Abortion Denial in India Highlights Limitations in Law

Deepali Gaur Singh

A woman carrying a fetus with high chance of deformation was denied an abortion in India. The country's response highlights the complexity of writing abortion law in a country plagued by sex-selective abortions.

A typing error — casting a fetus’s chance of being born without a significant handicap as "very fair" when the doctor intended to write "very few" – resulted in the denial of abortion services to an Indian woman named Niketa Mehta.  A week later, Niketa suffered a miscarriage, but the initial denial by the Mumbai High Court raised a storm over not just Niketa Mehta’s particular fetus and her right to abort it but also over a woman’s autonomy over her body.

The High Court ruled that her request for the termination of pregnancy due to a congenital heart condition of the fetus was akin to "mercy killing" and given the stand the judiciary has had so far on mercy killings, her plea was rejected. (Ironically, the Indian law allows what the Mumbai High Court chose to term as "mercy killing" til 20 weeks of pregnancy.) So what Niketa could have easily exercised as a personal choice a couple of weeks earlier had been denied to her.

The hospital where Niketa’s case was diagnosed gave absolutely opposite opinions of the fetus within 72 hours; this anomaly in diagnosis was quickly attributed to a typo-error. A diagnosis that the attending physician meant to read as "very few chances" the child would not be born handicapped or incapacitated was transcribed as "very fair chances" that the child would be born without a handicap. So eventually the abortion was denied on the grounds that the diagnosis by experts did not establish the certainty of a handicap. Moreover, India’s abortion laws allow for a pregnancy to be terminated after 20 weeks only if there was a fatal risk to the mother and not the fetus.

The attempt to amend the law now has been put into the hands of the legislature, as the existing laws did not permit Niketa to abort her fetus. The plaintiff had found out only in the 24th week of her pregnancy that the fetus had a congenital heart block. She was told by doctors that the child would need a pacemaker right at birth and the quality of its life would be poor.

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The health minister, who has been busy with far more contentious issues like actors smoking on screen, is of the opinion that this "one case is not enough for the health ministry to decide on an amendment on the law." The amendment would allow for abortions beyond the 20 week moratorium in cases like Niketa’s, in which medical conditions with regard to the fetus become evident only at later stages of the pregnancy.
The petitioners had also contended that their middle-class background would make it economically difficult to provide for the pace-maker every five years. With absolutely no state support for special needs children, and in a country where income disparities and unequal access to medical and health facilities are so glaringly evident there are many, including gynecologists, who are pressing for a change in the law, especially in the context of those grossly ill-informed and/or misinformed on what it entails once the child is born.

On medical grounds too, there are many who claim that the risk to the mother in case of termination of pregnancy at 25 weeks is not significantly higher than the risk at 20 weeks.

Abortion has been legal in India since 1971 under certain conditions, most of which relate to the health of the fetus and the pregnant woman and some other extraneous conditions. Abortion continues to be a very tricky issue in the Indian context of sex-selective abortions. But it is important to understand that sex-selective abortions are a phenomenon that grew more out of the ability to know the sex of your child and not from the right to legal abortion. And it is this constant attempt to mix the two arguments that finds pro-choice activists and woman’s rights organizations having to tread carefully while working to create a space for contraception, abortion and a simultaneous intolerance to sex-selective abortions. Moreover, with the knowledge of the gender of the child available through a variety of techniques and definitely by the 20 week cut off period for a legal abortion (if not earlier), the argument that such an amendment could be abused by those attempting to engineer a male heir hardly stands.

A case that is bound to swing between the spectrums of personal trauma and ethical issues, the judgment directly affects the question surrounding certain complications of the fetus that show up only in later weeks (between the 22nd to the 24th), and since abortion at this stage is illegal, medical practitioners refuse to abort the child forcing couples to turn to quacks, potentially endangering the mother even further. Using the argument that medical experts did not express any "categorical opinion that if the child is born it would suffer from serious handicaps," the court chose to dismiss the plea affecting the amendment of the medical termination of pregnancy as well. The hospital, which once was willing to give a more direct opinion to the parents-to-be, obviously was not willing to take responsibility for an opinion which is bound to change the law itself. The court went on to state that had the couple approached even before 20 weeks it would not have been possible to allow abortion, as the medical opinion was contrary; an irony indeed in a country where over 10 million fetuses–all female–have been aborted in the last two decades at the rate of 500,000 a year.

