Abortion Laws

ABORTION LAWS

The United Nations International Conference on Population and Development, held in Cairo in 1994, recognized unsafe abortion as a major public health concern. The World Health Organization estimates that about 75,000 women die each year from unskilled abortion. Damage to women's health and the burden of care that falls on often-scarce hospital resources also add to the costly impact of poorly performed abortion on public health systems.

Abortions are usually performed without adequate skill because of laws that make safe, medically performed abortion services unlawful. Within the last two centuries, and particularly during the twentieth century, abortion has been criminalized. It was only in the closing decades of the last century that laws have recognized women's needs and rights to have access to safe abortion services.

Historically, many customary laws condemned the interruption of pregnancy, whether by herbal or invasive means, because of the harm it presented to women. Pregnancy was evidenced only at about the end of the first trimester of pregnancy (at about 13 weeks), the stage called quickening. Church courts imposed more severe sanctions than secular courts, and were more concerned with unborn human life and abortions that occurred earlier in pregnancy. The first abortion legislation enacted in the English-speaking world was an English law of 1803 that punished whoever acted "to cause and procure the miscarriage of any woman then being quick with child." Later enactments more strictly imposed liability on pregnant women themselves, and, because proof that women had been "quick with child" was often difficult to establish, the offense was redefined as occurring whether women had "quickened" or not.

Advances in medicine in time provided better understanding of human conception and gestation, directing more attention to fetal and embryonic life. For instance, the Roman Catholic Church, whose moral teachings had been reflected in laws of many European countries, had condemned abortion after the stage of development at which it believed the soul had entered the body before birth. In 1869, however, it accepted that protected life began at conception. This made abortion a crime in many legal systems at any stage of gestation. Modern developments in abortion laws can be traced from when abortion was controlled only as a crime to be punished to its later legal accommodation to protect the health and well-being of pregnant women and their dependent born children and to its modern recognition as a woman's right to lawful choice.

THE CRIME OF ABORTION

The laws of many countries, particularly those that experienced colonization by European countries and are influenced by religious doctrines, continue to view abortion only as a criminal offense. Some countries whose criminal laws punish the willful taking of human life reinforce the prohibition of abortion by adding, sometimes in their national constitutions, that human life begins at conception. Punishments vary from a few years' custody to life imprisonment. Under Nazi occupation, France imposed a punishment of execution. Almost all laws recognize, however, that abortion procedures aimed in good faith to save a woman's life do not offend the criminal law, or are at least excusable, nonpunishable violations.

ABORTIONS FOR HEALTH AND WELFARE PURPOSES

In the mid-1960s, recognition grew that women often sought abortion for conscientious reasons, and that its medical restriction could be oppressive and unjust, causing women acting for justifiable reasons to go to unskilled illegal practitioners or to make crude interventions in their own bodies. Britain's Abortion Act of 1967, as amended in 1990, decriminalizes abortion before the twenty-fourth week of pregnancy if "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." Abortion also became lawful after twenty-four weeks when necessary to prevent risk to the life or grave permanent injury to the physical or mental health of the pregnant woman, and when "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." Health care providers, however, have a right of conscientious objection, and cannot be required to participate in abortion procedures.

Since 1967, about seventy-five countries in all regions of the world, including Guyana, India, South Africa, and Romania, have liberalized their abortion laws. Reformed laws allow abortion at various times from conception to twelve or more weeks, and to save life, health, and other interests. Perhaps the best-known reforming court judgment was made by the United States Supreme Court in 1973, in the case of Roe v. Wade. The Court recognized that a woman has a constitutionally protected right to terminate pregnancy until her fetus is viable, which is at the end of the second trimester of pregnancy (about twenty-four weeks' gestation), and that after viability states may regulate abortion to save the life or health of the mother. The judgment triggered a strong backlash, and continuing attempts have been made to have the Court reverse the judgment—and to change the Court's composition for this purpose. The Court was criticized for making new law, although sympathetic analysts found the Court had simply restored the law as it stood in 1787, when the United States wrote its Constitution and adopted much of the pre-1803 English criminal law.

ABORTION AS A RIGHT OF WOMEN

An increasing number of countries now recognize a woman's right to exercise abortion choice for a time, usually until about twelve weeks after the beginning of pregnancy, and allow the procedure afterwards when faced with health, social, or other risk. In 1988, the Supreme Court of Canada, in the case of R. v. Morgentaler, held the country's restrictive abortion law unconstitutional. The Chief Justice found that "forcing a woman, by threat of criminal sanction, to carry a fetus to term unless she meets certain criteria unrelated to her own priorities and aspirations is a profound interference with a woman's body and thus a violation of security of the person." The law was accordingly ruled void, and abortion is now regulated like any other medical procedure, allowing a woman to make her decision according to her own ethical judgment.

Human rights laws are increasingly giving priority to women's health, dignity, and capacity as the principal decision makers over their own reproduction. Countries whose laws criminalize abortion and compromise women's health and welfare are facing louder calls for reform. To counter this, conservative governments and religious authorities support restrictive laws and urge more prohibitions against abortion.

Rebecca J. Cook

(see also: Abortion; Maternal and Child Health; Public Health and the Law )

Bibliography

Boland, R. (1994). "Abortion Law World-Wide: A Survey of Recent Developments." In Essays in Honor of Jan Stepan, eds. I. Bednarikova and F. C. Chapman. Zurich: Schulthess Polygraphischer.

Cook, R. J.; Dickens, B. R.; and Bliss, L. E. (1999). "International Development in Abortion Law from 1988–1998." American Journal of Public Health 89(4): 579–586.

Rakman, A.; Katziol, L.; and Henshaw, S. K. (1998). "A Global Review of Laws on Induced Abortion, 1985–1997." International Family Planning Prospectus 24:56–64.