What Are Reproductive Rights?

The World Health Organization (WHO) defines reproductive rights as the:

"recognition of the basic right of all couples and individuals to decide freely and responsibly the
number, spacing and timing of their children and to have information to do so, and right to
attain the highest standard of sexual and reproductive health. They also include the right of all
to make decision concerning reproduction free of discrimination, coercion and violence."

Control over women’s bodies and sexuality is a crucial aspect of reproductive freedom.
Reproductive rights comprise the right to decide timing and spacing of children, the right to
access to gynecological and contraceptive information, the freedom to choose from different
birth control methods, and the right to terminate a pregnancy if desired. It is an important
feminist agenda because these rights are irrevocably entwined with women’s political, economic,
and social status in society.  Donald Trump recently signed a ban on US government money
going to international groups that perform or even provide information on abortions. Many
global charities are worried this order will hit healthcare for women, particularly in poor and
developing countries. Apart from this, some countries in the developing world, such as
Bangladesh, Nepal, or the Central African Republic, women are denied access to basic
information, they are in a disadvantageous state economically, socially, and politically. Lack of
information results in uninformed wives and mothers, increased instances of reproductive
illnesses, and high maternal and infant mortality rates. Therefore, feminists are united in the view
that women around the world should be able to control their own bodies and be granted the right
to choose contraceptives and make informed choices about terminating a pregnancy.

Choice before the Twentieth Century

For centuries women across the globe have used vaginal pessaries, herbal douches, the rhythm method,
extended breast-feeding, and herbal concoctions to control their fertility and limit births. In strictly patriarchal
countries, where boys were preferred to girls, female infanticide was practiced to limit the female population
or maintain a desired sex ratio. Trying to restrict fertility is not new; what is new is the concerted effort by
feminists to grant women the right to control the decision of whether or not to have children as well as the
frequency and number of children, as this has a great impact on their bodies and lives. Reproductive choice,
feminists argue, should be in the hands of women and not husbands or governments. During the 1800s, all
surgical procedures, including abortion, were extremely risky. Hospitals were not common, antiseptics were
unknown, and even the most respected doctors had only primitive medical educations. Without today’s current
technology, maternal and infant mortality rates during childbirth were extraordinarily high. The dangers from
abortion were similar to the dangers from other surgeries that were not outlawed.

As scientific methods began to dominate medical practice, and technologies were developed to prevent infection,
medical care on the whole became much safer and more effective. But by this time, the vast majority of women who
needed abortions had no choice but to get them from illegal practitioners without these medical advances at their
disposal. The “back alley” abortion remained a dangerous, often deadly procedure, while areas of legally sanctioned
medicine improved dramatically.

It was in the midst of the momentous changes fostered by the Industrial Revolution that the idea of granting
women reproductive rights first surfaced. As increased numbers of women were employed in factories, where
pregnancy and childbirth would have an adverse effect on their employability, they turned to unreliable birth
control and unsafe abortion methods in an effort to control their fertility. In the United States and Great
Britain, the common perception was that abortion was not a crime until “quickening” (when the fetus begins
moving). The Catholic Church at this time did not have a strong stand on the question of abortion.

In the 1850s, however, as the use of birth control and abortions grew, three groups—male medical
practitioners, industrialists, and eugenicists—coalesced and called for outlawing abortion and establishing
considerable male control over women’s fertility. In the mid-to-late 1800s states began passing laws that made
abortion illegal. The motivations for anti-abortion laws varied from state to state. One of the reasons included fears
that the population would be dominated by the children of newly arriving immigrants, whose birth rates were higher
than those of “native” Anglo-Saxon women.

Male physicians wanted to monopolize women’s health by encouraging the rapid medicalization of childbirth.
This resulted in marginalizing female midwives. Industrialists wanted to increase their productivity and profits
by employing more women and children. Eugenicists argued for the rapid demographic growth of peoples of
European descent at the expense of “others.” The United States government responded with the Comstock Act
of 1873, which restricted distribution of any material considered obscene; information on abortion and birth
control came under the purview of this restrictive law. As a consequence, women were denied gynecological
and contraceptive information.

Back-Alley Abortions

The prohibition of legal abortion from the 1880s until 1973 came under the same anti-obscenity or Comstock laws
that prohibited the dissemination of birth control information and services.
Criminalization of abortion did not reduce the numbers of women who sought abortions. In the years before Roe v.
Wade, the estimates of illegal abortions ranged as high as 1.2 million per year. 1 Although accurate records could not
be kept, it is known that between the 1880s and 1973, many thousands of women were harmed as a result of illegal
abortion.