Even though the government and the judiciary may think differently, there are many in the medical fraternity who have supported this couple in their decision and the need for an amendment. Quite aware of the Pandora’s box the issue is bound to open up, the gynecologists, many of whom are members of the Federation of Obstetric and Gynaecological Societies of India (FOGSI, which is affiliated to the International Federation of Obstetricians and Gynaecologists) and have aligned behind this couple and others who might find themselves in a similar situation and believe that the time has come to change the 1971 Act. 

An argument meant to empower women and their bodily sovereignty can so easily be held hostage to emotive arguments even as the state is able to do little to stop the abuse of the same law when it comes to sex-selective abortions. While a feminist discourse on procreative liberty is as much about the right to avoid reproduction as the right to reproduce, statistics reflecting the abuse of this choice in India carry the danger of hijacking the argument and consolidating opinion among those who oppose abortion access. And even as the discourse continues a personal decision eventually became a legal battle for a woman who was unsure of the quality of life she could ensure for her child once it is born.

Roundups Politics

Campaign Week in Review: Tim Kaine Outlines Plan to ‘Make Housing Fair’

Ally Boguhn

“A house is more than just a place to sleep. It's part of the foundation on which a family can build a life,” wrote Sen. Tim Kaine (D-VA). “Where you live determines the jobs you can find, the schools your children can attend, the air you breathe and the opportunities you have. And when you are blocked from living where you want, it cuts to the core of who you are.”

Donald Trump made some controversial changes to his campaign staff this week, and Sen. Tim Kaine (D-VA) noted his commitment to better housing policies.

Trump Hires Controversial Conservative Media Figure

Republican presidential nominee Trump made two notable additions to his campaign staff this week, hiring Breitbart News’ Stephen Bannon as CEO and GOP pollster Kellyanne Conway as campaign manager.

“I have known Steve and Kellyanne both for many years. They are extremely capable, highly qualified people who love to win and know how to win,” said Trump in a Wednesday statement announcing the hires. “I believe we’re adding some of the best talents in politics, with the experience and expertise needed to defeat Hillary Clinton in November and continue to share my message and vision to Make America Great Again.”

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Both have been criticized as being divisive figures.

Conway, for example, previously advised then-client Todd Akin to wait out the backlash after his notorious “legitimate rape” comments, comparing the controversy to “the Waco with David Koresh situation where they’re trying to smoke him out with the SWAT teams.” According to the Southern Poverty Law Center (SPLC), Conway is also “often cited by anti-immigrant and anti-Muslim organizations such as the think tank Center for Security Policy and NumbersUSA.”

Under Bannon’s leadership, “mainstream conservative website” Breitbart.com changed “into a cesspool of the alt-right,” suggested the publication’s former editor at large, Ben Shapiro, in a piece for the Washington Post‘s PostEverything. “It’s a movement shot through with racism and anti-Semitism.”

Speaking with ABC News this week, Kurt Bardella, who also previously worked with Bannon at Breitbart, alleged that Bannon had exhibited “nationalism and hatred for immigrants, people coming into this country to try to get a better life for themselves” during editorial calls.

“If anyone sat there and listened to that call, you’d think that you were attending a white supremacist rally,” said Bardella.

Trump’s new hire drew heated criticism from the Clinton campaign in a Wednesday press call. “The Breitbart organization has been known to defend white supremacists,” said Robby Mook, Clinton’s campaign manager. After pointing to an analysis from the SPLC linking Breitbart to the extremist alt-right movement, Mook listed a number of other controversial positions pushed by the site.

“Breitbart has compared the work of Planned Parenthood to the Holocaust. They’ve also repeatedly used anti-LGBT slurs in their coverage. And finally, like Trump himself, Breitbart and Bannon have frequently trafficked in all sorts of deranged conspiracy theories from touting that President Obama was not born in America to claiming that the Obama Administration was ‘importing more hating Muslims.’”

“It’s clear that [Trump’s] divisive, erratic, and dangerous rhetoric simply represents who he really is,” continued Mook.

