INTRODUCTION
In post-Roe America, stories like that of a brain-dead pregnant woman in Georgia being kept on life support solely to carry her baby to term[1], and a 21-year-old Native American woman in Oklahoma being sentenced to four years in prison for manslaughter after experiencing a miscarriage at just four months pregnant[2], have reignited fierce debates over bodily autonomy and the legal system’s treatment of reproductive rights.
The US Supreme Court, in Dobbs v. Jackson (2022)[3] overturned a major legal precedent of Roe v. Wade (1973)[4] banning abortions except when necessary to save the life of the mother. By contrast, India has taken a more progressive path with its Medical Termination of Pregnancy Act, 1971, and the amendments that followed, making safe, legal abortion accessible even to minors and unmarried women.
This blog looks at how two of the world’s biggest democracies—the US and India—have taken very different legal approaches to abortion. Along the way, it considers what this difference tells us about constitutional interpretation, protecting personal autonomy, and the changing role of the judiciary in shaping deeply personal freedoms.
FROM ROE TO DOBBS: THE DEVOLUTION OF ABORTION RIGHTS IN THE UNITED STATES
Roe v. Wade and the Birth of the Trimester System
Before Roe v. Wade, Texas law recognised foetal rights under Article 1205 of the Penal Code, which classified homicide as the killing of a “person in existence by actual birth”—implicitly acknowledging a legal interest in pre-natal life as the foundation of its anti-abortion stance.[5]
The trimester system, as framed in Roe, was less a reflection of biological reality and more a judicial construct designed to balance competing state and individual interests.[6]
This case introduced the “trimester system”, laid out in Justice Blackmun’s majority opinion. For the first trimester, the abortion decision was left to “the judgment of the woman’s attending physician”, followed by permissible state regulation in the second trimester “reasonably related to maternal health”. In the final trimester, the foetus’s viability—its ability to survive outside the womb—allowed states to prohibit abortion, except where necessary to protect the woman’s life.
This precedent was later softened in Planned Parenthood v. Casey[7], which replaced Roe’s trimester model with an “undue burden” standard—but retained abortion as a constitutional right.
Dobbs v. Jackson: The End of Federal Abortion Rights
In June 2022, the U.S. Supreme Court in Dobbs v. Jackson Women’s Health Organisation overturned Roe v. Wade, ruling that the Constitution does not protect the right to abortion. The majority opinion by Justice Alito declared Roe “egregiously wrong from the start,” holding abortion as neither “deeply rooted” in American history nor “implicit in the concept of ordered liberty.”[8]
The real-world effects of Dobbs are exemplified in the treatment of pregnant cancer patients. With medical protocols under legal scrutiny, doctors are now unable to guarantee evidence-based care, including pregnancy termination when it’s necessary to save the mother’s life or continue treatment.[9] According to some, the judgment “disregards the past 50 years of evolving rights jurisprudence and public reliance on constitutional protections.”
The Shadow of Conservatism
Today, six of the nine justices are Catholic, and the Court has a clear 6–3 conservative majority.While religion alone doesn’t determine legal decisions, this shift points to a deeper change in judicial thinking, moving away from protecting personal liberty toward strengthening state control over intimate choices.
The reversal of Roe exposed millions to criminalisation and coercion. Women are driven to unsafe methods—taking high doses of pills, inserting foreign objects, or ingesting toxic substances in desperation. This decision acted like a wrecking ball to abortion rights and utterly disregarded the reproductive rights of one in four women in America who decide to end a pregnancy.
Beyond abortion, the decision in Dobbs raises difficult questions about what other personal liberties may be at risk. With precedent no longer treated as a constitutional anchor, the Court now holds unchecked power to redefine autonomy itself.
INDIA’S ABORTION LAW: A RIGHTS-BASED EVOLUTION
Legal Framework: MTP Act, 1971 and Amendments
In India, abortions are regulated by the Medical Termination of Pregnancy (MTP) Act, 1971[10], along with its 2021 Amendment.[11] While the original law allowed abortion up to 20 weeks mainly for married women, the 2021 update expanded access to include unmarried women and extended the gestational limit to 24 weeks for survivors of rape and incest.
The Amendment also relaxed procedural requirements, allowing a single Registered Medical Practitioner (RMP) to authorise termination up to 20 weeks and requiring two RMPs only for cases between 20 and 24 weeks. It also strengthened patient privacy protections by introducing punishments: breach of a woman’s privacy under the Act can now result in imprisonment of up to one year.
