The judiciary has assumed the role of ultimate arbiter in determining what constitutes a “good” or “bad” abortion and who is deemed deserving of abortion access.
Authors
Dipika Jain, Professor of Law; Vice Dean and Director, Centre for Justice, Law and Society, Jindal Global Law School, O.P. Jindal Global University, Sonipat, Haryana, India.
Krithika Balu, Independent human rights lawyer and researcher, India.
Summary
This article outlines the structural barriers to abortions in India, exacerbated by the COVID-19 pandemic and ensuing lockdowns. It discusses the limits to access inherent within India’s abortion law, strict state-imposed pandemic management measures, the unequal public healthcare system, and resultant systemic coercion of pregnant persons to approach courts to seek abortions.
It reviews abortion-related cases to argue that the judiciary’s neglect of its responsibilities during the pandemic has been mirrored in its lack of willingness to realize the reproductive rights of pregnant persons requiring abortions during and after the pandemic. Cases are examined using the legal indeterminacy framework to understand how abortion laws overlook pregnant persons’ autonomy.
These laws have relied on stereotypes, betraying the underlying paternalistic and protectionist rationale of the judiciary. The judiciary has assumed the role of ultimate arbiter in determining what constitutes a “good” or “bad” abortion and who is deemed deserving of abortion access.
Published in: Indian Law Review
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