“To be perfectly honest, I’m scared but my decision is my own.”[1]

       Debates around abortion include some of the most toxic and impassioned language. They form a moral battleground where discussions regarding human dignity, religious and philosophical beliefs, women’s rights, and the rights of the unborn are contested. Although societies across the world have progressed in many ways with respect to women’s rights, women’s bodies are still heavily politicised. In questions of bodily autonomy, women are still frequently reduced to a functional role, where their historical status as reproductive beings is paramount. Abortion debates reveal the tension between those who prioritise women’s socio-political worth and those who stress their biological “purpose”.1 Central to such politicisation is a woman’s personal choice, potentially made in exceptionally difficult circumstances. The intersection of religious, institutional, and patriarchal narratives is particularly powerful in contradicting the rights of women with the “right to life” of the unborn. Almost all countries in the world criminalise abortion, even if it is broadly accessible on demand. Decriminalising abortion would mean that when a woman seeks a termination, it would not form independent grounds for criminal sanctions; it would exist in legal terms like any other medical procedure.2 That is, abortion would still be regulated according to best medical practice. Researcher and activist Marge Berer, more substantively, defines decriminalisation as changing the law, policies, and regulations to achieve the following:

            Not punishing anyone for providing safe abortion; not punishing anyone for having an abortion; not involving the police in investigating or prosecuting safe abortion provision or practice; not involving the courts in deciding whether to allow an abortion, and treating abortion like every other form of health care.3

            This essay will argue that the decriminalisation of abortion is the best option for achieving a human rights compliant society in which women are fully equal citizens, including in access to healthcare. It will outline the context of abortion, first on the global stage and secondly with respect to three case studies: Canada, the United Kingdom (UK) and Argentina. Canada is one of the only countries in the world in which abortion is decriminalised. The UK criminalises abortion legislatively, but, in practice, access is largely available except in Northern Ireland, where women live under severely restrictive reproductive legislation. Argentina has heavy criminal sanctions for women seeking abortions and it is effectively inaccessible within the law, prompting many women to pursue illegal methods of terminating their pregnancies. These three case studies aim to illustrate the diverse challenges facing women in finding safe, legal, and available healthcare, as well as the benefits of decriminalisation. This essay will explore several core reasons as to why abortion is largely criminalised, and then examine two compelling themes to develop a case for decriminalisation: legal frameworks and public health. It will argue for Berer’s contention, that ‘what makes abortion safe is simple and irrefutable—when it is available on the woman’s request and is universally affordable and accessible’.4 Despite the many machinations for criminalising abortion, the argument against such punitive measures is simple: that abortion happens irrespective of legislation and it is fundamentally the individual right of women to decide their future, rather than have a social moral code imposed upon them.

 

                                                                       Context

            It is estimated that 55.7 million abortions occur worldwide annually.5 Of these, 45.1% (25.1 million) are deemed unsafe.6 97% of unsafe terminations occurred in developing countries, where proportionally 49.5% are unsafe, in contrast to in developed countries, where 12.5% are unsafe.7 This reflects that developing countries have more restrictive abortion laws, and, thus, have a significantly higher proportion of unsafe abortions than those with less restrictive laws.8 Safe abortion is defined by the World Health Organization (WHO) as when abortion access is legally unrestricted and performed in hygienic, expert conditions, whereas unsafe abortion is determined as legally restricted or banned.9 The Guttmacher Institute estimates that in the last twenty-five years, global rates of abortion have declined. Vice President for International Research at the Institute, Susheela Singh, notes that, "improved contraceptive use, and in turn, declines in unintended pregnancy rates are the likely driver behind the worldwide decline in abortion rates”.10 In regions where women’s sexual liberation is more curtailed, there is a twofold challenge, whereby access to both contraception and safe abortion is limited. However, methods of obtaining an abortion, illegally, are expanding, with the rise of safe online providers of abortion pills and pregnancy information, such as Women Help Women, Women on Web, and Safe2choose.11 While the UK and Canada represent western democracies, Argentina is in the Global South, in a region that has persistently denied the right of women to reproductive control.

