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Late‑Term Abortion Equivalent to Murder, Says SC

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Jul 17, 2018

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On Monday, the Supreme Court denied a woman permission to terminate her 25-week pregnancy. Indian law states that a woman may only have an abortion after 20 weeks if the fetus will likely have serious abnormalities or pose a risk to the mother’s life.

The SC said yesterday that aborting a healthy fetus beyond 20 weeks amounts to murder, reports Hindustan Times. The woman had first petitioned the Bombay High Court to allow her to terminate the pregnancy on the grounds that she was epileptic, and that she had separated from her husband, who she accused of domestic violence. The case was then moved to the Supreme Court after the High Court declined her plea.

The Supreme Court likened a possible abortion in this case to murder, saying the pregnancy and birth are unlikely to result in any physical health complications for her. Sneha Mukherjee, the advocate representing the woman in court, argued, “One needs to choose the existing right over a potential right. It’s not about a person suffering physically but also mentally.”

The court was not swayed by her argument. “You should make the mother hear her child’s heartbeat,” the court said. The mother would “regret killing the baby,” the SC also said, if she “reconciled with her husband.”

The Supreme Court’s remarks are surprising, especially in view of the fact that India’s abortion law is relatively pro-woman; before 20 weeks of pregnancy, adult women are able to get abortions without having to ask for permission from any third party, including her husband, the baby’s biological father, or other family members.

Most countries with comparable laws make some ruling on the stage of pregnancy at which a woman can legally obtain an abortion. For the UK, for example, that cutoff is 24 weeks. It is undeniably a grey area, more an arbitrary point on the timeline than any ethical indication of the exact moment when we start considering a fetus to be a human life. In fact, usually, arguments against late termination of pregnancy are about the potential health risks of these procedures for the women undergoing them.

The SC has essentially equated abortions performed after the arbitrary 20-week mark to murder, which is ethically murky territory at best, and ruled in the interest of the fetus over the mother at worst. The court, which has been wildly inconsistent with its rulings around the 20-week cutoff, risks undoing the progress that our laws have made for women seeking abortions. Counter to its statements yesterday, just earlier this year, the Supreme Court ruled that a woman would be permitted to have an abortion at 26 weeks, as the baby’s health problems would cause the mother “severe mental injury.”

Furthermore, the Supreme Court’s comment that the woman would regret “killing the baby” if she “reconciled with her husband” are unapologetically condescending. To question a woman’s resolve, especially in a case of alleged domestic violence, indicates that the bench believes women incapable of making their own decisions. And studies show that women who have abortions don’t regret them nearly as much as we’ve been led to believe.

One way the Supreme Court can avoid such confusion and inconsistency is to adopt the comprehensive standpoint put forth by Mukherjee: “One needs to choose the existing right over a potential right.” When the Supreme Court is able to maintain the same perspective on all its rulings, mothers will be able to enter such cases with some guarantee of their rights to mental and physical well-being.

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Written By Urvija Banerji

Urvija Banerji is the Features Editor at The Swaddle, and has previously written for Rolling Stone India and Atlas Obscura. When she’s not writing, she can be found in her kitchen, painting, cooking, picking fights online, and consuming large amounts of coffee (often concurrently).

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