Transformative Constitutionalism and Women: Abortion Rights in India & America

Abstract

The issue of abortion has been hotly debated in the U.S. and India since the early seventies. The nucleus of the concept of abortion lies in the debate of rights of an unborn child as against the rights of women’s bodily autonomy and personal choice. In the last 30 years over 60 countries have made strides with respect to framing abortion laws and overlooking its effective implementation. Abortion is still prohibited in 22 countries and to which there is a new shocking addition of USA which has overturned its earlier progressive judgement on abortion-Roe v. Wade.  On the other hand Indian judiciary has made progress in securing a safe and broad spectrum of abortion rights for women in 2021, by amending Medical Termination Act of 1971 to increase the upper gestational limit from 20 to 24 weeks for specific categories of vulnerable women, and removed it altogether in case where the foetus is diagnosed with substantial abnormalities by a medical board. In this article an attempt has been made to delve into history of abortion rights in India and America. Through the meticulous examination of landmark cases like Roe v. Wade and Dobbs v. Jackson it presents a comprehensive overview of evolution of abortion rights in America. Latest transformative judgements of the Supreme Court are also discussed lending new insights into current status of abortion rights in India.