            Canada is one of two countries, globally, with no abortion law. The other is China, and there are some states in Australia that have recently decriminalised it. In 1988, the Morgentaler decision made by the Supreme Court found that criminal law on abortion violated the constitutional right to the “security of the person”; furthermore, Justice Bertha Wilson also found that criminal law compromised women’s rights to life, liberty, conscience, privacy, and autonomy. 12 She stated that every individual must be guaranteed:

 

            “A degree of personal autonomy over important decisions intimately affecting his or her private life. Liberty in a free and democratic society does not require the state to approve such decisions but it does require the state to respect them”.13

 

            Following this decision, the Canadian Medical Association (CMA) published abortion guidelines stressing that terminations are decisions made between patient and physician.14 The CMA defined induced abortion as, "the active termination of a pregnancy before fetal viability,” but further noted that while viability was set at approximately 20 weeks, abortions could be performed after this point "under exceptional circumstances”.15 Though decriminalised, limits were still placed on abortion services, but on the basis of medical practice rather than criminal law. Although legally decriminalised, women in Canada have confronted several challenges in accessing safe terminations, including lack of public funding, long wait times, and long distances from service providers.16 However, in July 2015, Health Canada approved the abortion pill, which clinics began to receive in 2017, thus broadening access.17 Therefore, although there remain gaps in service in the medical care surrounding terminations, the one in three women that obtain an abortion in Canada can largely do so in safe, free and legal conditions.

            One in three women undergo abortions in their lifetime in the UK, but they are subject to complicated legislation.18 The 1967 Abortion Act  applies in England, Scotland, and Wales, and contains exceptions to prosecution for offences relating to abortion, if two medical practitioners are of the opinion:

 

1. that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or

2. that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or

3. that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or

4. that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.19

 

            The interpretation of this legislation has been increasingly liberally applied. Today, for example, abortion is essentially attainable up to the 24th week of pregnancy. 92% of terminations are carried out in the first twelve, with only 2% occurring after twenty weeks and 0.1% after 24 weeks.20 In England, Scotland, and Wales, terminations are free and safe. They are not subject to criminal sanctions. However, abortions across the UK are still, according to the original legislation, illegal. While Scotland’s abortion laws are founded in common law, underpinning the rest of the UK is subject to the Offences Against the Persons Act 1861 (OAPA), which in section 58 provides that any woman who attempts to procure an abortion shall, "be liable to be kept in penal servitude for life” and in section 59 that any person assisting a woman obtain an abortion shall be, "kept in penal servitude”.21 Thus, as the 1967 Abortion Act does not extend to Northern Ireland, women there are currently subject to Victorian legislation, under which they risk a life sentence in prison for endeavouring to obtain a termination. Short of the death penalty, this is among the most severe penalties in the world. Abortion is inaccessible in all but the most exceptional circumstances such as to be effectively illegal.  Consequently, women in Northern Ireland, where possible, travel to other parts of the UK for reproductive services. Alternately, they attempt to self-administer abortions through purchasing pills online, illegally, or employing dangerous, homemade methods.

 

