[Rights of Freedom] Case on the Crime of Abortion Apr 11, 2019 / Case NO. : 2017Hun-Ba127, KCCR : , View : 458 Case on the Crime of Abortion [2017Hun-Ba127, April 11, 2019] *

          First Draft In this case, the Court held that (1) Article 269 Section 1 of the Criminal Act which penalizes a pregnant woman who procures her own miscarriage and (2) the part concerning “doctor” of Article 270 Section 1 of the Criminal Act which penalizes a doctor who procures the miscarriage of a woman upon her request or her consent did not conform to the Constitution, and ordered temporary application of these provisions until the legislature amends them by December 31, 2020.

Background of the Case

          The petitioner is an obstetrician-gynecologist who was indicted for procuring 69 miscarriages of women from November 1, 2013, to July 3, 2015, upon their request or with their consent. While the case was pending before the trial court, the petitioner filed a motion to request the trial court to refer the case to the Court for constitutional review of Article 269 Section 1 and Article 270 Section 1 of the Criminal Act. Upon denial of the motion, the petitioner moved to file this constitutional complaint against the above provisions on February 8, 2017. Subject Matter of Review The subject matter of review in this case is whether (1) Article 269 Section 1 (hereinafter referred to as the “Self-Abortion Provision”) and (2) the part concerning “doctor” of Article 270 Section 1 (hereinafter referred to as the “Abortion by Doctor Provision”) of the Criminal Act (amended by Act No. 5057 on December 29, 1995) violate the Constitution. The Provisions at Issue read as follows: Provisions at Issue Criminal Act (amended by Act No. 5057 on December 29, 1995) Article 269 (Abortion) (1) A woman who procures her own miscarriage through the use of drugs or other means shall be punished by imprisonment for not more than one year or by a fine not exceeding two million won. Article 270 (Abortion by Doctor, etc., Abortion without Consent) (1) A doctor, herb doctor, midwife, pharmacist, or druggist who procures the miscarriage of a woman upon her request or with her consent, shall be punished by imprisonment for not more than two years.

Summary of the Decision

1. Opinion of Nonconformity to the Constitution by Four Justices

          The general right of personality is guaranteed by the first sentence of Article 10 of the Constitution which provides for the protection of human dignity, and this is where the right to self-determination derives from. The right to self-determination encompasses a pregnant woman’s right to decide whether to continue her pregnancy and bring the baby to term. Other than the exceptions referred to in the Mother and Child Health Act, the Self-Abortion Provision completely and indiscriminately bans all abortions throughout all stages of gestation, and it forces a pregnant woman to continue her pregnancy by imposing criminal punishment on the woman who violates the ban. The Self-Abortion Provision thereby impinges on a pregnant woman’s right to self-determination. The Self-Abortion Provision has the legitimate purpose of protecting the life of a fetus, and imposing criminal punishment on a pregnant woman for procuring an abortion is appropriate means to deter abortion and thus accomplish the legislative purpose of the Provision. Pregnancy, childbirth, and parenting are among the most important matters that may crucially and fundamentally affect the life of a woman. Therefore, we believe that a pregnant woman’s decision whether to continue or terminate her pregnancy amounts to a decision that reflects profound consideration of all her physical, psychological, social, and economic conditions based on her own views on life and society―a holistic decision central to her personal dignity. At present, a fetus is considered to be viable (able to survive outside the womb) at around 22 weeks of gestation when provided with the best medical care available.

          Meanwhile, we find that the State should allow a pregnant woman to have sufficient time to contemplate and execute the holistic decision regarding continuing or terminating her pregnancy, in order to guarantee her right to self-determination. Given these considerations, we opine that it is reasonable for the State to draft legislation that is different from the current legislation in terms of the scope and means of protection on fetal life for the abortion that is to be procured before 22 weeks of gestation, which is the time when the fetus has viability, and at the same time, by when a pregnant woman is allowed to have sufficient time to exercise her right to self-determination in relation to abortion (hereinafter, the period from the time of implantation to such point shall be referred to as “Permissible Period for Determination”).

          During the conflict of determining the abortion, the threat of criminal punishment has only a limited effect on a pregnant woman’s decision whether to terminate her pregnancy. In addition, there have been very few cases in which a woman has been punished criminally for procuring an abortion. In light of these circumstances, we find that the Self-Abortion Provision does not effectively protect the life of a fetus during the conflict of determining the abortion. The Self-Abortion Provision also places a substantial burden on a woman who seeks or has undergone an abortion by limiting her access to counseling, education, and information regarding abortions. Also, it forces her to seek out expensive procedures to procure an abortion, making it difficult for her to seek relief in the event of medical malpractice during an abortion, and rendering her vulnerable to retaliatory harassment that could be committed by her ex-boyfriend or civil lawsuits involving domestic matters that could be filed by her ex-partner.

          Although the Mother and Child Health Act sets out several exceptions to the State’s complete ban on all abortions, it does not consider the conflict of determining the abortion based on the social and economic determinants, e.g., concerns about difficulty in continuing jobs, studies, or other social activities; low or unstable income; lack of resources to care for another child; no desire to continue a dating relationship or enter into a marital relationship with the partner; discovery of pregnancy at a point when the marriage has in effect broken down irretrievably, break-up of a dating relationship with the partner; unwanted pregnancy of an unmarried minor woman; etc. Under the Self-Abortion Provision, a pregnant woman who does not fall under the exceptions referred to in the Mother and Child Health Act is forced to continue her pregnancy completely and indiscriminately, with no exceptions, even if she has social and economic reasons for seeking an abortion, and is subject to criminal punishment if she procures an abortion by violating such provision. Accordingly, we find that the Self-Abortion Provision restricts a pregnant woman’s right to self-determination beyond the minimum extent necessary to achieve its legislative purpose. Thus, the Self-Abortion Provision does not satisfy the principle of least restrictive means. Moreover, the Self-Abortion Provision gives absolute and unilateral superiority to the public interest in protecting fetal life. Thus, it violates the principle of balance of interests. For these reasons, the Self-Abortion Provision violates the principle of proportionality and infringes the right to self-determination of a pregnant woman. Accordingly, the Self-Abortion Provision is in violation of the Constitution.

          The Abortion by Doctor Provision punishing a doctor who procures the miscarriage of a woman upon her request or with her consent was enacted for the same purpose as the Self-Abortion Provision. Therefore, it is unconstitutional for the same reason that the Self-Abortion Provision is unconstitutional. Considering the fact that banning and criminalizing abortions to protect the life of fetus are not in themselves unconstitutional for all cases, delivering a decision of simple unconstitutionality for the Provisions at Issue would create a legal vacuum in which no one is punished for abortion. Moreover, it is within the discretion of the legislature to remove the unconstitutional elements from the Provisions at Issue and decide how abortion will be regulated. The legislature has, within the limits that we have noted above, the discretion to decide, e.g., the length and end date of the Permissible Period for Determination; whether to set a specific time period during the Permissible Period for Determination in which a woman is permitted to undergo an abortion without evaluating social and economic justifications, one that needs to be determined to strike an optimal balance between the protection of fetal life and the right to self-determination of women; whether to prescribe additional procedural requirements such as counseling or deliberation period before an abortion could take place; and so forth. Therefore, we render a decision of nonconformity to the Constitution in lieu of a simple unconstitutionality decision for the Self-Abortion Provision and the Abortion by Doctor Provision and orders their temporary application until the legislature amends them.

2. Opinion of Simple Unconstitutionality by Three Justices

          We concur with the above four justices’ opinion of nonconformity to the Constitution that the State’s complete and indiscriminate ban on, and criminalization of, abortion during the above-mentioned periods and circumstances violate a pregnant woman’s right to self-determination. However, we differ from the nonconformity opinion for we believe that pregnant women must be permitted, regardless of their reasons for abortion, with the careful consideration of their situations to decide to have an abortion during the first trimester of pregnancy (up to 14 weeks of gestation since the first day of the last menstrual period), and thus we deliver a decision of simple unconstitutionality for the Self-Abortion Provision and the Abortion by Doctor Provision (the “Provisions at Issue”). A pregnant woman has the right to self-determination and must be, in principle, permitted to determine whether to continue or terminate her pregnancy, a holistic decision central to her personal dignity. Exceptions may be allowed in cases where, for instance, the fetus has become viable, or if the abortion takes place after the end of the first trimester of pregnancy and it thereby puts her life or health at risk, etc. Meanwhile, we note that if abortion should be allowed during the period when the procedures can be performed safely and on permissible grounds only, this would eventually lead to permitting abortions in extremely limited cases and would, deprive a pregnant woman of her right to self-determination, in effect. For the above reasons, we opine that the State should respect a pregnant woman’s right to self-determination during the first trimester of pregnancy―a period when a fetus has not yet developed to the stage of viability, abortion is safe, and careful consideration can be given to the determination whether to terminate pregnancy―and should ensure that she makes her own decision whether to abort after carefully evaluating her situations based on her own views of life and society which have roots in her internal dignity and autonomy. The Provisions at Issue violate the principle of proportionality by imposing a complete and indiscriminative ban on all abortions including safe ones during the first trimester. Therefore, they infringe the right to self-determination of pregnant women. If the Court delivers a decision of nonconformity to the Constitution for a law restricting a right of freedom even when the restriction in itself is constitutional but the degree of restriction is too excessive, it will eliminate the grounds of existence for a rule that the Court must declare an unconstitutional law invalid as well as the grounds of existence for the type of decision that is rendered based on this rule―a decision of unconstitutionality.

          Further, we do not see that striking down the Provisions at Issue would cause immense legal confusion or impose social costs, because these provisions have had only a limited effect on deterring abortions and have not functioned properly as penalty provisions. Meanwhile, solving the problem with ex post facto legislation after rendering the decision of nonconformity to the Constitution is against the purpose of the legislator allowing retroactive effects for the unconstitutional criminal law, but also it is too severe to impose all the burdens of vacuum in law to each individual. In addition, as stated above, the parts of the Provisions at Issue concerning criminalizing abortion during the first trimester of pregnancy clearly violate the Constitution, so the scope of punishment is not uncertain. Therefore, we are of the opinion that the Court should deliver a decision of simple unconstitutionality for the Provisions at Issue.

3. Conclusion

          Combining the opinion of simple unconstitutionality rendered by three Justices and the opinion of nonconformity to the Constitution rendered by four Justices, the Court finds that this number satisfies the quorum required for holding that a provision is in violation of the Constitution­­ based on the proviso of Article 23 Section 2 Item 1 of the Constitutional Court Act. Therefore, the Court declares the Provisions at Issue nonconforming to the Constitution and orders their temporary application until the legislature amends them. Summary of Opinion of Constitutionality by Two Justices Since a fetus and a person born alive are at sequential stages of human development, we hardly see any essential difference between the two, in terms of the level of human dignity and need for life protection. As such, we find that a fetus has a constitutional right to life as well. The legislative purpose of the Self-Abortion Provision is the protection of the life of a fetus. Given the considerable significance of this legislative purpose and the peculiar nature of the infringement of the right to life, we recognize the need for a strict ban on abortion with means of criminal punishment.

          We do not see that the importance of the public interest in protecting fetal life varies according to the stages of fetal development and that a pregnant woman’s right to dignity or right to self-determination prevails at certain stages of pregnancy and is outweighed by a fetus’s right to life at later stages. The majority opinion suggests that “social and economic determinants” should be recognized as permissible grounds for abortion; however, the concept and scope of such reasons are very vague, and it would be difficult to objectively ascertain whether a woman’s social and economic situations qualify as permissible reasons justifying abortion.

          We are concerned that legalization of abortion on social and economic grounds would produce the same result as the complete legalization of abortion―the widespread disrespect for human life in our society. Although it is true that the Self-Abortion Provision restricts a right to self-determination of a pregnant woman to some extent, yet such restriction does not outweigh the substantial public interest in protecting fetal life to be served by the Self-Abortion Provision. Thus, the Self-Abortion Provision does not violate the balance of interests. At the same time, considering that the motherhood is not properly protected in reality, the State should, in addition to criminalizing abortions, enact legislation that encourages women not to obtain an abortion, such as the “Parental Responsibility Act” that imposes more parental responsibility on unwed fathers, legislation to establish social protection system for unwed mothers, maternity protection policy that relieves women of the burden of pregnancy, childbirth, parenting, and so forth.

          The statutory maximum sentence for performing abortion prescribed in the Abortion by Doctor Provision is not excessive, and the court may sentence the offender to a suspended sentence or probation. Thus, the Abortion by Doctor Provision does not violate the principle of proportionality between responsibility and punishment. Further, doctors, as professionals engaged in the business of protecting the life of a fetus, are highly likely to be criticized for performing procedures depriving a fetus of life. Therefore, we find that the Abortion by Doctor Provision where the legislature did not set forth any monetary penalty like the one for abortion with consent provision (Article 269 Section 2 of the Criminal Act) does not violate the balance in criminal punishment, and thus is not against the principle of equality. Therefore, the Provisions at Issue do not violate the Constitution. * This translation is provisional and subject to revision.

          JMM died in June 2018. Born on 5th February 2000, she was just 18 years of age. In January 2014, she had been admitted to form one at [Particulars Withheld] Secondary School, a day school situated within Keumbu Ward in Nyaribari Chache Constituency. She was staying with her elder married sister.

          2.  At some point in 2014, JMM was forced into sexual intercourse by an older man. She only realized that she was pregnant when she missed her menstrual cycle for two months and started feeling nauseous. She, however, did not disclose this to anyone for fear of being blamed and rejected by the family members.

          3.  On 8th December 2014 an older girl with whom JMM shared a bedroom introduced her to a person whom they referred to as ‘doctor.’ The “doctor” advised her that she could terminate the pregnancy. On a Saturday at 6.00 a.m. her roommate took her to a pharmacy situated at Ibeno Trading Centre where the roommate paid Kshs 1,500.00 towards the said procedure. Without examining JMM or carrying out any tests, the ‘doctor’ directed her to a back room where she was asked to lie on a bed. She was injected on her thigh and advised to go home and wait for the foetus to be expelled the next day.

          4.  When the foetus was not expelled, JMM returned to the pharmacy and the ‘doctor’ proceeded to insert a metal-like cold object in her vagina and once again the ‘doctor’ told JMM to go home as the foetus would be expelled by that evening. That evening, JMM started vomiting and experiencing severe stomach pains accompanied by heavy bleeding. She did not, however, disclose all this to her family, telling them only that she had a headache.

          5.  This information was narrated to the court by PKM, the 2nd petitioner, mother and next friend of JMM. PKM had received a call on 10th December 2014 from her elder daughter’s mother in law, with whom JMM was staying, informing her that JMM was feeling unwell, and was vomiting and bleeding heavily. She requested the said mother in law to take JMM to Ibeno dispensary where, upon being interrogated by the medical staff at the facility, JMM revealed that she had procured an abortion. The dispensary, however, did not have the equipment, facility and skilled staff to assist JMM, so it availed its ambulance to transfer JMM to Kisii Teaching and Referral Hospital, a Level 5 Hospital, approximately 15.6 km away. It was here that PKM found JMM in the afternoon of 10th December 2014 where the medical staff confirmed to her that JMM had procured an unsafe abortion. At the Hospital, JMM was taken to a general ward where the foetus was removed. JMM stayed at the Hospital till 12th December 2014 when she was discharged. PKM was unable to tell the exact nature of treatment that JMM received at the hospital, apart from being placed on intravenous therapy.

          6.  On the third day of JMM’s admission, the staff at Kisii Level 5 Hospital advised PKM that due to the unavailability of dialysis services at the hospital, JMM ought to be transferred to a health facility, which had such services as her kidneys, were failing due to heavy bleeding. She was advised to take JMM to Tenwek Mission Hospital, a faith-based hospital situate in Bomet County, about 50 kilometres from Kisii Town. Accordingly, and upon settling the accrued bill of Kshs 3,500.00 at the Kisii Level 5 Hospital, she made her own private arrangements to transfer JMM by taxi to Tenwek at the cost of Kshs 3,500.00 as she could not afford the amount of Kshs 12,000.00 required to transfer her by the Kisii Level 5 Hospital ambulance.

          7.  On 12th December 2014 at about 10.00 a.m., PKM transferred JMM to Tenwek Hospital where they arrived after about one and a half hours of travel. JMM was admitted into the intensive care unit upon payment of Kshs 3,000.00 by PKM. At the time of her admission at Tenwek Hospital, JMM was not able to talk.

          8. After three days of treatment, JMM was able to speak. She remained at Tenwek for about 7 days till 19th December 2014 when she was discharged on the ground that Tenwek Hospital did not have any equipment to undertake dialysis. PKM was then advised to take JMM either to Moi Teaching and Referral Hospital, Eldoret or Kenyatta National Hospital. She was offered the Hospital’s ambulance to transport JMM upon her undertaking to settle the accrued bills, which at the time of discharge was Kshs 65,000.00.

          9.  PKM opted to take JMM to Kenyatta National Hospital where they arrived on 19th December 2014. JMM was immediately admitted for surgical treatment. She continued to receive treatment, including dialysis, until 25th February 2015 when she was officially discharged as an inpatient but was to continue receiving treatment as an outpatient. The diagnosis from Kenyatta National Hospital at the time of her discharge was that JMM had had a septic abortion and haemorrhagic shock and had developed chronic kidney disease. As a result, JMM was referred for follow-up in the renal unit of Kenyatta National Hospital.

          10.  JMM’s troubles, however, were far from over. By the time of her discharge, the bill at Kenyatta National Hospital had risen to Kshs 39,500.00 which PKM was unable to pay. As a result, JMM was detained at the Hospital during which period she slept on a mattress spread on the floor due to scarcity of beds. She again fell sick during this period of detention and was once again taken to the main ward where she was treated for about four days. She was then returned to the detention room where she stayed for a period of 2 weeks until her release on 13th March 2015 when the hospital bill was waived.

          11.   The medical advice that PKM received after JMM’s release from hospital was that she was required to undergo dialysis every month at Kenyatta National Hospital renal unit at the cost of Kshs 50,000.00, a sum that was way beyond PKM’s reach. However, it would appear that due to financial constraints, JMM was yet to embark on her outpatient dialysis by the time of filing the petition.

          12.   PKM blames her daughter’s predicament on the respondents.  She argues that the Government of Kenya, through the Ministry of Health National Guidelines on the Management of Sexual Violence in Kenya, 2nd Edition, 2009 (2009 National Guidelines), made pursuant to section 35 (3) of the Sexual Offences Act, allowed termination of pregnancy as an option in case of pregnancy occurring as a result of rape. It was her case, further, that it is not clear how such services would be accessed. She contends that the physical and mental health of many women and adolescent girls would be protected if information was available with regard to the cadre of health professional that can provide services for legal termination of pregnancy.

          13.  PKM further argues that the withdrawal by the 3rd  respondent of the 2012 Standards and Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion in Kenya (2012 Standards and Guidelines), and the  National Training Curriculum for the Management of Unintended, Risky and Unplanned Pregnancies (the Training Curriculum) on 3rd December, 2013 and 24th February 2014 respectively undermines the right to access safe legal abortion services, therefore leading to women and girls in the position of JMM to secure unsafe abortions from unqualified and untrained persons such as the ‘doctor’ who procured her abortion on 8th December 2014.

          14. PKM’s position was supported by the 3rd and 4th petitioners.  These petitioners are both community human rights mobilizers residing in Mathare Constituency within Nairobi County. Their area of residence is a mainly informal settlement inhabited by persons of low economic status. They narrate in their affidavits in support of the petition their experiences with cases touching on women and girls’ reproductive health, such as early pregnancies, defilement, rape, and unsafe abortion.

