The Pro-Choice or Pro-Life Debate: A Comparative Analysis of the Abortion Laws in USA, India and Chile

Ayushi Lakshmi Verma & Kavya Maheshwari*

“Chosen motherhood is the real liberation. The choice to have a child makes the whole experience of motherhood different, and the choice to be generative in other ways can at last be made, and is being made by many women now, without guilt.”

― Betty Friedan, The Feminine Mystique

Introduction

Abortion is a socio-legal phenomenon. Each country enacts laws to bring positive changes while at the same time conforming to local values and customs. The laws relating to abortion are not uniform across the globe. As such, it becomes imperative to study the different approaches taken by different countries in order to regulate this issue. Although we are in the 21st century, many countries have taken a parochial approach to dealing with abortion, the latest being the USA. Despite being one of the most progressive countries in the world, the Supreme Court of the USA overturned its 40-year-old judgment in Roe v. Wade. In this case, the right to abortion was declared to be a fundamental right under the ambit of privacy stemming from the due process clause of the Fourteenth Amendment to the U.S. Constitution. 

On the other hand, Chile, a nascent democracy, was looking forward to enacting a new Constitution wherein the framers wanted to confer the right to abortion as a fundamental right. However, the Constitution did not get the requisite number of votes in the referendum held therein. In India too, there was a recent change in jurisprudence with regard to abortion rights. The Supreme Court of India, in a very recent judgment of X v. Principal Secy, upheld the rights of unmarried women to abortion. The SC gave a liberal interpretation to the wording of the Medical Termination of Pregnancy Act in order to expand the protection of the law to unmarried women as well.

In light of these events in these three countries, various issues have surfaced with regard to the rights of women. The first issue is whether the right to abortion should be raised to the pedestal of a constitutional right. Secondly, in the Indian context, there is a disparity in the treatment of married and unmarried women with regard to their abortion rights. This differential treatment has no nexus to the object of the law regulating abortion. Thirdly, at a time when lawmakers should be more liberal in giving women their due share of rights, they are stripping them of the same rights as seen in the USA.

Endless Tussle in Chile over Abortion Rights

Chile, a Latin American nation, is predominantly influenced by Roman Catholic values and traditions which do not equate abortion rights with human rights. In 2019, there was an outrage and outbreak of mass protests for the replacement of the nation’s ‘Pinochet-era charter’- ‘an outdated constitution’ introduced 40 years ago. Under the conservative constitution only three legal ways were permitted for abortion in Chile - danger to a woman’s life, embryonic or foetal impairment or malformation incompatible with life and pregnancy arising in rape cases. This made it difficult to access legal abortion for women not falling into the above three categories and therefore, they continued to seek it illegally. 

On March 15, 2022, the Chilean feminist “green wave” advocating for continent-wide abortion legalization faced a setback. Despite pushing for sexual and reproductive rights, including autonomy over one's body, the referendum met rejection in 2022. The majority of Chilean citizens deemed the cause too radical.

Another attempt for a new constitution continued in December 2023, wherein the abortion debate was stirred further with the most controversial tenets of a provision that protects the “life of that is to be born.” Which, if enforced, aims to criminalize the only available and permissible abortion grounds for Chilean women. The new draft constitution supports and supplements the ‘pro-life’ ideology as opposed to the idea postulated by the “pro-life choices” as it provides the right to institutions to object against the existing laws according to their religious values. This new draft constitution, which intended to reverse the abortion laws and promote Catholic moral values failed to gain the support of Chilean citizens and was again rejected recently. This has thus become a frustrating situation for Chilean women, as they are still not able to make ‘pro-life choices’ concerning their bodily autonomy and dignity. 

Evolution of Abortion Rights in India: Overcoming Marital Status Disparities

Premarital sexual relations have increasingly been documented all over the world. There are several factors responsible for it: an increase in the age of marriage for both girls and boys; access to education; exposure to mass media; and changing dimensions of the archaic division of labour. Women today do not identify themselves as only child-bearers but rather as equal participants in the labour force who have an equal right to liberty, dignity, and reproductive rights. 

As such, because of the increase in premarital sexual relations, the risk of unwanted pregnancy also increases. Access to safe abortion practices is much more difficult for unmarried women than for married women. The social stigma associated with illegitimate children and loss of reputation is a major factor that puts unmarried women in a disadvantaged position, thereby forcing them to opt for unsafe abortion practices. 

In most countries, the laws governing abortion have been framed in general terms, i.e., they are equally applicable to married and unmarried women. For example, in the USA prior to the SC judgment in Dobbs, the right to abortion was a constitutional right for all women, irrespective of their marital status. In this judgement, the US Supreme Court by a 6:3 majority held that the right to abortion does not fall under the concept of liberty as recognised in the 14th Amendment. The Court also stated that since the concept of abortion was not “deeply rooted” in the history and tradition of the country it could not be given a constitutional status.

In India, however, the marital status of a woman was an important factor in determining her abortion rights. Prior to the MTP (Amendment) Act, 2021 unmarried women were not at par with married women. While a married woman could claim failure of contraceptive as a ground for abortion, an unmarried woman could not. This position however has been changed after the latest amendment.

Another point of difference is seen in Section 3 of the MTP Act, 2021 “where the upper limit for the termination of pregnancy is 24 weeks for married women and women of special categories while the upper limit for unmarried women in consensual relationships is 20 weeks”. 

