Abortion Laws: Who Has The Final Say?

Abortion laws vary from country to country and even from state to state. In the United States, abortion is a divisive issue in politics and culture wars, though a majority of Americans support access to abortion. In June 2022, the U.S. Supreme Court overturned Roe v. Wade, opening the door for states to ban abortion outright. Currently, abortion is illegal in 13 states.

In other countries, abortion laws are also subject to change. For example, in Mexico, the Supreme Court found the absolute criminalization of abortion to be unconstitutional in 2021, and in 2023, the Court ordered the removal of abortion from the Federal Penal Code.

On a global scale, there is a trend towards the liberalization of abortion laws. Over the past 30 years, more than 60 countries and territories have liberalized their abortion laws. However, restrictive abortion laws still cause enormous harm, including around 39,000 deaths per year from unsafe abortions.

The World Health Organization (WHO) has developed guidelines for abortion care, which include recommendations for the decriminalization of abortion and the removal of regulatory, policy, and programmatic barriers that hinder access to quality abortion care.

Criminalisation of abortion

The criminalisation of abortion is a highly contentious issue that has sparked debates and protests worldwide. It refers to the legal prohibition of abortion, which varies across different countries and jurisdictions. In some countries, such as the United States, Sierra Leone, Poland, and Morocco, abortion is criminalised, with laws imposing varying degrees of punishment for those who undergo or facilitate the procedure.

The impact of criminalising abortion is far-reaching and detrimental, as it undermines fundamental human rights and pushes women and girls seeking abortions into unsafe and unregulated settings. This often leads to short- or long-term health problems and even death. According to the World Health Organization (WHO), the rate of unsafe abortions is four times higher in countries with restrictive abortion laws compared to those where abortion is legal. The criminalisation of abortion also disproportionately affects marginalised communities, as health services are generally less accessible to people with low incomes, refugees, migrants, LGBTIQA+ people, and racialised and Indigenous people.

The arguments against criminalisation centre around the belief that abortion is a fundamental human right and that criminalisation infringes on bodily autonomy and reproductive rights. International human rights bodies and experts have consistently supported this view, interpreting international human rights law to include the right to abortion. Additionally, criminalisation has proven ineffective in preventing abortions, as people facing unwanted pregnancies will still seek access to abortion services, even in highly punitive legal situations.

The legal status of abortion varies significantly worldwide. In some countries, abortion is prohibited altogether, while others allow it under specific circumstances, such as when the pregnancy is the result of rape or incest, or if the pregnant person's life or health is at risk. A small number of countries have liberal abortion laws that allow abortion on request, with varying gestational limits.

The trend towards liberalisation of abortion laws is evident, with more than 60 countries and territories relaxing their abortion laws in the past 30 years. However, the regression of abortion rights in some countries, notably the United States, serves as a stark exception to this global trend.

The criminalisation of abortion has far-reaching consequences and is a highly divisive issue. While some argue that it is necessary to protect life before birth, others emphasise the negative impact on the rights, health, and well-being of pregnant individuals, particularly those from marginalised communities.

Grounds-based approaches to controlling access to abortion

Grounds-based approaches are often accompanied by gestational age limits, which vary depending on the specific condition under which abortion is permitted. In some countries, abortion is available on request up to a specified gestational age and then limited to specific grounds thereafter.

The World Health Organization (WHO) recommends against laws and regulations that restrict abortion by grounds. Instead, the WHO suggests that abortion should be available on the request of the pregnant person. Grounds-based approaches to restricting access to abortion should be revised in favor of abortion on request.

The content, interpretation, and application of grounds-based laws and policies should be revised to ensure human rights compliance. This includes:

• Defining, interpreting, and applying existing grounds in a human rights-compliant way.
• Ensuring abortion is available when carrying a pregnancy to term would cause the pregnant person substantial pain or suffering, including but not limited to situations of rape, incest, or pregnancy inviability.
• Making abortion available when the life and health of the pregnant person are at risk.
• Reflecting the WHO's definitions of health and mental health in health grounds.
• Eliminating procedural requirements to "prove" or "establish" satisfaction of grounds, such as requiring judicial orders or police reports in cases of rape or sexual assault.

A systematic review of studies published between 2010 and 2021 examined the impacts of grounds-based approaches on abortion seekers and health workers. The evidence showed that grounds-based laws contributed to delayed abortions due to inconsistencies in interpretation or application of health grounds, questioning of women's claims, overly restrictive interpretation of grounds, and disagreement within medical teams.

Grounds-based approaches were found to have a particularly negative impact on women facing financial hardship and those with lower educational attainment. These approaches also disproportionately impact women seeking abortion following rape, as they are often subjected to questioning, protracted delays, and bureaucratic processes.

Additionally, grounds-based approaches that require fetal impairments to be fatal for abortion to be lawful can leave women with no choice but to continue with a pregnancy that causes significant distress, violating their human rights.

The evidence suggests that grounds-based laws may contribute to an increase in unsafe abortions and maternal mortality. When states shift from a grounds-based approach to permitting abortion on request in the first trimester, there is a reduction in maternal mortality and fertility rates.

Key human rights considerations relevant to grounds-based approaches include:

• Availability, accessibility, acceptability, and quality must be central to the regulation of sexual and reproductive health services.
• Abortion must be available when carrying a pregnancy to full term would cause substantial pain or suffering, when pregnancy is a result of rape or incest, or when the pregnant person's life or health is at risk.
• States may not regulate abortion in a way that forces women to resort to unsafe abortion.
• States must take steps, including revising laws, to reduce maternal morbidity and mortality, and to protect women and girls from the risks associated with unsafe abortion.
• Everyone has the right to non-discrimination and equality in accessing sexual and reproductive health services.

