Abortion Laws: Criminalizing Women Or Protecting Their Rights?

Abortion laws vary across the world, with some countries criminalizing the procedure to varying degrees. In some places, abortion is illegal under all circumstances, while others permit it only up to a certain point in a woman's pregnancy. A few countries allow abortion throughout a woman's pregnancy, but even in these places, there may be restrictions such as parental consent or notification laws. The criminalization of abortion has significant implications for women's access to safe and legal abortion, their health outcomes, and their enjoyment of human rights.

In recent years, there has been a growing trend towards the criminalization of abortion, with 14 US states making it illegal since the Supreme Court overturned Roe v. Wade in 2022. This has led to an increase in self-managed abortions, where women end their pregnancies outside of a healthcare setting, often by obtaining abortion pills. While medication abortion is approved by the FDA and accounts for a majority of abortions in the US, it is now the target of legal challenges by anti-abortion groups.

The criminalization of abortion not only affects women seeking abortions but also healthcare providers, who may face increased workload and complications in providing care. In some cases, providers have been subject to criminal prosecution or sting operations for providing abortion care or information. The threat of legal repercussions creates a chilling effect, deterring women from seeking abortions and providers from offering care, even in cases where abortion is legal.

The impact of criminalization is particularly harmful to marginalized communities, who already face barriers to accessing healthcare. It results in delayed abortions, increased opportunity costs, and negative health outcomes, including maternal mortality and morbidity. Human rights bodies and public health scholars have recognized the negative consequences of criminalization and recommended decriminalization to improve access to safe and legal abortion.

Criminalisation of abortion

The criminalisation of abortion has a detrimental impact on the health and human rights of those seeking to access it, as well as on healthcare providers. Criminalisation is associated with unsafe abortions, negative health outcomes, and infringements on the rights to life, health, privacy, equality, and non-discrimination.

Impact on People Seeking Abortion

Abortion criminalisation leads to delays in accessing abortion care, which may result in unsafe procedures and increased risks of maternal mortality or morbidity. It also contributes to opportunity costs, including financial and emotional burdens, and internalised and experienced stigma. Criminalisation indirectly leads to increased continuation of pregnancy and unlawful abortions, which are sometimes self-managed and can have fatal consequences.

Impact on Healthcare Providers

Healthcare providers face increased workload implications due to complex regulations and fear of criminal investigations. Criminalisation complicates referral pathways, negatively impacts the provider-patient relationship, and may deter providers from offering abortion care due to the risk of criminal justice procedures and anti-abortion sting operations. It also contributes to lower availability of trained providers and a loss of relevant skills, as well as increased system costs related to accessing unlawful or unsafe abortions.

Incompatibility with Human Rights

International human rights law recognises that criminalisation of abortion results in poor-quality healthcare, lack of essential medicines, obstruction of information and training, and delayed and unsafe abortions. Human rights bodies recommend decriminalisation, which is associated with reduced stigma, improved quality of care, and better access to safe abortion.

The criminalisation of abortion has far-reaching negative consequences, and there is a clear human rights imperative for its full decriminalisation to ensure the availability, accessibility, and quality of abortion care.

Self-managed abortions

There are several hotlines that provide support for those considering a self-managed abortion, including the Miscarriage + Abortion Hotline, which is a private and secure phone and text hotline staffed by medical professionals. The Aya Contigo hotline offers free and confidential live chat with educators, while the All Options hotline offers counselling and emotional support, and can refer people to other professionals depending on their needs.

While self-managed abortions with medication can be safe and effective, there are important legal risks to consider. While very few states explicitly ban self-managed abortions, prosecutors have used a range of laws to target people involved in self-managed abortion attempts. Between 2000 and 2020, 61 people in the United States were criminally investigated or arrested for allegedly self-managing their abortion or helping someone else do so. As of 2023, the lifetime prevalence of self-managed abortion in the United States was estimated to be 7%People experiencing barriers to abortion care, including people of colour, people with lower incomes, and people living in states with restrictive abortion laws, are more likely to attempt self-managed abortion.

Criminal justice procedures against women

The criminalization of abortion has a significant impact on marginalized communities, as they often face greater challenges in accessing safe abortion services. Additionally, abortion laws often intersect with other social issues, such as immigration status and LGBTQ+ rights, further complicating the situation for those seeking abortions.

In recent years, there has been a global trend towards liberalizing abortion laws and removing criminal sanctions. However, despite these efforts, criminal penalties for abortion remain in the majority of countries' penal codes, even in those that permit abortion on request. This discrepancy between the law and public health standards has been recognized by the World Health Organization, which states that criminalizing abortion pushes women towards unsafe abortion practices and jeopardizes their health and lives.

