Abortion Law: The Current Picture

By Hannah Forsyth

Abortion is a controversial area of law in many countries worldwide. Attitudes have changed dramatically over the past century and many countries are now opening up access to services and decriminalising procedures. Legislation around abortion faces a number of challenges: is there any legal recognition for the rights of a foetus? How restricted should medical procedures be? Is it against Human Rights to deny a mother access to medical help for her own condition? This article will tackle some of the countries with the strictest legislation, before looking at the situation across different Common Law jurisdictions such as the UK and the USA. Common Law jurisdictions often rely on judgments from each other’s courts so it can often influence the way that a high profile case turns out.

Evelyn Hernández and El Salvador

On 20^th August 2019, Evelyn Hernández was cleared of murder by a court in El Salvador after a retrial overturned her previous conviction. She had been accused of aggravated homicide after unwittingly giving birth to her baby in a toilet in April 2016, when she was 18 years old. The pregnancy had occurred after she was raped by a gang member and she maintained that she had been unaware of it, having continued to menstruate occasionally after the rape took place. Hernández was initially jailed for 30 years and served 33 months, but successfully appealed her conviction due to misleading evidence. Having been acquitted in her retrial, she has declared her intention to move forward with her life and return to studying.

El Salvador outlawed all forms of abortion in 1998. Since then, many women have been prosecuted after suffering obstetric emergencies such as stillbirths or miscarriages. The maximum penalty can be up to 40 years in prison – the penalty that prosecutors sought in the case of Hernández. However, President Nayib Bukele has pledged to address the miscarriages of justice caused by the abortion laws, including the disproportionate number of poorer women facing penalties. He, however, remains pro-life and there is no indication of abortion becoming legalised in El Salvador in the future.

The Bigger Picture: Where is Abortion Banned?

Hernández’s case is far from the only one. Guttmacher carried out a detailed study in 2017 which indicated that 42% of women live in countries where access to abortion is highly restricted.[1] The study also indicated that abortion rates fall where there is adequate access to contraception and family planning, and that 45% of abortions are carried out without the recommended level of safety and skill. Outside of legality, women seeking abortions can often face challenges such as costs, availability and medical assessments before being able to access services. In addition to El Salvador, a number of other countries prohibit abortion in all circumstances, including Malta, Egypt, Iraq, Honduras, the Philippines, the Dominican Republic and Nicaragua. Abortions in these countries are often carried out in a clandestine manner and can be extremely dangerous and expensive.

Abortion is most commonly banned in countries where the majority of the population follow conservative, orthodox religions. Malta, Nicaragua, Honduras, El Salvador, the Philippines and the Dominican Republic all have populations which are 80-90% Roman Catholic. Egypt and Iraq have both witnessed considerable religious conflict but have majority Muslim populations. In these circumstances, where religious teaching is often interpreted as outlawing practices such as abortion which threaten the sanctity of life, pro-choice pressure groups face stiff opposition from organised religion.

Since Ireland’s 2018 referendum on legalising abortion, Malta is the only place in Europe where there is an outright ban on abortions under any circumstances. At present, both the doctor providing and the woman accessing the service face a three-year prison term. Popular opinion indicates that there is limited support for a change in this law: 90.2% disagreed with unrestricted abortion while 45.5% still disagreed with permitting abortion even when the life of the mother is at risk.[2]

Sarah Ewart and Northern Ireland

In January 2019, Sarah Ewart began her legal challenge to change Northern Ireland’s abortion laws. She was denied an abortion in 2013 despite medical evidence that the foetus would not be able to survive outside of the womb. Ewart has commenced her challenge in the Belfast High Court, but has been opposed by several pro-life pressure groups.[3] She will be seeking a declaration of incompatibility with the European Convention on Human Rights from the Supreme Court, which would require the government to amend the law under Section 4 of the Human Rights Act 1997.

Currently:

• abortion is legal in England, Scotland and Wales for pregnancies of up to 24 weeks, under the Abortion Act 1967
• There is no gestational limit for abortions where there is evidence of fatal foetal abnormalities or a risk to the mother’s life
• However, this legislation was not extended to Northern Ireland where the law at present states that abortion can only be permitted where the mother’s life or health are seriously endangered.[4]

A previous case brought to the UK Supreme Court by the Northern Ireland Human Rights Commission was rejected on the grounds that an individual victim was needed, but the judgment indicated that legislative change in Northern Ireland was overdue.[5]

However, the question of legalisation may be answered before Ewart’s case can be heard, by the Northern Ireland Executive Formation Bill. Passed by MPs in July 2019, the Bill provides for Same Sex Marriage and Abortion legislation to be brought in line with the wider UK laws unless the Northern Irish Assembly can return to session before October 21^st. There has been no effective government since 2017, meaning that new devolved legislation cannot be passed. There have been protests in favour of and against the potential legislative changes in Northern Ireland, but as matters stand, the bill will become law in October. A criminal moratorium has been put in place by the government to prevent future prosecutions in cases of abortion if the bill is not prevented by politicians at Northern Ireland’s parliament, Stormont.[6]

The Bigger Picture: Other Common Law Jurisdictions

Ireland

In the Republic of Ireland, abortion was prevented due to the Eighth Amendment to the Constitution in 1981, which granted the unborn foetus equal rights to life as the pregnant mother. The death of Savita Halappanavar in 2012 – caused by septic complications after being denied an abortion while miscarrying – led to the Protection of Life During Pregnancy Act 2013. This allowed for an abortion on the grounds of the mother’s health. After concerted campaigning by Amnesty and other pressure groups, a referendum was held in 2018 regarding the status of the Eighth Amendment.