....Constitutional Rights implicated in the Petition.

          329.  The case of the petitioners is that the Ministry of Health, in promulgating the 2012 Standards and Guidelines, sought to manage all the aspects of prevention of unsafe abortion using the multi-sectoral approach.  They argue that the 2012 Standards and Guidelines addressed issues related to prevention and management of unintended, risky and unplanned pregnancies, post abortion care and standards for monitoring and audit.  Further, that the recommendations stuck to the laws as set out in the Constitution, Acts of Parliament and other legal instruments.

          330.  In addition, it is their contention that the 2012 Standards and Guidelines adhered to proven scientific recommendations and were developed in a process that involved a wide range of stakeholders, including representatives from the medical profession, religious sector, development partners and civil society organisations.  However, the 2012 Standards and Guidelines were withdrawn by the DMS through his letter dated 3rd December 2013, and the training curriculum was also withdrawn by the Memo dated 24th February 2014. The Memo also threatened professional and legal sanctions for those health care professionals who attended trainings on safe abortion practices and the use of Medabon.

          331. The petitioners argue that the Memo and letter negate the spirit and letter of the Constitution, which aim to protect the health and lives of women and girls in Kenya. The withdrawal of the 2012 Standards and Guidelines  threaten to reverse gains made in curtailing maternal deaths due to unsafe abortions. The petitioners attribute the predicament of JMM and her eventual death to the actions of the DMS, contending that presumably as a result of lack of information on how to respond to or whom to approach after being subjected to sexual violence, she was not able to receive immediate post-rape care, including emergency contraceptive and post exposure prophylaxis. She had upon realising she was pregnant, been taken to an untrained person who performed an unsafe abortion. We have already set out elsewhere in this judgment the chain of events that eventually led to the death of JMM.

          332. The petitioners argue that by withdrawing the 2012 Standards and Guidelines and issuing the Memo, the DMS undermined various constitutional rights guaranteed to women under the Constitution. These are the rights of women and girls to life under Article 26(1), the right to health, which includes the right to reproductive health under Article 43(1)(a)); the right to equality and non-discrimination guaranteed under Article 27 and the right to dignity under Article 28. They also allege violation of the right to freedom from cruel, inhuman and degrading treatment guaranteed under Article 29(f)).

          333.  It is also the petitioners’ case that the withdrawal of the 2012 Standards and Guidelines violates the petitioners’ right to access  information under Article 35(1)(b), including health-related information by depriving them access to potentially life-saving medical information and services and enjoying the benefits of scientific progress, and the right to freedom of expression under Article 33. The petitioners also contend that the actions of the DMS violate the constitutional and international human rights of healthcare providers to information, training and education, as well as the right to enjoy the benefits of scientific progress. It is their view that this has the effect of impacting health care providers’ core obligation to provide safe, quality health services, such as legally mandated abortions and post abortal care. It is also contended that the actions of the DMS violated the provisions of Article 47 that guarantees to all the right to fair administrative action. In the petitioners’ view, the actions of the DMS have the effect of limiting rights in a manner that is not in accord with Article 24.

          334.  We have already set out elsewhere above the provisions of Article 26(1), which guarantees to everyone the right to life. This right is also guaranteed under international conventions to which Kenya is a party and which are, in accordance with Article 2(5) and (6) part of Kenyan law. In this regard, see Article 6 of the ICCPR and Article 3 of the UDHR. Article 1 and 2 of CEDAW guarantee to women enjoyment of all human rights on an equal basis with men.

          335. The right to life and the right to health are at the core of this petition. Article 43 (1) provides that “Every person has the right—(a) to the highest attainable standard of health, which includes the right to health care services, including reproductive health care.”

          336. The term ‘health’ is defined by the World Health Organisation as “a state of complete physical, mental and social well-being, and is not only the absence of disease or infirmity.” This is also the definition of health contained in the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa.

          337. The inter-linkage and inter-dependence of rights is recognised, and in this regard, the right to health is an underlying determinant of the enjoyment of other rights.  In Purohit & Moore v The Gambia Communication 241/01 the African Commission stated, at paragraph 80 that:

          “Enjoyment of the human right to health as it is widely known is vital to all aspects of a person’s life and well-being, and is crucial to the realisation of all the other fundamental human rights and freedoms. This right includes the right to health facilities, access to goods and services to be guaranteed to all without discrimination of any kind.”

          338.  In his decision in Mathew Okwanda v. Minister of Health and Medical Services & 3 others [2013] eKLR, Majanja J stated that:

          “The General Comment [Committee on Economic, Social and Cultural Rights (CESCR) General Comment No. 14] recognises that the right to health is closely related to the economic rights and is dependent on the realization of the other rights including the rights to food, housing, water, work, education, human dignity, life, non-discrimination, equality, prohibition of torture, privacy, access to information and other freedoms.”

          339. The Court in P.A.O & 2 Others v Attorney General [2012] eKLR adopted the definition of health in General Comment No. 14 on the Right to Health in which the Committee on Economic, Social and Cultural Rights notes that:

          ‘Health is a fundamental human right indispensable for the exercise of other human rights. Every human being is entitled to the enjoyment of the highest attainable standard of health conducive to living a life in dignity.’

          340.  In addition, with respect to women and girls, the right to health under the Constitution encompasses the right to ‘reproductive health care’.  It is noted at General Comment No. 14 of the ICESR at paragraph 14 that:

“14.  “The  provision  for  the  reduction  of  the  stillbirth  rate  and  of  infant  mortality  and  for  the  healthy  development  of  the  child”  (art.  12.2  (a)) may  be  understood  as  requiring  measures  to  improve  child  and  maternal  health,  sexual  and  reproductive  health  services,  including  access  to  family  planning,  pre-  and  post-natal  care emergency  obstetric  services  and  access  to  information,  as  well  as  to  resources  necessary to act on that information.”

          341. With respect to the right to health of women, the International Conference on Population and Development Program of Action 1994, paragraph 7.2 defined the right to health as follows:

“a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity, in all matters relating to the reproductive system and to its functions and processes. Reproductive health therefore implies that people are able to have a satisfying and safe sex life and that they have the capability to reproduce and the freedom to decide if, when and how often to do so.”  

          342. Aside from guaranteeing the rights set out in the Bill of Rights, the Constitution imposes on the state obligations with respect to the enjoyment by citizens of these rights. Article 19 provides that:

(1) The Bill of Rights is an integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies.

(2) The purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings.

(3)  The rights and fundamental freedoms in the Bill of Rights—

(a) belong to each individual and are not granted by the State;

(b) do not exclude other rights and fundamental freedoms not in the Bill of Rights, but recognised or conferred by law, except to the extent that they are inconsistent with this Chapter; and

(c) are subject only to the limitations contemplated in this Constitution.

          343.  Article 21 provides that:

(1)  It is a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights.

(2) The State shall take legislative, policy and other measures, including the setting of standards, to achieve the progressive realisation of the rights guaranteed under Article 43.

          344.  It is thus evident that women and girls, as contended by the petitioners, have rights, in common with every other citizen, guaranteed to them under the Constitution. However, because of their sex, they are also guaranteed rights that are specific to them, the reproductive rights guaranteed under Article 43 (1) (a) of the Constitution.  Since the state has an obligation under Article 21(1) to “observe, respect, protect, promote and fulfil” the rights guaranteed under the Bill of Rights, and to “take legislative, policy and other measures, including the setting of standards, to achieve the progressive realisation of the rights guaranteed under Article 43”, then any action that limits or diminishes this right is a violation of the Constitution.  The petitioners argue that by withdrawing the 2012 Standards and Guidelines and Training Curriculum, the Respondents violated the Constitution. We now turn to consider the principles against which we measure the constitutionality or otherwise of the actions of the DMS.

Applicable Constitutional Principles

          345. In making the determination in this regard, we are guided by certain principles which have been applied with regard to interpretation of questions on the constitutionality of actions taken by state organs. We bear in mind, first, the provisions of Article 20 which provides that:

(1)   The Bill of Rights applies to all law and binds all State organs and all persons.

(2)   Every person shall enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom.

(3)  In applying a provision of the Bill of Rights, a court shall—

(a)  develop the law to the extent that it does not give effect to a right or fundamental freedom; and

(b)  adopt the interpretation that most favours the enforcement of a right or fundamental freedom. [Emphasis added]

          346.  In its decision in Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya &10; others [2015] eKLR  the Court set out succinctly the principles that a court should bear in mind when interpreting the Constitution. We can do no better than to set out the words of the Court:

“91. The Constitution has given guidance on how it is to be interpreted. Article 259 thereof requires that the Court, in considering the constitutionality of any issue before it, interprets the Constitution in a manner that promotes its purposes, values and principles, advances the rule of law, human rights and fundamental freedoms in the Bill of Rights and that contributes to good governance.

92. We are also guided by the provisions of Article 159(2) (e) of the Constitution which require the Court, in exercising judicial authority, to do so in a manner that protects and promotes the purpose and principles of the Constitution.

93. Thirdly, in interpreting the Constitution, we are enjoined to give it a liberal purposive interpretation. At paragraph 51 of its decision in Re The Matter of the Interim Independent Electoral Commission Constitutional Application No 2 of 2011, the Supreme Court of Kenya adopted the words of Mohamed A J in the Namibian case of S. vs Acheson, 1991 (2) S.A. 805 (at p.813) where he stated that:

“The Constitution of a nation is not simply a statute which mechanically defines the structures of government and the relationship between the government and the governed. It is a ‘mirror reflecting the national soul’; the identification of ideals and ….aspirations of a nation; the articulation of the values bonding its people and disciplining its government. The spirit and the tenor of the Constitution must, therefore, preside and permeate the processes of judicial interpretation and judicial discretion.”

94. Further, the Court is required, in interpreting the Constitution, to be guided by the principle that the provisions of the Constitution must be read as an integrated whole, without any one particular provision destroying the other but each sustaining the other: see Tinyefuza vs Attorney General of Uganda Constitutional Petition No. 1 of 1997 (1997 UGCC 3).

          347. We are also guided by the words of the Court in Re Kadhis’ Court: The Very Right Rev Dr. Jesse Kamau & Others vs The Hon. Attorney General & Another Nairobi HCMCA No. 890 of 2004.  While dealing with the question of interpretation in a matter predating the present Constitution, the court expressed the following view with respect to interpretation of the Constitution, particularly in relation to the Bill of Rights:

“The general provisions governing constitutional interpretation are that in interpreting the Constitution, the Court would be guided by the general principles that; (i) the Constitution was a living instrument with a soul and consciousness of its own as reflected in the preamble and fundamental objectives and directive principles of state policy. Courts must therefore endeavour to avoid crippling it by construing it technically or in a narrow spirit. It must be construed in tune with the lofty purposes for which its makers framed it. So construed, the instrument becomes a solid foundation of democracy and the rule of law. A timorous and unimaginative exercise of judicial power of constitutional interpretation leaves the Constitution a stale and sterile document; (ii) the provisions touching fundamental rights have to be interpreted in a broad and liberal manner, thereby jealously protecting and developing the dimensions of those rights and ensuring that our people enjoy their rights, our young democracy not only functions but also grows, and the will and dominant aspirations of the people prevail. Restrictions on fundamental rights must be strictly construed.” [Emphasis added].

          348.  Finally, it is apposite at this point to consider the provisions of Article 24 of the Constitution, which sets out the parameters with respect to limitation of rights. This is in recognition of the fact that, with the exception of the rights set out in Article 25, all other rights may be limited in the circumstances prescribed under Article 24. This Article provides that:

1)  A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—

a)  the nature of the right or fundamental freedom;

(b) the importance of the purpose of the limitation;

(c)  the nature and extent of the limitation;

(d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and

(e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

2)  Despite clause (1), a provision in legislation limiting a right or fundamental freedom—

(a) in the case of a provision enacted or amended on or after the effective date, is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation;

(b) shall not be construed as limiting the right or fundamental freedom unless the provision is clear and specific about the right or freedom to be limited and the nature and extent of the limitation; and

(c) shall not limit the right or fundamental freedom so far as to derogate from its core or essential content.

3)  The State or a person seeking to justify a particular limitation shall demonstrate to the court, tribunal or other authority that the requirements of this Article have been satisfied.

4)  The provisions of this Chapter on equality shall be qualified to the extent strictly necessary for the application of Muslim law before the Kadhis’ courts, to persons who profess the Muslim religion, in matters relating to personal status, marriage, divorce and inheritance.

          349.  These provisions reflect what has emerged from judicial precedents which are persuasive in nature-see R vs Oakes (1986) ISCR 103.  The limitation of rights must, first, be by law, and secondly, the objective of the law must be pressing and substantial and must be important to society -see R vs Big Drug Mart Ltd (1985) ISCR 295.

          350. The third principle is that of proportionality-whether the state, in seeking to achieve its objectives, has chosen a proportionate way to achieve the objectives that it seeks to achieve.  The question to consider in this regard is whether the legislation meets the test of proportionality relative to the objects or purpose it seeks to achieve: see R vs Chaulk (1990) 3SCR 1303.

          351.  In considering the test of reasonableness and proportionality set out in the Oakes case,  Emukule J, in his decision in Martha Karua v Radio Africa Ltd t/a Kiss F.M. Station & 2 others [2006] eKLR observed as follows:

“On the issue of reasonableness in relation to the limitation we fully approve and endorse the reasoning in the Canadian case of R v OAKES (1986) 26 DLR 4TH 200.  One of the principles in the case concerning reasonableness of the limitation is that the interest underlying the limitation must be of sufficient importance to outweigh the constitutionally protected right and the means must be proportional to the object of the limitation.  Our interpretation of the use of reasonableness in the limitation clause is that since what is at stake is the limitation of fundamental rights, that must mean the legislative objective of the limitation law must be motivated by substantial as opposed to trivial concerns and directed towards goals in harmony with the values underlying a democratic society.”

          352.  With respect to the question of proportionality, Emukule J expressed the view that:

“[The] Proportionality test requires the following of any limitation:

(a)   that it be rationally connected to its objective,

(b)   that it impairs the right or freedom as little as possible and

(c)   that there is proportionality between its effects and its objectives – see OAKES case (supra).

          353.  We are duly guided by the constitutional provisions and judicial pronouncements set out above, and we now turn to consider the substantive issues raised in this petition.

Abortion under the Constitution

          354.  We observed elsewhere in this judgment that in our view, while Article 26(2) contains a prohibition of abortion, it contains the general rule. Article 26(4) sets out the exception to the general rule:

(4) Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.

          355.  There is some consensus, albeit limited, between the opposing parties to this petition that the above provisions allow a window for abortions in Kenya. The petitioners seek a liberal, wider interpretation of the provision, while the interested parties who oppose the petition allow for a mere chink- only when the life of the mother is in absolutely dire straits, for the life of the unborn child must be secured, in the words of Dr. Stephen Karanja, at all costs.  The position of the respondents is somewhat ambiguous on the issue. As emerges from the averments of Dr. Muraguri and Dr. Gondi, the respondents recognise the challenge posed by unsafe abortions that results from lack of a clear framework for ensuring that women have access to safe reproductive health care and post abortal services, have issued guidelines in the past with regard to such access, but appear to be somewhat intimidated by the objection from other sectors, particularly from the faith based sectors, to such initiatives.

          356.  In our view, the constitutional provisions with respect to abortion in a situation in which emergency treatment is required, or where the life of the mother is in danger, are not disputable. Section 2 of the Health Act, No. 21 of 2017, defines ‘emergency treatment’ as follows:

“emergency treatment" refers to necessary immediate health care that must be administered to prevent death or worsening of a medical situation;

          357.  The 2nd and 3rd interested parties have argued that this determination on whether or not an abortion should be permitted can only be based on the opinion of a “trained health professional” which in their view means a ‘qualified medical doctor.’ However, section 6(1) and (2) of the Health Act 2017 provides as follows:

(1) Every person has a right to reproductive health care which includes—

(a) the right of men and women of reproductive age to be informed about, and to have access to reproductive health services including to safe, effective, affordable and acceptable family planning services;

(b) the right of access to appropriate health-care services that will enable parents to go safely through pregnancy, childbirth, and the postpartum period, and provide parents with the best chance of having a healthy infant;

(c) access to treatment by a trained health professional for conditions occurring during pregnancy including abnormal pregnancy conditions, such as ectopic, abdominal and molar pregnancy, or any medical condition exacerbated by the pregnancy to such an extent that the life or health of the mother is threatened. All such cases shall be regarded as comprising notifiable conditions.

(2) For the purposes of subsection (1)(c), the term "a trained health professional" shall refer to a health professional with formal medical training at the proficiency level of a medical officer, a nurse, midwife, or a clinical officer who has been educated and trained to proficiency in the skills needed to manage pregnancy-related complications in women, and who has a valid license from the recognized regulatory authorities to carry out that procedure.

          358. One may ask why the Constitution, which was approved in a referendum by 67% of the people of Kenya, deemed it fit to use the term ‘trained health professional’ instead of ‘a medical doctor’ as contended by the 2nd and 3rd interested parties. In our view, this was a concession to the dearth of qualified medical doctors in many of our health facilities. As emerged in the course of the hearing of this petition, many of the first line health facilities to which women and girls in need of reproductive health services go to are manned by nurses and clinical officers.  We take the view therefore that this contention by the interested parties is not borne out by the constitutional and statutory provisions, or by the reality on the ground. As was recognised in the Constitution making process as contained in the Final Report of the Committee of Experts on Constitutional Review:

“The requirement that abortion could be performed by medical practitioners alone also raised concerns. It would mean that women in poor rural communities without such services would be unable to procure abortions with potentially serious or fatal repercussions for some poor women. There was also need to ensure that the language used by the PSC did not outlaw methods of fertility control, such as emergency contraception. The CoE accordingly amended the draft to include language that would enable appropriate medical intervention to be available when necessary.”

          359. What about the ‘health’ of the mother, the risk to which should allow for an abortion? The petitioners argue that this term should be read to include both physical and mental health. The respondents argue for an interpretation that covers only physical health.

          360. The Constitution does not define the term ‘health’. However, the Health Act defines it, in words that replicate the WHO definition as follows:

“health” refers to a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity;

          361.  WHO also defines health to include both physical and mental health:

“Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.”

          362. In our view therefore, the Constitution permits abortion in situations where a pregnancy, in the opinion of a trained health professional, endangers the life or mental or psychological or physical health of the mother.

          363. A third exception to the prohibition of abortion under the Constitution is where abortion is permitted by “any other written law”.

          364. The question is whether there was ‘any other written law’ that permitted abortion and on the basis of which the withdrawn 2012 Standards and Guidelines had been issued, or which predated the Guidelines and permitted abortion in certain circumstances.

          365. The petitioners argued that abortion is lawful when it is permitted by a statute, treaty or convention, a view reflected also in the submissions of the 1st Amicus Curiae. It is further contended that section 35(3) of the Sexual Offences Act No. 3 of 2006 provides for such a situation. The section provides that “[the] Minister responsible for Health shall prescribe circumstances under which a victim of a sexual offence may at any time access treatment in any public hospital or institution”.  In guidelines promulgated by the Ministry of Health in 2009 titled ‘National Guidelines on the Management of Sexual Violence in Kenya, 2nd Edition, 2009’, it was provided that:

“if [survivors of sexual violence] present with a pregnancy, which they feel is as a consequence of the rape, they should be informed that in Kenya, termination of pregnancy may be allowed after rape (Sexual Offences Act, 2006)”.

          366.  The respondents argue that the 2009 Guidelines are not ‘any other written law’ as provided under Article 26(4). Their position is that the only law in force with respect to abortion is the Penal Code, whose provisions we have set out earlier in this judgement.