Many women died or suffered serious medical problems after attempting to self-induce their abortions or going to
untrained practitioners who performed abortions with primitive methods or in unsanitary conditions. During this
time, hospital emergency room staff treated thousands of women who either died or were suffering terrible effects of
abortions provided without adequate skill and care.

Some women were able to obtain relatively safer, although still illegal, abortions from private doctors. This practice
remained prevalent for the first half of the twentieth century. The rate of reported abortions then began to decline,
partly because doctors faced increased scrutiny from their peers and hospital administrators concerned about the
legality of their operations.

From 1900 to the 1950s

The beginnings of the twentieth century coincided with the first battle for reproductive rights in the form of
demands for access to gynecological and contraceptive information. U.S. activists such as Margaret Sanger
(1879–1966) and the socialist Emma Goldman (1869–1940) and British activists such as Marie Stopes (1880–
1938) held public forums to advocate that reproductive rights were crucial to improving women’s status in
society. They argued that working-class and poor women be allowed access to information. Despite being
publicly ridiculed, harassed, and arrested under the Comstock Act, Sanger and Goldman successfully
overturned it. Sanger founded the American Birth Control League, the forerunner of today’s Planned
Parenthood. In Great Britain, Marie Stopes continued to campaign for more government funding to open
clinics that would provide women with information that would help them to make informed choices.

But efforts to open birth control clinics both in the United States and Europe met with considerable resistance
from the government as well as the church, especially during the post–World War I years. A drastic decline in
birth rates prompted the United States and most European governments to attempt to control women’s fertility
by encouraging births. Women were rewarded for producing many children, and indeed, during the decades
following World War I, women’s fertility was linked to national vitality and prestige. Most European
governments introduced comprehensive welfare programs to aid and encourage parenthood. At the same time,
eugenicists lobbied hard to influence Western governments to control fertility by restricting the birthrate
among groups deemed “socially inappropriate.” Abortions and involuntary sterilizations were performed
clandestinely, often in unsanitary conditions, on women belonging to these groups.
Liberalization of Abortion Laws

Between 1967 and 1973 one-third of the states liberalized or repealed their criminal abortion laws. However, the
right to have an abortion in all states was only made available to American women in 1973 when the Supreme Court
struck down the remaining restrictive state laws with its ruling in Roe v. Wade.

Roe v. Wade
The 1973 Supreme Court decision in Roe v. Wade made it possible for women to get safe, legal abortions from well-
trained medical practitioners. This led to dramatic decreases in pregnancy-related injury and death.

The Roe case arose out of a Texas law that prohibited legal abortion except to save a woman’s life. At that time,
most other states had laws similar to the one in Texas. Those laws forced large numbers of women to resort to illegal
abortions.

Jane Roe, a 21-year-old pregnant woman, represented all women who wanted abortions but could not get them
legally and safely. Henry Wade was the Texas Attorney General who defended the law that made abortions illegal.

After hearing the case, the Supreme Court ruled that Americans’ right to privacy included the right of a woman to
decide whether to have children, and the right of a woman and her doctor to make that decision without state
interference.

The Trump administration has taken its war on abortion worldwide, cutting off

all funding to any overseas organisation or clinic that will not agree to a complete
ban on even discussing it.

 Sexual health organisations have said women will die as a consequence as they

pursue dangerous DIY solutions or “back street” abortions instead.

In March, the US extended the gag, stating that any organisation counselling
women on abortion and using funds from elsewhere – even from its own
government or a donor in another country – will no longer be eligible for any US
funding. The diktat applies to all global health organisations. HIV and children’s
charities must sign up to the pledge, alongside those running sexual and
reproductive health clinics.

What that means for organisations such as Marie Stopes International and the
International Planned Parenthood Federation (IPPF) is a blight on sexual and
reproductive health services even in countries where abortion is never offered
because it is illegal.

Every time the global gag has been reimposed by a Republican president, rates of
back street and self-administered abortions sometimes ending in death have gone
up, along with unwanted pregnancies. Two years since Trump’s original edict, on
the day he came into office and in line with his pledge to religious groups he
courted for votes, it is still early to assess the impact, but it is likely to be
considerable.

“The global gag rule hits hardest the women living at the margins – the poorest,
the most remote and those under 25,” said Ana Maria Bejar, the director of
advocacy at IPPF. “Progress can only be made when we can expand access for
women and girls, not by reducing it.

“The policy has had a disastrous impact for IPPF in [more than] 30 countries.
Tailored services for contraception, Zika information, maternal health, antenatal
care, reproductive cancers, and HIV prevention and treatment felt the brunt.

