Beyond bars, coercion and death: Rethinking abortion rights and justice in India

Abstract

The legal framework governing abortion in India is, at its core, a cis-hetero-patriarchal framework that regulates pregnant persons' bodies using a punitive criminal justice system. The criminal framework encompasses Sections 312-318 IPC, provisions of the POCSO Act, and the PCPNDT Act, which prescribe significant state surveillance and allow for largely unchecked intimidation by law enforcement of both abortion providers and abortion seekers. Several case laws show the “chilling effect” of criminalization on healthcare providers, leading them to hesitate to provide safe abortion services. The stigma around abortions perpetuated by criminalization, leaves pregnant persons with limited reproductive choices – these include either availing of safe abortions and risking prosecution, availing of unsafe abortions and risking adverse health outcomes, or carrying unwanted pregnancies to term and avoiding prenatal and maternal healthcare. Criminalization disproportionately affects marginalized communities, with examples of legal reform showing carceral approaches' disregard for structural factors affecting certain groups' access to fundamental rights and healthcare services. It is, therefore, imperative to decriminalize abortion completely, framing avenues for redressal within a reproductive justice framework. The proposal to completely abolish penal provisions that govern forced abortions begets concerns about leaving marginalized pregnant persons who frequently experience forced abortions with no legal recourse. This feminist dilemma that ensues requires the adoption of decarceral, intersectional approaches that maintain structures of accountability for harm done, without posing any risk to the rights of marginalized pregnant persons.