Guest Post: Abortion and Equality – Building Upon the Supreme Court’s Judgment in X v NCT

[This is a guest post by Gauri Pillai.]

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The Supreme Court’s decision in X v NCT Delhi has received much acclaim. At the minimum, it threw open the doors of India’s law on abortion to unmarried women who experience a change in relationship status, doing away with the archaic assumption that sexuality is (and ought to be) confined to the institution of marriage. At the same time, it was an ‘omnibus decision’, touching upon—though not fully resolving—a range of issues, of concern not just to India’s law on abortion but implicating a wider network of intersecting legal frameworks.

Some of these issues are the following: the Court interpreted ‘grave injury to mental health’—a condition for abortion within the Medical Termination of Pregnancy Act 1971 (MTPA)—broadly, going beyond mental illnesses to highlight the severe harm to mental health from being compelled to carry to term any unwanted pregnancy. The Court also identified the ‘chilling effect’ the criminalisation of abortion within the Indian Penal Code 1860 (IPC) places on the interpretation of the MTPA. Further, the Court suggested that rape, under the MTPA, includes marital rape, which is otherwise exempted from the IPC definition of ‘rape’. The Court also took steps towards diluting the requirement to mandatorily report child sexual offences under the Protection of Children from Sexual Offenses Act 2013, in light of its impact on adolescents’ access to abortion. The Court included within its definition of ‘woman’ persons other than cis-gender women who may also require access to safe abortions. Finally, the Court placed positive duties on the State to remove barriers restricting access to abortions. The Court thus took several crucial first steps in reimagining India’s law on abortion, laying the ground for future interventions on these themes. In this blog post, I make a case for where the Court could possibly go next.

The Court anchored its range of holdings, in part, within ‘core constitutional rights’. As the Court made clear, ‘certain constitutional values, such as the right to reproductive autonomy, the right to live a dignified life, the right to equality, and the right to privacy have animated our interpretation of the MTP Act and the MTP Rules’. The Court, then, drew out the constitutional conceptions of ‘decisional autonomy’, ‘privacy’, ‘dignity’ and ‘bodily integrity’, emphasising how these values require that women’s abortion decisions be both respected and facilitated.

Equality is a value that the Court mentioned in its initial framing. However, it receded somewhat in the Court’s later analysis. Of course, equality was front and centre in the Court’s holding that the distinction between married and unmarried women in accessing abortion is unconstitutional because it ‘promotes the stereotype…that only married women indulge in sexual intercourse’. However, do restrictive abortion laws (like the MTPA) raise broader equality concerns? Do they discriminate on ground of sex? These questions have not often been asked—and, as a result, answered—within constitutional accounts of abortion (or reproductive rights more generally) in India. X v NCT Delhi is no exception to this trend.

Here, I make a preliminary attempt to answer these questions. In Part I, I lay out the conception of equality which is capable of supporting a claim of discrimination in relation to abortion. In Part II, I detail how a discrimination law case can be built against India’s law on abortion and the key contributions of a discrimination law lens.

Part One: Conceptions of Equality

Broadly, there exist two competing conceptions of equality. Formal equality is modelled on the Aristotelian maxim to treat likes alike, meaning that dissimilar treatment of dissimilar classes fails to raise concerns of equality. Under a formal equality account, restrictive abortion laws do not discriminate on ground of sex. Pregnancy is seen as automatically rendering women different from men. As a result, treating women differently (by requiring them to carry a pregnancy to term) does not trigger a sex equality violation. Thus, formal equality’s search for sameness and exclusion of difference translates into an automatic rejection of claims of sex discrimination when they involve pregnancy. Moreover, all formal equality offers similar classes is identical treatment. It fails to recognise that sometimes differential treatment—for instance, workplace accommodations for pregnancy—is necessary to achieve equality. As a corollary, a law treating similar classes identically but having a disproportionate adverse impact on members of some groups falls outside the radar of formal equality. Thus, formal equality concerns itself with treatment under the law, or the law’s facial form, rather than its impact.

