Abortion law
Abortion law permits, prohibits, restricts, or otherwise regulates the availability of abortion. Abortion has been a controversial subject in many societies throughout history on religious, moral, ethical, practical, and political grounds. It has been banned frequently and otherwise limited by law. However, abortions continue to be common in many areas, even where they are illegal. According to the World Health Organization, abortion rates are similar in countries where the procedure is legal and in countries where it is not, due to unavailability of modern contraceptives in areas where abortion is illegal.
Also according to the WHO, the number of abortions worldwide is declining due to increased access to contraception. Almost two-thirds of the world's women currently reside in countries where abortion may be obtained on request for a broad range of social, economic, or personal reasons. Abortion laws vary widely by country. Three countries in Latin America and two in Europe have banned abortions entirely, but life-saving abortions are allowed in Malta in practice.
History
Abortion has existed since ancient times, with natural abortifacients being found amongst a wide variety of tribal people and in most written sources. The earliest known records of abortion techniques and general reproductive regulation date as far back as 2700 BC in China and 1550 BC in Egypt. Early texts contain no mention of abortion or abortion law. When it does appear, it is entailed in concerns about male property rights, preservation of social order, and the duty to produce fit citizens for the state or community. The harshest penalties were generally reserved for a woman who procured an abortion against her husband's wishes, and for slaves who produced abortion in a woman of high status. Religious texts often contained severe condemnations of abortion, recommending penance but seldom enforcing secular punishment. As a matter of common law in England and the United States, abortion was illegal anytime after quickening—when the movements of the fetus could first be felt by the woman. Under the born alive rule, the fetus was not considered a "reasonable being" in Rerum Natura; and abortion was not treated as murder in English law.In the 20th century, many Western countries began to codify abortion law or place further restrictions on the practice. Anti-abortion movements, also referred to as Pro-life movements, were led by a combination of groups opposed to abortion on moral grounds, and by medical professionals who were concerned about the danger presented by the procedure and the regular involvement of non-medical personnel in performing abortions. Nevertheless, it became clear that illegal abortions continued to take place in large numbers even where abortions were rigorously restricted. It was difficult to obtain sufficient evidence to prosecute the women and abortion doctors, and judges and juries were often reluctant to convict. For example, Henry Morgentaler, a Canadian pro-choice advocate, was never convicted by a jury. He was acquitted by a jury in the 1973 court case, but the acquittal was overturned by five judges on the Quebec Court of Appeal in 1974. He went to prison, appealed, and was again acquitted. In total, he served 10 months, suffering a heart attack while in solitary confinement. Many were also outraged at the invasion of privacy and the medical problems resulting from abortions taking place illegally in medically dangerous circumstances. Political movements soon coalesced around the legalization of abortion and liberalization of existing laws.
By the mid 20th century, many countries had begun to liberalize abortion laws, at least when performed to protect the life of the woman and in some cases on woman's request. Under Vladimir Lenin, the Soviet Union legalized abortions on request in 1920. The Bolsheviks saw abortion as a social evil created by the capitalist system, which left women without the economic means to raise children, forcing them to perform abortions. The Soviet state initially preserved the tsarists ban on abortion, which treated the practice as premeditated murder. However, abortion had been practiced by Russian women for decades and its incidence skyrocketed further as a result of the Russian Civil War, which had left the country economically devastated and made it extremely difficult for many people to have children. The Soviet state recognized that banning abortion would not stop the practice because women would continue using the services of private abortionists. In rural areas, these were often old women who had no medical training, which made their services very dangerous to women's health. In November 1920 the Soviet regime legalized abortion in state hospitals. The state considered abortion as a temporary necessary evil, which would disappear in the future Communist society, which would be able to provide for all the children conceived. In 1936 Joseph Stalin placed prohibitions on abortions, which restricted them to medically recommended cases only, in order to increase population growth after the enormous loss of life in World War 1 and the Russian Civil War. In the 1930s, several countries legalized abortion in some special cases. In 1948 abortion was legalized in Japan, 1952 in Yugoslavia, and 1955 in the Soviet Union. Some Soviet allies legalized abortion in the late 1950s under pressure from the Soviets.