“Any cuts to critical, affordable, high-quality, integrated reproductive healthcare

is denying a woman or girl the right to decide what to do with her body, her life
and her future.”

IPPF had 49 projects run by local member organisations in 31 countries in Latin

America and the Caribbean, sub-Saharan Africa, and South Asia in January 2017
when the rule came in. Services in some areas shrunk by up to 42% within the
year and the impact is already visible.

In Kibera, one of Nairobi’s biggest slums, volunteers report a rise in sexually

transmitted infections, such as syphilis, and unsafe abortions. An outreach family
planning clinic arrives once a month instead of three to four times. In some rural
areas of Kenya, such clinics have stopped completely. Some HIV clinics have
closed.

In Dakar, Senegal, volunteers report a rise in unsafe abortions, teenage

pregnancies and sexually transmitted infections in an impoverished
neighbourhood where three out of five clinics that had been funded by IPPF have
closed.

Marie Stopes International is the other big funder of family planning services
across the world. John Lotspeich, its director of external affairs, called the latest
extension of the gag “quite outrageous … what they are saying is, even if an
organisation’s money mainly comes from other organisations, say the Danish
government, there is a ban on that money from being used to discuss abortion”.

US funds, he points out, have never gone towards paying for abortion. There is a
separate piece of legislation that prevents it.

Marie Stopes International supports family planning services in many countries

where abortion is illegal. Some of those have ended.

“It happened very quickly in 2017,” Lotspeich said. “Most outreach services in
Uganda had to stop.” In Madagascar, they had to give their trucks back to the US
Agency for International Development (USAid). “They wouldn’t even let us buy
them from them.
“Then there are examples in countries like Malawi, where only we and [the] IPPF
are the providers.” They have had to stretch their resources, meaning fewer
services are allocated across the country.

Sexual and reproductive health is a sensitive area, highly vulnerable to changes in

the political and moral climate.

Lotspeich said that within three to four months of Tanzania banning pregnant
girls from attending school “some of our providers say they were seeing teenage
girls coming in having tried to self-abort. Being pregnant, they couldn’t go to
school, so they tried to take matters into their own hands.” There can be tragic
consequences.

The Danish and Canadian governments have given MSI funding. The movement
She Decides was started in response to Trump’s reimposition of the gag by the
Dutch government minister Lilianne Ploumen, along with her counterparts in the
governments of Belgium, Denmark and Sweden. It has raised funds and
championed women’s rights to sexual and reproductive healthcare, including
abortion, but it cannot match the loss of funds from the United States.

US money is being switched from the big family planning providers to faith
groups that have a specifically anti-abortion stance. Some are also opposed to
modern contraception. They will say they do family planning – but they teach
“natural” methods and abstention. There is a change in the atmosphere and the
argument.

In Verona in March, the World Congress of Families held its annual rally,
declaring its commitment to “the right to life” from conception, as well as
marriage being solely the union of one man and one woman for life. Just as
hostile to LGBTI rights and abortion is the ultraconservative CitizenGO, started
in Spain but now promoting petitions in 50 countries. These movements are
reinvigorated by Trump’s global war on abortion.

“We are starting to see this is a hugely political play,” Lotspeich said. “The Trump
administration is giving a lot of air cover for people to express these views that
women’s rights are not paramount, even though they are enshrined in the
Beijing declaration and so on.”

The rhetorical battle has intensified. She Decides is leading the fight back, taking
on the cause of women’s rights all over the world. But while US money is denied
to those who would help women have control over their bodies, the deaths and
serious mental and physical harm will inevitably continue.

Common Birth Control Methods

Making informed choices about birth control is another crucial focus of the reproductive rights

movement. Activists for women’s reproductive rights argue that as it is the woman whose

health is affected by pregnancy, a woman should be the one to make the decision regarding

which birth control method to adopt. In many countries women’s birth control options are not

only limited, but governments, pharmaceutical companies, and husbands often impose their

views. Generally speaking, there are four birth control methods: barrier methods, hormonal

methods, mechanical methods, and sterilization. The first method comprises diaphragms,

condoms, and the cervical cap. These contraceptives provide effective means of preventing

pregnancy, and the condom has the added benefit of protecting against sexually transmitted

diseases. Hormonal methods consist of birth control pills, Norplant, and Depo-Provera. The

interuterine device (IUD) is a mechanical method of birth control that is believed to work by

preventing an egg from implanting in the uterine wall. There are also interuterine systems,

which are essentially IUDs that dispense the hormones that prevent pregnancy. Sterilization

involves a procedure called tubal ligation, in which the fallopian tubes are tied, thereby

preventing eggs and sperm from meeting, and, consequently, pregnancy. Many governments

use tubal ligations to forcibly restrict population growth among certain groups.
Population Control Programs
Since the mid-1990s, the reproductive rights movement has focused on population control

programs. Despite the existence of the U.N. Convention on the Elimination of All Forums of

Discrimination Against Women (CEDAW), which admonishes governments against

implementing aggressive population control programs to promote national interests, most

countries in the developing world have such programs, often at the expense of women’s health.