          367.  We make two observations with respect to these two Acts of Parliament that have a bearing on the question of abortion. First, it is correct that the Penal Code prohibits abortion. However, it is an Act of Parliament that predates the Sexual Offences Act, 2006, and the Constitution.  The provisions of the Sexual Offences Act which is later in time takes precedence. We take this view bearing in mind the doctrine of implied repeal, under which, if the provisions of an Act are inconsistent with the provisions of an earlier Act, the earlier provisions may be impliedly repealed by the later legislation-see Bennion on Statutory interpretation, Section 6.10: Implied repeal. Bennion states as follows with respect to implied repeal:

“The classic statement of the test for implied repeal was set out by A L Smith J in West Ham (Churchwardens, etc) v

Fourth City Mutual Building Society:3

''The test of whether there has been a repeal by implication by subsequent legislation is this: are the provisions of a later Act so inconsistent with, or repugnant to, the provisions of an earlier act that the two cannot stand together?''

          368. Mativo J considered this principle in his decision in  A O O & 6 others v Attorney General & another [2017] eKLR in which he observed as follows:

“The Children's Act (sic) came into effect on 1st March, 2002. The Penal Code's[54] commencement date was  1st August, 1930. According to principles of construction if the provisions of a later Act are so inconsistent with or repugnant to those of an earlier Act that the two cannot stand together, the earlier Act stands impliedly repealed by the latter Act. It is immaterial whether both Acts are Penal Acts or both refer to Civil Rights. The former must be taken to be repealed by implication.[55]  This principle was properly adopted in Martin Wanderi & 19 others vs. Engineers Registration Board of Kenya & 5 Others,[56] where the Court, rendered itself as follows:-

 "This is because of the canons of interpretation with regard to the timing of legislation, and the doctrine of implied repeal, which is to the effect that where provisions of one Act of Parliament are inconsistent or repugnant to the provisions of an earlier Act, the later Act abrogates the inconsistency in the earlier one….” (Footnotes omitted).

          369.  More importantly, the Constitution having provided a right to abortion where, in the opinion of a trained health professional there is need for emergency treatment, or that the life or health of the mother is in danger, the apparent blanket prohibition of abortion under the Penal Code cannot stand. This is because, in accordance with sections 6 and 7 of the 6th Schedule to the Constitution, the provisions of the Penal Code must be read with the necessary “alterations, adaptations, qualifications and exceptions” to bring it into conformity with the Constitution. While the said section is still valid in so far as unlawful abortions are concerned, the same must be read taking into consideration the provisions of the Constitution as well as the Sexual Offences Act. We associate ourselves with the opinion in Steve Thoburn vs. Sunderland City Council 2002 EWHC 195 where the court stated as follows:

“… [42] "… [I]f they [the two statutes] are inconsistent to that extent [viz. so that they cannot stand together], then the earlier Act is impliedly repealed by the later in accordance with the maxim 'Leges posteriores priores contrarias abrogant'…Authority to the effect that the doctrine of implied repeal may operate in this limited fashion is to be found in Goodwin v Phillips [1908] 7 CLR 1, in the High Court of Australia, in which Griffith CJ stated at 7: "… if the provisions are not wholly inconsistent, but may become inconsistent in their application to particular cases, then to that extent the provisions of the former Act are excepted or their operation is excluded with respect to cases falling within the provisions of the later Act.”

          370.    In this case, paragraph 2 of the First Schedule to the Sexual Offences Act expressly provides as follows:

For greater certainty, the provisions of this Act shall supersede any existing provisions of any other law with respect to sexual offences.

          371.  It thus appears to us that under the Constitution and the Sexual Offences Act, while the general rule is that abortion is prohibited, it is permissible in the circumstances prescribed under Article 26(4), and further as provided under section 35(3) of the Sexual  Offences Act.   The 2009 Guidelines issued by the Minister in accordance with the Sexual Offences Act had provided that victims of sexual violence who became pregnant as a result should be informed that termination of pregnancy may be allowed after rape, and should they opt for termination, should be treated with compassion, and referred appropriately.

          372.   In our view therefore, women and girls in Kenya who find themselves pregnant as a result of sexual violence have a right, under Kenyan law, to have an abortion performed by a trained health professional if that health professional forms the opinion that the life or health of the mother is in danger. Health, in our view, encompasses both physical and mental health. While Kenya made a reservation to Article 14 (2)(c) of the Maputo Protocol, it is instructive that the words of the Article mirror in some respects the words used in the Constitution:

“Article 14.2 c): the right to safe abortion in cases of sexual assault, rape, incest and when the pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus.”

          373.  Further, Kenya is also a signatory to the International Covenant on the Elimination of all Forms of Discrimination against Women. In its recommendations adopted after its 11th General Session in 1992, the Committee requires States to, among other things, enact and enforce laws and policies that protect women and girls from violence and abuse and provide for appropriate physical and mental health services. It also requires that health-care workers should also be trained to detect and manage the health consequences of violence against women.

          374. In our view, there can be no dispute that sexual violence exacts a major and unacceptable toll on the mental health of women and girls. Whether the violence occurs in the home or in situations of conflict, women suffer unspeakable torment as a result of such violence.

          375.  In his decision in C. K. (suing through Ripples International as her guardian & next friend) & 11 others v Commissioner of Police / Inspector General of the National Police Service & 3 Others (2013) eKLR Makau J found that sexual violence had a profound effect on the health, both physical and mental, of the survivors of such violence. He observed as follows:

“I further find that the petitioners in this petition have suffered horrible, unspeakable and immeasurable harm due to acts of defilement committed against them. They each suffered physical harm in the form of internal and external wounds from the perpetrators assaults and some suffered consequences of unwanted pregnancies vested (sic) on children not physically mature enough to bear children. The petitioners have suffered psychological harm from assaults made worse by the threat, fear and reality of contracting HIV/AIDS and other sexually transmitted diseases or infections.”

          376. As submitted by the 1st Amicus Curiae, in reliance on the provisions of Maputo Protocol, General Comment No. 2:

“The Protocol provides for women’s right to terminate pregnancies contracted following sexual assault, rape and incest. Forcing a woman to keep a pregnancy resulting from these cases constitutes additional trauma which affects her physical and mental health … Apart from the potential physical injuries in the short and long term, the unavailability or refusal of access to safe abortion services is often the cause of mental suffering, which can be exacerbated by the disability or precarious socioeconomic status of the woman."

          377.  We bear this in mind as we turn to consider the question whether the withdrawal of the 2012 Standards and Guidelines and the Memo of the DMS violated the constitutional rights of women and girls under the Articles of the Constitution earlier mentioned.

The Promulgation and Withdrawal of the Standards and Guidelines

          378.  As we observed earlier, the state, represented in this petition by the respondents, and in particular by the DMS, had an obligation to ensure the enjoyment by women and girls of the rights under Article 26(4) and 43(1)(a).  As averred by Dr.  Muraguri and confirmed by Dr. Gondi, the state had taken the initiative and set up a Technical Working Group that was consultative in nature. This Working Group came up with the 2012 Standards and Guidelines that are the subject of this petition.  However, the 2012 Standards and Guidelines were withdrawn by the letter dated 3rd December 2013. The DMS had followed up the letter with the Memo of 24th February 2014 in which he had threatened dire legal and professional consequences for those who undertook training on safe abortion. As submitted by the petitioners, the withdrawal of the 2012 Standards and Guidelines was done unilaterally by the DMS.

          379. The petitioners submit that the withdrawal was in violation of their rights and the rights of women and girls such as JMM to fair administrative action under Article 47; to non-discrimination under Article 27; to dignity under Article 28; right to information under Article 35 and most importantly, as in the case of JMM, the right to life. They view the withdrawal of the 2012 Guidelines and Standards and the Training Curriculum as having led to confusion and lack of clarity on the part of health care providers as to when an abortion is permissible under the law. The DMS had compounded the problem by asserting that abortion is illegal in Kenya, without due regard to the permissible grounds under the Constitution.

          380.  The respondents support the withdrawal of the 2012 Standards and Guidelines, as well as the Training Curriculum. They argue that the 2012 Standards and Guidelines had included matters that had not been agreed upon in the Technical Working Group. While the 2nd interested party had initially alleged that it had not been part of the group that developed the 2012 Standards and Guidelines, it conceded later that this was not the case. Rather, certain items that had not been the subject of consensus had been included in the 2012 Standards and Guidelines.

          381. Article 10 of the Constitution provides as follows:

(1) The national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them––

(a) applies or interprets this Constitution;

(b) enacts, applies or interprets any law; or

(c) makes or implements public policy decisions.

(2) The national values and principles of governance include––

(a) patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people;

          382.  Apart from anything else it is clear that the 2012 Standards and Guidelines and the Training Curriculum were public policy documents. It is also clear that they were the product of a public participatory process as required under the Constitution. Their withdrawal however did not follow the same process. In other words, they were arbitrarily withdrawn. To our mind a decision to withdraw a public policy document must similarly be subjected to the constitutional dictates. It is a power that cannot therefore be arbitrarily exercised. It is now recognised that arbitrary exercise of power, even where it exists, is a ground to grant a judicial review relief which is one of the reliefs under Article 23(3) of the Constitution.

          383.  The question however, is whether the withdrawal of the 2012 Standards and Guidelines and the Training Curriculum was lawful. Article 43(1) (a) of the Constitution provides that every person has the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care.

          384.  Abortion in constitutionally permissible circumstances is clearly a right since as we have stated above, Article 26 of the Constitution falls under the Bill of Rights. The arbitrary withdrawal of the 2012 Guidelines and Training Curriculum clearly left those to whom the rights thereunder are bestowed, women and girls to the vagaries of medical quacks and backstreet services. In our view, their withdrawal amounted to a limitation of the said right.

          385. Article 24 (1) permits limitation of rights only to the extent that it is reasonable and justifiable in a democratic society. The phrase ‘justifiable in an open and democratic society’ was dealt with in Obbo and Another vs. Attorney General [2004] 1 EA 265 in which the court expressed itself as follows:

“It is not correct that the test of what is acceptable and demonstrably justifiable for the purposes of limitation imposed on the freedoms of expression and freedom of the press in a free and democratic society must be a subjective one. The test must conform with what is universally accepted to be a democratic society since there can be no varying classes of democratic societies for the following reasons:-   (i). First Uganda is a party to several international treaties on fundamental and human rights, and freedoms all of which provide for universal application of those rights and freedoms and the principles of democracy. The African Charter for Human and Peoples Rights and the International Covenant on Civil and Political Rights are only two examples. (ii). Secondly, the preamble to the Constitution recalls the history of Uganda as characterised by political and constitutional instability: recognises the people’s struggle against tyranny, oppression and exploitation and says that the people of Uganda are committed to building a better future by establishing through a popular and durable constitution based on the principles of unity, peace, equality, democracy, freedom, social justice and progress. When the framers of the Constitution committed the people of Uganda to building a democratic society, they did not mean democracy according to the standard of Uganda with all that it entails but they meant democracy as universally known...It is a universally acceptable practice that cases decided by the highest courts in the jurisdictions with similar legal systems which bear on a particular case under consideration may not be binding but are of persuasive value, and are usually followed unless there are special reasons for not doing so.”

          386. As regards the limitation in R vs. Oakes [1986] 1 SCR 103, it was held that:

“Firstly the objective to be served by the measures limiting a Charter right must be sufficiently important to warrant overriding a constitutionally protected right or freedom. The standard must be high to ensure that trivial objectives or those discordant with the principles of a free and democratic society do not gain protection. At a minimum, an objective must relate to societal concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important. Second, the party invoking s. 1 must show the means to be reasonable and demonstrably justified. This involves a form of proportionality test involving three important components. To begin, the measures must be fair and not arbitrary, carefully designed to achieve the objective in question and rationally connected to that objective. In addition, the means should impair the right in question as little as possible. Lastly, there must be a proportionality between the effects of the limiting measure and the objective the more severe the deleterious effects of a measure, the more important the objective must be.”

          387. International human rights bodies have developed a detailed guidance on how the restrictions on the right can be applied and to meet the so called the ‘three part test’ described below.

          388.  First, the restrictions must be prescribed by law: this means that a norm must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly (see, Human Rights Committee, Leonardus J.M. de Groot v. The Netherlands, No. 578/1994, U.N. Doc. CCPR/C/54/D/578/1994 (1995).

          389.  Second, restrictions must pursue a legitimate aim, exhaustively enumerated in Article 19(3) (a) and (b) of the ICCPR as respect of the rights or reputations of others, protection of national security, public order, public health or morals.

          390.  Third, restrictions must be necessary and proportionate to secure the legitimate aim: Necessity requires that there must be a pressing social need for the restriction. The party invoking the restriction must show a direct and immediate connection between the expression/information and the protected interest. However, we have shown that the premise of the Memo was misguided and thus not necessary.

          391.  In this case the limitation was a negative act of arbitrary withdrawal of the facilitating instruments. No back up mechanisms was put into place to facilitate the said rights in the absence of the said 2012 Standards and Guidelines and Training Curriculum. The 2014 Guidelines, apart from drawing attention to the constitutional provisions did not guide the health professionals on the circumstances in which the said rights were to be attained. In our view the 2014 Guidelines did not meet the threshold of precision required under Article 24.

          392.   To the extent that the withdrawal was by the DMS as opposed to the Medical Practitioners and Dentists Board, the act itself was ultra vires and unlawful. This position is restated in section 7(2)(a)(i)(ii) and (iii) of the Fair Administrative Action Act, 2015 where it is provided that a court or tribunal may review an administrative action or decision, if the person who made the decision was not authorized to do so by the empowering provision; acted in excess of jurisdiction or power conferred under any written law; or acted pursuant to delegated power in contravention of any law prohibiting such delegation. In Hardware & Ironmonery (K) Ltd Vs. Attorney-General Civil Appeal No. 5 of 1972 [1972] EA 271, the Court expressed itself as follows:

“There is no absolute rule governing the question of delegation, but in general, where a power is discretionary and may affect substantial rights, a power of delegation will not be inferred, although it might be in matters of a routine nature. The decision whether or not the licence should be revoked required the exercise of discretion in a matter of greatest importance, since it involved weighing the national interest against a grave injustice to an individual. It was clearly a decision to be taken only by a very senior officer and was not one in respect of which a power of delegation could be inferred.”

          393.  Lord Somervel in Vine vs. National Doc Labour Board [1956] 3 All ER 939, at page 951 held that:

“The question in the present case is not whether the local board failed to act judicially in some respect in which the rules of judicial procedure would apply to them. They failed to act at all unless they had power to delegate. In deciding whether a person has power to delegate, one has to consider the nature of the duty and the character of the person. Judicial authority normally cannot, of course, be delegated…There are on the other hand many administrative duties which cannot be delegated. Appointment to an office or position is plainly an administrative act. If under a statute a duty to appoint is placed on the holder of an office, whether under Crown or not, he would normally, have no authority to delegate.  He could take advice, of course, but he could not, by a minute authorise someone else to make the appointment without further reference to him. I am however, clear that the disciplinary powers, whether “judicial” or not, cannot be delegated.”

          394. That is also our understanding of the holding in Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 300. In this case there is no evidence that the Board made the decision to withdraw the said documents. There is, however, no express power to delegate and we refuse to make such inference.

          395.  Accordingly, the limitation was not by law. Further, the said action neither specifically expressed the intention to limit that right or fundamental freedom, and the nature and extent of the limitation was not clear and specific about the right or freedom to be limited and the nature and extent of the limitation. In addition, it is our view that considering relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose, the limitation did not meet the proportionality test. The state, which under Article 24(3) of the Constitution shoulders the burden of demonstrating that the requirements of this Article has been satisfied has failed to do so. If the only issue was the misuse of otherwise  useful 2012 Standards and Guidelines and Training Curriculum, we have not been satisfied that there are not available mechanisms to stop the same otherwise by withdrawal of the said instruments. The withdrawal of the 2012 Standards and Guideline and the Training Curriculum was unreasonable, drastic and unjustifiable in a democratic society.

Conclusion

          396.  We have dealt in the preceding sections with the issues, which were raised before us in this petition. What remains is to summarise our findings on the issues which we identified hereinabove and our disposition of the petition.

          397.  As regards the issue whether Article 26(4) permits abortion in certain circumstances, the difference in the opinions held by the petitioners and the respondents, in our view is related to form than substance.  While the respondents contend that abortion is illegal, the petitioners contend that abortion is permissible.  As we have stated hereinabove, the general rule is that abortion is illegal.  However, abortion is permissible, if in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.  That is the letter of the Constitution and that is our view.

          398. The second issue is whether pregnancy resulting from sexual violence falls under the permissible circumstances for abortion under Article 26(4). This issue is intertwined with the question whether rape and defilement are some of the legal grounds for termination of pregnancy in Kenya are permissible under Article 26(4). This issue cannot however be dealt with without determining the issues relating to right to health and the right to reproductive health. Health in section 2 of the Health Act, 2017 entails a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.

          399.  The definition is substantially reflected in the international instruments we have referred to. That being the position, any condition that in the opinion of a trained health professional, necessitates emergency treatment, or endangers the life or health of the mother, warrants an abortion. It is not the cause of the danger that determines whether an abortion is necessary but the effect of the danger. Therefore, if in the opinion of a trained health professional emergency treatment is necessary or the life or health of a mother is in danger, abortion is permissible.  It therefore follows that if a pregnancy results from rape or defilement, and in the opinion of a trained health professional, endangers the physical, mental and social well-being of a mother, abortion is permissible (that is the health of the woman or girl).

          400.  In this case, it was in fact conceded by an expert called on behalf of the Respondents, Dr. Mutiso, that rape, subsequent pregnancy, abortion, infection, kidney failure, dialysis and surgery are indeed traumatic experiences regardless of where, when, how or why the person experiences them. He was however quick to add that not all traumatic experiences lead to post-traumatic stress disorder (PTSD). In other words, he did not rule out altogether the possibility of traumatic experiences resulting from rape, subsequent pregnancy, abortion, infection, kidney failure, dialysis and surgery leading to post-traumatic disorder.

          401. The next issue is whether the DMS’s impugned letter and Memo meet the test for limitation of rights set out in Article 24 of the Constitution. From our discourse above, the answer to this issue is clearly in the negative. It must therefore follow that the issue as to whether the decision to withdraw the 2012 Standards and Guidelines and Training Curriculum violated Articles 10 and 47 of the Constitution and the Fair Administrative Action Act, must be answered in the affirmative. We also find that the withdrawal of the 2012 Standards and Guidelines, the Training Curriculum and Medabon was ultra vires the powers of the DMS since those powers are bestowed upon the Board.

          402.   It is also our finding that by withdrawing the 2012 Standards and Guidelines and the Training Curriculum, the DMS in effect disabled the efficacy of Article 26(4) of the Constitution and rendered it a dead letter. That action, which in our view constituted a limitation of the rights under Article 26(4), derogated from the core or essential content of the right. In our view, it was clearly not justifiable, was prejudicial to the petitioners, and violated the rights of the petitioners and other women and adolescent girls of reproductive age whose interest they represent to the highest attainable standard of health guaranteed under Article 43(1) (a). Since, this is a right that inures to women and girls only, the unjustifiable limitation amounted to the violation of their right to non-discrimination as well as the right to information, consumer rights, and right to benefit from scientific progress. We therefore find that the directive by the DMS created an environment in which survivors of sexual violence cannot access safe quality services despite the clear constitutional provisions.

