Civil Law And Abortion: Rights And Restrictions

Abortion laws vary widely among countries and territories, and have changed over time. Abortion continues to be a controversial topic in many societies on religious, moral, ethical, practical, and political grounds. In June 2022, the U.S. Supreme Court overturned Roe v. Wade, which for nearly 50 years protected the federal constitutional right to abortion, giving states total leeway to restrict abortion or prohibit it altogether.

Abortion laws range from abortion being freely available on request to outright prohibition in all circumstances. Many countries and territories that allow abortion have gestational limits for the procedure depending on the reason. As of 2024, countries that legally allow abortion on request or for socioeconomic reasons comprise about 60% of the world's population.

Abortion restrictions do not prevent abortions. Research has shown that when abortion is banned or restricted, the number of abortions does not decrease. Abortions just move underground, increasing the risk of unsafe procedures and police prosecution.

In some countries, there are laws that only allow abortion in specific circumstances, such as when pregnancy is the result of rape or incest, if there is a severe and fatal injury to the foetus, or if the pregnancy presents a threat to the life or health of the pregnant person.

The criminalisation of abortion has a compounding impact on those who are already marginalised, as health services are generally less accessible to people on low incomes, refugees, migrants, LGBTIQA+ people, and racialised and Indigenous people.

The decriminalisation of abortion means removing specific criminal sanctions against abortion from the law and changing the law and related policies and regulations to achieve the following:

- Not punishing anyone for providing a 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

- Treating abortion like every other form of health care

Civil penalties for doctors who perform abortions

Abortion laws vary from country to country, and even within countries, there can be discrepancies between different states. In the United States, for example, many states impose jail sentences for doctors who perform abortions past gestational limits. In Texas, there are several criminal penalties related to providing abortions, and the person performing the abortion is more often held liable than the patient.

In Texas, the following are considered misdemeanour or felony offences:

• Intentionally performing an abortion without providing the required sonogram and informational materials.
• Performing an abortion without holding admitting privileges to a hospital within 30 miles.
• Providing a medical abortion in violation of Subchapter D of the Texas Health and Safety Code.
• Performing a "partial-birth" abortion.
• Performing a "dismemberment" abortion.
• Soliciting donations of human foetal tissue.
• Failing to report performing an abortion.
• Buying, selling, or attempting to buy or sell foetal tissue.

In Idaho, performing an abortion for any reason is considered a felony, with a punishment of at least two years in prison and up to five. The state also has a vigilante law that allows a family member of a "preborn child" to sue an abortion provider in civil court for at least $20,000.

In some countries, there are laws that only allow abortion in specific circumstances, such as when the pregnancy is the result of rape or incest, if there is a severe and fatal injury to the foetus, or if the pregnancy presents a threat to the life or health of the pregnant person. In Morocco, for instance, abortion is criminalised in almost all circumstances, and clandestine abortions are unaffordable for women living in poverty.

The criminalisation of abortion has a compounding impact on those who are already marginalised. Health services are generally less accessible to people on low incomes, refugees, migrants, LGBTI+ people, and racialised and Indigenous people. This means that it is more difficult for some people to seek safe services in another country or access private care.

The road to law reform regarding abortion is long and difficult, and in many places, abortion laws are influenced by religion, morality, and political cowardice. However, there are some countries that have successfully decriminalised abortion, such as Canada, which removed all criminal sanctions against abortion in 1988.

The right to privacy and autonomy

International human rights law and the constitutions of many countries recognize the right to privacy and autonomy in the context of abortion. For example, the United Nations Human Rights Committee has regularly called on governments to decriminalize abortion and ensure access to safe and legal abortion services. This is because restricting or banning abortion access can put several internationally protected human rights at risk, including the right to privacy, bodily autonomy, and reproductive autonomy.

In the United States, the Supreme Court's ruling in Roe v. Wade established that a woman has a constitutional right to choose whether to terminate her pregnancy, placing reproductive choice alongside other fundamental rights such as freedom of speech and religion. However, the Court also recognized the state's interest in protecting potential life and established a framework for evaluating restrictions on abortion. This framework, known as the "undue burden" standard, allows states to regulate abortion before fetal viability but prohibits them from imposing substantial obstacles to a woman's ability to choose.

Despite the existence of legal protections, there are still many barriers that prevent people from accessing safe and legal abortions. These include criminalization, social stigma, intersectional discrimination, and marginalization. In some countries, such as the United States, Sierra Leone, Poland, and Morocco, abortion is criminalized, and those who seek or provide abortions can face legal consequences. Additionally, restrictive laws and policies can make it difficult for people to access abortion services, especially for those from marginalized communities.

Anti-discrimination and equal treatment

Abortion ties into civil law through the lens of anti-discrimination and equal treatment. Denying abortion is a form of gender discrimination against women, girls, and anyone else who can get pregnant. This has been recognised by multiple UN treaty bodies, including the Committee of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Restrictive abortion laws disproportionately affect young people and marginalised groups, including people of colour, those living in poverty, and sexual and gender minorities.

