Abstract
This paper study how India and USA recognize and protect women autonomy in matters of abortion the author has done a comparative analysis of abortion laws in both the countries where the main focus is on the judicial precedents , legislation and also on the societal and religious influence on reproductive choices of women in India the legislator made abortion laws with an intention to protect the reproductive rights and choices of women parliament has passed an act name as [1]Medical Termination of Pregnancy act 1971 which was amended in 2021[2] allows termination of pregnancy up to 24 weeks in case of rape , incest or minor , The supreme court also played a very crucial role in protecting the interest of women as the top court through the [3]KS : Puttaswamy v. Union of India case held every person has a right to privacy and decisions relating to a person own body is a private matter ,Under article 21[4] of the constitution of India . India has a progressive approach toward abortion laws as it allow women to have a right over her own body meanwhile USA. Adopts a restrictive approach toward women reproductive choices as the USA supreme court in the [5]Dobbs v. Jackson Women Health Organization judgement confer different states with the power to have different abortion laws now most of the states in us completely ban abortion but some states like California and new York adopt liberal abortion laws . USA follow a constitution which is separate from the church but it has some religious influence on its abortion laws as states with catholic Christians have strong religious beliefs against abortion so the states like Florida and Texas ban abortion but in certain exceptions abortion is allowed , These states have highly restrictive abortion laws .
Introduction
The question of women bodily autonomy is a debatable issue for decades , especially in a country like India in India several questions have been raised on the reproductive choices of women is some places women face difficulties in making decision for themselves due to societal pressure sometimes women are forced to do abortion irrespective of their own wishes and in some places women are forced to
Give birth to a child in both cases her right to a reproductive choice get violate , their has been various instances when women are forced to do abortion by unsafe means as the family came to know about the gender of child they want to kill the child if the unborn baby is a girl our society treat women as a burden on them they rather prefer male child , earlier sex determination tests were very much prevalent in our country this lead to all these situations but now things are changing with education people are now understanding about gender equality govt under the Sustainable development goal commit to achieve gender equality by 2030 .
Legal and Historical framework
In India unauthorized abortion was punishable under the [6]Indian Penal Code sections 312-316 if any person cause miscarriage to a women he was supposed to be punish by the law but now under the new law the [7]Bharatiya Nyaya Sanhita 2023 if a women herself caused abortion she will also be penalize under the section 88[8] of BNS and section 89[9] separately deal with abortion caused without the consent of women if a person without consent of a women caused her miscarriage then they will be penalize , A women is allowed to do abortion only if it is in good faith now the law is strict it allow abortion with certain important guidelines eg under the MTP act 2021 abortion can be done after the consultation and supervision by two registered medical practitioner if gestational period is up to 24 weeks abortion by any other means is strictly prohibited and punishable by the law of the land . In India the MTP act allow abortion up to 24 weeks but recently the Bombay high court allow abortion up to 25 week to an unmarried woman citing reproductive freedom and mental distress ,The Delhi High Court also allowed abortion up to 27 week to 16 year old minor rape victim and the Apex court also allowed termination of pregnancy to a 25 year old rape survivor supreme court give remark that forcing her to continue unwanted pregnancy will be against article 21 while in USA earlier the supreme court of US allow abortion in the judgement of Roe vs wade but later on this judgement got over-ruled by the Dobbs v. Jackson Women Health Organization case now the power is given to state to decide upon abortion laws because of that some states completely ban abortion and some allow abortion in certain exceptional
Circumstances like risk to mother life , Although states like California and New York have the liberal approach toward the abortion laws . but in can be easily said that USA restrict women reproductive choices . [10]
abortion in states like Mississippi and Alabama
In the state of USA like Mississippi and Alabama abortion is nearly ban in Mississippi certain exception like rape / incest or women life at risk is taken into consideration for abortion but in Alabama abortion is completely ban only allowed when mother life is at risk . Alabama under the Alabama Human Life protection act ( HB314) 2019 [11] nearly ban abortion and treat it as a class A felony with only exception to save mother life if any doctor perform unauthorized abortion they will be punished by law and may face 99 year of jail earlier the case was different as The US Supreme court allow abortion by the judgement of Roe vs wade[12] but after it get struck down by the Dobbs v. Jackson Women Health Organization case most of the states like Alabama and Mississippi nearly ban abortion although its against the reproductive rights of women .