In contrast, substantive equality abandons sameness-difference as its operating paradigm. This comes from the recognition that formal equality is an impoverished account of equality, especially for members of disadvantaged groups. By dismissing claims of sex discrimination on the ground that the sexes are differently situated in matters of reproduction, formal equality ‘rationalizes differential treatment of the sexes as legitimate and as merely “reflecting” the fact of biological difference’. Under this model, refusing to hire a pregnant woman would thus not amount to sex discrimination because pregnant women are seen as different from men. Formal equality also easily maps onto existing social hierarchies, ‘ratifying rather than challenging them’: ‘the worse the inequality gets, the more disparate its social reality becomes, the less this legal approach can do about it, hence the more [it] operates to institutionalise it’. For instance, consider a rule promoting only full-time employees. The rule would disproportionately exclude women who often work part-time to balance paid work with their childcare responsibilities. Formal equality would, however, uphold the rule because it sees part-time employees as different from full-time employees when it comes to promotions, therein reinforcing existing social inequalities which hold women alone responsible for childcare.

Moving away from sameness-difference, substantive equality no longer asks whether women are similar to or different from men in assessing an equality claim. Instead, substantive equality’s central inquiry is whether the rule or practice in question perpetuates group-based disadvantage, in which case it falls foul of the equality guarantee. As a result, difference—here, pregnancy—no longer operates as a headwind to an equality claim. This crucial shift lays the ground for pregnant women to bring a claim of discrimination against a law which perpetuates their disadvantage. Substantive equality also recognises that identical treatment alone fails to guarantee equality. Treating men and women identically may, in some cases, have the effect of perpetuating women’s disadvantage. If so, substantive equality allows, or even requires, forms of differential treatment to redress disadvantage. Thus, substantive equality concerns itself with the impact of the law rather than its form.

India’s constitutional conception of equality is substantive, as has been acknowledged by the Supreme Court (see here and here). First, it centres disadvantage, rather than sameness-difference. We see this in the specific grounds listed under Articles 15(1) and 16(1)—sex, religion, caste—which have been sites of historical group-based disadvantage, representing ‘past ways in which people have been marginalized and oppressed’. We also see it in the explicit mention of disadvantaged groups under Articles 15(3), 15(4), and 16(4)—women, children, Scheduled Castes and Tribes. Second, it aims to redress these forms of historical disadvantage—eliminate ‘age-long disabilities and sufferings’, and abolish ‘social inequity, the social stigma and the social disabilities in our society’—to achieve ‘real equality’ amongst members of groups. Third, to achieve such ‘real equality’, it both prohibits certain forms of differential treatment—for instance, untouchability or exclusion from the public sphere—and allows other forms differential treatment—for instance, ‘special provisions’ for women. Finally, it understands disadvantage multi-dimensionally, including stigma, denial of participation and socio-economic disadvantage on account of group membership.

In Part II of this blog, I apply this constitutional conception of equality to mount a discrimination law challenge against India’s law on abortion. For now, I consider a claim of sex discrimination, though a claim of intersectional discrimination may also be brought.

Part II: Bringing a Discrimination Law Lens to Abortion

Establishing a Discrimination Claim

From the constitutional core of substantive equality, in assessing if a law is discriminatory, India’s equality and non-discrimination guarantee asks:

[Does] the impugned Rule disproportionately [affect] a particular group? [Does] the law [have] the effect of reinforcing, perpetuating, or exacerbating disadvantage? Such disadvantage could be in the shape of: “[e]conomic exclusion or disadvantage, [s]ocial exclusion…[p]sychological harms…[p]hysical harms…[or] [p]olitical exclusion”, and must be viewed in light of any systemic or historical disadvantages faced by the claimant group.