Gestational age limits

International human rights law requires that the quality of care be central to the provision and regulation of sexual and reproductive health services, and thus, regulation of abortion should be evidence-based, scientifically and medically appropriate, and up to date. States may not regulate pregnancy or abortion in a manner that forces women to resort to unsafe abortions and are required to revise their laws to prevent unsafe abortions and reduce maternal mortality and morbidity.

The World Health Organization (WHO) acknowledges that efforts to impose gestational limits on abortion may have negative consequences and may force some women to seek unsafe services, self-induce abortions, or seek services in other countries, which is costly and delays access, increasing health risks and creating social inequalities. The WHO emphasizes that abortion to save a woman's life or minimize risk to her health may be necessary at any point during pregnancy.

Gestational limits vary significantly across the globe, particularly concerning the circumstances under which abortion is legal. While the most common gestational limit for abortion on request is 12 weeks, the shortest gestational limit for abortion on request is 8 weeks, and a handful of countries do not set a legal gestational limit. For example, Vietnam's Law on Protection of People's Health states that women have the right to have an abortion and does not prescribe a gestational limit.

In countries where abortion is only permitted on limited legal grounds, the law itself often does not prescribe a specific gestational limit. For instance, in Bolivia, the law does not set a gestational limit for the limited grounds when abortion is legal, namely, when the pregnancy endangers the life or health of the woman or results from rape or incest.

In the United States, the point at which an abortion becomes late-term is often related to fetal viability (the ability of the fetus to survive outside the uterus). Thus, late-term abortions are sometimes referred to as post-viability abortions. There is no sharp limit of development, age, or weight at which a fetus becomes viable. A 2015 study found that even with active treatment, no infants born at less than 22 weeks survived, but an infant born at 21 weeks and one day in April 2021 did survive. At 23 weeks, survival without severe impairment is less than 2%, and at 25 weeks, up to 30% might survive without severe impairment. The periviable period is considered to be between 20 and 25 weeks of gestation.

The majority of abortions in the United States occur in the first trimester of pregnancy, but 8.5% (approximately 100,000) take place after 13 weeks of gestation. Many states have established an upper gestational limit, most commonly after 24 weeks from a woman's last menstrual period, and some states have done so without the required exceptions. At least eight states have recently reduced or plan to reduce the upper gestational limit to 20 weeks, and one state to 18 weeks. Individual abortion providers can set their limits at lower gestational ages, and they do so based on the availability of trained physicians, clinician and staff comfort, and facility regulations. According to a national survey of abortion providers, 23% offer abortions after 20 weeks of gestation, and 11% do so at 24 weeks.

The United States is one of only seven countries in the world that permit elective abortion past 20 weeks. The other six are Canada, China, the Netherlands, North Korea, Singapore, and Vietnam.

Self-managed abortions

Methods of Self-Managed Abortion

People who self-manage their abortions may use a variety of methods, including:

• Self-sourcing medications such as misoprostol and mifepristone
• Using herbs, plants, vitamins, or supplements
• Consuming drugs, alcohol, or toxic substances
• Physical methods such as abdominal trauma

Safety and Effectiveness of Self-Managed Abortion

Extensive data demonstrate that medication abortion with mifepristone and misoprostol or misoprostol alone is safe and effective, especially in the first trimester. People can accurately self-assess their gestational duration and eligibility for medication abortion by answering simple questions. Overall, self-managed abortion with medications utilizes the same drugs and processes as facility-based abortion.

Reasons for Self-Managing Abortion

There are various reasons why individuals may choose to self-manage their abortions, including:

• Barriers to facility-based abortion care, such as long distances to clinics and the cost of care
• A preference for self-care due to convenience, accessibility, and privacy
• The desire to keep the abortion a secret
• Fear for one's safety or well-being
• Need to gather money for travel or the procedure

Legal Risks of Self-Managed Abortion

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. These cases predominantly involved individuals living in poverty and disproportionately affected Black, Latinx, or Asian communities. While public opinion is largely against criminalizing self-managed abortion, there are significant legal risks to consider.

Abortion as a political issue

Abortion has become an increasingly prominent political issue, with the topic taking centre stage in the 2024 U.S. election campaigns of Kamala Harris and Donald Trump. The Supreme Court's overturning of Roe v. Wade in 2022 has resulted in abortion rights becoming a key concern for voters, particularly women and young people. This has been reflected in the policies of both the Harris and Trump campaigns, with Harris pledging to maintain abortion rights and reproductive healthcare, and Trump seeking to leave abortion access up to individual states.

The polarising nature of abortion as a political issue is evident in the varying abortion laws across different states. While some states prohibit abortion at all stages of pregnancy, others permit it up to a certain point, and some allow abortion throughout pregnancy. The Supreme Court's ruling in Dobbs v. Jackson Women's Health Organization (2022) has given states the power to impose any regulation on abortion, provided it does not conflict with federal law. This has resulted in a patchwork of abortion laws across the country, with some states criminalising abortion and others strengthening protections.

The political debate around abortion often centres on the question of whether abortion should be legal and under what circumstances. This includes discussions about gestational limits, parental consent or notification laws, mandatory waiting periods, and counselling requirements. The issue of abortion also intersects with other political topics such as healthcare, economic concerns, and social and religious conservatism. For example, the denial of abortion care has been recognised as a human rights violation, and restrictive abortion laws have been linked to the loss of economic opportunities and the deepening of historical marginalisation.

The political implications of abortion laws are significant, with the topic influencing voter behaviour and shaping election outcomes. Abortion laws can also have far-reaching consequences for individuals, particularly young people and those from lower socioeconomic backgrounds, who may face barriers to accessing abortion services. As such, abortion remains a highly contested and divisive political issue in the United States and beyond.

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