In the United Kingdom, the Abortion Act of 1967 clarified and prescribed abortions as legal up to 28 weeks. Other countries soon followed, including Canada, the United States, Tunisia, Denmark, Austria, France, Sweden, New Zealand, Italy, the Netherlands, and Belgium. However, these countries vary greatly in the circumstances under which abortion was to be permitted. In 1975 the West German Supreme Court struck down a law legalizing abortion, holding that they contradict the constitution's human rights guarantees. In 1976 a law was adopted which enabled abortions up to 12 weeks. After Germany's reunification, despite the legal status of abortion in former East Germany, a compromise was reached which deemed most abortions up to 12 weeks legal. In jurisdictions governed under sharia law, abortion after the 120th day from conception is illegal, especially for those who follow the recommendations of the Hanafi legal school, while most jurists of the Maliki legal school "believe that ensoulment occurs at the moment of conception, and they tend to forbid abortion at any point . The other schools hold intermediate positions. The penalty prescribed for an illegal abortion varies according to particular circumstances involved. According to sharia, it should be limited to a fine that is paid to the father or heirs of the fetus". See also: Islam and abortion.
International law
There are no international or multinational treaties that deal directly with abortion but human rights law and International criminal law touch on the issues.The Nuremberg Military Tribunal decided the case of United States v Greifelt & others on the basis that abortion was a crime within its jurisdiction according to the law defining crimes against humanity and thus within its definition of murder and extermination.
The American Convention on Human Rights, which in 2013 had 23 Latin American parties, declares human life as commencing with conception. In Latin America, abortion is only legal in Cuba and Uruguay. It is also legal in Mexico City and in the state of Oaxaca up to the twelfth week of pregnancy.
In the 2010 case of A, B and C v Ireland, the European Court of Human Rights found that the European Convention on Human Rights did not include a right to an abortion.
In 2005 the United Nations Human Rights Committee ordered Peru to compensate a woman for denying her a medically indicated abortion; this was the first time a United Nations Committee had held any country accountable for not ensuring access to safe, legal abortion, and the first time the committee affirmed that abortion is a human right. K.L. received the compensation in 2016. In the 2016 case of Mellet v Ireland, the UN HRC found Ireland's abortion laws violated International Covenant on Civil and Political Rights because Irish law banned abortion in cases of fatal fetal abnormalities.
National laws
While abortions are legal under certain conditions in most countries, these conditions vary widely. According to the United Nations publication World Abortion Policies 2013,abortion is allowed in most countries in order to save a woman's life. Other commonly-accepted reasons are preserving physical or mental health. In about half of countries abortion is accepted in the case of rape or incest, and in case of fetal impairment. Performing an abortion because of economic or social reasons is accepted in 35 percent of countries. Performing abortion only on the basis of a woman's request is allowed in 30 percent of countries, including in the US, Canada, most European countries, and China, with 42 percent of the world's population living in such countries.
In some countries, additional procedures must be followed before the abortion can be carried out even if the basic grounds for it are met. For example, in Finland, where abortions are not granted based merely on a woman's request, approval for each abortion must be obtained from two doctors. The majority, 90% of abortions in Finland are performed for socio-economic reasons. How strictly all of the procedures dictated in the legislature are followed in practice is another matter. For example, in the United Kingdom Care Quality Commission's report in 2012 found that several NHS clinics were circumventing the law, using forms pre-signed by one doctor, thus allowing abortions to patients who only met with one doctor.