Governments may be either pro-natalist or anti-natalist. Feminists are critical of both groups, as

both restrict women’s choices, though with opposite goals.

Pro-natalist governments want to increase their nations population; they typically outlaw

abortion and contraception and seek to gain complete control over women’s fertility. Prolonged

warfare, loss in productivity, or even, in some instances, increasing numbers of people of racial,

ethnic, or religious groups that the government considers undesirable have all been known to

provoke a pro-natalist reaction. For example, in 1966 the former Romanian dictator Nicolae

Ceausecu banned abortion and encouraged women to produce as many children as possible

because he wanted to increase the national productivity.

Women activists also criticize anti-natalist governments that implement coercive and selective

policies. Communist China’s one-child policy to restrict population growth is an example of

coercive anti-natalism. In such cases the government’s desire to control population growth

often comes at the expense of women’s health. The United States was guilty of antinatalism in

the early 1950s and 1960s, when federal funds were used to perform forced sterilization on

Chicano, black, Native American, and Puerto Rican women.

It is paradoxical that while women are responsible for producing the future generations, their

right to control their own bodies is limited by public and private forces. Reproductive rights,

with all their ramifications, are a reflection and determinant of women’s equality in society.

INDIA
Abortion and Reproductive Autonomy

The Puttaswamy judgment specifically recognised the constitutional right of

women to make reproductive choices, as a part of personal liberty under
Article 21 of the Indian Constitution (Justice K S Puttaswamy v Union of
India 2012a: para 72, 2012b: para 46, 2012c: para 38). The bench also
reiterated the position adopted by a three-judge bench in Suchita Srivastava v
Chandigarh Administration (2009), which held that reproductive rights
include a woman’s entitlement to carry a pregnancy to its full term, to give
birth, and to subsequently raise children; and that these rights form part of a
woman’s right to privacy, dignity, and bodily integrity. 

The Suchita Srivastava case arose in the context of the Medical Termination
of Pregnancy Act, 1971 (MTP Act), which governs abortions in India.
Enacted two years before the landmark judgment of the US Supreme Court
in Roe v Wade(1973), the MTP Act allows for legal abortions only if certain
conditions are met. Under Section 3 of the act, only registered medical
practitioners can terminate a woman’s pregnancy if they believe in good faith
that continuing the pregnancy would involve a risk to the woman’s life or
gravely injure her physical or mental health; or that the child would be
seriously handicapped by physical or mental abnormalities. If the woman has
been pregnant for under 12 weeks, the permission of one medical practitioner
is required, and if the pregnancy is between 12 and 20 weeks, the
authorisation of two medical practitioners is mandatory. Beyond 20 weeks,
Section 5 of the act applies, which permits abortion only in situations where
the medical practitioner believes that abortion is immediately necessary to
save the woman’s life. 

The act places these restrictions to balance a woman’s right to privacy against
the state’s legitimate interest in protecting the woman’s health, as well as the
potentiality of human life (Suchita Srivastava v Chandigarh
Administration2009: 11). Another commonly-advanced justification is that
restricting abortions is necessary to prevent sex-selective abortions. But the
46-year-old act has met rising opposition over the years for its restrictive
nature and failure to keep up with technological advancements in medicine.
 The privacy judgment significantly bolsters calls for reform, opening
[1]

further avenues for Sections 3 and 5 to be challenged. 

Sections 3 and 5 evidently infringe women’s rights to make reproductive

choices, which the bench affirmed as parts of the right to privacy. At no point
during a pregnancy can a woman choose to get an abortion on her own,
which prevents women from exercising their rights to physical integrity and
making free choices relating to their bodies. [2] Abortions are doctor-centric,
with doctors having the ultimate discretion over the woman’s body and
choice, at all stages of her pregnancy. Further, the law recognises only
medical risks as grounds for an abortion, delegitimising all other reasons why
a woman may seek to terminate her pregnancy. These medical risks are
further emphasised after 20 weeks, in which case, a woman is forced to carry
pregnancy to term unless it poses a grave risk to her life, even if
other grounds of physical and mental abnormalities in the foetus are satisfied
as per Section 3. The law does not accommodate non-medical concerns over
the economic costs of raising a child, effects on career decisions, or any other
personal considerations. In addition, the act makes invisible the plight of
married women who are forced to conceive and carry a pregnancy to term
against their will. This is because the marital rape of women older than 15
years is not legally recognised as rape.[3] 

