Abortion Law Now: Where Rights Are Expanding And Where They’re Not

Abortion remains one of the most contentious areas of law worldwide.

Although attitudes have shifted dramatically over the past century, with many countries expanding access and decriminalising procedures, the legal landscape is still marked by deep divisions.

Legislators and courts continue to grapple with fundamental questions:

-            Does the foetus have legal rights? How far should medical procedures be restricted?

-            Can denying abortion violate a woman’s human rights?

This article examines jurisdictions with the strictest prohibitions before turning to developments across major Common Law countries such as the UK, USA, Ireland, Canada, Australia and New Zealand.

Because Common Law systems often draw on each other’s judgments, high‑profile cases in one jurisdiction can influence legal reasoning elsewhere.

El Salvador and the Case of Evelyn Hernández

On 20 August 2019, a court in El Salvador acquitted Evelyn Hernández, overturning her previous conviction for aggravated homicide. As your document states:

“She had been accused of aggravated homicide after unwittingly giving birth to her baby in a toilet in April 2016…”

Hernández, then 18, had become pregnant after being raped by a gang member. She maintained she was unaware of the pregnancy, having continued to menstruate intermittently.

Initially sentenced to 30 years and imprisoned for 33 months, she successfully appealed due to misleading evidence and was cleared at retrial.

El Salvador criminalised all forms of abortion in 1998, and women suffering obstetric emergencies, including stillbirths and miscarriages, have since been prosecuted.

Penalties can reach 40 years, the sentence sought in Hernández’s case. Although President Nayib Bukele has pledged to address injustices arising from the law, he remains publicly pro‑life, and there is no indication of imminent legalisation.

The Global Picture: Where Abortion Is Banned

Hernández’s case is not isolated.

A 2017 Guttmacher Institute study found that 42% of women live in countries where abortion is highly restricted, and 45% of abortions worldwide occur without recommended safety standards. Access is often hindered by cost, availability and mandatory medical assessments.

Countries with total bans include Malta, Egypt, Iraq, Honduras, the Philippines, the Dominican Republic and Nicaragua. In these jurisdictions, abortions are frequently performed clandestinely, posing severe health risks and financial burdens.

These prohibitions often correlate with conservative religious majorities. As your article notes:

“Malta, Nicaragua, Honduras, El Salvador, the Philippines and the Dominican Republic all have populations which are 80–90% Roman Catholic.”

Egypt and Iraq, both majority Muslim, also maintain strict bans. Religious doctrine, particularly teachings on the sanctity of life, plays a significant role in shaping public opinion and legislative resistance to reform.

Malta: Europe’s Last Total Ban

Following Ireland’s 2018 referendum, Malta remains the only European country with a complete prohibition.

Both doctors and patients face three‑year prison sentences. Public opinion remains firmly opposed to change: 90.2% reject unrestricted abortion, and 45.5% oppose abortion even when the mother’s life is at risk.

Northern Ireland: The Sarah Ewart Challenge

In January 2019, Sarah Ewart began her legal challenge to Northern Ireland’s abortion laws.

She had been denied an abortion in 2013 despite medical evidence that the foetus could not survive outside the womb.

Ewart seeks a declaration of incompatibility with the European Convention on Human Rights, which would require legislative amendment under s.4 of the Human Rights Act 1998.

Current UK Position

• England, Scotland and Wales: Abortion is legal up to 24 weeks under the Abortion Act 1967.
• No gestational limit applies where there is a fatal foetal abnormality or risk to the mother’s life.
• Northern Ireland: Abortion permitted only where the mother’s life or health are seriously endangered.

A previous Supreme Court challenge by the Northern Ireland Human Rights Commission was dismissed for lack of an individual victim, but the judgment signalled that reform was overdue.

Legislative Change in 2019

The Northern Ireland Executive Formation Bill, passed in July 2019, provides for abortion laws to be aligned with the rest of the UK unless the Northern Irish Assembly reconvenes before 21 October 2019.

With no functioning government since 2017, reform appears likely. A criminal moratorium has already been introduced to prevent new prosecutions.

Other Common Law Jurisdictions

Ireland

Ireland’s Eighth Amendment (1981) granted the foetus equal constitutional rights to life.

The death of Savita Halappanavar in 2012, following septic complications after being denied an abortion, prompted the Protection of Life During Pregnancy Act 2013, permitting abortion where the mother’s health was at risk.

In 2018, a referendum repealed the Eighth Amendment with a 64% majority. The Regulation of Termination of Pregnancy Act 2018 now permits abortion up to 12 weeks, with later access in cases of health risk or fatal foetal abnormality.

United States

The landmark case Roe v Wade (1973) established nationwide access to abortion.

Subsequent cases, including Planned Parenthood v Casey (1992), introduced requirements such as:

• 24‑hour waiting period
• informed consent
• parental consent for minors
• record‑keeping obligations

Despite Roe, 43 states impose gestational limits, directly conflicting with the original judgment.

Recent legislative developments include:

• Alabama (2019): Doctors face up to 99 years in prison for performing abortions.
• Georgia, Kentucky, Mississippi, Louisiana, Ohio: “Heartbeat bills” banning abortion after roughly six weeks.

These laws are designed to provoke Supreme Court challenges to Roe v Wade.

Conversely, states such as New York, Illinois, Maine and Vermont have enacted protections allowing abortion up to 24 weeks.

Canada

Before 1969, abortion was illegal.

The Criminal Law Amendment Act 1968–69 permitted abortion where the mother’s health was endangered. In R v Morgentaler (1988), the Supreme Court struck down the law as unconstitutional under Section 7 (life, liberty and security of the person).

Abortion is now legal at all stages, with public funding under the Canada Health Act 1984. Tremblay v Daigle (1989) confirmed that only the pregnant woman may make decisions regarding the foetus.

Australia and New Zealand

Australia regulates abortion at state level.

Most states permit abortion under specific circumstances, with bans after 24 weeks unless serious health risks apply. Decriminalisation has been gradual, with Queensland and Tasmania reforming laws only in the past decade.

New Zealand’s Crimes Act 1961 criminalises abortion except under limited health‑related grounds for pregnancies under 20 weeks. After 20 weeks, access is highly restricted.

The Abortion Legislation Bill 2019, at select committee stage at the time of writing, proposes wider access and formal decriminalisation.

India

India legalised abortion under the Medical Termination of Pregnancy Act 1971, permitting termination up to 20 weeks in cases of risk to life or health, rape, or contraceptive failure.

Minors require parental consent. Attempts to raise the limit to 24 weeks have been unsuccessful.

Conclusion

Abortion law remains deeply shaped by cultural, religious and political forces.

While many jurisdictions have expanded access, others continue to impose strict prohibitions, often with severe consequences for women.

As global attitudes evolve, legal systems across the world face ongoing pressure to reconcile medical realities, human rights obligations and societal values.