In a recent case, the SC sought to remove this arbitrary discrimination against unmarried women by holding that the word “partner” instead of “husband” in the explanation to Section 3 indicates the legislative intent that unmarried women are well within the purview to access abortion up to 24 weeks and that it does not intend to restrict its application to matrimonial relationships. 

Pro-Life v. Pro-Choice

The entire conundrum around the legality of abortion rests on the debate over whether to support either pro-life or pro-choice. Supporters of the pro-life argument suggest that the foetus is a person in itself and is entitled to rights. Although this is true to some extent, to give primacy to foetal rights over the child-bearer’s rights would constitute an infringement on the women’s right to liberty and privacy. Women are the carriers of the child, and they should have every right to exercise the choice of either carrying the child or not.  At any point, when deciding whether the woman’s rights should be subordinate to the foetus’ rights, “one must justify this hierarchy of rights by recourse to one or more of three reasons:

 (1) the welfare of the foetus; (2) the health or happiness of the mother; or (3) the overall future of the family into which the unwanted child would be born”.

”

In order to have autonomy over their bodies and sexuality, both women and men must enjoy reproductive freedom. Women's reproductive rights are essential to achieving gender equality and advancing toward just and democratic societies on a global scale. Reproductive rights are inclusive of the right to procreate, the right to abortion, and the right to choose the method of family planning and contraception.

Position of International Conventions

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) is one of the few universal treaties that safeguards women’s rights, including their sexual and reproductive health rights. Chile and India have both signed and ratified this treaty; surprisingly, the USA is one of the seven countries that have yet to ratify the treaty. This becomes a more important issue in the wake of the recent judgment of the US Supreme Court overturning its five-decade-old precedent wherein the right to abortion was extinguished as a constitutional right. Article 12 of the CEDAW Convention includes the right to bodily autonomy and encompasses women’s and girls’ sexual and reproductive freedom. 

In the Indian context, unmarried women were placed in a subordinate position in comparison to married women when it came to abortion rights prior to 2022. The legislature had failed to recognise the socio-cultural stigma associated with abortion and, more importantly, with illegitimate children. Restrictive laws pave the way for quacks to practice unsafe abortion procedures, non-prescribed medications and forced abortions which eventually leads to a rise in the mortality rate. Such laws also fail to pass the test of equality as enshrined in Article 14 of the Constitution.

This position was nullified and rectified by the SC judgment which acknowledged the plight of unmarried and single women by providing them access to safe abortion. The court took note of the changing material realities (financial, situational and social) and unique circumstances of individuals’ and held that the ultimate right to procreate or abstain from it is the prerogative of the pregnant woman herself and shall not be disregarded if it is unaccounted for by the prevailing law. According to the "classification test," for a legislation to withstand Article 14 scrutiny, there must be:

“(a) an intelligible differentia between the individuals or groups that are subjected to differential treatment, and 

(b) a rational nexus between that differentia and the State’s purpose in framing the law”.

The differentiation between married and unmarried women does not stand this test because, firstly, both categories of women suffer the same mental and physical health hazards of unwanted pregnancies. Secondly, as declared by the SC “the distinction between a married and unmarried woman does not bear a nexus to the basic purpose and object of the Act”  which the Parliament sought to achieve. It is also imperative to note that as stated above, the Indian SC has recognised that reproductive rights form a key aspect of the right to privacy under Article 21 of the Constitution. It has been observed that being unmarried itself poses a risk for the woman as the attached stigma creates a ripple of other issues such as  “lack of easy access to abortion facilities, lack of partner and family support and fear of disclosure” which increases the risks associated with abortion.

Concluding Remarks

It is evident that abortion is viewed from a different spectrum, serving diverse needs and being associated with socio-economic and cultural stigmas. Due to which there can be no universalist approach to this issue though women’s needs are universal, which makes it prone to a plethora of convoluted laws and policies. Constitutional courts across the globe have recognized the decriminalization of abortion and upheld that the right to abortion is an essential and irrefutable aspect of women’s reproductive and fundamental rights. This can be implemented through easy access to abortion care and other related services, feasibility and affordability, self-determination and the free consent of the woman to make an informed decision and not be penalized for seeking abortion. On the other hand, the restrictive and coercive abortion law reforms will make women vulnerable to victimization and more prone to discrimination resulting in illegal abortions and delay in seeking medical help in case of complications, which will turn into life-endangering health risks. 

The right to abortion should be given a constitutional status by the legislatures across different jurisdictions so as to put an end to the miseries and victimization especially of unmarried women and single women - ‘a lesson to be learnt from India’. This will entail their right to reproduction, dignity, integrity and self-determination so as to detach themselves from societal norms and stereotypes where premarital sex resulting in pregnancy is a sin. The transformation of an aged democracy like the USA from a progressive nation to a repressive one by an outright ban on abortion; a developing democracy like India recognizing abortion as a facet of the fundamental right to bodily integrity and dignity, and an attempt in progress at transfiguration by a Roman Catholic inclined country like Chile into a modernized and reformist one by the inclusion of reproductive rights and bodily autonomy in its newly drafted constitution, making voluntarily terminating of pregnancy a constitutional right will be truly a historical and remarkable moment for the recognition of reproductive freedom (pro-choice).

*Ayushi Lakshmi Verma & Kavya Maheshwari are LLM Graduates from National Law University, Jodhpur

The views expressed above are the authors' alone and do not represent the beliefs of Pith & Substance: The CCAL Blog.