The criminalisation of abortion has a compounding impact on those who are already marginalised. Health services are generally less accessible to people with low incomes, refugees, migrants, LGBTI+ people, and racialised and Indigenous communities. This makes it more difficult for individuals from these communities to seek safe services in another country or access private care.

The right to non-discrimination is enshrined in international human rights law, including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR). The UN Human Rights Committee, which monitors states' compliance with the ICCPR, has explicitly stated that restrictive abortion laws jeopardise the right to non-discrimination.

In the case of Mellet v. Ireland, the Committee addressed the sex discrimination that underlies abortion criminalisation and its harms. The Committee compared the treatment of women who were forced to continue their non-viable pregnancies with those who were able to seek abortions abroad, declaring this difference in treatment discriminatory.

The Committee's analysis highlights the structural discrimination inherent in abortion laws, which impose an "existential burden" on pregnant individuals by mandating continued pregnancy and birth. This infringes on individuals' self-worth, stability, security, and their ability to make decisions about their bodies and futures.

Abortion laws also intersect with other areas of civil law, such as privacy, bodily autonomy, and reproductive justice. Restrictive abortion laws violate the right to privacy and bodily autonomy by forcing individuals to carry unwanted pregnancies or seek unsafe abortions. Additionally, abortion laws have historically been influenced by religious and moral beliefs, which can further marginalise and stigmatise individuals seeking abortions.

To promote anti-discrimination and equal treatment, it is crucial to advocate for the decriminalisation and safe access to abortion. This includes addressing social, cultural, and economic barriers that hinder individuals' ability to exercise their reproductive rights. Ensuring universal access to safe and legal abortions is essential to upholding the rights to non-discrimination and equal treatment.

Criminalisation of self-managed abortions

Self-managed abortions (SMA) refer to actions or activities undertaken by a pregnant individual to end a pregnancy outside of clinical settings. SMA is not a new phenomenon and occurs across histories, social and legal contexts, utilising a range of methods. SMA has been facilitated by the increased use of medical abortion (MA) drugs – misoprostol and mifepristone – which has enabled safer self-management and self-use, centring autonomy, privacy and confidentiality, while also contributing to the reduction of abortion-related morbidity and mortality globally.

The criminalisation of SMA has a detrimental impact on the health outcomes, health systems, and human rights enjoyment of those seeking abortions. Criminalisation can result in delayed access to abortion care, increased opportunity costs, and negative health consequences due to unsafe abortions. It also disproportionately affects marginalised communities, such as low-income individuals, refugees, migrants, LGBTI people, and racialised and Indigenous people, who face additional barriers to accessing safe abortion services.

The criminalisation of SMA also affects healthcare providers, who may face increased workload implications, negative impacts on patient relationships, and criminal justice procedures. Healthcare providers may be deterred from providing abortion care due to fear of prosecution or sting operations, hindering access to comprehensive abortion care.

The criminalisation of SMA is incompatible with international human rights law, which recognises the right to life, health, privacy, and freedom from discrimination, torture, and cruel, inhuman, or degrading treatment. Human rights bodies recommend the decriminalisation of abortion, which is associated with reduced stigma, improved quality of care, and increased access to safe abortion.

The decriminalisation of SMA should be a critical component of law reform efforts to protect the rights and well-being of individuals seeking abortions and healthcare providers.

Physician-only laws

In the United States, abortion laws vary from state to state. Some states have "physician-only" laws, which restrict the provision of abortions to licensed physicians. These laws effectively prohibit other qualified medical professionals, such as nurse practitioners or physician assistants, from performing abortions. While the impact of these laws can vary, they often limit access to abortion services, particularly in rural or underserved areas.

The rationale behind physician-only laws is often based on the idea that abortions are complex medical procedures that require the skills and expertise of a physician. However, this notion has been challenged by medical organizations and experts who argue that abortions, especially in the first trimester, are relatively safe and can be effectively performed by a range of qualified healthcare providers.

The impact of physician-only laws can be significant. In states with these restrictions, patients may face longer wait times and increased travel distances to access abortion services. This can be especially burdensome for those in rural or underserved areas, who may have to travel great distances to reach a physician who can provide an abortion. Additionally, physician-only laws can contribute to a shortage of abortion providers, as there may be fewer physicians willing or able to offer abortion services. This can further limit access and contribute to longer wait times.

To address these issues, some states have enacted laws or policies that allow non-physician clinicians, such as nurse practitioners or physician assistants, to provide abortions. These changes aim to increase access to abortion services, particularly in areas where there may be a shortage of physicians or long wait times for appointments. However, the impact of these changes can vary depending on the specific regulations and the availability of non-physician clinicians willing to provide abortions.

It's important to note that the legal landscape surrounding abortion is complex and constantly evolving. The information provided here may not reflect the most recent developments or specific state laws. It's always advisable to seek up-to-date legal advice regarding abortion laws in your state.

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