Restrictions on abortion within the MTPA affect women as a group wholly, or pregnant women as a group disproportionately. They deny women reproductive decision-making by allowing access to abortion only when certain conditions are satisfied within specified time limits. Whether these conditions have been met is assessed by doctors (not women). The MTPA exists as an exception to the criminal prohibition on abortion within the IPC. As a result, doctors interpret the conditions within the MTPA narrowly, fearing the threat of criminal sanction, a factor the Court noted in its judgment.

The cumulative effect of India’s law on abortion is, then, to perpetuate or exacerbate women’s historical disadvantage along the different dimensions. Being denied an abortion often forces women to bring up a child within a patriarchal system where they bear unilateral responsibility for childcare, which is devalued within and outside the home. Due to their childcare responsibilities, women are excluded from the public sphere (say, from employment), or are required to work the ‘double day’, shaping the nature and extent of their participation outside the home. This leads to their economic exclusion, heightening their economic disadvantage. Further, the denial of reproductive decision-making within the MTPA is based on stereotypes about women as mothers and as incompetent decision-makers. The law on abortion, then, entrenches these stereotypes, influencing social perceptions about women as a group. Being denied abortions also harms women physically. As noted by the Court, it requires women to either carry the pregnancy to term—with its onerous physical responsibility—or approach unsafe, backstreet abortion providers. Either way, their physical health is adversely affected, in many cases threatening their life. Unsurprisingly, unsafe abortions are the third largest cause for maternal mortality in India. Denial of abortion, moreover, harms women psychologically. As the Court recognised, ‘any unwanted pregnancy…[has] a deleterious effect on mental health’ of the woman. These effects of the law also have to be viewed in light of women’s systematic, historical disadvantage. As was repeatedly recognised in the Constituent Assembly, ‘the average woman in this country has suffered now for centuries from inequalities heaped upon her by laws, customs and practices of people’. If so, a law like the law on abortion, which perpetuates centuries of inequalities experienced by women, would fall foul of the equality guarantee under a substantive conception of equality.

Contributions of a Discrimination Law Lens

What changes, when a discrimination law lens is introduced to assess a violation of reproductive rights? At the outset, discrimination law immediately locates the individual within the group(s) to which she belongs, identifying that ‘it is the individual’s group membership [which] is the terrain upon which social disabilities operate’. Discrimination law, then, recognises that restricting abortion denies reproductive decision-making to women: a group which has a history of disadvantage emerging from, amongst other things, meanings attached to their reproductive ability. Seen against this history, restricting abortion is not simply an act which severely harms the individual woman’s decisional autonomy, dignity and bodily integrity, as the Court identifies in X v NCT Delhi. Rather it is also an act which forms a part of an abiding historical pattern, often occurring because of group membership. That is, in being denied abortion, the woman is harmed not only as an individual but also as a member of a group, in turn cementing the group’s overall disadvantage.

This perspective heightens the extent of constitutional rights violations the Court already identifies. That it is women to whom decisional autonomy, dignity and bodily integrity are being denied magnifies the harm from such denial, making it that much more egregious. On this point, consider Dorothy Roberts’ account of the  prosecution of pregnant women addicted to drugs in the United States, many of whom are black. Roberts powerfully argues:

The harm caused by the prosecution of crack addicted mothers is not simply the incursion of each individual crack addict’s decision-making; it is perpetuation of a degraded image that affects the status of an entire race. The devaluation of a poor black addict’s decision to bear a child is tied to the dominant society’s disregard for the motherhood of all black women. The diminished value placed on black motherhood, in turn, is a badge of racial inferiority worn by all black people.

A discrimination law lens, thus, shines light on the relationship between ‘the dehumanization of the individual and [the] subordination of the group’. The Court’s judgment saw the denial of the abortion decision as dehumanising the individual woman, taking away her ability, as a ‘self-governing’ individual, to make ‘intimate decisions’ on reproduction. However, it did not adequately appreciate that such denial was happening to an individual woman because she was a woman, with such independent acts of denial affecting not just the individual woman but also women as a whole group. The Court did hint at such a perspective, in its observation that reproduction is both ‘biological’ and ‘political’:

it is biological since physical bodies reproduce, and it is political since the decision on whether to reproduce or not is not solely a private matter. This decision is intimately linked to wider political, social, and economic structures. A woman’s role and status in family, and society generally, is often tied to childbearing and ensuring the continuation of successive generations.