The state can, of course, place limitations on fundamental rights, but these
limitations must pass tests outlined in constitutional jurisprudence. Since
privacy claims can be grounded in any of our fundamental rights, the bench
affirmed that any limitation on privacy will be tested according to the
fundamental rights which it infringes and the established jurisprudence on
those rights. The bench separately highlighted Article 21, which guarantees
the fundamental right to life and personal liberty, and entails a “just,
reasonable, and fair” test (Maneka Gandhi v Union of India 1978), that is,
any law restricting Article 21 must be “just, reasonable, and fair” to remain
constitutionally valid. 

It is this test that Sections 3 and 5 of the MTP Act will have to pass. Justice
Chandrachud described this test as comprising of three prongs: the privacy
restriction should exist as a valid law; there must be a “legitimate state
interest” behind it; and the restriction should be “proportional” to its aim. 
The judgment potentially leaves open two standards of scrutiny for the last
“proportionality” prong of the test. Either the SC uses a lower standard of
“rationality,” where the state must prove that there is a rational nexus
between the object of the privacy limitation and the means adopted, or the SC
uses a stricter standard, where the state must prove that there are no other less
restrictive means which would achieve the same object. 

Applying either standard would raise significant challenges to Sections 3 and

5 of the MTP Act. If these provisions are challenged, the state, at the very
least, would have to show that there is a rational nexus between its interests
(in protecting women’s health and potential human life) and preventing
women from deciding on abortions on their own. Further, since the privacy
judgment has also bolstered calls to criminalise marital rape, future
judgments may expand recourses available to married women under Section
3. 

Even before the privacy judgment, similar criticisms had been voiced against
the MTP Act for years, and an amendment bill was thus introduced in 2014
(MoHFW 2014). The Medical Termination of Pregnancy (Amendment) Bill
seeks to expand reproductive rights under the act. Most crucially for privacy
concerns, the bill allows abortion on “request” of a woman up to 12 weeks of
pregnancy. Through Section 2(d), the bill also seeks to improve access to
abortions by allowing “registered healthcare providers,” including ayurveda
and homeopathy practitioners to authorise abortions, and nurses and auxiliary
midwives to perform them (though additional regulation of such providers is
necessary). Protecting a key aspect of “informational privacy,” Section 5A of
the bill also mandates that no registered healthcare provider shall reveal the
name and other particulars of a woman whose pregnancy has been terminated
as per the provisions of the act.
But even these amendments may not satisfactorily address all privacy
concerns with the act’s restrictions on abortions. Although the amendment
allows abortions on a woman’s request up to 12 weeks, women still have to
prove that the pregnancy was unplanned or that contraceptives failed, which
still considerably restricts their exercise of choice in this matter. To get an
abortion, the amendment still insists on establishing that either the foetus or
the mother is at risk. 

Since the amendment bill has not yet been passed, the legislature should
immediately remedy the bill’s shortcomings. As Justice Chandrachud
observed, the state does not merely have a negative duty (to not infringe
privacy), but also has positive obligations to take all necessary measures to
protect an individual’s privacy (Justice K S Puttaswamy v Union of
India 2012a: para 3[I]). Apart from the privacy judgment, a 2016 Bombay
High Court judgment provides useful guidance for reform (Bhatia 2016). In a
suo motu PIL concerning the deplorable condition of a female prison inmate,
the high court categorically stated that a “woman alone should have the right
to control her body, fertility and motherhood choices.” The high court also
addressed the status of the legitimate state interest in protecting “potential
life.” It stated that since pregnancy takes place within a woman’s body and
profoundly affects her health, mental well-being and life, an unborn foetus
cannot be put on a higher pedestal than the rights of a living woman. 

Thus, the Bombay High Court and Supreme Court have both emphasised
women’s autonomy to take informed decisions regarding their own bodies,
fertility, and reproduction. Even when the judiciary has allowed abortions
beyond 20 weeks, the fact that women have had to move the courts highlights
a further restriction on their access to safe and legal abortions (Indian
Express2017). In a country where 9–20% of maternal deaths are caused by
unsafe abortions (Sebastian et al 2014), there is an urgent need to align the
provisions of the MTP Act with these judgments. In addition to all the
changes discussed above, the MTP Amendment Bill would also benefit from
a specific provision that reiterates women’s rights to self-determination
around abortions. This would go a long way in addressing privacy concerns
and reducing the stigma surrounding abortion.