          403.  Did the circumstances of JMM qualify her for post-abortal care under Article 43? A holistic reading of Article 43 of the Constitution with the Health Act leads us to the conclusion that JMM was clearly entitled to emergency treatment including post-abortal care. It is our view that all persons who are in need of treatment are entitled to health care and it matters not the circumstances under which they find themselves in those situations.

          404. The next issue is whether PKM as the personal representative of the estate of JMM is entitled to comprehensive reparation, including indemnification for material and emotional harm suffered as a result of the actions of the respondents. From the evidence adduced before us it is clear that  post-abortal care was wanting in the facilities, which ordinarily ought to have had such care,  such as Kisii Level 5 Hospital.  The post abortal care she received in the hospital was clearly wanting, it appears that there was no doctor in the hospital to attend to her, and there were no dialysis services available. Apart from that, JMM was subjected to travel a long distance from Kisii Level 5 to Tenwek Hospital in a taxi due to her inability to afford ambulance services, services which in our view ought to have been afforded as part of emergency treatment services. There is no doubt in our mind that as a result of these deficiencies, PKM as the personal representative of the estate of JMM is entitled to comprehensive reparation including indemnification for material and emotional harm suffered as a result of the actions  and omissions of the respondents.

          405.  As we have found the respondents violated the rights of the 2nd, 3rd and 4th Petitioners and the women and girls whom they represent by the withdrawal of the 2012 Standards and Guidelines and the Training Curriculum. Visram J (as he then was), when faced with such circumstances in Orengo vs. Attorney-General & Another [2008] 1 EA 309 relied on Rookes vs. Barnard [1964] A.C 1129; 1 ALL ER 367 and held that:

“The behaviour of the defendants has clearly fallen into category of actions held by many courts in the past to be oppressive, arbitrary and unconstitutional and warrants an award of…damages…Damages are designed not only to compensate the plaintiff, but also to deter wrongful behaviour. The aim of exemplary damages is that it serves a valuable purpose in restraining the arbitrary and outrageous use of executive power. There are certain categories of cases in which an award of exemplary damages can serve a useful purpose in vindicating the strength of the law and thus affording practical justification for admitting into the civil law a principle, which ought logically to belong to the criminal. The first category of exemplary damages is oppressive, arbitrary or unconstitutional action by servants of the Government. Where one is more powerful than the another, it is inevitable that he will try to use his power to gain his ends; and if his power is much greater than the other’s he might, perhaps, be said to be using it oppressively. If he uses his power illegally, he must, of course, pay for his illegality in the ordinary way; but he is not to be punished because he is more powerful. In the case of the Government it is different, for the servants of the Government are also the servants of the people and the use of their power must always be subordinate to their duty of service.”

          406. We therefore point out that the purpose of public law is not only to civilize public power but also to assure the citizens that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court moulds the relief by granting 'compensation' in proceedings under Article 23 of the Constitution or seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalizing the wrongdoer and fixing the liability for the public wrong on the state which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood  as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making 'monetary amends' under the public law for the wrong done due to breach of public duty, by not protecting the fundamental rights of the citizen or by subjecting the citizen to acts which amount to infringement of the Constitution. (See Kisilu Mutua v Attorney General [2017] eKLR).

          407. It is well settled that an award of compensation against the state is an appropriate and effective remedy for redress of an established infringement of a fundamental right under the Constitution. The quantum of compensation will, however, depend upon the facts and circumstances of each case. In principle, constitutional damages as a relief separate and distinct from remedies available under private law is competent. This is  because a violation of a constitutional right  must of necessity find a remedy in one form or another, including a remedy in the form of compensation in monetary terms. (See Kisilu Mutua v Attorney General Supra).

          408. Award of damages entails exercise of judicial discretion which should be exercised judicially. The discretion must be exercised upon reason and principle and not upon caprice or personal opinion. The jurisprudence that has emerged in cases of violation of fundamental rights has cleared the doubts about the nature and scope of this public law remedy evolved by the Court. The following principles clearly emerge from decided cases:

i.   Monetary compensation for violation of fundamental rights is now an acknowledged remedy in public law for enforcement and protection of fundamental rights;

ii.  Such claim is distinct from, and in addition to a remedy in private law for damages for tort;

iii. This remedy would be available when it is the only practicable mode  of redress available;

iv. Against a claim for compensation for violation of a fundamental right under the constitution, the defence of  sovereign immunity would be inapplicable.

          (See V.K. Sircar, Compensation for Violation of Fundamental Rights, a new remedy in Public Law Distinct from relief of damages in tort, J.T.R.I. Journal – First Year, Issue – 2 - Year – April – June, 1995), available at http://ijtr.nic.in/articles/art7.pdf

          409. Arriving at the award of damages is not an exact science. We are aware that   no monetary sum can really erase the scarring of the soul and the suffering and deprivation of dignity and death that some of these violations of rights entail. When exercising this constitutional jurisdiction, the court is concerned to uphold, or vindicate, the constitutional right which has been contravened.  A declaration by the court will articulate the fact of the violation, but in most cases, more will be required than words. If the person wronged has suffered pain, loss, death or damage, the court may award him/her compensation. The comparable common law measure of damages will often be a useful guide in assessing the amount of the compensation. But this measure is no more than a guide because the award of compensation is discretionary and, moreover, the violation of the constitutional right will not always be coterminous with the cause of action in law. (See Attorney General v Ramanoop  [2005] UKPC 15, [2006] 1 AC 338).

          410. An award of compensation will go some distance towards vindicating the infringed constitutional right. How far it goes will depend on the circumstances, but in principle it may well not suffice. The fact that the right violated was a constitutional right adds an extra dimension to the wrong. An additional award, not necessarily of substantial size, may be needed to reflect the sense of public outrage, emphasise the importance of the constitutional rights and the gravity of the breach, and deter further breaches. All these elements have a place in helping the court arrive at a reasonable award. The court must consider and have regard to all the circumstances of the case.

          411. The agony suffered by JMM and her mother and legal  representative remind us that subjective feelings  of incessant pain which culminated in death,  upset, frustration worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress, depression and so on and the degree of their  intensity are incapable of objective proof or of  measurement in monetary terms. The assessment of compensation  for an injury or  loss, which is neither physical nor  financial, presents special problems for the judicial  process, which aims to produce results objectively justified by evidence, reason and precedent.

          412.  Differently stated, translating hurt feelings into hard currency is bound to be an artificial exercise. There is no medium of exchange or market for non-pecuniary losses and their monetary evaluation. It is a philosophical and policy exercise more than a legal or logical one. The award must be fair and reasonable, fairness being gauged by earlier decisions; but the award must also of necessity be arbitrary or conventional. No money can provide true restitution. (See Andrews v Grand & Toy Alberta Ltd (1978) 83 DLR (3d) 452, 475-476).

          413.  In other words, although they are incapable of objective proof or measurement in monetary terms, hurt feelings are none the less real in human terms. The courts and tribunals have to do the best they can on the available material to make a sensible assessment, accepting that it is impossible to justify or explain a particular sum with the same kind of solid evidential foundation and persuasive practical reasoning available in the calculation of financial loss or compensation for bodily injury. (See Edward Akong'o Oyugi & 2 others v Attorney General [2019] eKLR).

          414.  Taking into account the need for deterrence of this sort of behaviour, especially by those in positions of power similar to the respondents, and due to lack of evidence and explanation provided by the respondents as to why JMM was subjected to the treatment she underwent at the hands of the agents of the respondents, we find that the events that took place subsequent to the date when JMM sought medical attention from the respondents’ medical facilities, did not meet the standards expected from those medical facilities. Accordingly, the respondents are fully liable for damages suffered by JMM. Without breaking these down into different heads a and guided by the above principles and, the facts and circumstances of this case, we are of the view that a global award in the sum of  Kshs. 3,000,000/= would be adequate compensation.

Disposition

          415.   For all the foregoing reasons, we make the following orders:

1.  A declaration be and is hereby issued that the right to the highest attainable standard of health, right to non-discrimination, right to information, consumer rights, and right to benefit from scientific progress of the 2nd, 3rd,  and 4thPetitioners as women of reproductive age and other women and adolescent girls of reproductive age whose interest they represent have been violated and/or threatened by the 3rdRespondent’s letter of 3rd December 2013, reference number MOH/CIR/2/1/2, and Memo dated 24th  February 2014, reference number MOH/ADM/1/1/2;

2.  A declaration be and is hereby issued that the 3rd Respondent’s Memo dated 24th   February 2014, reference number MOH/ADM/1/1/2 violated or threatened the rights of health care professionals to information,  freedom of expression and association, consumer rights, and right to benefit from scientific progress;

3.  An order be and is hereby issued decreeing that the 3rd  Respondent’s letter dated 3rd December 2013, reference number MOH/CIR/2/1/2, and the Memo dated 24th  February 2014, reference number MOH/ADM/1/1/2, are unlawful, illegal, arbitrary, unconstitutional, and thus null and void ab initio, and are hereby quashed;

4.  A declaration be and is hereby issued declaring that abortion is illegal in Kenya save for the exceptions provided under Article 26(4) of the Constitution.

5.  A declaration be and is hereby issued that pregnancy resulting from rape and defilement, if in the opinion of a trained health professional, poses a danger to the life or  the health (physical, mental and social well-being) of the mother may be terminated under the exceptions provided under Article 26 (4) of the Constitution.

6.  An order be and is hereby issued directing the Respondents jointly and or severally to pay PKM  a sum of Ksh. 3,000,000/= being compensation for the physical, psychological,  emotional and mental anguish, stress,  pain, suffering  and death of JMM occasioned by respondents violation of JMM’s constitutional rights as herein above enumerated.

7.  An order for all parties to bear their own costs of the suit, because the petition is brought in the public interest.

The International Pro-Life Movement

By Daniel K. Williams

      The modern pro-life movement emerged as a reaction against the liberalization of abortion laws in the twentieth century.  Although the international pro-life movement has attracted people of diverse religious backgrounds and ideologies, it has usually been most closely associated with Roman Catholics or other Christians (both Protestant and Eastern Orthodox) who share a perspective on the sacredness of human life from the moment of conception to natural death that closely corresponds to the Catholic theological perspective.  The pro-life movement therefore has had its strongest presence in democracies that voted to legalize abortion over the objections of a strong, politically mobilized Catholic (or other Christian) minority, although other religious groups – especially Muslims, Buddhists, and Orthodox Jews – have also contributed to pro-life activism in some countries.  The center of political strength for the modern pro-life movement has been the United States, which is where the movement began, but today it has a presence in nearly all regions of the world.  In most places where the pro-life movement exists, it seeks to advance a sexually conservative, traditional, holistic understanding of mutual human obligations that challenges the individualistic assumptions of modern liberalism and the emphasis on equality that pervades progressive or socialistic ideologies, even as it draws on a liberal human rights tradition. 

The Religious Origins of the Pro-Life Movement in the United States and Britain

      The world’s first antiabortion political lobbying organizations were formed in Britain and the United States in the mid-1960s, but they developed out of a long religious tradition of opposition to abortion that can be traced to the second-century denunciations of feticide in several ancient Christian writings.  In the view of early Christian writers, fetuses were human beings with just as much value as newborn infants, so both abortion and infanticide were equally wrong.  This view continued in Eastern Orthodoxy, although in the Latin West, medieval scholastic beliefs that ensoulment occurred several weeks after conception may have prompted both Catholic canon law and English common law to differentiate for a few centuries between abortions performed before quickening and those performed afterward when assigning penalties for the procedure.  Before the beginning of the nineteenth century, abortions performed before quickening were rarely prosecuted in the English-speaking world.  And though theologians in both the Catholic and Protestant traditions sometimes denounced abortion as child-killing, its practice in the early weeks of pregnancy – which, even if a relatively common occurrence, was generally conducted discretely and without much publicity – did not attract much legal or ministerial scrutiny.  This changed in the early nineteenth century, when the first laws against abortion were passed in Britain and the United States.[1] 

      The nineteenth-century British and American abortion laws were the creation of Protestant legislators responding to concerns from physicians, but in the early twentieth century, most Protestants lost interest in the cause. The early campaigns against abortion liberalization proposals in the mid-twentieth century were therefore usually led by Catholics.  In the nineteenth century, the Catholic Church returned to an earlier Christian view that all abortions were equally sinful, regardless of the stage of pregnancy in which they were performed, so after that point, Catholics often took a more absolutist position in opposing abortion than many Protestants who, contra official Catholic doctrine, usually viewed abortion as legitimate when it was necessary to save a woman’s life and occasionally when it was performed for a very limited number of other medical reasons.  Protestants also differed from Catholics on birth control.  While the Catholic Church did not allow for artificial birth control, the Anglican Church and several American Protestant denominations officially accepted the legitimacy of birth control in the 1930s, and many Protestant ministers began promoting birth control as a positive good.  As a result, Protestants and Catholics heard distinctly different messages on both abortion and birth control in the mid-twentieth century.  Catholics routinely heard sermons on birth control that also inveighed against abortion, while mainline Protestants were likely to hear birth control endorsed and abortion rarely mentioned.  Jews, on the other hand, were likely to openly accept the legitimacy of abortion, at least in some circumstances, partly because Jewish rabbinic tradition had long viewed the fetus as subordinate to the life of the mother.  In the 1960s, therefore, when abortion legalization was debated in Britain and the United States, the most vocal opposition to the liberalization of abortion laws came from Catholics, with the support of a few socially conservative Protestants.  Catholics in both the United States and Britain insisted that their opposition to abortion law reform stemmed not from their religion but from universal principles of the value of human life.  Yet the press in both countries portrayed the campaign against abortion as a Catholic cause.  And, on occasion, the pope or the Vatican spoke out against abortion, calling it the “murder of the innocent” (a phrase that Pope Pius XI used in the encyclical Casti Connubii in 1930).[2]

      Catholics who spoke out in the mid-twentieth century against proposals to liberalize abortion laws framed their cause as a defense of the most fundamental human right – the right to life.  Their opponents, they thought, were utilitarians who were willing to allow unborn lives to be killed for the allegedly greater good of protecting women’s health, lifting people out of poverty, or improving social well-being, but they viewed defenders of the right to life, by contrast, as uncompromising natural rights advocates who believed that absolute, unchanging moral principles trumped consequentialist arguments.  Grounding their campaign in the language of international human rights that became a central component of liberal democratic principles in both Europe and the United States in the 1940s, they believed that they were defending the principles of humanitarianism against a disregard for human life that they thought would soon lead to euthanasia or even worse outcomes if allowed to continue unchecked.[3]      

      For several decades, these arguments were made by Catholic clergy and lay Catholic doctors and writers, but it was not until the 1960s, in response to the first successful efforts to liberalize abortion laws in both Britain and the United States, that the first antiabortion lobbying organizations formed.  These organizations were rarely connected directly to the Catholic Church, even if the vast majority of members were Catholics.  Instead, they were almost always run by lay Catholics or, occasionally, sympathetic Protestants, because Catholic bishops believed that their direct involvement in the effort would discredit the cause in majority-Protestant countries where Protestant suspicion of the Catholics’ longstanding (and largely failed) campaign against birth control was widespread.

      In England, Catholic pro-life members of Parliament urged the bishops not to get involved in the parliamentary debate over a measure to decriminalize abortion, because they believed that clerical involvement would be counterproductive and lead to a backlash.  The bishops complied, hoping that lay opposition to the bill would succeed in killing it.  They were wrong; the bill passed in 1967, which meant that hospital abortions were now legally available in England.  However, in the weeks leading up to the bill’s passage, lay Catholics and opponents of abortion among members of the Church of England and other groups created the first pro-life organization in England: the Society for the Protection of Unborn Children (SPUC), formed in January 1967.[4] 

      SPUC was led by physicians who advanced medical arguments about the development of fetal life, and it relied heavily on both medical testimony and fetal images to convince the public that the fetus was a full human being.  It insisted that it was a secular organization, and it received no funding from the Catholic Church or any other religious group, but it did attract a disproportionately high number of Catholics and practicing Christians, and it relied on Catholic arguments about human dignity and the value of unborn human life, even while presenting them in secular form.[5] 

      The same was true of the first antiabortion organizations formed in the United States.  In the late 1960s and early 1970s, most abortion debates in the United States took place at the state level in state legislatures or courts, so the first “right to life” organizations (as the movement called itself) were state operations.  New York Right to Life was founded in 1965 by a 31-year-old Catholic construction worker, Edward Golden, with the encouragement of the secretary of the New York Catholic Conference.  By 1972, it had 200,000 members, 85 percent of whom were Catholic.  In Los Angeles in December 1966, Cardinal James McIntyre helped organize the Right to Life League, and then quickly handed the organization over to lay Catholic leaders, including an attorney for the archdiocese and the president of the Los Angeles Archdiocesan Council of Catholic Women.  Catholic pro-life activists in several other states in the Midwest and Northeast also formed state right-to-life organizations in the late 1960s and early 1970s.[6]   

      Initially, these organizations operated at the state level as independent entities, but in 1968, in response to a wave of abortion liberalization legislative proposals that came from states in nearly every region of the country, James McHugh, the priest who headed the National Catholic Welfare Conference’s Family Life Bureau, created the National Right to Life Committee as a central coordinating committee for state pro-life organizations.  McHugh encouraged Catholic dioceses to entrust antiabortion lobbying to lay-run pro-life organizations that ideally would have substantial non-Catholic involvement, because he believed these could be more effective political lobbyists than the Church.  To recruit non-Catholics, he encouraged the pro-life movement to ground its argument in the language of human rights – a move suggested by the movement’s widely used self-moniker “right to life,” which after 1970, was also supplemented by the term “pro-life.”  He also encouraged the movement to distance itself from Catholic teaching on contraception, and instead to focus its argument solely on the humanity and rights of the fetus.  In the early 1970s, the American pro-life movement began making fetal photographs a central component of its lobbying campaigns, sometimes with demonstrable success.  Public opinion polling connected with a voter measure to legalize abortion in Michigan in 1972 indicated that widely distributed photographs of 19-week-old fetuses were the key to the pro-life movement’s defeat of this referendum.[7] 

      In the late 1960s and early 1970s, the pro-life movements in England and the United States were similar in most respects.  In both countries, the movements were generally led by lay Catholics (especially those in the medical and legal fields), they insisted on being nonsectarian even while borrowing heavily from Catholic social teaching, they focused on the argument that the fetus was a full human being deserving of legal protection, and they were not allied with any political party.  In England, one of the most vocal MPs opposed to abortion in the 1960s was the Conservative Norman St. John Stevas, but in the British Parliament, all parties agreed to free their members to vote according to their conscience on any abortion bill, which meant that several Labour MPs also voted against abortion law liberalization.  After 1967, all political parties in England accepted abortion decriminalization.  This limited the lobbying influence of the pro-life movement, even though individual pro-life MPs occasionally introduced restrictive abortion bills, none of which passed.[8] 

      In the United States in the late 1960s and early 1970s, the pro-life movement was likewise not firmly allied with either the Democratic or Republican Party.  At the time, the majority of Catholics were Democrats, and this was true of many pro-life activists as well.  Some of the nation’s most prominent Catholic Democrats – including Sargent Shriver and Senator Edward M. Kennedy – endorsed the pro-life movement before Roe v. Wade, although many (including both Shriver and Kennedy) later reversed their position.  At the same time, abortion law liberalization had the support of many Republicans, who viewed legalizing abortion as a way to protect individual liberty or the business interests of doctors.  In 1970, New York governor Nelson Rockefeller, a liberal Republican who strongly supported abortion rights, signed into law a bill that legalized abortion through the end of the second trimester – the most permissive abortion law enacted in the United States before Roe v. Wade.  More conservative Republican governors, including Ronald Reagan of California and Spiro Agnew of Maryland, also signed into law abortion liberalization bills in the late 1960s.  Without an alliance with either the Republican Party or political conservatism at the time, American pro-life activists were free to position themselves as liberals, and some did, taking progressive stances on the environment and the Vietnam War.  Catholic social teaching, especially in the United States, had long connected the right to life for the unborn to a comprehensive array of other human rights to ensure the well-being of each person.  In 1947, for instance, the National Catholic Welfare Conference included not only the “right to life and bodily integrity from the moment of conception” in its model declaration of human rights, but also the “right to a living wage,” the “right to education,” and the “right to assistance from society.”  Some American pro-life organizations of the late 1960s and early 1970s likewise situated the right to life for the unborn in a larger ethic of social responsibility.  The National Youth Pro-Life Coalition and Minnesota Citizens Concerned for Life were especially strong advocates of connecting the pro-life cause to antipoverty initiatives and expanded prenatal healthcare.  But the movement was not politically monolithic; although there were liberal Democrats in the American pro-life movement who strongly opposed the Vietnam War, there were also conservative Republicans who supported it.  The National Right to Life Committee kept the movement united by focusing narrowly on the issue of abortion and leaving most other issues of human life to individual members or state organizations.[9] 

      If many pro-life activists in the United States were attracted to liberal Democratic positions on poverty or war, the overwhelming majority were conservative on issues of sex.  A poll of National Right to Life Committee members taken in June 1980 showed that 87 percent believed that premarital sex was “always or almost always wrong,” and 96 percent said the same about homosexuality.[10]  This social conservatism, especially on gender roles, ultimately caused a rift between the pro-life movement and the liberal Democratic politicians whose support some politically progressive pro-lifers tried to cultivate. 