Kaine Outlines Plan to “Make Housing Fair”

Clinton’s vice presidential nominee Kaine wrote an essay for CNN late last week explaining how the Clinton-Kaine ticket can “make housing fair” in the United States.

“A house is more than just a place to sleep. It’s part of the foundation on which a family can build a life,” wrote Kaine. “Where you live determines the jobs you can find, the schools your children can attend, the air you breathe and the opportunities you have. And when you are blocked from living where you want, it cuts to the core of who you are.”

Kaine shared the story of Lorraine, a young Black woman who had experienced housing discrimination, whom Kaine had represented pro bono just after completing law school.

“This is one issue that shows the essential role government can play in creating a fairer society. Sen. Ed Brooke, an African-American Republican from Massachusetts, and Sen. Walter Mondale, a white Democrat from Minnesota, came together to draft the Fair Housing Act, which protects people from discrimination in the housing market,” noted Kaine, pointing to the 1968 law.

“Today, more action is still needed. That’s why Hillary Clinton and I have a bold, progressive plan to fight housing inequities across Americaespecially in communities that have been left out or left behind,” Kaine continued.

The Virginia senator outlined some of the key related components of Clinton’s “Breaking Every Barrier Agenda,” including an initiative to offer $10,000 in down payment assistance to new homebuyers that earn less than the median income in a given area, and plans to “bolster resources to enforce Fair Housing laws and fight housing discrimination in all its forms.”

The need for fair and affordable housing is a pressing issue for people throughout the country.

“It is estimated that each year more than four million acts of [housing] discrimination occur in the rental market alone,” found a 2015 analysis by the National Fair Housing Alliance.

No county in the United States has enough affordable housing to accommodate the needs of those with low incomes, according to a 2015 report released by the Urban Institute. “Since 2000, rents have risen while the number of renters who need low-priced housing has increased,” explained the report. “Nationwide, only 28 adequate and affordable units are available for every 100 renter households with incomes at or below 30 percent of the area median income.”

What Else We’re Reading

CBS News’ Will Rahn penned a primer explaining Trump campaign CEO Bannon’s relationship to the alt-right.

White supremacists and the alt-right “rejoice[d]” after Trump hired Bannon, reported Betsy Woodruff and Gideon Resnick for the Daily Beast.

Clinton published an essay in Teen Vogue this week encouraging young people to fight for what they care about, learn from those with whom they disagree, and get out the vote.

“In calling for ‘extreme vetting’ of foreigners entering the United States, Republican presidential nominee Donald Trump suggested a return to a 1950s-era immigration standard—since abandoned—that barred entry to people based on their political beliefs,” explained USA Today.

Trump wants to cut a visa program “his own companies have used … to bring in hundreds of foreign workers, including fashion models for his modeling agency who need exhibit no special skills,” according to a report by the New York Times.

A Koch-backed group “has unleashed an aggressive campaign to kill a ballot measure in South Dakota that would require Koch-affiliated groups and others like them to reveal their donors’ identities.”

Analysis Law and Policy

Federal Court Says Trans Worker Can Be Fired Based on Owner’s Religious Beliefs

Jessica Mason Pieklo

“Plain and simple, this is just discrimination against a person because of who she is,” said John Knight, the director of the LGBT and HIV Project of the American Civil Liberties Union of Illinois, in an interview with Rewire.

When the U.S. Supreme Court ruled in 2014 in Burwell v. Hobby Lobby that the owners of secular for-profit businesses could challenge laws they believed infringed on their religious liberties, civil rights advocates warned that the decision was just the start of a new wave of litigation. On Thursday, those predictions came true: A federal district judge in Michigan ruled that a funeral home owner could fire a transgender worker simply for being transgender.

The language of the opinion is sweeping, even if the immediate effect of the decision is limited to the worker, Aimee Stephens, and her boss. And that has some court-watchers concerned.

“Plain and simple, this is just discrimination against a person because of who she is,” said John Knight, the director of the LGBT and HIV Project of the American Civil Liberties Union of Illinois, in an interview with Rewire.

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According to court documents, Stephens, an employee at Detroit’s R.G. & G.R. Funeral Homes, gave her boss—the business’ owner—a letter in 2013 explaining she was undergoing a gender transition. As part of her transition, she told her employer that she would soon start to present as a woman, including dressing in appropriate business attire at work that was consistent both with her identity and the company’s sex-segregated dress code policy.