The prosecution of women for abortion-related offenses is not a new phenomenon. Even during the Roe era in the United States, women were investigated and prosecuted for pregnancy-related conduct and outcomes. With the recent overturning of Roe v. Wade, the threat of criminalization has intensified, and some states are now subjecting women to the possibility of prosecution for self-managing abortions. For example, Georgia's "Living Infants Fairness and Equality" Act (LIFE Act) bans abortion after six weeks and defines an "unborn child" as "a member of the species of Homo sapiens at any stage of development who is carried in the womb." This broad definition opens up the possibility that a woman who obtains an abortion after six weeks could be charged with murder.

Florida's abortion laws further highlight the risks faced by women in states with restrictive abortion laws. The state's six-week abortion ban, which took effect in May 2023, prohibits "any person" from performing or participating in a termination of pregnancy. The lack of an explicit exemption for pregnant women means they are at risk of investigation and prosecution if they self-manage an abortion through medication. While legislators proposed a bill to exempt pregnant women from prosecution, it ultimately failed to pass.

The impact of these laws extends beyond the threat of prosecution, as women's bodies and personal data become the "scene of the crime." Modern surveillance technologies enable law enforcement to access and use women's personal data, such as communications, internet searches, and location information, as evidence in prosecutions related to abortion crimes. This intrusion into women's privacy further underscores the need for clear and explicit exemptions from prosecution in state abortion laws.

Abortion laws by state

In June 2022, the U.S. Supreme Court overturned Roe v. Wade, which protected a woman's right to abortion. Since then, abortion laws have varied from state to state, with some states banning abortion outright, and others protecting a woman's right to choose.

States where abortion is illegal

14 states have made abortion illegal, with few exceptions. These include Alabama, American Samoa, Arkansas, Florida, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, and Wyoming. These states have some of the most restrictive abortion laws, with many banning abortion after 6 weeks, and some even prohibiting specific methods of abortion care.

States with hostile abortion laws

Some states have expressed a desire to prohibit abortion entirely and are extremely vulnerable to enacting new abortion bans. These include Iowa, Kansas, Nebraska, Ohio, South Dakota, and Utah.

States where abortion rights are not protected

In some states, it is unclear whether the legislature will enact new abortion bans, but concern is warranted. These include Michigan, New Hampshire, and Wisconsin.

States where abortion is protected by law

21 states, along with Washington D.C., have laws protecting a woman's right to abortion. These include Alaska, Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Montana, Nevada, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington.

States with expanded access to abortion

Some states have gone beyond protecting abortion rights and have created additional access to abortion care. These include Kansas and Vermont.

Abortion restrictions

Criminalization of Abortion

Some countries and states have laws that make it a crime to have an abortion or assist someone in having an abortion. The penalties for these crimes can vary from fines to imprisonment. In some cases, abortion is criminalized except in specific circumstances, such as when the pregnancy is the result of rape or incest, or if the fetus has a severe and fatal injury. However, only a small portion of abortions fall under these exceptions, which still prevents most people from fully exercising their reproductive rights.

Restrictions on Abortion Methods

Certain methods of abortion, such as dilation and extraction (D&X) and dilation and evacuation (D&E) procedures, may be prohibited by law in some places. Additionally, medication abortions, which can be prescribed through telehealth and allow women to self-manage their abortions at home, are also restricted or banned in some places.

Gestational Age Limits

Laws may prohibit abortions after a certain gestational age, such as six weeks or viability. These laws often do not take into account the fact that most women do not know they are pregnant at six weeks, effectively banning abortion before they are even aware of their pregnancy.

Parental Involvement Requirements

Parental involvement laws require providers or clinics to notify parents or legal guardians of young people seeking an abortion or to obtain their consent before the procedure can be carried out.

Counseling and Waiting Period Requirements

Some places have laws that require pregnant individuals to receive counseling or an ultrasound before they can receive an abortion. These requirements often serve no medical purpose but instead aim to dissuade people from going through with the procedure. Waiting periods between the counseling/ultrasound and the abortion procedure may also be mandated.

Funding Restrictions

Restrictions on funding for abortions can also limit access. For example, the Hyde Amendment in the US prohibits federal funding for abortions. Additionally, states may restrict the use of state funding, such as Medicaid, for abortions, impacting low-income patients' access to healthcare.

Targeted Regulation of Abortion Providers (TRAP)

TRAP laws impose burdensome legal requirements specifically on physicians who provide abortion care. These laws single out abortion providers and often require costly facility modifications and reporting, making it difficult for them to continue offering abortion services.

These abortion restrictions can create significant barriers for people seeking abortions, leading to unsafe procedures and negative health outcomes. They also disproportionately impact marginalized communities, who already face challenges in accessing healthcare services.

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