Comparative Analysis: India vs the USA
The divergent reproductive rights laws in India and the USA raise a central question: how can two democracies take opposing stances on the same issue and still both call themselves democratic?
India has adopted a liberal stance on women’s bodily autonomy, in contrast to the USA, where reproductive rights are increasingly being rolled back. Some states have already passed extreme legislation to restrict abortions, the Texas “Heartbeat” Law being one of them, prohibiting abortions after 6 weeks of pregnancy.[12] This threat to basic human rights of women, which pertain to their bodies, has triggered protests all over the United States.
India began conversations about legalising abortions in the 1960s, when only 15 nations had legalised them.[13] The Indian judiciary has significantly contributed to this progressive stance through landmark judgments such as K.S. Puttaswamy, which upheld the right to privacy, and Suchita Srivastava v. Chandigarh Administration, which recognised reproductive rights as an integral part of a woman’s right to privacy, dignity, and bodily integrity.[14]
On the foetus versus women’s rights debate, the USA prioritises foetal viability, while India emphasises women’s bodily autonomy. One instance is Murugan Nayakkar v. Union of India, where abortion was permitted after the statutory provision of 24 weeks on the grounds of rape and the age of the minor. [15]
CONCLUSION
Now that precedent has relinquished its role as a constitutional anchor, judicial authorities have acquired significant powers to redefine autonomy. The Roe v. Wade throne in the United States has fallen, leaving the extremely urgent question of what other personal liberties are in jeopardy. The sharp contrast between India, a developing country, and the United States, a developed nation, highlights the urgent need for legal progress and exposes the growing tide of conservatism in both places.
Although it is not devoid of faults and is a witness to infamous delays in the 2021 MTP Amendment Act, India’s legal system could be a role model in legalising abortion. Meanwhile, a process of judicial overhaul in the U.S. is threatening the bodily autonomy of women and is drawing worldwide condemnation.
Author(s) Name: Meemansha Tiwari (Rajiv Gandhi National University of Law, Patiala)
References:
[1] Christine Henneburg, ‘The Adriana Smith Case was an Ethical Disaster’ The Atlantic (24 June 2025) < https://www.theatlantic.com/health/archive/2025/06/adriana-smith-fetal-personhood-medical-ethics/683297/ >Accessed July 7, 2025.
[2] Robin Levinson-King, ‘US women are being jailed for having miscarriages’ BBC News (12 November 2021) < https://www.bbc.com/news/world-us-canada-59214544 > Accessed July 7, 2025.
[3] Dobbs v. Jackson Women’s Health Organization (2022) 597 U.S. 215
[4] Roe v Wade (1973) 410 U.S. 113
[5] Harsheen Kaur Luthra, ‘Reproductive Rights and Judicature’ (2023) 3 (2) JCLJ 1176
[6] Hannah Matthews, ‘A Supreme Court Justice Invented Trimesters As We Know Them’ (Romper, September 16, 2024) https://www.romper.com/pregnancy/supreme-court-pregnancy-trimesters-viability Accessed July 7, 2025.
[7] Planned Parenthood v Casey (1994) 510 US 1309
[8] Waim Beg and Shaaivi Shukla, ‘An Analysis of the Evolving Law of Abortions in Light of Roe v. Wade Judgment’ (SCC Online Blog, 2022).
[9] Jennifer Abbasi, ‘Treating Cancer in Pregnant Patients After Roe v Wade Overturned’ (JAMA, 27 September 2022) https://jamanetwork.com/journals/jama/fullarticle/2797062 Accessed July 7, 2025.
[10] The Medical Termination of Pregnancy Act 1971
[11] The Medical Termination of Pregnancy (Amendment) Act 2021
[12] Divyanshu Agarwal, ‘Making Differences between Abortion Laws in US and India’ (2022) 4(5) Indian Journal of Law and Legal Research.
[13] Ibid
[14] Tanvi Agrawal and Akshat Shukla, ‘The Reality of Reproductive Rights of Women: A Comparative Study of India and the USA’ (LSE Human Rights Blog, March 14, 2023) https://blogs.lse.ac.uk/humanrights/2023/03/14/the-reality-of-reproductive-rights-of-women-a-comparative-study-of-india-and-the-u-s-a/ Accessed July 7, 2025.
[15] Gayatri Kondapalli and Akarshi Narain, ‘USA and India on Abortion Rights: Falling on Opposite Ends of the Spectrum’ Jurist News (26 May 2022) https://www.jurist.org/commentary/2022/05/gayatri-kondapalli-akarshi-narain-abortion-roe-v-wade-india-us-reproductive-rights/ Accessed July 11, 2025.
