Who Holds The Power To Decide Abortion Laws?

Abortion laws vary across the world, with some countries having more liberal laws than others. In the United States, the Supreme Court's overturning of Roe v. Wade in 2022 removed nationwide protection for abortion rights, and as of August 2023, abortion is illegal in 13 states. In the United Kingdom, the Abortion Act of 1967 made abortion legal as long as specific criteria are met and two doctors authorise it. Similarly, abortion laws in Mexico were liberalised in 2021 when the Supreme Court found the absolute criminalisation of abortion to be unconstitutional.

The role of physicians in abortion decisions

Physicians' attitudes and decisions play a crucial role in abortion access and reproductive rights. In the context of Roe v. Wade, physicians are given the authority to determine whether a pregnancy should be terminated or carried to term. This power dynamic has historically been used to control women's reproductive capacity and limit their access to abortion. For instance, in the 1950s, hospitals formed therapeutic abortion committees to protect themselves from legal repercussions, allowing abortions only in specific circumstances like emergencies.

In the United Kingdom, the Abortion Act 1967 legalised abortion as long as specific criteria are met. The Act states that an abortion must be performed by a registered medical practitioner and authorised by two doctors acting in good faith on specific grounds. These grounds include risks to the physical or mental health of the pregnant woman, the need to prevent grave permanent injury, and the risk of serious handicap to the child if born. While this gives doctors a gatekeeping role, it also provides latitude in decision-making, considering the woman's social and financial circumstances.

Physicians' involvement in abortion decisions is not without controversy. Some doctors face ethical dilemmas, especially in states or countries with restrictive abortion laws. They may hesitate to provide abortion care, even in medical emergencies, due to fear of prosecution and concerns about violating the law. This can put them at odds with their professional obligation to prioritise patients' lives and wellbeing. Additionally, abortion providers may face significant legal, political, and personal threats, impacting their safety and right to practice.

In conclusion, physicians play a pivotal role in abortion decisions, with their authority and involvement shaping reproductive rights and access to abortion care. While this dynamic has been leveraged to control women's reproductive autonomy, it also provides an opportunity for physicians to advocate for reproductive justice and ensure access to safe and legal abortions.

The impact of Roe v. Wade on abortion laws

In the United States, the decision of whether to continue or end a pregnancy is made by the individual, not the government. This was decided in the landmark Roe v. Wade case of 1973, which recognised the right to abortion under the Fourteenth Amendment of the U.S. Constitution.

Roe v. Wade had a significant impact on abortion laws, as it struck down many existing abortion statutes and caused an ongoing abortion debate in the United States. The case also shaped the discussion concerning the methods the Supreme Court should use in constitutional adjudication.

The Roe v. Wade ruling held that the right to liberty in the Constitution, which protects personal privacy, includes the right to decide whether to continue a pregnancy. This placed reproductive decision-making alongside other fundamental rights, such as freedom of speech and religion, by conferring the highest degree of constitutional protection, known as "strict scrutiny".

The Supreme Court required the state to justify any interference with the right to access abortion by demonstrating a "compelling interest". The Court held that no interest was compelling enough to ban abortion before fetal viability. After the point of viability, the state could ban abortion or take steps to protect fetal life, but abortion must still be permitted to protect a patient's health and life.

The Roe decision made state abortion bans unconstitutional and abortion care legal, more accessible, and safer throughout the country. It established a trimester framework to govern all abortion regulations in the United States. During the first trimester, the state could not intervene in a person's decision to have an abortion. In the second trimester, the state could regulate abortion procedures to protect the health of pregnant people but could not prohibit abortions altogether. From the end of the second trimester, the state could regulate or prohibit abortions to protect the pregnant person's health or preserve fetal viability.

While Roe v. Wade was a significant step towards legalising abortion and protecting reproductive rights, it did not ensure universal access. Low-income individuals, people of colour, young people, and others continued to face obstacles to abortion care. Additionally, the decision was controversial and faced criticism from various sectors, including legal scholars and religious groups.

In June 2022, the Supreme Court overturned Roe v. Wade, eliminating the federal constitutional right to abortion. This decision had a significant impact on abortion laws across the country, with more than a dozen states banning abortion outright, forcing people to travel long distances to access abortion care or carry pregnancies against their will.