            Latin America and the Caribbean have the highest annual rate of abortion of any world region, despite it being largely illegal.22 Of the approximately 6.5 million abortions performed annually between 2010 and 2014, 95% were carried out secretly in unsafe conditions.23 In Latin America, only Cuba, Mexico City, Uruguay, and several Caribbean islands have liberal abortion laws. Unsafe abortions are responsible for an estimated 12% of all maternal deaths in the region, while a further one million women underwent hospitalisation for treatment of complications from unsafe abortions.24 In Argentina, women face severe criminal sanctions for obtaining an abortion. It is currently only legal in cases where the pregnancy results from rape or if the mother’s health is in danger. Due to practical challenges around women coming forward, in 2012, the Supreme Court ruled that an affidavit of being raped was enough to allow legal abortion.25 While approximately 40% pregnancies, per year, in the nation end in illegal abortion, the politics of terminations have recently been the source of vociferous national debate.26 In 2018, there was a bill going through parliament that would enable abortion in all circumstances in the first fourteen weeks of pregnancy; despite support, it was rejected. Representing Argentina’s synod of bishops, Monsignor Óscar Ojea noted that, "this would be the first time a law is passed in democratic Argentina permitting the elimination of a human being by another human”.27 The reproductive role of women in Argentina is still heavily guided by entrenched religious principles, causing women to seek out illegal and unsafe methods of terminating their pregnancies.

 

                        Religious Fundamentalism and Patriarchy: Why It Is Criminalised

 

            “My guilt and shame was not about my decision to have an abortion; it was because society had made me feel like I was a fallen woman, dirty and criminal. That shame, that stigma, was the most damaging part of my experience. Not being able to say a word in case I outed myself as some sort of perceived murderer. My silence was suffocating”.28

            The disputed ethical dilemma at the root of many abortion debates is around the moral value of the foetus versus that of the woman. There are those who prioritise the foetus, and contend that it gains in moral value as the pregnancy progresses. The factions prioritising women throughout pregnancy often emphasize that women should determine their futures and be trusted to do so. Thus, “pro-life” and “pro-choice” lobbies are formed. Much legislation, for instance in the UK, exists, allegedly, to protect both women and foetal life. At its outset, this argument was more tenable because abortion was a far more dangerous procedure. Today, when held to best medical standards, terminations are safer than giving birth. Therefore, the only relevant argument that remains for criminalisation is, “to protect fetal life over that of women’s lives”.29

            The legal prioritising of foetal life falls short for two key reasons: abortion is a fact of modern society and happens even when illegal, sometimes resulting in the death of women or forcing women to continue with an unviable birth. In Argentina, one woman discussed her experience of being diagnosed with a fatal foetal anomaly: "I went to a doctor who was very close to the Church and he suggested that I continue with the pregnancy, so that I would be able to hug my dead baby”.30 The cruelty of forcing a woman to continue with an unviable pregnancy is morally hypocritical and dangerous. In contrast, the 1999 Canadian Supreme Court’s  Dobson v. Dobson decision ruled that, "a pregnant woman and her foetus are physically one,” and thus, "the imposition of a duty of care would amount to a profound compromise of her privacy and autonomy”.31 As such, according Canada’s Supreme Court, a woman’s rights must prevail over a foetus.

            The prioritising of foetal “life” is often driven by religious powers. The Catholic Church has long provided zealous opposition to the liberalisation of abortion legislation. The Argentine Pope Francis alleged that the first reaction to pregnancy is to “send it away…In the last century the whole world was scandalized about what the Nazis did to purify the race. Today we do the same, but now with white gloves”.32 That the head of the Catholic Church could compare abortion to the Holocaust signifies how powerful the narrative of “abortion is murder” is in some factions of society. Religion guides the moral codes of individuals, but when such codes inform society-wide legislation, it becomes problematic; Ayelet Shachar and Pratibha Jain both highlight the risk of enabling certain individuals to speak on behalf of a community; this may “exacerbate preexisting internal power hierarchies” and perpetuate “patriarchal traditional practices”.33 Indeed, Human Rights Watch reported that an “orthodox Catholic discourse on “family values” fuelled Argentina’s anti-abortion and anti-contraception policies. 34 In these fundamentalist Catholic frameworks around reproductivity and sexuality, “natural laws” dictate the societal role of women as a principally reproductive one.35 Although abortion debates highlight a tension between the role of the Church and the state regarding the moral lives of individuals, scholar and campaigner Frances Kissling argues that, “there is a growing understanding among Catholics that the Church’s opposition to legal abortion may be rooted more in a vehement hostility and fear of women and sexuality than in the hostility to the secular state”.36 She cites how taking life is sometimes permitted in Church law and that the persistent denial of abortion rights is symbolic of misogyny rather than a respect for life.37

