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India’s top court has expanded abortion rights for unmarried women. We spoke to the lawyer who fought for the change.

by Disha Shetty October 17, 2022
This Q&A was republished from a Fuller Project newsletter on October 17, 2022. Subscribe here.

As the United States was reeling from the Supreme Court’s decision to overturn Roe v. Wade in July, a court in India began considering a case that would result in a landmark expansion of abortion access on the other side of the world.

On Sept. 29, India’s Supreme Court ruled that all women, whether married or not, should have equal rights to abortion. Previously, abortions were allowed up to 20 weeks of pregnancy for all women, and 24 weeks for those who had been widowed, separated or divorced, or had suffered rape. The Court was responding to a challenge from an unmarried woman in a consensual relationship seeking an abortion at 23 weeks. It allowed her to have an abortion in July, before extending that right to all single women in its ruling last month.

The court also recognized a woman’s autonomy over her body and said abortion should be allowed in cases where women had been forced into sex by their husbands — a distinction welcomed by women’s rights campaigners in India, where marital rape is not a criminal offense. The Supreme Court is due to rule next year on whether it should be criminalized.

However, the court’s ruling did not cover married women who don’t fit the specific criteria for an abortion after 20 weeks, said Amit Mishra, the lawyer who represented the plaintiff. In theory it means that single women now have greater access to abortion than married women, he told The Fuller Project’s Disha Shetty.

You can read their exchange below.

What are the key takeaways of this judgment for women in India?

This judgment is a landmark judgment in India. We can see it in two aspects. Now unmarried women in India have been given the right to terminate their unwanted pregnancy up to 24 weeks without any restrictions, without any consent of a partner. The doctor also can’t ask any questions. So they have been given full reproductive autonomy, their bodily integrity is maintained.

Along with that, the Supreme Court also said if there is any married woman who is also carrying a pregnancy, which is a forcible pregnancy, she is also allowed to terminate that pregnancy up to 24 weeks in any hospital.

Are we saying that all women are allowed to terminate unwanted pregnancies up to 24 weeks?

No, we cannot say that. The judgment pertains to unmarried women specifically. There is a gray area still left. If there is a woman who is married and her pregnancy falls between 20 to 24 weeks and the pregnancy was consensual, once again there is a discrimination.

Now my concern is if the pregnancy of a married woman is out of a consensual relationship, and she has not come to know about that pregnancy…. And now the consensual pregnancy is between 20 to 24 weeks. In that case she is not allowed [to abort].

This judgment comes at a time when women in many countries are fighting for their reproductive rights. How do you see it?

I will say this is a remarkable, wonderful precedent set for the whole world. The state can’t impose any restrictions. No one can impose any restrictions or compel women to continue the pregnancy because it’s their body, it’s their choice. 

The judgment recognizes marital rape by acknowledging that married women could be carrying forced pregnancies. Any thoughts on this? 

The Court has in some way perceived that this is the practical aspect happening [to women] in the country. So, it’s [this judgment] is remarkable.

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