      For most of the 1960s, debates about abortion in the United States and Britain did not focus primarily on women’s rights, and the majority of activists on both sides of the debate were men – especially male physicians and lawyers.  But in 1967, the National Organization for Women endorsed abortion rights, and second-wave feminists quickly rebranded the campaign for abortion legalization as a campaign for women’s equality.  The pro-life movement responded by giving women (who had always supplied most of the volunteers for the movement, even if they had not held most of the leadership positions) more public prominence in the campaign against abortion.  During the 1970s, most of the leading voices in the American pro-life movement were women.  Some, such as Mary Winter (founder of the Pittsburgh-based Women Concerned for the Unborn Child), started their own organizations.  Others, such as Boston physician Mildred Jefferson (the first African American woman to graduate from Harvard Medical School), were elected to positions of national leadership in existing organizations such as the National Right to Life Committee.[11]

      But despite the new prominence of women in the movement, the pro-life campaign found it difficult to overcome the widespread popular perception that connected abortion with women’s rights.  In reality, views on abortion in the United States did not correlate with gender; men and women were both equally likely to oppose or support abortion rights for much of the late twentieth century.  But the women who opposed abortion often had very different views of gender roles than the women who were pro-choice.  Pro-life women who described themselves as feminists usually believed in a “feminism of difference” – that is, a feminism that sought to advance women’s rights by emphasizing the unique biological differences between men and women.  In the 1970s, most pro-life activists opposed the Equal Rights Amendment, believing that it would be used to advance abortion rights.  And in the early 1980s, sociologist Kristin Luker found that pro-choice and pro-life women differed markedly in their view of motherhood, with pro-life women seeing it as central to a woman’s role and pro-choice women more likely to see it as peripheral or optional.[12]  This social conservatism positioned the American pro-life movement for a conservative partisan alliance that reshaped its political ideology but also positioned it for greater national influence that it enjoyed in most other parts of the Western world.

The Unique Political Trajectory of the Pro-Life Movement in the United States

      Prior to Roe v. Wade, abortion was a politically contentious issue at the state level, and a national consensus on the issue did not appear imminent.  Three-quarters of the American population in the late 1960s favored allowing abortion in at least limited cases (such as rape, incest, and dangers to a woman’s health), but there was substantially less support for legalizing abortion altogether.  The pro-life movement was able to capitalize on the general public discomfort with abortion to win state legislative victories in the early 1970s, even as public opinion polls showed growing public support for abortion legalization.  Pro-choice lawyers, who despaired of ever getting abortion legalized in some of the most strongly antiabortion states without a court order, wanted the Supreme Court to invalidate state abortion prohibitions.  Pro-life lawyers, despite defeating abortion legalization proposals in dozens of state legislatures, were also unhappy with the state of national abortion policy in 1972 – a year in which more than 500,000 legal hospital abortions occurred (mostly in New York and California, but also in the fifteen other states that allowed for abortion in at least some circumstances).  Drawing on the civil rights movement’s legal reasoning, the pro-life movement wanted the Supreme Court to declare that the unborn were protected by the Fifth and Fourteenth Amendments, and that fetuses throughout the United States therefore had a constitutional right to life from the moment of conception.[13]

      The Supreme Court explicitly rejected this legal argument in Roe v. Wade (1973), when lawyers from the National Right to Life Committee and other pro-life organizations advanced it in an amicus curiae brief.  Instead, the Supreme Court declared that on the basis of the right to privacy, a woman had an unrestricted right to an abortion in the first trimester and a mostly unrestricted right in the second trimester up to the point of viability.  This sweeping change invalidated the abortion laws in the forty-six states that had not yet legalized elective abortion.  It also galvanized the pro-life movement, which quickly became far larger than it had been before Roe.  By 1976, the National Right to Life Committee had 1 million members.[14]  Although theologically conservative Catholics continued to make up the majority of the pro-life movement for several years, the pro-life cause also rapidly began gaining support from conservative evangelical Protestants. 

      In the 1970s and 1980s, proposed antiabortion constitutional amendments attracted support from across the political spectrum (with conservative Republicans in Congress such as Henry Hyde and liberal Democrats such as Thomas Eagleton and Jim Oberstar endorsing the proposal), but there was never sufficient support in Congress to pass the amendment.  The Democratic Party included a statement against proposed antiabortion amendments in its 1976 party platform, and it strengthened its endorsement of Roe v. Wade in the 1980s.  The Republican Party, despite substantial pro-choice sentiment among party leaders, officially endorsed the idea of an antiabortion constitutional amendment in 1976, but a proposed amendment could not pass the Republican-controlled Senate in 1983, partly because more than one-third of Republican senators voted against it.[15] 

      But even if many leading Republicans showed little interest in the pro-life cause, a number of pro-life advocates sought an alliance with the Republican Party.  In the late 1970s, New Right activists Paul Weyrich and Richard Viguerie (conservative Catholics who opposed abortion and supported the conservative wing of the Republican Party associated with Ronald Reagan and Barry Goldwater) reached out to both conservative white evangelicals and Catholic pro-life activists to enlist them in a conservative political coalition aimed at retaking the White House and remaking the Republican Party.  Weyrich gave office space to pro-life activists, while also encouraging Virginia Baptist televangelist and pastor Jerry Falwell to launch a Moral Majority to register evangelical voters and mobilize them in defense of “family values.”  The Christian Right (also known as the “Religious Right”) that Falwell and other evangelical leaders such as Pat Robertson and, later, Ralph Reed and James Dobson, helped to create made opposition to abortion one of its top priorities, but it also linked that cause to a larger conservative platform advocating a restoration of classroom prayer in public schools and opposing the sexual revolution and gay rights.  In keeping with their individualistic theology and regional origins, evangelical Protestants tended in general to be more strongly Republican and more supportive of free-market economics than many Catholics were, and their adoption of the antiabortion cause as a central priority at the end of the 1970s therefore helped shift the American pro-life movement away from its earlier roots in Catholic social teaching.   

      Some veterans of the pro-life movement who were not conservative Republicans objected to the new alliance of the pro-life movement with the Christian Right and the Republican Party.  In 1983, Cardinal Joseph Bernardin led the nation’s Catholic bishops in endorsing a “consistent ethic of life” that connected the pro-life cause to opposition to nuclear arms buildup and other violations of human life that did not concern the Moral Majority.  Yet while the “consistent ethic of life” gained support not only from many Catholics but also from some politically progressive evangelical Protestants, it had little political influence, largely because neither the pro-choice Democratic Party nor the hawkish Republican Party endorsed it.[16]

      Instead, the pro-life movement’s influence in Washington came almost entirely from the Christian Right and the growing influence of social conservatism in the Republican Party during the 1980s and 1990s.  The pro-life movement and the Christian Right gave strong support to Ronald Reagan, the first major-party presidential candidate to issue their cause a full-throated endorsement.  Reagan’s reasons for endorsing the pro-life cause continue to be debated, but most likely, Reagan saw an affinity between his own complaints about the intrusion of a liberal federal government and the pro-life movement’s complaints about Roe v. Wade and the Supreme Court.  The alliance between the Republican Party and the pro-life movement became stronger when the pro-life movement shifted in the 1980s from a focus on the Human Life Amendment (which, as they reluctantly came to recognize, had no chance of passage) to a new focus on filling the Supreme Court with conservative justices who would overturn Roe v. Wade (which seemed in the late 1980s to be a more achievable goal).  By adopting this strategy as its highest political priority, the pro-life movement largely cut most of the remaining ties that it had to Democratic politicians, and became a movement focused almost entirely on a Republican goal: making the Supreme Court more conservative.  As Christian Right social conservatives became a stronger voice in the Republican Party in the 1990s, the number of pro-choice Republicans rapidly diminished, and the two parties became sharply polarized on abortion, with both engaged in a political fight for control of the Supreme Court.[17]

      The nation’s fault lines on abortion in the early twenty-first century closely corresponded with partisan divisions.  With the sharp reduction in church attendance in the northeast in the late twentieth century, the nation’s historically Catholic (and increasingly Democratic) region became far more secular and culturally liberal, and it correspondingly became heavily pro-choice.  If the pro-life movement in the United States had depended entirely on traditional Catholic support (as is the case in many countries), its political influence would have been much more limited, but the marriage between white evangelical Protestantism and the pro-life cause gave the movement continued political saliency and led the evangelical (and Republican) states of the South and Midwest to pass new abortion restrictions that resulted in the closure of numerous abortion clinics.  By the beginning of the third decade of the twenty-first century, at least six states in the South and Midwest had only a single abortion clinic, and the number of abortion clinics in others (such as Texas) was rapidly falling.  Most of these states prohibited abortion after twenty weeks gestation, and several restricted the procedure even further in hopes of getting the Supreme Court to narrow the parameters established by Roe v. Wade, if not rescind the decision entirely.  If Roe v. Wade is overturned, both individual states and the federal government would have the right to pass any abortion policy they chose, ranging from outright prohibition to full legalization without restrictions.  In a politically divided nation, solidly Democratic pro-choice states such as New York and California have recently expanded abortion availability, along with state Medicaid funding for the procedure, and abortion would undoubtedly continue to be fully available in most Democratic-leaning states for the foreseeable future, regardless of the Supreme Court’s actions.  By contrast, abortion has become much more difficult to obtain in many Republican states in the South and Midwest during the first two decades of the twenty-first century, and those states have signaled their desire to outlaw most abortions if given the chance.  Already, because of the Hyde Amendment (which restricts federal funding for abortion) and court approval of some state abortion restrictions, regional differences in abortion availability – especially for poor women, who obtain the majority of abortions in the United States today – are sharper than they have ever been since the mid-1970s.[18]  If measured solely by its success in restricting abortion availability and changing policy on abortion, the pro-life movement’s alliance with the Republican Party has given the cause a greater degree of political influence than it has had in any other Western industrialized country.

      The American pro-life movement’s activities have also extended beyond legislative politics and legal battles.  In the 1980s and early 1990s, tens of thousands of antiabortion activists who were frustrated with the lack of legal progress in overturning Roe v. Wade joined direct action campaigns to temporarily shut down abortion clinics or deter people from getting abortions by blocking clinic entrances or engaging in “sidewalk counseling.”  Forty thousand people were arrested between 1987 and 1991 for participating in illegal clinic blockades organized by Randall Terry’s Operation Rescue, the leading direct action pro-life organization at the time.  But despite enlisting large numbers of volunteers, Operation Rescue’s actions had little discernible effect on abortion policies or the number of abortions in the United States.  In the end, its tactics were stymied by the Freedom of Access to Clinics Entrances Act, passed in 1994.  And while it attracted numerous supporters in the pro-life movement, it also had many opponents, especially among leaders of the National Right to Life Committee, who believed that its campaigns of civil disobedience would hurt the cause and distract from the movement’s political lobbying.[19]

      Antiabortion civil disobedience began as a nonviolent effort, but in the 1980s, some veterans of the cause began bombing clinics or engaging in other destruction of clinic property, and in the 1990s, several opponents of abortion killed abortion doctors and other clinic staff in order to stop what they believed was murder.  The antiabortion activists who were willing to engage in violence never comprised more than a tiny fraction of the movement.  The Army of God, the leading organization calling for violence against abortion doctors, had only 100 members in the 1990s.  Fewer than ten people killed abortion doctors or clinic staff in the United States between the first lethal shooting (in Florida) in 1993 and the mass shooting in Colorado Springs in 2015.  But even if antiabortion violence engaged only a small fringe element of the movement, it tarnished the public reputation of the pro-life cause.  Sixty-one percent of Americans in 1995 believed that the pro-life movement encouraged violence.[20]  Antiabortion violence also crossed international lines, with shootings and bombings occurring at abortion clinic in Canada, Australia, and New Zealand in the 1990s and early twenty-first century.

      Violence and civil disobedience attracted a flurry of media attention for the movement, but crisis pregnancy centers (CPCs) have arguably achieved more substantive results in the pro-life campaign to convince women not to terminate their pregnancies.  The pro-life campaign to establish crisis pregnancy centers began in 1968, when Louise Summerhill of Toronto, Canada, founded Birthright in order to provide telephone counseling to women who were considering abortion and convince them to carry their pregnancies to term.  The next year, Robert Pearson of Hawaii started a network of Pregnancy Problem Centers, which, with the help of funding from the Catholic diocese, expanded in 1970 to include a residential home for women facing crisis pregnancies.  Birthright chapters became popular in the United States in the early 1970s, especially after Roe v. Wade.  The crisis pregnancy center movement greatly expanded after ultrasound machines (especially 3-D color ultrasounds) gave pro-life volunteers a visual tool that they could use to convince women not to abort.  CPCs routinely offer women free pregnancy tests and ultrasounds, and often some degree of material assistance as well.  Some have also faced controversy for using deceitful techniques such as misleading advertising that is designed to make women think that they are calling an abortion service provider, distributing information about abortion’s alleged dangers that many pro-choice advocates consider highly misleading, and allowing non-medical personnel to provide medical services.  The state of California passed legislation in 2017 requiring CPCs to post information about abortion availability in the state, but in 2018 the Supreme Court declared this law a violation of the First Amendment’s free speech clause.  Today there are approximately 2,500 CPCs in the United States, which means that CPCs now outnumber abortion clinics by a three-to-one margin.  The US-based Heartbeat International has also funded the creation of hundreds of CPCs in Europe (especially in Italy) and other parts of the world.[21]

      In turn, the American pro-life movement has also benefited from the ideological support of global Catholicism, especially during the papacy of Pope John Paul II in the late twentieth century.  By making pro-life advocacy a central part of the Catholic message – as he did in his encyclical Evangelium Vitae (1995) – and connecting this firmly to a Catholic view of human life, sexuality, the family, and human rights, John Paul II encouraged a new generation of faithful Catholics around the world to enlist in the pro-life campaign and make antiabortion activism a key component of their faith.  In the late twentieth century, pro-life Catholics (as well as some evangelical Protestants) in the United States and around the world trumpeted the support that their cause received from both the pope and Mother Theresa of Kolkata, as they connected their campaign to a larger international concern for the less fortunate.

The Global Pro-Life Movement: The Influence of American Ideas in Europe and Beyond

      American pro-life organizations have helped to fund the global pro-life movement and have exported American antiabortion strategies to other countries.  While antiabortion sentiment pervades much of the world (with abortion currently illegal or heavily restricted in most of Africa, Latin America, and the Middle East) and is often based on centuries-old religious or community traditions about reproduction and human life, the pro-life campaign as an organized movement is, in nearly every case, a recent phenomenon that began only in the late twentieth or early twenty-first centuries.  In many (though certainly not all) cases, the pro-life movement in other countries has received inspiration or support from American pro-life organizations, although the movement in each country has also formed independent local organizations that are often connected to local religious groups.  Despite regional variations, the common themes of concern for unborn life, conservative attitudes toward sexuality, theistic belief, respect for religious tradition, and a rejection of libertarian individualism generally characterize the pro-life movement throughout the world.

      American pro-life organizations with a strong global presence include Heartbeat International and 40 Days for Life, a Texas-based organization founded in 2004 to organize vigils outside abortion clinics around the world – especially in Europe.  But perhaps the most influential has been Human Life International, founded by the Benedictine sociology professor Paul Marx in 1981.  Marx was a politically liberal Minnesota-based antiwar activist in the late 1960s, but because of his strong opposition to abortion, he came to embrace the political right over the course of the 1970s.  Unlike many pro-life activists who preferred not to talk about the divisive issue of contraception, Marx believed that opposition to contraception should be central to the pro-life campaign, a stance that positioned him as a leader among strongly conservative Catholic pro-life activists who wanted to see Catholic theology on the issue become a guiding principle for the movement.  Through Human Life International (HLI), Marx funded local efforts in other countries – especially Latin America, sub-Saharan Africa, and the Philippines – to strengthen antiabortion laws.  In El Salvador, HLI worked through its affiliate, Sí a la Vida, to enact a prohibition on all abortions that resulted in lengthy jail sentences for some women who miscarried and were accused of self-induced abortions.  HLI faced criticism in the United States and Europe for its role in creating an abortion law that was widely labeled “draconian,” but it refused to apologize – though it did say that, like other pro-life organizations in the United States, it did not believe in punishing the women who obtained abortions, whom it viewed as victims of the abortion industry, not perpetrators of a crime.[22] 

      If HLI has succeeded in mobilizing existing antiabortion sentiments in the heavily Catholic countries of Latin America and the Philippines, where abortion is currently illegal, it has met with less success in Europe, with the exception of Ireland, a country where Marx engaged in pro-life campaigning in the 1970s and 1980s.  Abortion had been illegal in Ireland since before the founding of the Republic in 1922, but after Ireland legalized contraception in 1980, Irish pro-life advocates were worried that the Irish high court might invalidate the national abortion ban (similar to the action taken by the US Supreme Court in Roe v. Wade).  To prevent the court from doing that, a coalition of pro-life activists, led by Society for the Protection of the Unborn Child and various Catholic organizations, formed the Pro-Life Amendment Campaign as an umbrella organization to encourage the adoption of a constitutional amendment to protect unborn human life.  At the time, a Human Life Amendment was the top priority of pro-life organizations in the United States, but they were never able to attract enough political support to enact it.  In Ireland, pro-lifers met with much greater success.  They convinced the leaders of two of the nation’s three major political parties to support the proposed antiabortion constitutional amendment, and they also attracted widespread support among the general population for the measure.  When the proposed constitutional amendment was presented to voters in a referendum in 1983, it passed by a margin of two to one, becoming the Irish constitution’s Eighth Amendment.[23] 

      Although the amendment campaign was led by local Irish pro-life and Catholic organizations, some observers noted that the rights-based language borrowed more from American pro-life ideology than from traditional Irish Catholicism.  The amendment stated: “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees to respect, and as far as practicable, by its laws to vindicate that right.”[24]  As a result of the Eighth Amendment, Ireland maintained its prohibition on abortion until a voter referendum in 2018 decriminalized the procedure.  By then, the Catholic clerical sex abuse crisis had weakened the political influence of the Catholic Church in Ireland, and Irish voters were now ready to enact new liberal initiatives that defied Catholic teaching – including the legalization of same-sex marriage.  The Pro-Life Campaign, a leading Irish pro-life organization, opposed same-sex marriage as well as abortion, in keeping with its generally socially conservative, Catholic-influenced views on family and marriage.  But by 2018, the pro-life movement’s views on these questions were out of sync with a country that was rapidly secularizing and beginning to look more like most other European nations in its attitudes toward religion, sexuality, and abortion.