 

                                           Legal Frameworks: Criminal Law and Human Rights

 

            “To make abortion illegal again is to sentence millions of women and children to miserable lives and even more miserable deaths… I think the white man should be ashamed to attempt to speak for the unborn children of the black woman. To force us to have children for him to ridicule, drug and turn into killers and homeless wanderers is a testament to his hypocrisy”.38

            The historical entrenchment of religion in a nation’s political culture has prompted criminal legislation unreflective of modern science or modern values.39 Sheldon stresses that criminal law is among the, “most onerous, intrusive and punitive of state powers” and that imposing legal restrictions on clinical practices is “unjustifiable”.40 She further suggests that there is an embedded paternalistic attitude in UK legislation towards medicine where the doctor is given ultimate decision-making power over a patient. However, over fifty years after the Abortion Act, these are decisions, “self-evidently belonging to patients”. There are concerns that if the decision sits fully with the patient they could be pressured into abortion by others; this argument is particularly posited with sex-selective abortion, in which female foetuses are the common targets. Despite this, criminalising abortion adds further pressure on the women who may be at risk of coercion into such cases. Rather than addressing the root cause, societal sexism, criminalisation denies women further autonomy. Moreover, Dr. John Chisholm, chief of the British Medical Association’s Medical Ethics Committee, emphasised that, “decriminalisation does not mean deregulation”.41 If held to the high medical standards required for all procedures, abortion would be subject to the same scrupulous rules that entail informed, voluntary consent. This is made explicit in the CMA’s guidelines after decriminalisation. They outline that the decision to terminate is made within, “the confines of existing Canadian law” and “should be performed only in a facility that meets approved medical standards”.42 This illustrates that abortion was becoming simply another medical procedure. In the UK, medical providers have operated around inconsistencies and problems, thus far, but subjecting women to out-dated legislation on medical practice is perverse and fails to reflect the contemporary decision-making role of the patient.

            Additionally, many international bodies and courts have ruled that legislation should liberalise women’s access to their reproductive rights. Regional bodies such as the Inter-American Court of Human Rights and the European Court of Human Rights have supported greater legal access to abortion. The African Commission on Human and Peoples’ Rights has also called for decriminalisation across Africa.43 This challenges arguments that “choice” is merely a western construct being neo-colonially imposed on the world.44 The UN Human Rights Commission declared safe abortion a human right, while the UN Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health claimed that laws restricting abortion were an abuse of state power that, “infringe human dignity by restricting the freedoms to which individuals are entitled under the right to health, particularly in respect of decision-making and bodily integrity”.45 The key UN treaty that focuses on women’s rights is the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), adopted by the UN in 1981, ratified by Argentina in 1985, the UK in 1986, and Canada in 2002.46 The document states, "the role of women in procreation should not be a basis for discrimination” and features several articles elaborating on this:

 

• Article 5 alludes to, "a proper understanding of maternity as a social function”

• Article 12, ”States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning”

• Article 14 relates to challenges specific to rural women, including ensuring the right, "To have access to adequate health care facilities, including information, counselling and services in family planning”

• Article 16 wherein parents have the, "same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights”.47

 

            CEDAW thus compels State Parties to provide equality of access to healthcare services and challenges the politicisation of women’s reproductive role in society. That is, women should be able to determine their lives and when or if they want children.

