Is criminalisation a bad idea around abortion services?

Whenever there is any conversation around any new law there is a lot of focus on punitive aspects of laws that focus more on criminalisation. The US debates around abortion laws has brought back to focus on criminalisation debate.

Even in India, the Indian Penal Code, still penalises women if she has induced miscarriages.

What is happening around abortion bill in US?

The Abortion bill passed sought to prohibit abortions at every stage of pregnancy and puts doctor under the risk of criminalisation. It includes an exception for cases where a woman’s health is at “serious” risk but this is still under debates.

What it really means?

Women who have abortions will not be prosecuted under the measure though courts can send doctors to 99 years in prison for performing the procedure.

Will it affect the abortion services in US?

Abortion services will still be available in Alabama for the time being. At the earliest, the measure will take effect in six months only.

Why this matters to us in India?

There is a global trend around the world where states are reducing their services for women’s health.

At present in India, if a woman needs to terminate her pregnancy, she needs a doctor to give their approval for abortion. It may be more more progressive than US but India public policy does get affected by debates in US.

How can advocates reconceptualize abortion regulation and move away from criminalisation approach?

At Hidden Pockets Collective, we have been connecting young clients to abortion service providers across cities in India. It has been disappointing for us to realise sitting in Delhi and Bangalore, how little legislations reflect at ground level. 

Problems faced by young people:

Most of the people who come to access services have two basic barriers to face:

1.Criminalisation

2. Cost

Legal status:

95% of people believe that abortion is illegal which translates in layman’s language going to jail for getting an abortion. Because of lack of knowledge, young people often end up going to quacks, or unregistered doctors.

The limited reading of Medical Termination of Pregnancy Act has ensured that people don’t think abortion as a right.

It is only in the dire situation that one would even imagine of going to a doctor. Which completely defeats the purpose of the law – which intended to prevent or terminate unwanted pregnancies. 

If one’s pregnancy does not fall under any of the clauses, one is a criminal and this is what criminal jurisprudence does. 

The law completely ignores the fact that these procedures are being performed on bodies of women, who are completely scared, unaware about their options and are feeling really horrible. 

Editor’s note:

The Medical Termination of Pregnancy (Amendment) Bill, 2020 

The new Medical Termination of Pregnancy bill 202 was passed in the Lok Sabha in March 2020 and Rajya Sabha in March 2021.
Highlights of the bill: 

  • Currently, abortion requires the opinion of one doctor if it is done within 12 weeks of conception and two doctors if it is done between 12 and 20 weeks.  The Bill allows abortion to be done on the advice of one doctor up to 20 weeks, and two doctors in the case of certain categories of women between 20 and 24 weeks. 
  • The Bill sets up state level Medical Boards to decide if a pregnancy may be terminated after 24 weeks in cases of substantial foetal abnormalities. All state and union territory governments will constitute a Medical Board.  The Board will decide if a pregnancy may be terminated after 24 weeks due to substantial foetal abnormalities.   Each Board will have a gynaecologist, paediatrician, radiologist/sonologist, and other members notified by the state government.
  • The Act specifies the grounds for terminating a pregnancy and specifies the time limit for terminating a pregnancy. 
  • Under the Act a pregnancy may be terminated up to 20 weeks by a married woman in the case of failure of contraceptive method or device.  The Bill allows unmarried women to also terminate a pregnancy for this reason.
  • A registered medical practitioner may only reveal the details of a woman whose pregnancy has been terminated to a person authorised by law.  Violation is punishable with imprisonment up to a year, a fine, or both.