The effect of national laws for each of the 193 member states of the United Nations and two non-member States is listed in the UN World Abortion Policies 2013 report, and summarized in the following table. The publication includes information on national estimates of abortion rate, fertility rate, maternal mortality ratio, levels of contraceptive use, unmet need for family planning, and government support for family planning, as well as regional estimates of unsafe abortion.
| Category code | Woman's life | Phys. health | Mental health | Rape, incest | Fetal impairment | Econom., social | On request | Region | Countries or areas |
| 7F | East Africa | Mozambique | |||||||
| 7C | East Africa | Eritrea, Ethiopia, Seychelles | |||||||
| 76 | East Africa | Zambia | |||||||
| 70 | East Africa | Burundi, Comoros, Kenya, Rwanda, Tanzania, Uganda | |||||||
| 6C | East Africa | Zimbabwe | |||||||
| 40 | East Africa | Djibouti, Madagascar, Malawi, Mauritius, Somalia, South Sudan | |||||||
| 7C | Central Africa | Angola, Chadefn|See Abortion in Chadyes|yes|yes|yes|no|no|no|yes|yes|yes|no|no|no|no|yes|no|no|no|no|no|no|yes|yes|yes|yes|yes|yes|yes|yes|yes|yes|yes|yes|no|no|yes|yes|yes|no|no|no|no|yes|no|no|yes|yes|no|no|yes|no|no|no|no|no|no|yes|yes|yes|yes|yes|yes|yes|yes|yes|yes|yes|yes|no|no|yes|no|no|no|no|no|no|yes|yes|yes|yes|yes|yes|yes|yes|yes|yes|yes|yes|no|no|yes|yes|yes|no|no|no|no|yes|no|no|yes|no|no|no|yes|yes|no|yes|yes|no|no|yes|no|no|no|no|no|no|yes|yes|yes|yes|yes|yes|yes|yes|yes|yes|yes|yes|no|no|yes|yes|no|yes|no|yes|no|yes|yes|yes|yes|yes|yes|yes|yes|yes|yes|yes|yes|yes|no|yes|yes|yes|no|no|no|no|yes|yes|no|no|no|no|no|yes|no|yes|yes|no|no|no|yes|no|no|no|no|no|no|yes|yes|yes|yes|yes|yes|yes|yes|yes|yes|yes|yes|no|no|yes|yes|yes|no|no|no|no|yes|no|no|yes|yes|no|no|yes|yes|no|no|no|no|no|yes|no|no|no|no|no|no|yes|yes|yes|yes|yes|yes|yes|yes|yes|yes|yes|yes|no|no|yes|yes|yes|no|yes|no|no|yes|yes|yes|no|no|no|no|yes|no|no|no|yes|no|no|yes|no|no|no|no|no|no|yes|yes|yes|yes|yes|yes|yes|yes|yes|yes|yes|yes|no|no|yes|yes|yes|yes|yes|yes|yes|efn|name=UKyes|yes|yes|yes|yes|yes|no|yes|yes|yes|no|yes|no|no|efn|name=UK|England, Scotland, Wales, and Northern Ireland together comprise the United Kingdom; details vary between them. See Abortion in the United Kingdomefn|name=UKyes|yes|yes|yes|yes|yes|yes|yes|no|no|no|no|no|no|no|no|no|no|no|no|no|refn|name=maltanote|In Malta abortions are de facto allowed to save the mother's life through observance of the principle of double effect.yes|yes|yes|yes|yes|yes|yes|yes|yes|yes|no|no|no|no|yes|no|no|yes|yes|no|no|yes|yes|yes|yes|yes|yes|yes|yes|yes|yes|yes|yes|yes|no|yes|yes|yes|yes|yes|no|no|yes|yes|yes|yes|no|no|no|yes|yes|yes|no|no|no|no|yes|no|no|no|no|no|no|no|no|no|no|no|no|no|yes|yes|yes|yes|yes|yes|yes|efn|Varies by state. See Abortion in Mexico.yes|yes|yes|no|yes|yes|no|yes|yes|yes|no|no|no|no|yes|no|no|yes|yes|no|no|yes|no|no|no|no|no|no|no|no|no|no|no|no|no|yes|yes|yes|yes|yes|yes|yes|yes|yes|yes|yes|yes|no|no|yes|yes|yes|yes|no|no|no|yes|yes|yes|no|no|no|no|yes|yes|no|yes|no|no|no|yes|no|no|yes|yes|no|no|efn|See Abortion in Chileyes|no|no|yes|no|no|no|yes|no|no|no|no|no|no|yes|yes|yes|yes|yes|yes|yes|efn|Varies by state. See Abortion in the United States by stateyes|yes|yes|yes|yes|yes|yes|efn|Varies by state. See Abortion in Australia.yes|yes|yes|yes|yes|no|no|yes|yes|yes|no|no|no|no|yes|no|no|no|no|no|no|yes|yes|yes|no|no|no|no|yes|no|no|no|no|no|no|yes|yes|yes|yes|no|no|no|yes|yes|yes|no|no|no|no|yes|no|no|no|no|no|no|noteslistEuropeDespite a wide variation in the restrictions under which it is permitted, abortion is legal in most European countries. The exceptions are the mini-state of Malta and the micro-states of Vatican City, San Marino, Liechtenstein and Andorra, where abortion is illegal or severely restricted. The other states with existent, but less severe restrictions are Poland and Monaco. All the remaining states make abortion legal on request or for social and economic reasons during the first trimester. When it comes to later-term abortions, there are very few with laws as liberal as those of the United States. Restrictions on abortion are most stringent in a few countries that are strongly observant of the Catholic religion.European UnionMost countries in the European Union allow abortion on demand during the first trimester, with Sweden and the Netherlands having more extended time limits. After the