India’s Supreme Court Legalizes Abortions for Single Women—and Men
WASHINGTON, D.C., October 7 (C-Fam) India’s highest court cited UN human rights committees in a recent ruling legalizing abortion for unmarried women up to 24 weeks gestation. The decision stipulates that “women” includes “persons other than cis-gender women who may require access to safe medical termination of their pregnancies.”
India had previously amended its abortion law to expand the grounds under which married women could obtain abortions, extending the gestational limit from 20 to 24 weeks, but single women were still limited to 20 weeks until the new ruling, which was announced on September 29.
Abortion advocates hailed the decision as reducing the stigma associated with single women who become pregnant. The woman who brought the case before the court was engaged in a consenting relationship with a man who “refused to marry her at the last minute,” despite her 22 week pregnancy.
In changing India’s abortion laws the Supreme Court cited the opinions of several UN human rights treaty bodies including the Human Rights Committee’s general comment that “[s]tate Parties have the responsibility to provide safe, legal, and effective access to abortion.”
The ruling also cites the Committee on Economic, Social, and Cultural Rights and the Committee on the Elimination of Discrimination Against Women. All of these committees monitor compliance with treaties none of which include any mention of abortion, much less as a right. What’s more, the opinions and recommendations of these experts are not binding in any way.
UN treaty bodies and other human rights mandate holders also played a role in recently pressuring Argentina to liberalize its abortion laws. The text of the Argentina law mentions several UN human rights treaties and also frames the abortion issue in terms of “women and people with other gender identities with the ability to gestate.”
The same UN bodies were quick to denounce the United States Supreme Court’s Dobbs ruling earlier this year, which overturned the 1973 decision making abortion the law of the land throughout the U.S. for almost fifty years.
This recent ruling is not the first time India’s high court has cited UN bodies—and other far-flung sources—in rulings on controversial social issues. In 2018, the court struck down India’s sodomy laws, arguing that the criminalization of sodomy violated international human rights standards. As with abortion, there has never been an international consensus on this point, but treaty monitoring bodies and other experts and UN agencies have repeatedly pressured countries to repeal such laws.
The 2018 Indian ruling on sodomy cited several U.S. Supreme Court cases authored by Justice Anthony Kennedy, including the ones overturning U.S. state-level sodomy bans and establishing same-sex “marriage” at the national level.
Human rights experts at the UN have no power to create a human right to abortion or redefine the family. However, activist groups campaigning for these things often point to instances where national courts or legislatures cite the experts’ writings as a way of elevating the experts’ legitimacy—and the legitimacy of their claims about abortion as a right.
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