Abortion as a fundamental human right

Abortion laws vary across the world. In England, Scotland, and Wales, abortion is legal as long as specific criteria are met, and it must be performed by a registered medical practitioner. In the United States, abortions can only be performed if physicians choose to do them, leaving 4/5ths of US counties without an abortion provider. In Morocco, abortion is criminalised in almost all circumstances, and in Equatorial Guinea and Zambia, those who seek an abortion may face life imprisonment.

Abortion rights activists argue that access to safe and legal abortion is essential to protect autonomy and reduce maternal mortality and morbidity. Restrictive abortion policies push pregnant people, especially those from marginalised communities, to seek unsafe, clandestine abortions, which can lead to fatal consequences. On the other hand, some people face barriers to accessing abortion due to cost, distance to services, social stigma, or religious attitudes.

Ultimately, the debate around abortion as a fundamental human right centres on the belief that everyone should have the right to control their fertility and exercise reproductive autonomy.

The legality of abortion in different countries/states

The legality of abortion varies across the world, with some countries having completely outlawed the procedure, while others have more relaxed laws.

Countries where abortion is illegal

According to the Center for Reproductive Rights, a global legal advocacy organisation, there are 24 countries where abortion is completely prohibited. These include Andorra, Malta, El Salvador, Honduras, Senegal, the Philippines, and Laos.

Countries with significant restrictions to abortion access

More than 50 countries and regions permit abortions only when the woman's health is at risk, including Libya, Iran, Indonesia, Venezuela, and Nigeria. In Brazil, for example, abortion is illegal except in cases of rape, risks to the mother's life, or when the fetus has anencephaly.

Countries with broader access to abortion

In countries like Japan, India, Canada, and most of Europe, more than half of women of reproductive age can safely access abortion either on request or based on broad social or economic grounds. Seventy-two countries, including France and Germany, allow abortion subject to gestational time limits, usually around 12 weeks.

The United States

In the United States, the Supreme Court's 2022 decision to overturn Roe v. Wade removed the constitutional right to terminate a pregnancy and gave individual states the power to determine the legality of abortion. As a result, abortion laws vary widely across the country, with some states banning abortion altogether, while others allow it with certain restrictions.

The trend towards liberalization

Despite the varying laws and restrictions, there is a global trend towards the liberalization of abortion laws. Over the past 30 years, more than 60 countries and territories have liberalized their abortion laws, with Ireland, Nepal, Colombia, Mexico, and Argentina being notable examples. This shift reflects a growing recognition of abortion rights as fundamental human rights.

The impact of abortion laws

The legality of abortion has a significant impact on the safety of the procedure. Restrictive abortion laws often lead to unsafe abortions, causing thousands of deaths and millions of injuries each year. On the other hand, countries with more liberal abortion laws, such as Canada, have shown that removing criminal sanctions and ensuring universal access to safe abortion services can improve women's health and save lives.

The consequences of restrictive abortion laws

Restrictive abortion laws can have a range of negative consequences for people seeking abortions, as well as for wider society.

Firstly, they can create barriers to safe abortions, leading to unsafe abortion practices. In places where abortion is restricted, people often resort to unsafe methods, which can result in physical and mental health complications, and even death. According to the World Health Organization, unsafe abortions are the third leading cause of preventable maternal deaths worldwide, and also cause around five million preventable disabilities. Restrictive laws can also force people to travel to access legal abortions, leading to financial burdens and loss of income, which can be particularly detrimental to those with limited resources.

Secondly, restrictive abortion laws can result in violations of human rights. The inaccessibility of quality abortion care can violate a range of rights, including the right to life, the right to health, the right to privacy, and the right to non-discrimination and equality. Additionally, the criminalization of abortion disproportionately impacts marginalized communities, as they often face greater barriers to accessing health services, further hindering their ability to exercise reproductive autonomy.

Thirdly, restrictive abortion laws do not reduce the number of abortions but rather affect the safety and dignity of the procedures. Evidence shows that the proportion of unsafe abortions is significantly higher in countries with highly restrictive abortion laws. This indicates that restricting access does not lower abortion rates but instead pushes people towards unsafe methods.

Lastly, restrictive abortion laws can have economic consequences for both individuals and health systems. Complications arising from unsafe abortions result in substantial monetary costs for households and health systems in developing countries. On the other hand, expanding access to modern contraception and safe abortions can lead to substantial monetary savings for countries and health systems.

In summary, restrictive abortion laws have far-reaching negative consequences, including unsafe abortion practices, violations of human rights, reduced safety and dignity for those seeking abortions, and economic burdens for individuals and health systems.

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