III mixed abortion laws in states like Texas
In Texas abortion Laws are mixed in nature as it allow abortion in case of when mother life is at risk but prohibit abortion after six week of heartbeat when a foetus heartbeat is detected its called as SB8[13] , the individuals enforce ban instead of officials individual can file civil law suit against anyone who induce or perform abortion .
Impact on women bodily autonomy
Bodily autonomy means a person capability of taking decisions related to their own body without any external interference , somehow the abortion law directly affect their bodily autonomy it has a drastic influence on their psychology as it affects their body and mind , access to safe and legal abortion strengthen bodily autonomy as it allow a women to have reproductive choice , pregnancy is not only a biological condition but its also a personal experience which involves physical and mental well-being a safe and healthy abortion law give a satisfactory experience to a person but if abortion is not easily accessible or not safe then it can lead to various problems like mental health and physical health of a
Women could be negatively affected it is the responsibility of a government to ensure safe and healthy abortion medical services . sometimes when a country have restrictive abortion laws it lead to various
Problems for a person eg in case of rape a women already suffer physical as well as mental problems but if she was forced to give birth to an unwanted child then it can cause more pain and suffering to the victim so a country has a responsibly to ensure that a rape victim doesn’t suffer this sort of pain .
The impact of abortion laws must be observed in accordance with human rights and gender equality ( SDG5)[14] gender equality shouldn’t be curtailed by any law .abortion shouldn’t only be viewed as a medical issue but also be seen as a legal and fundamental duty of govt to ensure that it respect freedom and liberty of a person .
Problems women face in accessing abortion services
In India women face a lot of problem while going for abortion first of all our healthcare system is a problem as we doesn’t have a good infrastructure for abortion related medical services specially in rural areas this is one of the biggest issue , in rural areas there is an uneven distribution of services most approved and well equipped facilities are given to urban areas and rural areas lack these services , second the private hospitals have good facilities but at a very high price and govt hospitals offer medical services at affordable prices but there is a lack of sanitation in these govt hospitals due to which people often find it difficult to get good medical services as sometimes financial issues make it difficult for them to get treatment at a costly private hospitals some hospitals still use outdated abortion techniques like dilatation and curettage instead of WHO[15] recommended methods like medical abortion pills etc.
Indian laws on abortion
In the year 1971 for the first time the parliament brought an act named MTP Act 1971[16] which allow abortion up to the 20 weeks , In 2021 [17]an amendment to this act was done which allow abortion to a women up to 24 weeks and consider rape , incest and fetal abnormalities also as a reason or exception to do abortion , India give importance to women reproductive choices and our constitutional courts the high court and supreme court in its various judgments held that every individual has a right to life and liberty . privacy is also a very important right guaranteed to a person under the constitution this privacy cant be curtailed by any wrongful means or by any restrictive laws , this privacy can be infringed only in case of any sort of national security related matters etc .
Us laws on abortion
Earlier in USA the women were given a right of reproductive choices as held by the supreme court of USA in the judgement of Roe v.Wade but in 2022 this judgement was struck down by the judicial pronouncement of Dobbs v. Women Health Organization in which the power was given to states to decide upon abortion laws , every state have power to make different abortion laws some us states adopt a restrictive approach toward these abortion laws but some states have liberal abortion laws also eg states like California , New jersey , Vermont and Washington have the most liberal abortion laws whereas states like Minnesota , Alabama have the the most restrictive abortion laws .
Abortion Laws in states like Alabama are restrictive or protective
Alabama is one of the US state which have the most restrictive abortion laws in 2019 Alabama passed Alabama Human Life Protection act which is considered as the most restrictive and severe law of the country it imposes complete ban on abortion if any person intentionally perform abortion the law will punish them so performing abortion in the country is almost nearly impossible , exceptions are provided in very limited cases such as when a mother life is at risk or when the child has lethal abnormalities but there is no exception for rape or incest . earlier when the supreme court recognize abortion as an important right in the judgement of Roe v. wade[18] the law was ceased but after the supreme court decision in Dobbs v. Women Health Organization the states were allowed to make different laws on abortion and the state again get excessive power to restrict abortion after Dobbs decision Alabama human life protection act came into effect .
