Abortion Laws: Government's Role And Influence

Abortion laws are a highly politicized topic, with governments and societies divided on the issue. The debate centres around the question of when human life begins and who has the right to make decisions about a person's body.

Abortion laws vary widely across the world, with some countries criminalising the procedure and others allowing it under certain circumstances. In the United States, for example, abortion laws differ from state to state, with some states banning abortion entirely while others protect it under state law. The US Supreme Court's recent decision to overturn Roe v. Wade has further polarised the country, with some states triggering trigger laws to effectively ban abortions.

The issue of abortion is often framed as a debate between pro-choice and pro-life labels, but the reality is that most people agree with some positions of each side. Ultimately, abortion laws are about the balance between a person's right to bodily autonomy and the government's role in protecting potential human life.

The criminalisation of abortion creates barriers for people seeking abortions, particularly those from marginalised communities. It leads to unsafe abortions, which can have fatal consequences. On the other hand, the decriminalisation of abortion can improve access to safe abortion services and reduce maternal deaths and disabilities.

The role of the government in abortion laws is to protect the rights and safety of its citizens. However, the question of whose rights take precedence—the pregnant person or the fetus—remains a highly contested issue.

The role of the federal government

• Historical Context: Abortion was not a significant controversy during the American Revolution and the mid-19th century. Most people adhered to the traditional Protestant Christian belief that personhood began at "quickening" (between 18 and 21 weeks of pregnancy). Connecticut was the first state to regulate abortion in 1821, outlawing it after quickening.
• Federal Legislation: The Hyde Amendment and a federal abortion ban limit abortion access nationwide. The Hyde Amendment restricts federal Medicaid funding for abortions, impacting low-income individuals. The federal abortion ban criminalizes abortions in the second trimester, overriding doctors' recommendations for the safest approach.
• Supreme Court Decisions: The Supreme Court's ruling in Dobbs v. Jackson Women's Health Organization in 2022 overturned Roe v. Wade and Planned Parenthood v. Casey, ending the federal constitutional right to abortion. This ruling shifted the power to restrict reproductive choices to state and local laws.
• State Autonomy: Without federal protection for the right to abortion, states have introduced varying legislation on reproductive rights. While some states have enshrined the right to abortion in their constitutions, others have explicitly stated that their constitutions do not include this right.
• Voter Participation: Several states, including Ohio, Missouri, Florida, Mississippi, and Kansas, have introduced bills that make it more challenging to introduce or pass constitutional amendments related to reproductive rights, hindering voter participation in these matters.
• Separation of Powers: Some states, such as Utah, Montana, and Wyoming, have introduced bills that undermine the separation of powers by shifting power from the judicial branch to the legislative branch. These bills aim to restrict the ability of state courts to block laws that infringe on reproductive rights.
• Future Directions: The role of the federal government in abortion laws remains uncertain. With the reversal of Roe v. Wade, states have gained more autonomy in regulating abortion. However, ongoing legal challenges and political debates will shape the future landscape of abortion laws in the country.

Criminalisation of abortion

Abortion is a medical procedure that ends a pregnancy. It is considered basic healthcare for millions of women, girls, and people who can get pregnant. It is estimated that one in four pregnancies ends in abortion every year.

The criminalisation of abortion refers to laws that restrict or prohibit abortions. These laws vary across countries and can include total bans on abortion, only allowing abortions under specific circumstances, or imposing penalties on those who seek or assist in seeking an abortion. For example, some countries like Equatorial Guinea and Zambia impose life imprisonment for those who seek an abortion.

The criminalisation of abortion creates barriers for people seeking abortions and can have detrimental effects on their health and safety. It can force people to resort to unsafe abortions, especially in places where abortion is stigmatised, criminalised, or restricted. It is estimated that 25 million unsafe abortions occur annually, mostly in developing countries, leading to fatal consequences such as maternal deaths and disabilities.

The impact of criminalisation is compounded for marginalised communities, including people on low incomes, refugees, migrants, LGBTI individuals, and racialised and Indigenous people, as they face additional challenges in accessing health services.

Even in countries where abortion is legal, factors like cost, distance to services, social stigma, and conservative attitudes can create obstacles. For instance, medical staff may refuse to provide abortions based on conscience or religious grounds.

The criminalisation of abortion undermines the ability of individuals to exercise reproductive autonomy and enjoy their human rights. It restricts their right to health, bodily autonomy, and non-discrimination. Additionally, it can lead to prosecution, punishment, and cruel or degrading treatment for those who seek unsafe abortions.

International human rights bodies and experts have emphasised that decriminalising and ensuring access to abortion are necessary to protect fundamental human rights. They have found that criminalising abortion does little to protect life before birth but often jeopardises the rights and lives of women and girls.