Christian Pro-Life Minorities in the Secular West

      Elective abortion during the first trimester of pregnancy is currently legal everywhere in the European Union except in Poland (a strongly Catholic country that has the highest church attendance rates in Europe) and Malta (where Human Life International has invested significant resources to aid antiabortion efforts).[25]  In most of Europe, where church attendance rates are far lower than in the United States, legal abortion has widespread public support and is not a subject of political debate.  More than 75 percent of Germans, for instance, believe that abortion should be legal, and pro-life groups remain small.  The annual march for life in Berlin attracts only 5,000 people, though it is growing in size.[26]  In most of Europe, the pro-life movement draws heavily on traditional Catholic support, and since Catholic political influence in Europe has continued to weaken in the last few decades, European pro-life activists have faced steep challenges in securing public support for a cause that many Europeans believe is incompatible with contemporary feminism and secular human rights ideology.

      In traditionally Catholic pro-life Italy, the pro-life movement is stronger, but activists nevertheless believe that they will probably not be able to reverse Italy’s legalization of first-trimester abortion anytime soon.  Like German pro-lifers, though, they hold an annual march for life that is modeled on the American demonstration in Washington, DC, and they recruit international participation, which organizers say is a relatively easy task, since many devout pro-life Catholics from other countries welcome the opportunity to participate in an event in Rome.  Italian views on abortion vary widely by region, with the more conservative Catholic south more strongly opposed to abortion than the comparatively liberal north.  Yet even in the north, the city council of Verona declared Verona a “pro-life city” in 2018, and began providing public funding for antiabortion organizations and a campaign to encourage adoption.  Conscientious objection to abortion among Ob / GYNs remains high; nearly 70 percent of gynecologists in Italy refuse to perform abortions on conscientious grounds.  And unlike in some regions of northern Europe, a number of prominent Italian politicians who denounce abortion and advocate restricting it.[27]

      In Italy, antiabortion political positions are very closely associated both with traditional Catholicism and the political right – especially with the right-wing party the League, which advocates for restrictions on immigration.  Yet in keeping with Catholic social teaching, even League members support increased financial assistance to women facing crisis pregnancies (including direct cash payments from the government) and government resources to help them secure employment.[28]

      One of the few European countries where abortion is a hotly contested political issue is Spain, a traditionally Catholic (but rapidly secularizing) country where both pro-choice and pro-life marches routinely bring out tens of thousands of activists on each side of the abortion debate.  Abortion has been legal in Spain since 1985, but the continued legality of the procedure has been contested in debates that closely follow the contours of a political division between Christian conservatism and secular socialism.  The People’s Party, a conservative Christian democratic party that controlled the government from 2011-2018, attempted shortly after coming to power to make abortion illegal except in cases of rape and incest.  However, this attempt resulted in a massive backlash and proved contentious even among governing officials in the People’s Party, so the prime minister withdrew the measure, much to the consternation of some of his pro-life supporters.  The party, however, has continued to promise antiabortion measures, which its leftist opponents have opposed.  After the Socialist Workers’ Party gained control of Spain’s government in 2018, it liberalized abortion policy, galvanizing pro-life opposition.  A coalition of 140 Spanish pro-life organizations, many of which were explicitly Catholic and all of which operated under the umbrella of the Assembly of Associations for Life, Freedom and Dignity, organized marches against abortion in the summer of 2021 that were directly targeted at the pro-choice Socialist Workers’ Party government.[29]    

      European pro-lifers have perhaps faced their most difficult battle in heavily secular Sweden, which in 1938 became the first European country outside the Communist bloc to liberalize its abortion law and has since remained one of the most liberal European countries in its attitudes and policies toward abortion.  Today approximately 94 percent of Swedes favor keeping abortion legal.[30]  A small pro-life movement in the country has dispatched a few dozen protestors at a time to the country’s abortion clinics, but has had no success in changing the nation’s abortion law.  Because the pro-life movement in Europe is overwhelmingly Catholic, its weak presence in a country that is only 1 percent Catholic is perhaps not surprising.  The country’s largest pro-life organization, Ja till Livet (Yes to Life), was founded in 1991 by Mikael Oscarsson, a politician from the Christian Democratic Party and a member of the charismatic evangelical Livets Ord (Word of Life) church.  The organization has had only limited influence even in the socially conservative, evangelical-dominated Christian Democratic Party, which has adopted a centrist position on abortion, but which has been marginal to the Swedish debate anyway, since the party usually polls only in the low single digits.    

      Some pro-lifers hoped that even if Sweden was not open to restricting abortion, it might at least be willing to protect the rights of conscience of medical personnel who refused to provide abortions because of their ethical objections to the procedure, but in this they were disappointed.  In 2014, two pro-life Swedish midwives – Ellinor Grimmark and Linda Steen – made international headlines when they brought a lawsuit against the country because no women’s clinics in Sweden were willing to hire them after they notified prospective employers that, because of their conscientious objection to abortion, they would not be willing to provide pregnancy terminations.  The lawyer who took their case, Ruth Nordstrom, was, like, Oscarsson, an active member of the Livets Ord church and a leader in the Swedish pro-life organizations Provita and Ja till Livet.  She also had connections to Christian legal organizations in the United States that were dedicated to defending religious liberty, and she succeeded in getting legal assistance for her clients from the US-based Alliance Defending Freedom.  But the lawsuit failed.  A Swedish court ruled against the midwives, and the European Court of Human Rights, to which Grimmark and Steen appealed, refused to take the case.  The Swedish court conceded that there was an “interference” with the midwives’ freedom of religion, but declared that this was “justified” by the “legitimate aim of protecting the health of women seeking an abortion.”[31]

      Although a solid majority of Hungarians also support legalized abortion, pro-life advocates in Hungary have been more successful in their campaigns for conscience rights.  In response to the lobbying efforts of the Hungarian Society of Christian Doctors, the Hungarian government agreed in 2019 to make two hospitals in the country abortion-free.  Hungary has multiple pro-life organizations, including some (such as Shout for Life) that receive government funding, and pro-life advocates in the country believe that their political influence is increasing.  Abortion remains legal in Hungary, but the government has launched a successful effort to reduce the abortion rate through expanded economic assistance to pregnant women and mothers, including paid childcare leave and subsidies for school supplies.  Some analysts credit these programs with Hungary’s 30 percent reduction in the number of abortions between 2010 and 2017.[32]

      The European Union agreed at its founding to allow member countries to set their own policies on abortion at the local level and refrain from imposing any continent-wide abortion policy on the federation, but a few European pro-life organizations have lobbied (albeit without success) for restrictions on abortion at the EU level.  One of the most prominent is One of Us, which lobbied the EU unsuccessfully for a ban on state funding for abortion.  Despite the insistence of One of Us that it is not a Catholic organization, it draws heavily from Catholic areas of Europe (especially Spain and Italy) and, like other European pro-life organizations, is rooted in natural law reasoning and a socially conservative religious ethic that accords closely with Catholic social teaching.  Its “Ten Principles” include the statement, “The European Union must be the expression of a set of values based on Judeo-Christian roots,” and its vision includes an affirmation of the principle of “sexual responsibility” and “appreciation and promotion of marriage.”  Yet as a European Catholic-influenced organization, it has pursued a set of communally-centered values that diverge from the individualistic politically conservative trajectory that the American pro-life movement has taken since the late 1970s.  One of Us is committed to providing “effective social safety networks for pregnant women” and promoting improvements in prenatal medical care.  It also favors “adequate reception of migrants,” “the promotion of ecological awareness and respect for the natural environment,” and “the promotion of humanity in economic systems” – values that were present in some of the more progressive pro-life organizations of the early 1970s, but that were largely or entirely abandoned by the largest pro-life organizations in the United States by the late 1970s or early 1980s.[33]

      The pro-life movement has a strong, mostly indigenous presence in Russia, where the cause receives strong support from the Russian Orthodox Church.  For decades, Russia has had one of the world’s highest abortion rates.  For much of the twentieth century, when abortion was illegal in most other places, it was legal, publicly funded, and encouraged by the government under Soviet Communism.  But Eastern Orthodox Christianity, like Roman Catholicism, has long taught that life begins at conception and that abortion is wrong.  With the resurgence of Orthodox Christian devotion following the end of Communism in Russia has come a new pro-life movement that now includes 300 antiabortion organizations in the country.  The largest of these, Za Zihn (For Life), which is a federation of 160 different groups, draws heavily on church support, with a majority of participants identifying as Orthodox Christians.  Its annual rallies in Moscow include midnight prayer vigils at an Orthodox church, and its petition for a national ban on abortion in Russia, which gathered 1 million signatures, was signed by the head of the Russian Orthodox Church.  Za Zihn offers material assistance to pregnant women, but its main focus is on antiabortion legislation, which the majority of Russians oppose, but which has received some degree of support from government officials who want to increase the national birthrate. 

      Za Zihn and other Russian pro-life organizations, like most pro-life activists in other countries, are motivated mainly by the desire to save unborn human life, but they have found allies among pro-natalist Russian politicians who are worried about the declining birthrate.  In Russia, unlike in Western Europe, abortion is still widely used as a primary form of birth control, since hormonal forms of contraception are still expensive and difficult to obtain.  Like most pro-life activists in other parts of the world, the pro-life movement in Russia has not encouraged greater access to contraception as a remedy to abortion; instead, as a movement that draws heavily on Orthodox Christian support, it has promoted sexual abstinence before marriage and larger families after marriage as an alternative to both contraception and abortion.  While these views are popular among a small minority of devout Orthodox Christians, they do not accord well with majority opinion in a country that now has very low fertility rates; public opinion polls show that fewer than 10 percent of Russians support a ban on elective, non-medically necessary abortions, and only 2 percent want to prohibit all abortions.  Given abortion’s importance as a method of birth control, even the pro-natalist Putin government has been reluctant to restrict it, but it has used advertising to try to discourage abortions and promote childbirth, and has provided some funding to Za Zihn.  Emboldened by the signals of support it has received from the government, Za Zihn has staged large public rallies designed to showcase the humanity of the fetus through, for instance, a display of 2,000 pairs of baby shoes lined up in a public park – one pair of shoes for each abortion that occurs each day in Russia.[34]      

      In both Britain and Australia, the pro-life movement is much smaller than it is in the United States, and it does not have significant political influence, since in both countries, all major parties support abortion rights.  Pro-life activists in England and Australia tend to be disproportionately religious (and especially Catholic).  One study of Australian pro-life activists in the early twenty-first century showed that women in the Australian movement held socially conservative views that were typical of their American counterparts: They were far more likely than other Australians to hold traditional views of women’s roles and view motherhood as central to a woman’s identity – a belief that the American sociologist Kristin Luker had confirmed among American pro-life activists two decades earlier.[35]

      In both England and Australia, pro-life organizations have long had close connections with the American pro-life movement.  Some organizations in these countries are direct subsidiaries of US-based pro-life organizations, but even those that are not frequently invited American pro-life speakers and employ the same arguments as American pro-life groups.  In all of these countries, there is a strong emphasis on the use of fetal photographs and biological claims about fetal development to convince people of the humanity of the fetus.  As is the case in the United States, pro-life activists in Britain and Australia commonly compare abortion to slavery and the Holocaust, and draw an analogy between their own campaign against abortion and British member of Parliament (and evangelical Christian) William Wilberforce’s successful campaign against the British slave trade at the beginning of the nineteenth century.  Like their American counterparts, British and Australian pro-life activists attempt to make their countries’ abortion laws more restrictive, but because their political influence is very limited – in fact, both the United Kingdom and Australia have made their abortion laws more permissive in the twenty-first century – they devote much of their efforts not to politics but to crisis pregnancy centers, where they attempt to convince women not to terminate their pregnancies by offering them free material resources to care for their child after birth.[36] 

      For decades, British pro-lifers eschewed the American pro-life technique of “sidewalk counseling” outside abortion clinics as too invasive, but at the beginning of the 2010s, several British pro-life groups adopted it, in spite of the negative press that it generated for their movement.  In the United States during the 1980s, clinic bombings and other antiabortion violence emerged from the wing of the pro-life movement that advocated such “direct action” techniques, but this has not been the case in Britain; as of 2021, incidents of antiabortion violence in the UK have generally been limited to a few cases of nails put in the tires of abortion clinic staff or verbal harassment of people entering or exiting a clinic.[37]

      In Canada, the pro-life movement endured decades of political failure; both of the country’s major political parties pledged not to consider abortion restrictions.  But since 2018, a youth-dominated, newly politically energized pro-life movement has, with the help of training from US-based pro-life and conservative groups, perfected a political strategy that combines progressive human rights rhetoric with conservative political alliances.  Eschewing religiously based rhetoric in a country that is strongly secular, they have instead marketed their cause as a campaign for free speech and women’s health and empowerment.  In the late 2010s, Canadian pro-lifers borrowed a technique that the US pro-life movement first employed with great success in the late 1970s: publishing voter guides that rate members of Parliament according to their position on abortion, and campaigning for pro-life candidates.  As a result of these efforts, pro-lifers made substantial inroads in the Progressive Conservative Party of Ontario and secured a promise from the party leader not to stop party members from introducing antiabortion legislation.  Pro-lifers narrowly missed in their attempt to get the Conservative Party of Canada to make a similar change in its platform, but the razor-thin margin of defeat gave them hope that they were on the cusp of being able to remove pro-choice language from the party’s platform.  The Canadian pro-life movement is not yet in a position to enact the restrictions on abortion that have become common in conservative regions of the United States, but pro-lifers in Canada hope to secure Conservative Party support for a few more modest goals, such as the passage of parental notification laws for teens seeking an abortion or an end to government funding of abortion.  In 2018, Canadian pro-life activists claimed that forty-six members of Parliament (out of a total of 338) supported their cause.[38]

Asia and the Middle East: A Pro-Life Minority in a Non-Christian Society

      If the pro-life movement has struggled to gain political influence in much of Europe and Canada, it is especially beleaguered in much of eastern Asia, where legal abortion has been widely accepted for decades and where Christianity is a minority religion.  In much of Asia, evangelical Protestants have been the most vocal pro-life advocates.  In China, some Christian churches, small pro-life organizations (a few of them affiliated with US-based groups), and a number of Buddhists have organized small-scale online campaigns to convince women not to have abortions.  But the pro-life movement has no real political influence in a country that until recently practiced forced abortions and that still performs more abortions each year than any other country in the world.[39]  In Japan, which has had legal abortion since 1948, the pro-life movement is likewise extremely small; the country has only one pro-life organization, which was founded by an evangelical pastor.  The first pro-life march in Japan attracted thirty-five participants in 2015, although this number increased to nearly 100 within two years.[40] 

      In South Korea, abortion was permitted only for medical reasons from 1973-2020, but the restrictions were enforced only sporadically, and for much of the 1970s and 1980s, the government actually encouraged elective abortions that were technically illegal, since it wanted to curb the country’s birthrate.  As a result, abortions were common, but the pro-life movement had little presence in the country aside from an organization of antiabortion obstetricians and gynecologists that formed in 2009.  In 2020, however, when a court order resulted in the full legalization of first trimester abortions in South Korea, Catholic church leaders quickly registered their objection, and new pro-life groups immediately organized among students, who sought Vatican support for their cause.  The Pro-Life Legal Association demanded that the government recognize the right of conscientious objection for medical personnel who refused to participate in abortions.[41] 

      In India, the availability of legal abortion has not resulted in significant cultural or political polarization, and pro-life efforts in the country have generally come from outside sources.  The American-based evangelical Protestant organization Life Matters Worldwide (which started in a Baptist church in Grand Rapids, Michigan, in 1984) created the first crisis pregnancy center in India in 2003.[42]

      Thailand, which is 95 percent Buddhist, is one of the few countries where a longtime successful pro-life effort was led by non-Christians. Traditional Buddhist proscriptions on abortion contributed to the maintenance of a widespread stigma on the practice that was reflected in popular media.  Abortion was mostly illegal in Thailand until 2021, and women who had abortions could be imprisoned, although the law was not always rigidly enforced.  When an abortion reform movement attempted to liberalize the law in the early 1980s, the effort was successfully opposed by the religiously observant Buddhist Chamlong Srimuang, secretary general to the prime minister, who led an interreligious coalition of religious conservatives from Christian, Sikh, Buddhist, and Islamic traditions to defeat the bill.  Srimuang portrayed the liberalization proposal not only as an attack on human life but also as a sign of erosion of sexual morals.  In the early 1980s, this pro-life campaign worked, but it failed in the twenty-first century.  When first-trimester abortions were legalized in 2021, both the country’s small Catholic minority (who comprised less than 1 percent of Thailand’s population) and some from the Buddhist majority expressed disappointment, but both groups said they would not formally protest the new law.  In a country that had long relied on popular antiabortion sentiment to maintain the country’s ban, the pro-life movement did not have much of an organized presence.[43]

      Abortion is mostly illegal in every Islamic country in northern Africa, the Middle East, and Asia, with the sole exceptions of Tunisia and the officially secular Turkey.  All Islamic countries, in keeping with Islamic tradition that places a higher value on the life of the pregnant woman than on the fetus, allow for abortion in cases where it is necessary to save a woman’s life, and most allow for it for other medical reasons as well.  Islamic governments, however, have generally not wanted to expand abortion availability beyond carefully delineated medical emergencies, and in some cases, a political shift toward religious conservatism has been accompanied with calls to tighten abortion laws.  In Turkey, for instance, Prime Minister Recep Tayyip Erdogan, the most overtly religious prime minister that the country had had in nearly a century, called abortion “murder” in 2012 and advocated more restrictive regulations on the procedure.  The proposed restrictive legislation was not enacted, but doctors began limiting abortions anyway.  By 2015, the International Women’s Health Coalition reported that only three hospitals in Turkey were offering abortion services.[44]  Yet nearly all of these restrictions have been enacted without the direct involvement of pro-life organizations, which have little presence in most of the Middle East.  Perhaps because the pro-life movement in most of the places in the world where it exists is closely connected with Christian ideology and, in many cases, with Western concepts of human rights fused with Catholic social teaching or evangelical Protestant politics, it does not exercise much organizational influence in the Islamic world, despite the generally conservative approach to abortion in Islamic law and culture.

