This article was written by Savan Dhameliya, a trainee research fellow at Racolb Legal and a student of Auro University.

Introduction

Abortion has been a widely debated subject. It is unlike any other issue debated today. Millions of women have aborted a child, and the pain, loss, and emotional need to justify what was done, both on the part of the mother and on the part of her loved ones, is strong and deep.

The abortion debate deals with the rights and wrongs of deliberately ending a pregnancy before normal childbirth, killing the foetus in the process.

The debate on abortion has been widespread in America where there are two movements: Pro-Life and Pro-choice. The pro-life side advocates that the intentional killing of a foetus is always wrong even though in some circumstances it is required. While on the other side, pro-choice advocates that intentional abortion is acceptable in some circumstances.[1]

Arguments:

1. Pro-choice argues that Pro-lifers want to take away women’s rights. But pro-choice side says that they respect women’s right, but the killing of an innocent member of the family is unlawful and immoral and does not come under the right of anyone.
2. Pro-choice argues that women will die of unsafe abortions if we make it illegal. But is it so that we should legalize abortion due to the fact that people are going to do it illegally anyway? This is argued by the pro-life movement.
3. Pro-choice argues that it’s cruel to force a woman to carry a pregnancy which was the result of rape. The pro lifer’s says that abortion after rape is actually more harmful for the mother and victims of rape choose to raise “their child” and not the “rapist’s child”. And it is also argued that killing someone for another person’s convenience is cruel and is immoral.
4. It was also argued that a woman has a right on her own body, and a fetus is a part of her body. If a woman chooses to go through abortion then it is her choice and she has a right to change a part of her body as she wishes to. Hence banning abortion is not the right thing to do. Opponents of this argument usually attack the idea that a fetus is ‘part’ of a woman’s body. They argue that a fetus is not the same sort of thing as a leg or a liver: it is not just a part of a woman’s body, but is (to some extent) a separate ‘person’ with its own right to life. ^[2]

Stand of different countries

History

Abortion was legally restricted in almost every country by the end of the nineteenth century. The most important sources of such laws were the imperial countries of Europe—Britain, France, Portugal, Spain, and Italy—who imposed their own laws forbidding abortion on their colonies.

According to the United Nations Population Division’s comprehensive website on abortion laws, legal systems under which abortion is legally restricted fall into three main categories, developed mostly during the period of colonialism from the sixteenth century onward:

• common law: the UK and most of its former colonies—Australia, Bangladesh, Canada, India, Ireland, Malaysia, New Zealand, Pakistan, Singapore, the United States, and the Anglophone countries of Africa, the Caribbean, and Oceania;
• civil law: most of the rest of Europe, including Belgium, France, Portugal, Spain, and their former colonies, Turkey and Japan, most of Latin America, non-Anglophone sub-Saharan Africa, and the former Soviet republics of Central and Western Asia. In addition, the laws of several North African and Middle Eastern countries have been influenced by French civil law; and
• Islamic law: the countries of North Africa and Western Asia and others with predominantly Muslim populations, and having an influence on personal law, for example, Bangladesh, Indonesia, Malaysia, and Pakistan.

Efforts to reform the abortion law

The first country to reform its abortion law was the Soviet Union, spurred by feminist Alexandra Kollantai, through a decree on women’s health care in October 1920. This then gave effect to legalization of abortion on the grounds of public health and human rights, to promote smaller families for population and environmental reasons, and because women’s education and improved socioeconomic status have created alternatives to childbearing. ^[3]

Stand of America

The movement for restricting abortion was not led by pro-life activist in America, but rather by physicians who were unregulated in the 19^th Century. Because of no regulation whatsoever on them, their field was constantly challenged by other healers who dealt with many techniques including women’s reproductive health. To avoid this competition, they pushed for anti-abortion laws in the country and it succeeded in 1900 when almost all the states banned abortion. This helped in the regulation of these physicians which helped them grow their profession.

But in the 1960s, some Americans began to demand change from their states. In 1959 the American Law Institute, a group of professionals that put together model legislation, advocated for the liberalization of abortion law. They suggested that the law should make exceptions for women who were raped, whose fetuses were deformed, and whose mental or physical health was at stake. This, among other shifts, helped push state legislatures to reform their abortion laws. Colorado was the first to amend its law in 1967.[4]

The decision of the Supreme Court in Roe v. Wade, 1973, changed the whole countries stand on abortion by legalizing abortion in all the fifty states. Most states followed the standards set by the Supreme Court’s Roe decision in 1973, which says abortion is legal until the fetus reaches viability, usually at 24 to 28 weeks.

The anti-abortion movement then started growing in America by the help of various groups pushing for anti-abortion laws. This has recently grown and produced results. Many countries are now introducing bills to ban abortion, either completely or banning it after a fetal heartbeat is detected.

In 2011, Alabama was the first state to pass the bill of banning abortion entirely. While in 2019, 8 states have passed a bill to limit procedure of abortion. And lately more states are pushing for anti-abortion laws challenging the Supreme Court’s decision.[5]

This makes the stand of abortion in the U.S a bit towards both pro-life as well as pro-choice, as many of the states advocate pro-choice bills but lately more and more states are proposing to ban abortion in some form.

Stand of India

The Indian Penal Code 1862 and the Code of Criminal Procedure 1898, with their origins in the British Offences against the Person Act 1861, made abortion a crime punishable for both the woman and the abortionist except to save the life of the woman.

The liberalisation of abortion law in India began in 1964 in the context of high maternal mortality due to unsafe abortion. Doctors frequently came across gravely ill or dying women who had taken recourse to unsafe abortions carried out by unskilled practitioners. They realized that the majority of women seeking abortions were married and under no socio-cultural pressure to conceal their pregnancies and that decriminalising abortion would encourage women to seek abortion services in legal and safe settings.[6]

Currently, abortion is governed by The Medical Termination of Pregnancy Act 1971 and Regulations 1975 in India. confers full protection to a registered allopathic medical practitioner against any legal or criminal proceedings for any injury caused to a woman seeking an abortion, provided that the abortion was done in good faith under the terms of the Act. The Act allows an unwanted pregnancy to be terminated up to 20 weeks of pregnancy and requires a second doctor’s approval if the pregnancy is beyond 12 weeks.

The stand of India in regards to abortion law is completely pro-choice and it is moving towards making it more liberated and regulated for proper procedures of abortion.

Conclusion

Even though the anti-abortion groups argue that killing an innocent family member is not permissible even by law, there are still many questions which are left unanswered in this debate, such as when should we consider a fetus as a person? To pass any law that will restrict and affect a whole community has to be passed on solid grounds with no questions left unanswered. And in my opinion, a woman has a right to choose what to do with her body, as it is she, who will face problems if she is restricted from performing an abortion. She might suffer from more harm emotionally or even physically due to the pregnancy. This is the reason that pushing for anti-abortion laws is not the right path to go down. It is more important to care about the rights of women as she can choose what is best for her and for the child.

[1] http://www.bbc.co.uk/ethics/abortion/legal/introduction_1.shtml#top

[2] Campaign Life Coalition, Pro-life answers to pro-choice arguments, https://www.campaignlifecoalition.com/pro-life-answers

[3] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5473035/

[4] https://tah.oah.org/november-2016/abolishing-abortion-the-history-of-the-pro-life-movement-in-america/

[5] https://www.nytimes.com/interactive/2019/us/abortion-laws-states.html

[6] https://www.tandfonline.com/doi/full/10.1016/S0968-8080(04)24017-4