The result of the referendum was a 64% majority in favour of repealing the Eighth Amendment, and abortion was fully legalised by the Regulation of Termination of Pregnancy Bill 2018. This permits abortions until the 12^th week of pregnancy and will allow later terminations in cases where there is a health risk or fatal foetal abnormality. This level of access is on a par with provisions across the rest of Europe.

The United States

The landmark judgment of Roe v Wade [7] in 1973 provided women across the USA with unrestricted access to abortion in all fifty states. Numerous cases after 1973 sought to restrict these rights but the most definitive recent case is Planned Parenthood v Casey [8] in 1992. The Supreme Court ruled that any abortion required:

• 24-hour waiting period
• an informed-consent requirement
• a parental-consent provision
• a record-keeping mandate

Despite this normative access, many states have created their own legislation to set limits around access and safeguards for those who are unwilling to conduct abortions. 43 of the 50 states also place a gestational limit on abortion, which explicitly runs against the Roe v Wade judgement.[9]

In addition to practical barriers such as provision and cost, some states have introduced new laws which further limit access. The Alabama legislature passed a bill in May 2019 which would see doctors handed prison sentences of up to 99 years for carrying out abortions.[10] Georgia, Kentucky, Mississippi, Louisiana and Ohio also passed “Heartbeat” bills which outlaw abortions after a foetus’ heartbeat becomes detectable – usually around six weeks. The lawmakers behind the bills have stated that their aim is to take these cases to the Supreme Courts, where they will have the opportunity to challenge the judgment of Roe v Wade.

Other states have responded by passing legislation to protect abortion rights: New York, Illinois, Maine and Vermont have all protected the rights of women to obtain an abortion for up to 24 weeks.

Canada

Prior to 1969, abortion was illegal across Canada. The Criminal Law Amendment Act, 1968–69 legalised access under the requirement that the mother’s health was endangered. In 1988, the Supreme Court of Canada ruled in the case of R v Morgentaler[11] that the existing law violated the Canadian Constitution, specifically the Section 7 Right to life, liberty and security of the person. This led to the 1968 law being struck down and access to abortion is now permitted without restriction at all stages of pregnancy, with public funding provided by the Canadian Health Act 1984.The latter case of Tremblay v. Daigle[12] clarified that only the mother was permitted to make decisions about the foetus, preventing partners or other family members from obstructing abortions.

Australia and New Zealand

Abortion is regulated by individual states in Australia. It has been legalised under specific circumstances but performing unregulated abortions is a criminal offence and all states outlaw abortion after 24 weeks unless serious health conditions apply. Legalisation has been slow and piecemeal across the different states, with Queensland and Tasmania only officially decriminalising abortion in the last ten years.

In New Zealand, abortion remains a crime under the Crimes Act 1961 unless under specific circumstances related to health of the mother or foetus, for pregnancies of under 20 weeks. After 20 weeks, abortion is only permitted in extreme cases. The proposed Abortion Legislation Bill 2019 would permit wider access to abortion for pregnancies of under 20 weeks and formally decriminalise the procedure. At the time of writing, it has reached the select committee stage.

India

India legalised abortion in 1971 with the Medical Termination of Pregnancy Act 1971, which allowed for termination of pregnancies under 20 weeks in cases where there was a risk to health or life, cases of rape and where contraceptive failure had occurred. Termination must be carried out by registered professionals and minors require parental consent for the procedure. There have been numerous unsuccessful legal challenges to raise the limit to 24 weeks.

[1] https://www.guttmacher.org/report/abortion-worldwide-2017

[2] https://www.maltatoday.com.mt/news/data_and_surveys/96270/no_change_in_maltas_antiabortion_attitudes#.XYJVhShKg2y

[3] https://www.bbc.co.uk/news/uk-northern-ireland-47058629

[4] This is governed by the Criminal Justice Act (Northern Ireland) 1945

[5] Re an application by the NIHRC for Judicial Review (NI) [2018] UKSC 27

[6] https://www.bbc.co.uk/news/uk-northern-ireland-49595590

[7] 410 U.S. 113 (1973)

[8] 505 U.S. 833 (1992)

[9] https://www.guttmacher.org/state-policy/explore/overview-abortion-laws

[10] https://www.bbc.co.uk/news/world-us-canada-48275795

[11] Morgentaler et. al. v. Her Majesty the Queen and the Attorney General of Canada

[12] [1989] 2 SCR 530