            There is an expanding school of thought that criminalising abortion equates to violence against women. Indeed, CEDAW conducted a report into Northern Ireland’s abortion laws, in 2018, and concluded that the rights of women and girls were, systematically, being violated by being compelled to travel beyond their borders for terminations or to continue with forced pregnancies.48 CEDAW’s Vice-Chair, Ruth Halperin-Kaddari, contended, “the situation in Northern Ireland constitutes violence against women that may amount to torture or cruel, inhuman or degrading treatment” due to the mental and physical suffering to which they are subjected.49 In addition, the Belfast High Court ruled, in 2015, that the legal situation of women and girls in Northern Ireland is incompatible with the European Convention on Human Rights.50 Meanwhile, in Argentina, there was similar sentiment around criminalisation as violence against women, following the rejection of the 2018 bill. Amnesty Director Mariela Belski noted, “all that this decision does is perpetuate the circle of violence which women, girls and others who can become pregnant are forced into”.51 Central to the criminalisation of abortion is a situation where women risk illness or even death from seeking unsafe terminations; they can also face abuse, physical and emotional, from partners or family. Messages from Irish and Northern Irish women to the Abortion Support Network further illustrate that the violence women experience, as a result of criminalisation, is just as much political as it is domestic: “I am pregnant again from the same abusive relationship…I can’t have a baby that will tie me to this monster forever,” “I'm stuck in a place with no family support, domestic abuse and to make it worse I'm pregnant”.52 Women can be trapped in dangerous situations by pregnancy when abortion is criminalised. By contrast, Canada’s medical guidelines provide clear regulation around abortion practices. There are also general criminal laws that account for justifiable concerns, such as potentially coercing women into having an abortion.53

 

                                                                         Public Health: Women in Peril

 

            “I’m currently 14 weeks pregnant and living in Ireland. My mental health has deteriorated so much since finding out I was pregnant. I also feel suicidal and in no way want this baby and have been medically advised to have an abortion but my financial situation won’t allow me as I am on social welfare”.54

            Criminalisation can provoke serious health issues, and, at its most extreme, cause women to die. This is because restrictive abortion legislation can compel women to resort to other methods of terminating their pregnancies. Those living in vulnerable conditions that cannot obtain safe abortions frequently use risky methods such as inserting foreign bodies into their uterus, drinking toxic solutions, or undergoing procedures with unskilled providers.55 One woman told ASN, “I’ve tried killing myself by overdose, which led me to bleed heavy for a few days. I went to the hospital [and] they told me there was no sign of miscarriage”.56 The President of the Royal College of Obstetricians and Gynaecologists responded to these cases by calling for decriminalisation and noting that, “the current legal situation means healthcare professionals in Northern Ireland struggle to provide support for women requesting an abortion or safely manage any post-abortion complications”.57 This demonstrates a key challenge for healthcare providers. Women are, at times, criminalised for seeking terminations and medics struggle to effectively respond to potentially risky health situations because the “precarious legal vacuum” makes it unclear when they can intervene and when they cannot.58 In Argentina, approximately 40% of pregnancies, in 2005, ended in abortion, despite existing legislation, demonstrating that criminalisation does not stop abortion from happening. In 2008, Argentina’s national health ministry published statistics showing over 20% of deaths recorded, due to obstetric emergencies, were a result of unsafe abortion.59 As of 2014, at least 22,800 women die annually worldwide from unsafe abortion-related complications.60

            The societal stigma surrounding abortion can also be detrimental to a woman’s health. The UK’s Academy of Medical Royal Colleges found that women with negative attitudes towards abortion were more likely to experience mental health problems following an abortion, which Sheldon suggests, signals the stigmatising impact criminal sanctions have on women’s mental health.61 There are numerous stories from women in Ireland recounting the distress of restrictive abortion legislation that forces them to consider travelling or dangerous termination options:

            “I already tried self-termination by taking 100000s of milligrams of vit c and other stuff at this point I feel like using a hanger but I'm scared I don't want to die and I know it's possible. I don't want this pregnancy to continue…”62

            “I have three kids and the birth of our last child was incredibly difficult. In addition, I have developed medical issues and was told by a doctor that another pregnancy could kill me. Despite this, my doctor says I cannot have an abortion in Northern Ireland”.63

            The emotional and physical impact of criminalisation is clearly serious at an individual level, with stringent laws resulting in poor healthcare provision, suicidal ideation, or women potentially trying to self-administer a termination using hazardous methods. Moreover, a US-based study concluded that there was no difference in mental health risk for women whether they received or were denied an abortion.64 Thus, criminalisation fails to support women’s mental health, and will instead likely worsen the distress of a pregnant woman.