Other us states like new jersey and California
In states like California and new jersey abortion is allowed the legal framework treat the right to reproductive choice as a fundamental right in 2022 an explicit constitutional right prop 1 was passed which protect a person right to reproductive choices which include right to abortion and right to contraceptives.abortion is allowed between 24 to 26 weeks after that it can be allowed if its necessary to save the life of the mother , state have different funds to help people getting access to abortion services at a affordable and reasonable price . California has its own shield laws which protect medical professionals performing abortion from any sort of criminal liability , the state also protect patients by protecting their privacy . the California govt spend millions of dollars to expand and improve healthcare infrastructure for abortion services .
In new jersey the government protect reproductive autonomy even after the [19]Dobbs judgement the country has adopted a liberal approach toward abortion laws , the governor brought an act named freedom of reproductive choice act this act protect reproductive choices , their is no restriction of abortion abortion can be done at any stage of pregnancy concept of gestational limit is not their abortion need to be done by a licensed medical professional that’s all what law require non residents can also get access to abortion services in the country.parent consent is also not required for abortion under the new abortion laws of California.
Pre Dobbs satus of abortion laws in Us
Earlier in us the supreme court of USA recognize reproductive choice as an important right for its citizens in the judgement of Roe v. wade it was held that every individual has a right to make reproductive choices this right cant be taken away from them this judgement allow women to have freedom to reproductive choices.
Post dobbs status of abortion laws in USA
After the[20] Dobbs v. Jackson Women Health Organization judgement power is given to states to decide upon abortion laws supreme court of US held that every state can have different abortion laws , now every us states have varied abortion laws some states adopt restrictive abortion laws and some states have liberal laws . some states allow abortion eg California and new jersey some states completely ban abortion eg Alabama , and Florida .
Ethical and moral dimensions of abortion
Abortion is not only a legal or medical issue but it is a moral and ethical issue also , policy makers , society face ethical and moral dilemma while ensuring reproductive choice and rights to an individual
In India the MTP act focuses on a utilitarianism approach as it focus on reducing maternal mortality in India every year thousand of women lost their life while giving birth to a child sometimes a complicated pregnancy make it difficult for a women to make decision related to reproductive choice as in certain cases women life is at stake and its important to let the unborn child die to save the life of mother making this decision is emotionally as well as physically challenging for a women as it is not easy to abort ones own child it takes a lot of courage as well as physical fitness is also required
To take all these steps . whereas In USA ethical debates are going on the reproductive choices of women some people support reproductive choices and some are against it they believe that an unborn child also a have a right to life and killing it is against human rights this debate is still going on and its an long debate .every country should maintain a balance between its citizen right to reproductive choices complete restriction is not justified , a balance is needed otherwise excessive restrictions will
Create disturbance In the life of the people .
The International Perspective
The international organization like [21]The World Health organization emphasize on reproductive choices they made observance and claim that restrictive abortion laws can lead to increase maternal mortality , adoption of unsafe and illegal abortion methods, and violation of human rights .comparing the international standards India has shown a progressive and a liberal approach toward the reproductive choice of a women in India the MTP act 1971[22] ensure that women reproductive choices shouldn’t be excessively curtailed according to the Indian laws a balance should be maintained between the freedoms given to a person and the restrictions set by the law , excessive restrictions create problems for the individuals . so somehow India is committed toward achieving the Sustainable Development Goal
By the end of 2030 although some gaps are still their but India is trying its best to achieve these goals as soon as possible .
Social and religious affect on abortion laws
In countries like India and USA religious and cultural beliefs also affect reproductive choices of women sometimes in our society women are forced to give birth to a child if they are unable to procreate our society do ill treatment with them , in some places women are forced to marry at a very early age and they are also forced to give birth to a child from various scientific researches it is drawn that getting Mary at early age and giving birth to a child at a very early age can cause physical and psychological affects on a women similarly when a women decide to do termination of her pregnancy religious and cultural beliefs are stick on them by our society in some religions like Christianity , Islam or Hinduism abortion is treated as a sin or crime no one is supposed to kill an unborn child even if women wants to do abortion in necessary circumstances societal expectations and family pressure has a very negative impact on the women reproductive choices. Religious aand cultural belifs should be kept away from these things religion is one of the important thing but it cant take away someone right related to reproductive choices . In USA the states with majority of catholic christians have strong beliefs related to their religion and they treat abortion as a sin sometimes it create problems for the victims eg if a women is raped by someone and she got pregnant she is supposed to give birth to that child even If she doesn’t want to , societial , religious and cultural pressure and beliefs force the women who is her self a victim to give birth to an unwanted child against her own wishes however in some us states like missourie , indiana some religious groups of jewish religion filed lawsuits against the ban on abortion they argue that ban on abortion is against their religion so there is a confusion and chaos betweeen different religion over abortion laws some religious group support ban on abortion and some want that the ban on the abortion should be removed every religion have different beliefs but in a democratic country individual rights and personal autonomy are of primary interest when any conflict arise between individual intersest and religious beliefs individal rights should have a primacy .