Two weeks later, Stephens was fired after being told by her boss that what she was “proposing to do” was unacceptable and offensive to his religious beliefs.

In September 2014, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit on behalf of Stephens, arguing the funeral home had violated Title VII of the federal Civil Rights Act, which prohibits employment discrimination. According to the EEOC, Stephens was unlawfully fired in violation of Title VII “because she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes.”

Title VII of the Civil Rights Act allows those employees who have been discriminated against in the workplace to collect money, known as civil damages. Those damages usually come in the form of lost wages, back pay, and funds to make up for—to some degree—the abuse the employee faced on the job. They are also designed to make employers more vigilant about their workplace culture. Losing an employment discrimination case for an employer can be expensive.

But attorneys representing Stephens’ employer argued that the Religious Freedom Restoration Act (RFRA) protected their client from legal liability for firing Stephens. On Thursday, a federal court agreed. It said that paying such damages for unlawfully discriminating against an employee could amount to a substantial burden on an employer’s religious beliefs. 

According to the court, despite the fact that Stephens’ boss admitted he fired her for transitioning, and despite the fact that the court found this admission to be direct evidence of employment discrimination, RFRA can be a defense against that direct discrimination. To use that defense, the court concluded, all the funeral home owner had to do was assert that his religious beliefs embraced LGBTQ discrimination. The funeral home had “met its initial burden of showing that enforcement of Title VII, and the body of sex-stereotyping case law that has developed under it, would impose a substantial burden on its ability to conduct business in accordance with its sincerely-held religious beliefs,” the court wrote.

In other words, Hobby Lobby provides employers a defense to discriminating against LGBTQ people on the basis of religious beliefs.

“The RFRA analysis is extremely troubling, and the implications of it [are] as well,” said Knight. “I believe this is the first case applying RFRA to a Title VII claim with respect to nonministerial employees.”

If the scope of the opinion were broader, Knight continued, “this would allow [employers in general] to evade and refuse to comply with uniform nondiscrimination law because of their religious views.”

This, Knight said, is what advocates were afraid of in the wake of Hobby Lobby: “It is the concern raised by all of the liberal justices in the dissent in Hobby Lobby, and it is what the majority in Hobby Lobby said the decision did not mean. [That majority] said it did not mean the end of enforcement of nondiscrimination laws.”

And yet that is exactly what we are seeing in this decision, Knight said.

According to court documents, Stephens’ boss has been a Christian for more than 65 years and testified that he believes “the Bible teaches that God creates people male or female,” that “the Bible teaches that a person’s sex is an immutable God-given gift, and that people should not deny or attempt to change their sex.” For Stephens’ former boss, Stephens’ transition to a woman was “denying” her sex. Stephens had to be fired, her boss testified, so that he would not be directly complicit in supporting the idea that “sex is a changeable social construct rather than an immutable God-given gift.”

If the “complicit in denying God’s will” sounds familiar, it should. It has been the exact argument used by businesses challenging the birth control benefit of the Affordable Care Act. Those business owners believe contraception is contrary to God’s will and that complying with federal law, which says birth control should be treated in insurance policies as any other preventive service, makes them complicit in sin. Thursday’s decision cites Hobby Lobby directly to support the court’s conclusion that complying with federal nondiscrimination law can be avoided by asserting a religious objection.

Think of the implications, should other courts follow this lead. Conservatives have, in the past, launched religious objections to child labor laws, the minimum wage, interracial marriage, and renting housing to single parents—to name a few. Those early legal challenges were unsuccessful, in part because they were based on constitutional claims. Hobby Lobby changed all that, opening the door for religious conservatives to launch all kinds of protests against laws they disagree with.

And though the complaint may be framed as religious objections to birth control, to LGBTQ people generally, and whatever other social issue that rankles conservatives, these cases are so much more than that. They are about corporate interests trying to evade regulations that both advance social equity and punish financially those businesses that refuse to follow the law. Thursday’s opinion represents the next, troubling evolution of that litigation.

CORRECTION: This article has been updated to clarify John Knight’s position with the American Civil Liberties Union of Illinois.

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