      One Middle Eastern country with sizeable pro-life organizations is Israel, where abortion is legal and publicly funded but where many Orthodox Jews find the practice objectionable.  Israel’s largest pro-life organization is Efrat, named after a particular faithful woman in the Bible, and it has always had a distinctively Jewish focus.  Unlike many pro-life organizations in other countries, it does not engage in lobbying on abortion but rather focuses entirely on helping pregnant women with material resources so that they can carry their pregnancies to term.  Initially, the organization’s assistance to Jewish women was not even connected to the politics of abortion.  It was founded by Holocaust survivor Herschel Feigenbaum in the 1950s, two decades before abortion was legal in Israel, and it was established as a way to protect Jewish children and encourage Jewish childbearing in the aftermath of the Nazi extermination of six million Jews.  In 1977, the year that Israel legalized abortion, control of Efrat passed to the Orthodox Jewish physician Eli Schussheim, who believed that the fetus was a human being that needed to be preserved, but who also wanted to preserve the organization’s non-political focus on empowering women to choose life for their children rather than lobbying for abortion restrictions.  Unlike many Western pro-life groups, Efrat does not put fetal photos or information about fetal heartbeats or other signs of fetal life on its website; instead, it focuses entirely on connecting pregnant women with medical and economic assistance, without attempting to make them feel that abortion is wrong or that they have a moral obligation to continue their pregnancies.[45]

      In the 1980s, another pro-life organization formed in Israel that corresponded more closely to the Western model of lobbying against abortion: Be’ad Chaim.  Unlike Efrat, which is entirely Jewish, Be’ad Chaim is closely connected to both Christian influences and the larger Western pro-life network.  Founded in the 1980s by Tony Sperandeo and a coalition of Christians and Messianic Jews, Be’ad Chaim is currently directed by the Messianic Jew Sandy Shoshani.  It solicits financial support from European and American Christians, and engages in political lobbying and in weekly public protests, complete with posters showing fetal images – an activity that Efrat eschews.  Yet like Efrat, Be’ad Chaim’s central focus is on providing pregnant women with the economic assistance they need to carry their pregnancies to term – a tacit admission, perhaps, that the most effective form of pro-life activism in a country with free legal abortion might be through individual persuasion rather than political lobbying.[46]

Africa: An Anti-Colonialist “Culture of Life”

      In Africa, the pro-life movement has taken a different form than it has in Europe or North America, because most Africans are already strongly pro-life and need little persuasion to believe that abortion is wrong.  Elective abortion is legal in only three African countries: South Africa, Cape Verde, and Tunisia.  Zambia also allows abortion for broadly interpreted medical and socioeconomic reasons, but abortion is sharply restricted or completely illegal everywhere else on the continent – which means that 93 percent of African women of childbearing age live in countries where abortion is entirely or mostly illegal.[47]  Africa is also deeply religious, with the lowest rates of atheism in the world.  The pro-life sentiments of people in the region are grounded both in religious faith (including both Christianity and Islam) and in traditional attitudes toward childbearing.  The founder of Culture of Life Africa, Obianuju Ekeocha, therefore has focused her efforts not on persuading Africans to embrace pro-life views or enact legal restrictions on abortion but on communicating African pro-life sentiments to Western media and defending the continent against Western attempts to introduce contraception or abortion to African women, a move that she views as a new form of colonialism. 

      Ekeocha, a Nigerian-born Catholic who moved to London to pursue a medical education and become a hematologist, first attracted international attention among conservative Catholics in 2012, when she wrote a letter to Melinda Gates explaining why the Gates Foundation’s attempt to distribute contraception to African women was contrary to African values of childbirth.  Africans needed education and medical care, not Western attempts to limit their fertility, Ekeocha declared.  Ekeocha later expanded on this message in her book Target Africa: Ideological Neocolonialism in the Twenty-First Century and through her organization Culture of Life Africa (created in 2012), which promoted the idea that African values of human life were superior to the contraceptive mentality of the West, and that Africans needed to resist Western “neocolonialism” by holding true to their pro-life convictions in spite of the attempts of Western humanitarians to adopt contraceptive practices that will destroy their family networks.  In England, the United States, and much of Europe, most mainstream pro-life organizations attempted to sever the pro-life movement’s connection to earlier Catholic campaigns against contraception, and to ground the pro-life cause in the language of inviolable human rights, but for Ekeocha, opposition to abortion and opposition to contraception were both inextricably linked to a larger ideology of valuing children and childbirth – a value that she believed the West had lost, but which Africans instinctively had and needed to retain.  Africa could teach the West how to be truly pro-life, Ekeocha said, if only the West would give up its colonialist vision of forcing its own values on Africans.[48]       

      Ekeocha is the most prominent twenty-first century African pro-life activist in the global Catholic and pro-life community, but her perspectives on contraception, religion, and life issues are widely shared among African pro-life activists.  The African Anti-Abortion Coalition, founded in 2006 as a network of “major pro-life groups” from fifty-three African countries, strongly denounces contraception and lists as its top priority “to provide spirituality to the fight against abortion and contraception.”  It also opposes same-sex marriage.  Like Ekeocha, the African Anti-Abortion Coalition sees its main opponent as the secular West and its attempt to impose its values on Africa; it states that it is intent on fighting both “national and international efforts to introduce a ‘culture of death.’”[49]  For that reason, when the United Nations-sponsored International Conference on Population and Development met in Nairobi, Kenya, in November 2019, it was besieged with protests from pro-life activists who claimed that the conference’s alliance with pro-choice organizations such as Planned Parenthood was a violation of African values.  The same anti-colonialist rhetoric exists even in South Africa, the largest African country to legalize abortion.  There are numerous pro-life organizations in South Africa, and some of them portray the fight against abortion as a battle mainly to defend the prolife views that the majority of Africans hold against the attacks of international secular family planning organizations in the West, which they believe also challenge traditional African views of sexuality.[50]  

Latin America: A Catholic Pro-Life Movement Now on the Defensive

      Like Africa, Latin America – the most heavily Catholic region of the world – has a strongly antiabortion legal tradition.  Abortion in Latin America is fully legal only in Cuba, Guyana, Uruguay, Argentina, the US territory of Puerto Rico, and one state in Mexico; in all other parts of South America, Central America, and the Caribbean, abortion is either entirely illegal or legal only for narrowly defined medical reasons.  The vast majority of Latin American women live in countries where abortion is severely restricted and legal abortions almost impossible to obtain.  Yet the abortion rate in Latin America is higher than it is in the United States and most parts of Europe, and it continues to increase.  Self-induced abortions using misoprostol are especially common.[51]   

      For decades, pro-life influence on abortion regulation in Latin America came primarily through the Catholic Church rather than through pro-life organizations, but as evangelical Protestant or Pentecostal Christianity has rapidly grown in parts of Latin America, evangelical Protestants have begun lobbying for more stringent antiabortion legislation.  In some countries, such as Ecuador, Catholic clerics and evangelical Protestants have joined forces in the fight to preserve antiabortion legislation against the threat of an increasingly effective coalition of pro-choice feminists, but in other parts of Latin America, some Catholic bishops have expressed concerns about the willingness of evangelical pro-lifers to ally with the political right – something that the Catholic Church in Latin America has tried to avoid.  Some evangelical pro-life groups, such as Con mis hijos no se metas in Peru, have close ties with socially conservative organizations in the United States, and have championed other socially conservative causes that are popular with the American Christian Right, such as opposition to same-sex marriage.  Social conservatism is popular with traditional Catholics in Europe and Africa, but in Latin America, bishops who lead a church that has long included elements of sympathy for socialism and liberation theology worry about the consequences of allying the pro-life cause with political conservatism, especially conservatism of a US-based variety.[52]  Yet there are signs that the Catholic Church’s effort to restrict abortion without allying with a US-based politically conservative movement is no longer as successful as it once was.  Uruguay legalized abortion in 2012, and Argentina did so in 2020.  The Mexican state of Oaxaca legalized abortion in 2019.  Chile stopped short of full legalization, but liberalized its abortion law in 2017.  As Latin American feminism, inspired by the American #MeToo movement, gains ground, Latin American pro-life Catholic clergy have rapidly lost influence – which is why some have welcomed political help from evangelical allies and an American-style politically conservative movement.  Today it is the evangelical regions of Central America, not the more heavily Catholic and rapidly secularizing South American countries, that have Latin America’s strictest abortion laws.  El Salvador, which has Latin America’s most stringent antiabortion policy, also has a population that is more than one-third evangelical Protestant – and so far, it has fiercely resisted calls to liberalize its law.[53]

The Pro-Life Movement’s Present and Future

      The pro-life movement did not start out as a campaign against Western secularism, but that is, in essence, what it has become.  In the United States, the movement allied itself with the evangelical-dominated Christian Right.  In the rest of the world, the Christian Right’s enthusiastic embrace of free-market values have not necessarily become part of pro-life ideology, but its strong opposition to the sexual revolution have been a key component of the pro-life movement’s ideology in nearly every country.  To many advocates of reproductive rights, the pro-life movement’s embrace of conservative views of gender and sexuality may seem to be confirmation that the pro-life movement’s professed concerns about fetal life are merely a smokescreen for a larger anti-feminist agenda that seeks to control women’s bodies.  But this view misunderstands the pro-life agenda and fails to account for the fact that in the United States – and in much of the rest of the world – women have long been the initiators of pro-life campaigns and the leaders of pro-life organizations.  Indeed, in many European countries, opposition to abortion is slightly more common among women than among men. 

      Gender, therefore, does not explain the continued saliency of the pro-life movement, but religion might.  Although many pro-life activists insist that their views on fetal life are not based on religion, the overwhelming majority of pro-life activists on every continent are personally religious, and they are also much more likely to hold views on family, gender, and sexuality that make sense in a traditional religious framework but are at odds with modern secular, egalitarian, rights-based ideology.  And yet in most of the world, the pro-life movement’s central claim rests on a rights-based argument – the argument that the fetus is a person with full human rights.  That claim is provocative enough to attract attention even in liberal secular societies – though, without a religious context, it is unlikely to overcome an opposing women’s rights argument in public debate. 

      For that reason, the pro-life movement’s greatest moments of conflict occur in countries with a sizeable traditional religious minority with enough political influence to believe they have a chance of stopping a secular, culturally liberal majority.  That appears to be currently the situation in Spain, Hungary, and Russia.  In Ireland – and now in parts of Latin America - the reverse appears to be the case; in those countries, a rapidly growing secular minority have recently realized that they have the political influence to challenge a long-dominant religious majority and liberalize the country’s abortion law, and now the pro-life movement has found itself on the defensive, unable to figure out how to reimpose a religious order that includes prohibitions on abortion and a defense of unborn human life.  In the United States, the conflict is especially heated, and not in sight of a resolution now that the two sides in the debate have each grafted their ideology onto the platform of a major national party.  And in parts of the Global South, the debate may be just beginning.  Africa, which is strongly religious, with traditional family networks, is currently strongly opposed to abortion, and it is only recently that the continent has even felt the need for a pro-life movement.  But as Africans confront modern secular rights-based ideologies, as Latin American advocates of the right to life regroup and find ways to resist the spread of pro-choice views, and as evangelical Christianity expands in China and other parts of Asia, the pro-life movement is likely to continue to grow – but also face more challenges and political fights.  The last half century has been a time of polarizing debate about abortion in parts of the industrialized West.  The next few years may see this debate expand in the Global South and the rest of the world.

[1] John Connery, Abortion: The Development of the Roman Catholic Perspective (Chicago: Loyola University Press, 1977); David Albert Jones, The Soul of the Embryo: An Enquiry into the Status of the Human Embryo in the Christian Tradition (London: Continuum, 2004); Sara Dubow, Ourselves Unborn: A History of the Fetus in Modern America (New York: Oxford University Press, 2011).

[2] Allan Carlson, Godly Seed: American Evangelicals Confront Birth Control, 1873-1973 (New Brunswick, NJ: Transaction, 2012); Pius XI, Casti Connubii, 31 December 1930, https://www.vatican.va/content/pius-xi/en/encyclicals/documents/hf_p-xi_enc_19301231_casti-connubii.html.

[3] For this argument, see Charles E. Rice, The Vanishing Right to Live: An Appeal for a Renewed Reverence for Life (Garden City, NY: Doubleday, 1969).

[4] Olivia Dee, The Anti-Abortion Campaign in England, 1966-1989 (New York: Routledge, 2020), 35-45.

[5] Dee, The Anti-Abortion Campaign in England, 41-43.

[6] Daniel K. Williams, Defenders of the Unborn: The Pro-Life Movement before Roe v. Wade (New York: Oxford University Press, 2016), 75-84, 93, 175.

[7] Williams, Defenders of the Unborn, 88-100, 133-137, 190-193.

[8] Dee, The Anti-Abortion Campaign in England.

[9] Williams, Defenders of the Unborn, 37, 156-178.

[10] Williams, Defenders of the Unborn, 238.

[11] Williams, Defenders of the Unborn, 147-155, 171-174.

[12] Williams, Defenders of the Unborn, 239; Kristin Luker, Abortion and the Politics of Motherhood (Berkeley: University of California Press, 1984).

[13] David J. Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade, 2^nd ed. (Berkeley: University of California Press, 1998), 302; Mary C. Segers and Timothy A. Byrnes, “Introduction: Abortion Politics in American States,” in Abortion Politics in American States, ed. Segers and Byrnes (New York: M. E. Sharpe, 1995), 3; Williams, Defenders of the Unborn, 196-202.

[14] Williams, Defenders of the Unborn, 217.

[15] Williams, Defenders of the Unborn, 212-233; “Senate’s Roll Call on Abortion Plan,” New York Times, 29 June 1983.

[16] Williams, Defenders of the Unborn, 250, 253-254; Kenneth A. Briggs, “Bernardin Asks Catholics to Fight Both Nuclear Arms and Abortion,” New York Times, 7 December 1983.

[17] For the origins of the judicial strategy in the pro-life movement, see Mary Ziegler, After Roe: The Lost History of the Abortion Debate (Cambridge, MA: Harvard University Press, 2015), 27-57.

[18] K. K. Rebecca Lai and Jugal K. Patel, “For Millions of American Women, Abortion Access Is out of Reach,” New York Times, 31 May 2019; Quoctrung Bui et al., “Where Abortion Access Would Decline If Roe v. Wade Were Overturned,” New York Times, 18 May 2021, https://www.nytimes.com/interactive/2021/05/18/upshot/abortion-laws-roe-wade-states.html.

[19] Williams, Defenders of the Unborn, 263-264.

[20] Williams, Defenders of the Unborn, 264.

[21] Eliza Griswold, “The New Front Line of the Antiabortion Movement,” New Yorker, 18 November 2019; Mary Fitzgerald, “Europe Must Act against US-Backed ‘Crisis Pregnancy Centers,’” Project Syndicate, 11 February 2020, https://www.project-syndicate.org/commentary/europe-must-act-against-crisis-pregnancy-centers-by-mary-fitzgerald-2020-02.

[22] “Human Life International: The Quiet Giant Underwriting Abortion Politics Abroad,” Equity Forward, 30 January 2019, https://equityfwd.org/sites/default/files/ef_hli_report_1_30_19.pdf; “US Anti-Abortion Group Quietly Fights Bid to End El Salvador’s Draconian Ban,” Guardian, 27 July 2017.

[23] Ursula Barry, “Abortion in the Republic of Ireland,” Feminist Review 29 (1988): 57-63.

[24] Barry, “Abortion in the Republic of Ireland”: 59.

[25] “European Abortion Law: A Comparative Overview,” Center for Reproductive Rights, March 3, 2021, https://reproductiverights.org/european-abortion-law-comparative-overview-0/.

[26] Ariana Monique Salazar and Kelsey Jo Starr, “In the U.S. and Europe, Women Are About as Likely as Men to Favor Legal Abortion,” Pew Research Center, 14 December 2018, https://www.pewresearch.org/fact-tank/2018/12/14/in-the-u-s-and-europe-women-are-about-as-likely-as-men-to-favor-legal-abortion/; “The German Medical Students Who Want to Learn about Abortion,” BBC News, 25 September 2020, https://www.bbc.com/news/world-europe-51874119.

[27] Hannah Brockhaus, “Italy’s Fledgling Pro-Life Movement Finds Inspiration in US Abortion Fight,” Catholic News Agency, 22 May 2019, https://www.catholicnewsagency.com/news/41351/italys-fledgling-pro-life-movement-finds-inspiration-in-us-abortion-fight; Giada Zampano, “Italy’s Politics Gives New Life to Anti-Abortion Campaign,” Politico, 18 November 2018, https://www.politico.eu/article/italy-abortion-divide-politics-gives-new-life-to-anti-abortion-campaign/; Elena Caruso, “Abortion in Italy: Forty Years On,” Feminist Legal Studies 28 (2020): 87-96.

[28] Jessica Phelan, “Verona Defies Italy’s Abortion Law and Declares Itself a ‘Pro-Life City,’” Local.it, 5 October 2018, https://www.thelocal.it/20181005/verona-pro-life-city-italy-abortion-law/.

[29] Lauren Frayer, “Spain’s Abortion Debate Shakes Government That Pledged to Ban It,” NPR, 25 September 2014, https://www.npr.org/sections/parallels/2014/09/25/351511970/spains-abortion-debate-shakes-government-that-pledged-to-ban-it; Blanca Ruiz, “Massive Pro-Life Demonstrations to Be Organized in Spain,” Catholic News Agency, 29 June 2021, https://www.catholicnewsagency.com/news/248191/massive-pro-life-demonstrations-to-be-organized-in-spain.

[30] Salazar and Starr, “In the U.S. and Europe, Women Are About as Likely as Men to Favor Legal Abortion.”

[31] “Sweden Abortion: Nurses Fail in European Court Case,” BBC News, 13 March 2020; Rebecca Selberg, “The Midwife Case and Conscientious Objection: New Ways of Framing Abortion in Sweden,” International Feminist Journal of Politics 22 (2020): 312-334.

[32] Katelyn Beaty, “To End Abortion, Don’t Ban It. Support Families Instead,” National Catholic Reporter, 28 August 2018.

[33] One of Us, oneofus.eu.

[34] “Russian Anti-Abortion Group Fights and Prays for Ban,” DW, 23 August 2017, https://www.dw.com/en/russian-anti-abortion-group-fights-and-prays-for-ban/a-40177234; Amie Ferris-Rotman, “Putin’s Next Target Is Russia’s Abortion Culture,” Foreign Policy, 3 October 2017.

[35] Donna Wyatt and Katie Hughes, “When Discourse Defies Belief: Anti-abortionists in Contemporary Australia,” Journal of Sociology 45 (2009): 246; Pam Lowe and Sarah-Jane Page, “Rights-Based Claims Made by UK Anti-abortion Activists,” Health and Human Rights Journal, 9 December 2019, https://www.hhrjournal.org/2019/12/rights-based-claims-made-by-uk-anti-abortion-activists/.

[36] Liam Hoare, “The Americanization of the U.K. Anti-abortion Movement,” Atlantic, 4 April 2012, https://www.theatlantic.com/international/archive/2012/04/the-americanization-of-the-uk-anti-abortion-movement/255409/.

[37] Amy Woodyat, “‘Americanized’ Anti-abortion Protests Are on the Rise in the UK.  But a Fight Back Has Begun,” CNN, 9 July 2019, https://www.cnn.com/2019/07/09/europe/anti-abortion-manchester-protests-uk-gbr-intl/index.html; Hoare, “The Americanization of the U.K. Anti-abortion Movement.”

[38] Anne Kingston, “How Canada’s Growing Anti-abortion Movement Plans to Swing the Next Federal Election,” Maclean’s, September 12, 2018; “Canada’s Anti-abortion Movement Is Rebranding – and Pushing for Political Impact,” CBC Radio, 17 May 2019, https://www.cbc.ca/radio/day6/canada-s-anti-abortion-movement-is-rebranding-and-pushing-for-political-impact-1.5138398.

[39] Bethany Allen-Ebrahimian, “Meet China’s Pro-Life Christians (and Buddhists),” Foreign Policy, 5 August 2015, https://foreignpolicy.com/2015/08/05/china-abortion-pro-life-planned-parenthood-video-christian/.

[40] “Japan’s Fledgling Pro-Life Movement Finds Secular and Religious Inspiration,” Religion Watch 32.9 (2017), https://www.religionwatch.com/japans-fledgling-pro-life-movement-finds-secular-and-religious-inspiration/.