first trimester, abortion is generally allowed only under certain circumstances, such as risk to woman's life or health, fetal defects or other specific situations that may be related to the circumstances of the conception or the woman's age. For instance, in Austria, second trimester abortions are allowed only if there is a serious risk to physical health of woman ; risk to mental health of woman ; immediate risk to life of woman ; serious fetal impairment ; or if the woman is under 14 years of age. Some countries, such as Denmark, allow abortion after the first trimester for a variety of reasons, including socioeconomic ones, but a woman needs an authorization to have such an abortion. Similarly, in Finland, technically abortions even just up to 12 weeks require authorization from two doctors, but in practice the authorization is only a rubber stamp and it is granted if the mother simply does not wish to have a baby.Access to abortion in much of Europe depends not as much on the letter of the law, but on the prevailing social views which lead to the interpretation of the laws. In much of Europe, laws which allow a second-trimester abortion due to mental health concerns have come to be interpreted very liberally, while in some areas it is difficult to have a legal abortion even in the early stages of pregnancy due to conscientious objection by doctors refusing to perform abortions against their personal moral or religious convictions. Malta is the only EU country that bans abortion in all cases and does not have an exception for situations where the woman's life is in danger. The law, however, is not strictly enforced in relation to instances where a pregnancy endangers the woman's life. Abortion in Italy was legalized in 1978. However, the law allows health professionals to refuse to perform an abortion. This conscientious objection has the practical effect of restricting access to abortion. In Ireland, before December 2018, abortion was illegal except cases where a woman's life was endangered by the continuation of her pregnancy. However, in a 2018 referendum a large majority of Irish citizens voted to repeal the constitutional amendment prohibiting legislation relating to the termination of non-life-threatening pregnancies; and the new law enacted allows abortion on request up to 12 weeks of pregnancy, and in certain circumstances at later stages. Abortion in Northern Ireland was decriminalized on 22 October 2019. Europe's formerly Communist countries have liberal abortion laws. An exception is Poland, a country with a strict abortion law. Abortion is allowed only in cases of risk to the life or health of the woman, when the pregnancy is a result of a criminal act, or when the fetus is seriously malformed. A doctor who performs an abortion which is deemed to not have a legal basis is subject to criminal prosecution, and, out of fear of prosecution, doctors avoid abortions, except in the most extreme circumstances. Most European countries have laws which stipulate that minor girls need their parents' consent or that the parents must be informed of the abortion. In most of these countries however, this rule can be circumvented if a committee agrees that the girl may be posed at risk if her parents find out about the pregnancy, or that otherwise it is in her best interests to not notify her parents. The interpretation in practice of these laws depends from region to region, as with the other abortion laws. Some countries differentiate between younger pregnant minors and older ones, with the latter not subjected to parental restrictions. In countries where abortion is illegal or restricted, it is common for women to travel to neighboring countries with more liberal laws. It was estimated in 2007 that over 6,000 Irish women travel to Britain to have abortions every year. United StatesIn 1973, the U.S. Supreme Court decision Roe v. Wade legalized abortion nationwide. It established a minimal period during which abortion must be legal. This basic framework, modified in Planned Parenthood v. Casey, is still in effect today. In accordance with Planned Parenthood v. Casey, states cannot place legal restrictions posing an undue burden for "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." Although this legal framework established by the Supreme Court is very liberal, in practice the effective availability of abortion varies significantly from state to state. On June 