The Primacy of Reproductive Autonomy

The Supreme Court of the United States, in a leaked opinion, has voted to overrule Roe v Wade. Hence, in light of this ruling, two among many other deficiencies in abortion jurisprudence in India need to be highlighted: (i) the analysis of the black letter of the law and the interpretation of the courts of the text of the Medical Termination of Pregnancy Act (MTPA), and (ii) the normative prescriptions to the existing framework of the statute.

First is the issue of seeking judicial authorisation for termination. Section 3 of the MTPA does not mandate pre-termination judicial authorisation; however, the courts have allowed the same. They either permit termination or constitute a medical board to decide on the same. There are two errors in this approach of the court—(i) the unwarranted intrusion of the courts into the sphere of the privacy of the women (bodily autonomy and decisional autonomy) and (ii) adding a layer of medicalisation even when there is no requirement mentioned in the statute. Medicalisation is a problem because, as seen in the case of Suchita Srivastava and Anr v Chandigarh Administration, the nature of questions asked and the responses by the medical board were mostly outside the realm of medicine. Hence, medical ideology is used as a technique to evaluate considerations of social parameters.