            Despite the health risks of abortion when criminalised, the procedure is very safe if adhering to best practice. That is, following WHO guidelines that promote the informed and voluntary consent of patients in hygienic, formal conditions.65 Mifepristone and misoprostol, used for medical abortions, are included in the WHO Model List of Essential Medicines.66 A comprehensive review of mifepristone found that serious complications occurred in only 0.4% cases.67 However, although mifepristone can be prescribed in the UK to treat other conditions, the Abortion Act dictates that terminations should only be performed by a doctor on approved premises.68 Thus, although women could take the pill, safely at home for an early medical abortion, they are forced to wait for an appointment. This can delay the procedure and heighten risks of complications. In Canada, approximately 90% of terminations are performed before 12 weeks and 99.3% by 20 weeks gestation, thus demonstrating that without legal frameworks, women will opt for early, and thus safer, access to abortion.69 In contrast, women who face serious criminalisation or find formal access difficult try to access early medical abortion safely and promptly from feminist medical collectives online. However, pills can be seized by authorities. In Latin America, there has been a transition from obtaining dangerous backstreet abortions to clandestine medical ones, which reduced maternal mortality.70 In Argentina, there are abortion hotlines providing information on how to use misoprostol, strictly available for other medical purposes, for early pregnancy termination based on WHO-approved scientific research.71 Despite this attempt to mitigate criminalisation, Berer emphasises, “countries with almost no deaths from unsafe abortion are those that allow abortion on request without restriction”.72 Indeed, Canada not only has a relatively low abortion rate compared to other industrialised countries but it also has one of the lowest rates of abortion-related complications and maternal mortality in the world.73

 

                                                                                          Conclusion

            There are many compelling reasons to decriminalise abortion. For example, to ensure women have equal access to the best available healthcare; to propagate international human rights standards, and to avoid women seeking abortions through clandestine and potentially dangerous means. The arguments for criminalisation are largely posited on moral grounds; they do not reflect the facts. Furthermore, they are rooted in longstanding patriarchal traditions, with decisions regarding women’s rights often made in women’s absence. Freedman argues that women’s reproductive capacities and sexualities have formed, “both the symbolic currency and the physical, tangible tools used by virtually all fundamentalist movements in their drive to re-order the world according to their own phantasms”.74 Legislating with the moral codes of societal factions fails to address the actual harm inflicted on women. In matters of reproductive rights, women take all the risk. Moreover, each case of abortion access or abortion denial represents an individual story and a personal choice. Thus, the case for decriminalisation is, at its root, a simple one. Berer summarises, “the only person who counts – [is] the one who is pregnant”.75 Decriminalisation would position decisions about reproductive healthcare alongside all other forms of healthcare: with the patient. Full decriminalisation is not likely in many countries due to aggressive opposition, nor will it solve all problems around accessing abortion. In addition, enabling safe, free and legal abortion access is not merely about decriminalisation. It is about creating a culture in which women are no longer the source of the most fierce and toxic discussions, but are instead endowed with the respect and ability to make choices about their lives, devoid of societal pressures.

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                                                                                         REFERENCES:

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38. Guttmacher Institute, ‘New Report Highlights Worldwide Variations in Abortion Incidence and Safety,’(2018), https://www.guttmacher.org/news-release/2018/new-report-highlights-worldwide-variations-abortion-incidence-and-safety.

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