29, 2020, the U.S. Supreme Court reaffirmed abortion rights after striking down a Louisiana law limiting abortion.Countries with more restrictive lawsAccording to a report by Women on Waves, approximately 25% of the world's population lives in countries with "highly restrictive abortion laws" - that is, laws which either completely ban abortion, or allow it only to save the mother's life. This category of countries includes most countries in Latin America, most countries of MENA, approximately half of the countries of Africa, seven countries in the Asia-Pacific region, as well as Malta in Europe. The Centre For Reproductive Rights report that 'The inability to access safe and legal abortion care impacts 700 million women of reproductive age'Latin America is the region with the most restrictive abortion laws. Fewer than 3% of the women in this region live in countries with liberal abortion laws — that is, where abortion is permitted either without restriction as to reason or on socioeconomic grounds. Some of the countries of Central America, notably El Salvador, have also come to international attention due to very forceful enforcement of the laws, including the incarceration of a gang rape victim for homicide when she gave birth to a stillborn son and was accused of attempting an illegal abortion. Beginning of pregnancy controversyControversy over the beginning of pregnancy occurs in different contexts, particularly in a legal context, and is particularly discussed within the abortion debate from the point of measuring the gestational age of the pregnancy. Pregnancy can be measured from a number of convenient points, including the day of last menstruation, ovulation, fertilization, implantation and chemical detection. A common medical way to calculate gestational age is to measure pregnancy from the first day of the last menstrual cycle.Exceptions in abortion lawExceptions in abortion laws occur either in countries where abortion is, as a general rule illegal, or in countries which have abortion on request with gestational limits.There are a few exceptions commonly found in abortion laws. Legal domains which do not have abortion on demand will often allow it when the health of the mother is at stake. "Health of the mother" may mean something different in different areas: for example, prior to December 2018, the Republic of Ireland allowed abortion only to save the life of the mother, whereas abortion opponents in the United States argue health exceptions are used so broadly as to render a ban essentially meaningless. Laws allowing abortion in cases of rape or incest often differ. For example, before Roe v. Wade, thirteen US states allowed abortion in the case of either rape or incest, but only Mississippi permitted abortion of pregnancies due to rape, and no state permitted it for just incest. Many countries allow for abortion only through the first or second trimester, and some may allow abortion in cases of fetal defects, e.g., Down syndrome or where the pregnancy is the result of a sexual crime. Other related lawsLaws in some countries with liberal abortion laws protect access to abortion services. Such legislation often seeks to guard abortion clinics against obstruction, vandalism, picketing, and other actions, or to protect patients and employees of such facilities from threats and harassment.Other laws create a perimeter around a facility, known variously as a "buffer zone", "bubble zone", or "access zone". This area is intended to limit how close to these facilities demonstration by those who oppose abortion can approach. Protests and other displays are restricted to a certain distance from the building, which varies depending upon the law, or are prohibited altogether. Similar zones have also been created to protect the homes of abortion providers and clinic staff. Bubble zone laws are divided into "fixed" and "floating" categories. Fixed bubble zone laws apply to the static area around the facility itself, and floating laws to objects in transit, such as people or cars. Because of conflicts between anti-abortion activists on one side and women seeking abortion and medical staff who provides abortion on the other side, some laws are quite strict: in South Africa for instance, any person who prevents the lawful termination of a pregnancy or obstructs access to a facility for the termination of a pregnancy faces up to 10 years in prison. Case lawAustralia
|