Supreme Court in Disagreement Over 26-Week Abortion Rights.

  Oct 14, 2023

Supreme Court Split on Woman's Right to Abort 26-Week Pregnancy

What is the legal and constitutional issue in question?

The case revolves around a married woman's decision to abort her 26-week pregnancy and the conflict with the government's stance to protect the rights of the "unborn child."
The legal debate centers on the woman's right to exercise her reproductive autonomy versus the state's responsibility to safeguard the interests of the fetus.

What was the outcome of the Division Bench's deliberations?

The Division Bench, consisting of Justices Hima Kohli and B.V. Nagarathna, was unable to reach a consensus. Consequently, they referred the case to the Chief Justice of India to constitute a three-judge Bench for further consideration.

What were the woman's reasons for seeking an abortion?

The woman, who is already a mother of two with her younger child being one year old, expressed her intention to terminate the pregnancy. She cited her mental health condition and inability to care for a third child as reasons for her decision.

What is the government's argument against the abortion?

The Additional Solicitor General for the Union government, Aishwarya Bhati, argued that the woman does not possess an "absolute right of autonomy" to exercise her reproductive rights in a way that would compromise the rights of the unborn child.
She referred to the Medical Termination of Pregnancy (Amendment) Act of 2021, which extended the abortion deadline to 24 weeks but only under specific circumstances, such as saving the mother's life or in cases of fatal fetal deformity.

What was the previous ruling in this case?

Initially, on October 9, the Bench had allowed the medical termination of the woman's pregnancy based on her request and a medical board's report from the All India Institute of Medical Sciences.
However, the Union government later submitted an application stating that one of the expert doctors on the medical board had opposed the abortion, claiming that the child had a chance to survive.

How did the two judges on the Bench differ in their opinions?

Justice Kohli agreed with the government, asserting that the woman should not be permitted to terminate the pregnancy. On the other hand, Justice Nagarathna disagreed, emphasizing that the woman's decision should be respected. She argued that the court should not substitute the woman's choice with its own decision, considering her socio-economic situation and mental health condition.

The case underscores the complex legal and ethical issues surrounding reproductive rights and the interests of the unborn child.


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