiative by ThePrint where young Indians get an opportunity to express their opinions on a prevalent issue.

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On 28 September the Supreme Court recognised the ‘reproductive autonomy of all women regardless of their marital status. The apex court deemed it unconstitutional to distinguish between married and unmarried women, extending the medical termination of pregnancy from 20 weeks to 24 weeks. Incidentally, this judgement coincided with World Abortion Day.

It is essential to look at how Justice DY Chandrachud starts the verdict with “Before we embark upon a discussion on the law and its application, it must be mentioned that we use the term ‘woman’ in this judgment as including persons other than cis-gender women who may require access to safe medical termination of their pregnancies.” The mention of ‘all women, including other than cis-gender women’ indicates that the country’s apex court is both aware of and has evolved to tackle the question of gender equality prevailing in contemporary times.

The term cisgender means that a  person identifies with the gender identity and expression with the one assigned at birth to them. We often give gender identity to babies based on their physical characteristics. Increasingly, people believe that gender is a social construct, i.e. to act or look a particular way because of your physical characteristics. Sociocultural norms often fixate on the gender identity of an individual in a society and condemn any deviation from the established norms for a particular sex.

Numerous children growing up do not conform to the gender identity assigned to them at birth. They might identify as agender, bi-gender, or non-binary, among other types of gender identities. Under the current scenario, there is a complete denial of sexual and reproductive healthcare provisions for trans persons, especially trans-men. The acknowledgement of the apex court in recognising abortion services is also essential for trans persons is a welcome change.

Also read: India and US went pro-choice around the same time. Only one strengthened its abortion laws

The judgment

The Medical Termination of Pregnancy (MTP) Act 2021, under its rule (Section 3B), only allowed specific categories of women to be eligible for an extension of abortion up to 24 weeks. Rule 3B (a) states that—“survivors of sexual assault or rape or incest” allow women to terminate their up to 24 weeks.

In its expansion of rule 3B (a), the court held that it would include married women under its ambit for this purpose. The court said, “it is not inconceivable that married women become pregnant as a result of their husbands having “raped” them”.  While this will not account for the criminalisation of marital rape and its exception under the Indian Penal code, the apex court’s cognisance of such an affair amounts to a foreseeable future where marital rape is a punishable offence.  It is only a matter of time before the courts decide to strike down the exception of marital rape.

In expanding the definition of women, the supreme court has batted for inclusivity for LGBTQIA+ and gender-diverse persons. Ultimately, the court upheld the reproductive autonomy of birthing persons and their right to make reproductive choices without the state’s involvement. It addressed that denying access to abortion facilities to single women up to 24 weeks will be violative of Article 14  of the Indian Constitution, which guarantees equality before the law and equal protection of laws. I believe the apex court has taken a high road ahead by addressing these issues and laid the path to more progressive judgements.

The author is a student at Delhi School of Journalism, University of Delhi. Views are personal

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