Reproductive rights and SDG5 relation
Reproductive rights are interconnected with SDG5[23] Goals as it aims to achieve gender equality and wants to empower women to take her own decisions so for achieving these goals it is very important that a women can make her own reproductive choices without this its not possible to achieve gender equality .
Conclusion
The abortion laws of USA are very much restrictive in nature which has a negative impact on the reproductive choices of women with liberal abortion laws only in some states .US law abridge reproductive choices and women autonomy , judicial precedents and legal statutes are very much restrictive toward abortion laws whereas in India the legal statutes and judicial pronouncements shows a positive and liberal approach toward abortion laws some of the recent development clearly shows that India believes in gender equality eg recently [24]the Bombay high allow an unmarried women to terminate her pregnancy citing reproductive choice and mental disturbance , [25]The Delhi High court also allow a 16 year old minor rape survivor to do abortion after 27 weeks of pregnancy , and The Honourable [26]supreme court in 2023 allow a women to do abortion 27 weeks these cases makes it clear that India approach toward the abortion law is progressive and positive India is committed toward achieving gender equality and it also give importance to right to life and liberty as mentioned under article 21 of the constitution of India at last its clear that USA still have to adopt a positive and progressive approach toward abortion laws too much restriction on an individual autonomy create problem for the country to achieve the SDG 5 goal however India also have to work hard on the infrastructure the infrastructure is not up to the mark medical services should be available to all at affordable and reasonable prices , govt should built good hospitals and medical centers to provide good medical services especially on abortion services ,right now services are not available to all at a large level , govt should also bring policies to provide healthcare services at a reasonable price . In India right to health is a fundamental right as held by supreme court in its various judgement such as [27]Parmanand katara v. Union of India . at last USA have to work upon its legal framework to ensure reproductive freedom to all its citizen without much restrictions and India have to work upon infrastructure and have to ensure that medical services are available and reaches to every citizen .
[1] Medical Termination of Pregnancy act , 1971 No.34 0f 1971 , India
[2] Medical Termination of Pregnancy (Amendment) Act , 2021
[3] Justice K.s .Puttaswamy ( Retd.) v. Union of India ,(2017) 10 SCC1(India)
[4] India Const.art.21.
[5] Dobbsv.Jackson Women`s Health Org.,597U.S._(2022)
[6] Indian Penal code , 1860 ,ss .312-316
[7] Bhartiya Nyaya Sanhita , 2023.
[8] s.88,Bhartiya Nyaya Sanhita , 2023
[9] S.89 ,Bhartiya Nyaya Sanhita ,2023
[11] Alabama Human Life Protection Act ,H.B.314,2019(Ala.,U.S.).
[12] Roe v.Wade ,410 U.S.113(1973)
[13] Texas Heartbeat Act ,S.B .8,87th Leg .,Reg.sess.(tex.2021) (U.S.).
[14] United Nations , SDG5 (2015)
[15] World Health Organization Constitution of World Health Organisation (WHO1946).
[16] The Medical Termination of Pregnancy Act ,1971.
[17] The Medical termination of Pregnancy (Amendment ) Act ,2021.
[18] Roe v Wade (supra note _).
[19] Dobbs v Jackson Women Health Organization (supra note_).
[20] Dobbs v,Jackson Women Health Organization ( supra note _.
[21] World Health Organization (WHO) .
[22] The Medical Termination of Pregnancy Act ,1971.
[23] UN SDG 5
[24] ABC v State of Maharashtra , 2025 SCC OnLine Bom 2556,decided 19 june 2025.
[25] Minor A ( Through Her Mother / Guardian ) v State & Anr.,W.P(CRL) 1925 / 2025
[26] X v Union of India (supra)
[27] Parmanand katara v. Union of India , AIR 1989 SC 2039
