| Hello and welcome to Mind the Gap, a newsletter that adds perspective to the week’s gender developments. Even though abortion has been legal in India since 1971, women sometimes still have to struggle to get one. Why? Read on... THE BIG STORY: If abortion is legal, why do Indian women still have to ask the courts for permission? It took a ruling by a three-judge bench of the Supreme Court to finally allow an unmarried woman to have an abortion at 24 weeks. The 25-year-old woman conceived while she was in a live-in relationship. At 18 weeks, her partner abandoned her. At 23 weeks and five days pregnant, the woman approached the Delhi high court saying she was simply not mentally prepared to bring up the child on her own and to do so would cause her grave physical and mental harm. What followed was a paternalistic lecture: “Why are you killing the child?” the judges wanted to know, and then advised: “There are big queues for adoption...we are not forcing her to raise the child. We will ensure that she goes to a good hospital. Her whereabouts will not be known. You give birth and come back.” Instead, the woman approached the Supreme Court. ‘Unduly restrictive’ The high court judges were relying on an ‘unduly restrictive’ interpretation of the Medical Termination of Pregnancy rules amended in 2021, said the Supreme Court. The amended rules replace the word ‘husband’ with ‘partner’, clearly indicating that they were intended to cover unmarried women. Now, even that residual ambiguity has been clarified. “The Supreme Court judgment will give relief to other unmarried women seeking an abortion,” said Amit Mishra, the woman’s lawyer. Provided that a medical board rules that the abortion will not put her at risk, the woman can go ahead with it. Under the amended rules, any pregnancy can be lawfully terminated up to 20 weeks. It’s between 20 and 24 weeks where it gets tricky. Abortions up to 24 weeks of gestation are allowed only with caveats: If the woman is a survivor of sexual assault, rape or incest; if she is a minor; if she has physical or mental disabilities; if there are foetal abnormalities; and if there is a change in her marital status and she gets divorced or becomes a widow during her pregnancy. An arbitrary distinction What the Supreme Court did not dwell upon was the logic, or lack of it, in creating different categories of women to whom the rules apply. After all, if a physically or mentally differently-abled woman can be permitted an abortion at 24 weeks, then why not all women? On Thursday, the Kerala high court granted permission to a 13-year-old girl impregnated by a sibling to terminate a 30-week pregnancy. So, who creates these distinctions and why are they not applicable to all women? “If you have accepted termination of pregnancy at 24 weeks is safe, then it is safe for all,” said Dr Nikhil Datar, a Mumbai-based gynecologist whose petition in the courts led to the amendment of the Medical Termination of Pregnancy Act and who, moreover, currently has another petition challenging the amended rules in the Supreme Court. Creating a separate category of conditions to be fulfilled between 20 and 24 weeks has ‘no logic’, Datar added. “The gestation limit of 24 weeks is already arbitrary. Now, under that arbitrary limit, there are distinctions that I completely fail to understand.” The distinction demonstrates that “women do not have a sovereign right over their bodies,” wrote senior advocate Vrinda Grover in February 2020. “Such a law not only fails to actualise autonomy and reproductive justice for women,” she continued, but “further entrenches patriarchal and regressive notions of progeny that preserve caste-community purity, and promotes eugenics and ableism.” In the larger scheme of things, said lawyer Anubha Rastogi who runs the Pratigya Campaign for safe abortion, “Abortion is not a right and is only permitted in certain circumstances. Till this is remedied, we will keep seeing different facets of this coming up in cases before courts.” Going to court The amendment to the Medical Termination of Pregnancy Act comes against the backdrop of a growing number of women who had to approach the courts for permission to obtain an abortion after 20 weeks. The Pratigya campaign tracked 194 such cases filed between June 2016 and April 2019. Of these, 33 cases were filed by rape survivors. Judges denied permission in 17% of these cases. Datar said that since 2008 he has personally helped over 300 women approach the courts to terminate a pregnancy. Sometimes court verdicts can go the other way. In 2009, a 19-year-old mentally challenged woman placed in a government-run institution in Chandigarh became pregnant as a result of rape. The institution sought permission for an abortion which was granted from the high court. But, here’s the twist, the woman wanted to have the child and appealed in the Supreme Court (Suchita Srivastava v Chandigarh administration). The court upheld her desire, and right, to have the child. Chilling effect, disastrous result One in three of the 48.1 million pregnancies in India every year end in an abortion, according to a 2018 Lancet study. In 2015, 81% of abortions were induced through medication, 14% through surgical intervention and as many as 5% through ‘methods that were probably unsafe’. Unsafe abortions are the third leading cause of maternal mortality, taking 13 lives every day. Complicating the right to abortion are the severe penalties under the law preventing the prenatal sex determination that has had a chilling effect on doctors performing abortions. POCSO, or the prevention of child sexual abuse, is another such law that makes it mandatory to report such abuse when a person becomes aware of it. An increasing number of doctors fear backlash, finds a report by Pratigya, Assessing the judiciary’s role in access to safe abortion. As a result, “refusals to perform MTPs (medical termination of pregnancies) are high” and “most medical practitioners now refuse to see a minor pregnant girls, thereby reducing access for minor pregnant girls.” The Supreme Court judgement is a welcome first step, said Datar, but it is not enough. “Unless the rules are changed in black and white, doctors will remain at the mercy of administrative officers who are bound by rules and not court judgements,” he said. | 
