The Right to Privacy and Access to Abortion in a Post Puttaswamy World

In August 2017 India’s Supreme Court ruled that a Constitutional right to privacy exists in KS Puttaswamy v Union of India. While considering the right to privacy, the Supreme Court referenced international case law charting the right to use contraception and to access abortion. Indian jurisprudence already has a wealth of case law on reproductive rights, often referencing the same principles of liberty, autonomy, and dignity that the Puttaswamy judgment refers to. After Puttaswamy, there has been much talk about the scope of reproductive rights in India being broadened. This article contributes and builds upon this discourse as it seeks to predict how the Supreme Court will respond to future challenges using the new constitutional right to privacy. It maps the legal framework under the Medical Termination of Pregnancy Act, which regulates access to abortion within India and considers issues relating to access to abortion, the continuing practise of sex-determination and sex-preferred abortions, and debates surrounding access to abortion where foetuses have been diagnosed with medical conditions likely to affect their quality of life, and/or survival. This article examines liberty, autonomy, and dignity as they are articulated within the Puttaswamy decision and how they are represented within existing reproductive rights jurisprudence and academic debates with reference to access to abortion. This approach aims to predict how any future challenge to the Medical Termination of Pregnancy Act’s provisions using the new constitutional right to privacy will be responded to by the Supreme Court of India.