The Way Forward

To respect and protect abortion rights, it is crucial to address the criminalisation of abortion and the underlying social, cultural, and economic barriers that hinder reproductive rights. This includes advocating for law reforms that prioritise individuals' right to make decisions about their bodies and reproductive lives.

Inequality in access to safe and legal abortions

Abortion laws are a government issue because they are a human rights issue. The right to safe and legal abortions is linked to equality and gender justice.

Abortion access has been shown to enhance the economic, educational, and workplace opportunities of women, making it crucial to equality and gender justice. However, there are still countless barriers that prevent people from seeking abortions, including criminalisation, social stigma, and intersectional discrimination and marginalisation.

In places where abortion is legal and accessible and where there is less stigma, people can get abortions safely and without risk. However, in places where abortion is stigmatised, criminalised, or restricted, people are forced to resort to unsafe abortions. It is estimated that 25 million unsafe abortions take place every year, the vast majority in developing countries, and can lead to fatal consequences such as maternal deaths and disabilities.

Unsafe abortions are the third leading cause of preventable maternal deaths worldwide. They are also the cause of five million largely preventable disabilities, according to the World Health Organization.

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

Even in countries where abortion is legal, it might be difficult to access because of factors like cost, distance to services, social stigma, or religiously reinforced conservative attitudes. For example, medical staff might – and do – refuse to provide abortions on grounds of conscience or religion.

The criminalisation of abortion results in a "chilling effect", which deters providers from overapplying restrictions than what is required by law due to fear of criminal liability. It also deters women, girls, and pregnant people from seeking post-abortion care for complications due to unsafe abortion or other pregnancy-related complications.

Addressing inequality in access to safe and legal abortions

A well-functioning health system implies many factors, including universal health coverage, the reliable supply of quality and affordable medical products and equipment, and that an adequate number of health workers of different types provide abortion care at a reachable distance to patients.

Availability and accessibility of information imply the provision of evidence-based comprehensive sexuality education and accurate, non-biased, and evidence-based information on abortion and contraceptive methods.

Multiple actions are needed at the legal, health system, and community levels so that everyone who needs abortion care has access to it. The three cornerstones of an enabling environment for quality comprehensive abortion care are:

• Respect for human rights, including a supportive framework of law and policy
• The availability and accessibility of information
• A supportive, universally accessible, affordable, and well-functioning health system

The abortion-rights movement

Abortion-rights movements advocate for legal access to induced abortion services, including elective abortion. They seek to represent and support women who wish to terminate their pregnancy without fear of legal or social backlash. These movements are in direct opposition to anti-abortion movements, which are also known as pro-life movements.

Abortion-rights supporters argue that abortion is a matter of bodily autonomy and that whether or not a pregnant woman continues with a pregnancy should be her personal choice, as it involves her body, personal health, and future. They also argue that the availability of legal abortions reduces the exposure of women to the risks associated with illegal abortions.

Abortion-rights supporters rarely consider themselves "pro-abortion". They consider termination of a pregnancy as a bodily autonomy issue and find forced abortion to be as morally and legally indefensible as the outlawing of abortion. Some supporters consider themselves opposed to abortion on moral grounds but believe that legal abortion under medically controlled conditions is preferable to illegal abortions without proper medical supervision.

Abortion-rights supporters argue that abortion should be safe and accessible. They argue that abortion is a necessary form of health care and that restricting access to abortion endangers the lives and health of pregnant people. They also argue that abortion is a matter of individual liberty, reproductive freedom, and reproductive rights.

Abortion-rights supporters face various barriers to accessing abortion, including criminalization, restrictive laws, social stigma, and economic and political conditions that hinder their ability to exercise reproductive autonomy. In some countries, such as the United States, Sierra Leone, Poland, and Morocco, abortion is criminalized, and those who seek an abortion or assist others in doing so can face legal consequences.

Abortion-rights supporters have achieved some successes in their efforts to protect abortion rights. For example, in 2020, Argentina legalized abortion up to 14 weeks after conception, and in Ethiopia, the government passed a liberal abortion law in 2005 that allows abortion in cases of rape, incest, or fetal impairment, among other reasons. However, there are still many countries where abortion is severely restricted or banned, and abortion-rights supporters continue to face challenges and opposition in their efforts to protect abortion rights.

The anti-abortion movement

Anti-abortion activists employ various methods and activities to promote their cause, including demonstrations, protests, picketing, and sidewalk counseling outside abortion clinics. They also disseminate information about the alleged physical and mental health risks of abortion, although these claims are often unsupported by medical professional organizations.

Frequently asked questions