Here, we see nascent inflections of a discrimination law lens: that reproduction means (or, rather, has come to mean) something different for women. The next step, then, would be to interrogate the implications of this recognition for the legal regulation of abortion in India: what is truly at stake, from a constitutional perspective, when women are denied an abortion?

Moving on, the discrimination law lens also presents redressing of group-based disadvantage as a site for State action. This has two significant implications in the abortion context. First, the law often considers—as is now the case in India—State interest in protecting the foetus as placing ‘reasonable restrictions’ on women’s right to abortion. It is important to note that the Supreme Court in X v NCT Delhi did not introduce foetal interests as a restriction on abortion. Instead, in several places the Court saw the woman as the ‘ultimate decision-maker’ on abortion. However, it did not address whether this meant that no restrictions could be imposed on abortion (including those in light of foetal interests), leaving the question open for future courts. In fact, a petition challenging the constitutionality of the MTPA for violating foetal right to life has already been filed before the Supreme Court.

In asking if restricting abortion is necessary to protect foetuses, the discrimination law lens highlights that abortions are often necessitated by group-based disadvantage. For instance, in India, the most common factors motivating abortions are inadequate access to contraception and violence against women and girls leading to unwanted pregnancies, and the absence of State or familial support in childcare. These factors represent ways in which women experience disadvantage as women. They do not know about, cannot afford or are unable to insist on the use of temporary contraception. They are raped by strangers and acquaintances (including members of their families). And they bear unilateral responsibilities for childcare. So understood, redressing group-based disadvantage presents an alternate site for State action to reduce the need for abortion and thus protect foetuses. In fact,

there is a wealth of evidence that suggests that a concern for protecting [foetal] life can be more effectively pursued through policies that attack the incidence of unwanted pregnancy (for example, through improving the quality of sex education and contraceptive provision, and making motherhood a more realistic possibility for women struggling to balance childcare alongside other commitments).

If so, State insistence on restricting abortion as the means to protect foetuses is the State resorting to the more convenient option of ‘promoting the welfare of the unborn only when it can use women’s bodies and lives to realise the potential of unborn life’. This, the discrimination law lens would argue, is patently contrary to the constitutional commitment under the ‘equality code’.

Second, in X v NCT Delhi, the Supreme Court clearly recognised that respecting women’s abortion decisions requires the State not only to abstain from interfering in decision-making but also to facilitate decision-making through positive duties. What is less clear is the scope of these positive duties. The Supreme Court listed a few duties: disseminating information about abortion, improving affordability of the procedure, and preventing discriminatory treatment amongst doctors. Each of these duties seeks to redress specific forms of group-based disadvantage: illiteracy amongst women causing lack of awareness about abortions; poor women’s inability to access abortion due to high costs; and the tendency amongst medical professionals to mistreat lower caste women. A discrimination law lens, then, systematises this exercise. It identifies the full spectrum of group-based disadvantage, shaping the abortion decision at different stages: in necessitating abortion, in placing barriers to accessing abortion and in hampering quality of care while availing the abortion procedure. Such identification, in turn, presents sites for State action. Of course, this does not imply that courts ought to simply order such State action, ignoring concerns about institutional incompetence and democratic illegitimacy of courts in adjudicating on the State’s positive duties. A more appropriate course of action would be for courts to initiate a process of deliberation with the State and those affected, within the bounds of a human rights framework, an approach proposed (and adopted) by the Supreme Court recently. In any case, irrespective of how the positive duties are enforced, a discrimination law lens, at the minimum, would influence what the positive duties ought to be.

As the Supreme Court’s decision in X v NCT Delhi opens new constitutional avenues in India’s quest for reproductive justice, it presents an apt moment to pause, and consider, all that can be gained in bringing a discrimination law lens to abortion.