[41] Courtney Mares, “As South Korea Revises Abortion Law, Catholics Mobilize to Protect Unborn Life,” Catholic News Agency, 25 August 2020, https://www.catholicnewsagency.com/news/45594/as-south-korea-revises-abortion-law-catholics-mobilize-to-protect-unborn-life.

[42] Srishti Agnilhotri, “Abortion Rights in India and the Absence of the Pro-Life / Pro-Choice Debate,” Feminism in India, 11 April 2016, https://feminisminindia.com/2016/04/11/abortion-rights-india/; “Pro-Life Partners in India,” Life Matters Worldwide, https://www.lifemattersww.org/MISSIONS/Pro-life-partners-around-the-world/India.

[43] Andrea Whittaker, “The Struggle for Abortion Law Reform in Thailand,” Reproductive Health Matters 10.19 (May 2002): 48-49; Moodjalin Sudcharoen, “Commodifying Karma: Abortion Discourses and Kaekam Practices in Thai Society” (M.A. thesis, Cornell University, 2013).

[44] Sebnem Arsu, “Premier of Turkey Seeks Limit on Abortions,” New York Times, 29 May 2012; “Access to Abortion in Turkey: No Laughing Matter,” IWHC, 17 February 2015, https://iwhc.org/2015/02/access-abortion-turkey-no-laughing-matter/.

[45] Judy Siegel-Itzkovich, “One by One, Saving another Jewish Baby,” Jerusalem Post, 8 March 2014.

[46] “Messianic Pro-Life Organization Recognized by Israeli Knesset for Its Life-Saving Work,” Kehila News, 1 August 2016; Be’ad Chaim website, www.beadchaim.com.

[47] Lori Hadacek Chaplin, “Obianuju Ekeocha: A Fierce, Elegant Warrior for the Culture of Life in Africa,” Catholic Digest, 12 August 2019, https://www.catholicdigest.com/news/conversation/obianuju-ekeocha-a-fierce-elegant-warrior-for-the-culture-of-life-in-africa/; “Abortion in Africa,” Guttmacher Institute, https://www.guttmacher.org/sites/default/files/factsheet/ib_aww-africa.pdf.

[48] Chaplin, “Obianuju Ekeocha.”

[49] African Anti-Abortion Coalition, http://www.chidicon.com/AAAC.html.

[50] Tom Osanjo, “African Faith Groups Condemned U.N. Population Conference for Its Abortion Agenda,” Religion Unplugged, 18 November 2019, https://religionunplugged.com/news/2019/11/18/african-christians-and-muslims-boycotted-a-un-population-conference-for-its-abortion-agenda; University of Cape Town Students for Life, https://studentsforlife.co.za/issues/introducing-the-south-african-pro-life-struggle/.

[51] “Abortion in Latin America and the Caribbean,” Guttmacher Institute, https://www.guttmacher.org/sites/default/files/factsheet/ib_aww-latin-america.pdf.

[52] Eduardo Campos Lima, “The Catholic Church in Latin America Is Losing Control of the Pro-Life Movement. Can It Win It Back?” America, 5 October 2020.

[53] Richard Pérez-Peña, “How Argentina Bucked Tradition in Latin America and Legalized Abortion,” New York Times, 30 December 2020; Paul Glader, “Christianity Is Growing Rapidly in El Salvador – along with Gang Violence and Murder Rates,” Washington Post, 8 April 2015.

Abortion law in Europe: the pitfalls and promises of human rights and transnational trade law in face of criminalization with exceptions

Lucía Berro Pizzarossa, O’Neill Institute for National and Global Health Law, University of Georgetown; Tamara Hervey, The City Law School, City University of London; Anniek de Ruijter, Amsterdam Law School, University of Amsterdam.

1. Introduction and normative framing

Europe has long been the site of controversy over abortion rights. Contestation has intensified over recent years, and now the issue seems more polarized than ever.^[1] Despite decades of sustained political mobilization and some steps towards liberalization, the full decriminalization of abortion has not been achieved and threats to sexual and reproductive rights (and consequently to women’s^[2] health) have re-emerged in some parts of the region.^[3] Taken as a whole, the European abortion law landscape offers a very diverse range of approaches to abortion. Although most countries in Europe have gradually eased legal restrictions on abortion, even where more liberal regulations have been adopted, abortions remain inaccessible in practice for many.^[4]

Overall, abortion laws across Europe are in dire need of reform if international and regional human rights standards are to be met.^[5] In the international realm, there is an increased recognition of the right to abortion. The latest international standards—namely the UN’s General Comment on Sexual and Reproductive Health and General Comment on Science—affirm that the right to sexual and reproductive health (which includes abortion services) is an integral part of the right to health.^[6] States have an obligation, under international human rights law, to repeal or eliminate laws, policies and practices that criminalize, obstruct or undermine an individual’s or a particular group’s access to health facilities, services, goods and information, including abortion.^[7] States should also guarantee access to medicines on the World Health Organization’s Essential Medicines List, which since 2015 includes the abortion medicines (misoprostol and mifepristone).^[8]

Part of the regulatory problem in Europe is the lag between laws and relevant technologies. Important scientific developments, that fundamentally change the abortion landscape, are yet to be fully embraced by the law.^[9] Most abortion laws in Europe date from the 1970s. Abortion technologies have fundamentally changed since that date, essentially making most abortions a chemical/pharmaceutical intervention, rather than a surgical one. The relative risks to health have consequently altered significantly, and with that, the proper interpretation and application of human rights has also changed, especially consideration of the autonomy and dignity of women. Models of access to abortion medicines (both within and outside the formal health care context) show the potential of these new technologies to enhance women’s autonomous control over their bodies. Innovations around telehealth, the growing network of organisations supporting safe self-use of abortion medicines and abortion travels has fundamentally altered the regulatory position.^[10] Yet across Europe, laws have not been brought in line with the most recent developments of scientific knowledge or practice.

2. Method and Researcher positionality

As will already be apparent, our approach in this chapter is not to provide an ‘objective’ account of abortion laws in Europe in the sense that the term ‘objectivity’ is usually used in legal scholarship. Indeed, although this is not the place for that discussion in detail, we would dispute that such a position is any more ‘objective’ than ours, because legal doctrinal scholarship tends to assume a hidden and unacknowledged ‘male norm’ in its claimed objective accounts.

Instead, our approach is to be transparent about our positionality, so readers may judge what we write from a standpoint of understanding pertinent aspects of who we are. We write as women, from different generations and different European countries with different legal traditions (civil and common law being the usual comparative law shorthand for such differences). We write as mothers, of daughters, sons, and indeed non-binary individuals. We also write as (academic) lawyers and educators, mindful of our potential impacts as role models for the young people we encounter through our teaching. And we write as activists and strategic litigators. These positions, and the experiences flowing from them, mean we are committed to a human-rights-respecting approach to abortion law, which grants women autonomous control over their bodies, and treats state intervention in such control as ‘suspect’ and in need of justification. This position is the inverse of the legal position across Europe, which essentially treats women’s bodies as subject to the full power of the state embodied in the criminal law when it comes to abortion.

Our method could be described as ‘law in context’, but our main focus in this chapter is on legal doctrine. We are seeking to offer a comparative account of the meanings of the relevant legal texts. On whom do they impose rights or obligations? What do they permit or prohibit, and with what consequences (in terms of criminal or civil penalties), for whom? Secondary to this core focus is an account of the implications of abortion laws in Europe. What are the effects of these laws on the empirical realities of the people to whom the laws apply?

Our account of legal doctrine takes a comparative law perspective and a regional European law perspective. First, we consider national abortion laws in Europe. Obviously, we cannot account for the legal position in some 50 or so different European countries. Rather, we discuss a European ‘consensus’ position, through selected examples, and contrast this by considering the European ‘outlier’ countries. Even the European consensus is far from autonomy-respecting or liberal, and in some countries is moving in the opposite direction, towards a more conservative position than in the second half of the twentieth century.

Second, we consider various European level legal instruments which cover abortion. Here, the vast majority of scholarship focuses on the Council of Europe, a human rights organization with 47 member countries. Here, there is plenty of legal text, with human rights law as a possible route to access abortion.  But the underlying structures of Council of Europe law mean these legal provisions offer scant protection to women in ‘outlier’ states, or even in general, because of the generous ‘margin of appreciation’ offered to national legal settlements. By contrast, the European Union offers more robust scrutiny of national laws for compliance with EU-level legal provisions. The last substantive part of the chapter therefore considers the (perhaps unlikely) locus of European Union trade law as a possible site for legal contestation through strategic litigation.

3. European abortion law

3.1 Comparative perspectives

Europe hosts diverse abortion laws.^[11] In a nutshell, though, the consensus in Europe is that of partial decriminalization or, more accurately, criminalization with exceptions. While 95% of women of reproductive age in Europe live in countries that decriminalize abortion to some extent,^[12] there is no broad individual right to abortion on request. By contrast, abortion is generally a crime, for which lawful grounds are insitated in national laws.^[13] Abortion remains punishable, unless certain circumstances pertain, such as when requirements of gestational age, waiting periods, or specific grounds are met. The specific conditions of decriminalization and consequent access to lawful abortion vary substantially among European countries. To generalize, these usually establish exceptions (rape, fetal abnormalities, risk to life or health of the woman, emergency/necessity) and other alternative requirements, such as a gestational term, mandatory counselling and waiting periods, parental and/or judicial consent in the case of minors, and limitations related to the type and number of healthcare professionals who must be involved in the procedure.^[14]

Hence, while traditional classifications consider European abortion law as fairly liberal,^[15] we suggest this classification is inaccurate. It is true that, currently, full formal prohibition of abortion exists exist only in a minority of small European countries: Andorra, Malta, San Marino and the Vatican.^[16] Ireland, the remaining larger country in this group, left it in 2018 with a new law on abortion, after repealing the Eighth Amendment to the Irish Constitution via a referendum.^[17] The Health (Regulation of Termination of Pregnancy) Act 2018, in force as of January 2019, lifts the near total ban on abortion imposed since 1983.^[18] In practice, Poland, also a large country, is moving into this group, following a decision of its Constitutional Tribunal, which came into effect in January 2021.^[19]

The general legal model in Europe—that of exception to criminalization—is characterized as follows. It is based on a series of legal, and consequently practical, barriers to access. Abortion is lawful only within the provisions of the law and any action outside of them is a criminal offense.^[20] Further, we note that, some exceptions notwithstanding, there are concerning indications that the direction of travel in Europe is away from liberalization, autonomy or human rights protection, and towards greater restrictions on women’s access to abortion.

3.1.1 The European consensus: partial (exception to) criminalization

The prevailing European legal model works by building in a series of hurdles to be met (legal exceptions) in order for a particular abortion be decriminalized.^[21] In European countries, certain legal grounds permit termination: for instance, according to the World Health Organization’s Global Abortion Policies Database,^[22] 29 countries in Europe permit abortion at the woman’s request often based on personal neccesity or emergency, but only within limits related to gestational times.^[23] In these circumstances, the woman is not obliged to adduce or prove a legal ground for termination, such as fetal malformations or risk to health. However, it is not enough for a woman simply to request an abortion. Rather, laws across Europe establish a series of procedural or other legal barriers to access. These requirements or limitations vary between countries. Requirements typically include cut-off gestational periods, mandatory counselling, mandatory waiting periods, restrictions on where the abortion may lawfully take place, and involvement of one or more health professionals or specialists. Some of the requirements have been modified due to the COVID-19 pandemic. Further restrictions apply to minors.

26 European countries recognize fetal impairment as such a ground for abortion; 22 recognize the woman’s health; 17 recognize rape; and 14 recognize incest. The onus is typically on the woman to show that the legal ground for termination is met.

The majority of European countries (29) permit abortion within certain gestational periods, which are generally from conception up to 10 to 14 weeks. For example, Portugal permits abortion up to 10 weeks from gestation;^[24] France permits abortion before the end of the 12th week of pregnancy;^[25] Russia also within 12 weeks;^[26] Austria for the first three months after the start of the pregnancy;^[27] and Sweden within 18 weeks.^[28]

13 countries in Europe require compulsory counselling prior to an abortion.^[29] For example, under the German Criminal Code mandatory counselling provision for abortions is exempted from criminal prosecution.^[30] During the COVID-19 pandemic, although abortion care must still be administered in a clinic, Germany has allowed for mandatory pre‐abortion counselling to take place over the phone or by video call.^[31]

17 countries in Europe have compulsory waiting periods.^[32] Ranging from 2 to 7 days, these legal requirements set the minimum amount of time that must elapse before a person can continue to terminate the pregnancy.^[33] The Netherlands, for example, requires a mandatory waiting period of 5 days. In 2005, a review of the abortion law concluded that a flexible waiting time is preferred.^[34] Nevertheless, the waiting time period remained obligatory and, although some reform initiatives are being discussed, the requirement is still in place.^[35]

Some 25 European countries authorize abortion only in specially licenced facilities.^[36] The requirements that abortion take place in a health institution were challenged by the move to remote health service provision necessitated by the COVID-19 pandemic.  Some countries, like England, changed the law to allow women to manage the abortion themselves at home after a remote consultation.^[37] France, Ireland, Portugal, Germany, Austria and Belgium adopted a similar approach.^[38] But in others, such as the Netherlands, the prohibition of abortion under the Dutch Criminal code,^[39] except where the abortion is performed in a licenced^[40] hospital or clinic,^[41] was problematic. During COVID-19, the need to attend a designated abortion clinic, or a hospital, presented difficulties for women needing an abortion, as hospitals and clinics were closed or impossible to reach if the woman was legally obliged to remain in quarantine.  Litigation was launched by a Dutch NGO,  Bureau Clara Wichmann, but this was unsuccessful: women in the Netherlands remain bound by law to visit a licensed clinic or hospital before they can be given abortion medication.^[42] Countries like Slovakia, Romania and Lithuania also introduced changes that had the effect of restricting access to abortion, for example, by not classifying abortion as a ‘life-saving procedure’ and thus allowing access to be deprioritized during the pandemic.^[43]

A requirement to involve health professionals is commonly found in European abortion laws. In 31 countries in Europe, abortion must be authorized by one or more health professionals.^[44] This requirement obviously medicalizes abortion; in the context of national health systems associated with European models of healthcare, it increases state control over women’s bodies; and it reduces access to abortion on an autonomous basis for women seeking control over their reproductive capacities.

Alongside the requirement for health professional involvement , European abortion laws are characterized by the continued criminalization of other actors who support access to abortion.^[45] For example, the Irish Act does not criminalize the woman herself, even if she procures an abortion outside of the provisions of the Act. However, other people such as family members, support networks, or doctors, who assist a woman in obtaining an abortion fall outside of the protection of the law. The criminalization of those who assist goes well beyond the harms the law supposedly seeks to address (coerced abortion) and places those people at risk of a prison sentence of up to 14 years.^[46]

In 26 European countries, parental consent is still required for minors to access abortion services.^[47] For example, in September 2015, Spain adopted a law requiring parental involvement in access to abortion by minors.^[48] This 2015 reform was introduced under the conservative Popular Party government, which had tried to eliminate abortion on request in the first trimester and create a grounds-based alternative. While the larger retrogressive reform was defeated, this challenging new ‘requirement’ interferes with young people’s autonomy over reproductive decisions.^[49] A new reform to eliminate this barrier is currently under discussion.^[50]

3.1.2 The European consensus in practice

All of the requirements or limitations found in abortion laws across Europe undermine women’s agency^[51] as a matter of principle. Additionally, and flowing from Europe’s approach to abortion law, the legal model in Europe is characterized by a series of practical barriers to access arising from the interaction of legal requirements with the socio-political position of women. The consequence is that access to abortion is precarious, difficult, or even impossible, for certain women,^[52] often women who are vulnerable for other reasons, such as socio-economic class, age, or immigration status. These women are forced to self-manage their abortions.

Access to abortion  in practice is undermined by government failures to appropriately address medical professionals’ refusal to provide abortion care on grounds of conscience or religion.^[53] In Italy, for example, around 70% of doctors refuse to provide abortion care on the grounds of ‘conscientious objection’, resulting in serious delays or denial of care for people seeking legal abortion.^[54] Furthermore, there is a lack of providers willing to provide abortion services in the second trimester, even in countries where the law permits this possibility.^[55]

The varied bases of only partial decriminalization of abortion in various parts of Europe leads to the practice that women travel to access abortion care in countries in which abortion is legal under more permissive bases or is simply more available in practice:^[56] ‘abortion tourism’^[57] or ‘reproductive exile’.^[58] For example, since 1970, a ‘hidden diaspora’ of more than 170,000 Irish women have travelled to England for abortion.^[59] Similarly, an estimated 300-400 Maltese women travel abroad every year to procure an abortion, usually to England.^[60] It is not the case that women travel only from the European countries with the most restrictive laws. Women from the Netherlands, for example, where criminalization forces more conservative readings of the law, are effectively restricted from access, and consequently travel to seek abortion.^[61]

Initiatives like Abortion Without Borders have supported thousands of women, including almost 600 who traveled outside of their countries to have abortions in the second trimester.^[62]  But the existence in some European countries of strict criminal bans on abortion, coupled with the possibility for women to escape the prohibition by travelling to another European country where abortion is permitted under more permissive terms, has discriminatory effects between women in well-off and low-income groups, between women whose immigration status allows them to leave and re-enter their country of residence without hindrance, and between women who are, and are not, old enough to travel alone, raising serious questions of equality.^[63]

3.1.3 The European consensus: direction of travel

Although Europe has gradually allowed abortion in the past decades, efforts to legalize and improve access to abortion do not always meet the standards of international and regional human rights law, nor is it a linear process towards such standards.^[64] Especially in countries where governments need to be formed in a multi-party parliamentary democracy, reproductive rights and limits to abortion care form political capital to ensure the participation of religiously inspired political parties. Some notable exceptions notwithstanding, most European nations have recently moved towards greater restrictions on women’s access to abortion. This recent turn or ‘backlash’ against liberalization is supported by the underpinning legal model. This model of abortion as exception to criminalization unnecessarily medicalizes abortion, places significant burdens on women seeking to access abortion services, and continues to rely on the most onerous, intrusive, and punitive of state powers to regulate it.^[65] Indeed, while abortion is made available in most European countries, the relevant archaic legal frameworks remain rooted in outdated, punitive, conservative values,^[66] and follow neither the latest scientific evidence nor human rights standards.^[67]

Ireland is a paradigmatic example of this trend. After decades of mobilization, strategic litigation and a national referendum in May 2018, Ireland adopted the Health (Regulation of Termination of Pregnancy) Act 2018.  In force from January 2019, the Act lifts the near-total ban on abortion imposed since 1983.^[68] The 2018 Irish Act decriminalizes abortion on request up to 12 weeks of pregnancy after a mandatory three-day waiting period. The law provides no exceptions for cases in which the 12-week limit is crossed during the waiting period, or because of delays due to traveling from rural areas or waiting for further test results ordered by a doctor. After the 12th week, the procedure for accessing an abortion requires the involvement of an obstetrician and another ‘appropriate medical practitioner’ and is permitted only in cases of a condition likely to lead to death of the fetus, a risk to the pregnant woman’s life or health, and an emergency. Two medical practitioners need to be of the opinion that the conditions are fulfilled, which gives doctors significant discretion, especially with terms such as ‘[risk] of serious harm to health’ that are not legally defined. For example, Abortion Support Network reports that in 2017, two women who had attempted suicide more than once were denied abortions.^[69] Furthermore, nearly 200 people travelled from the Republic of Ireland to England or Wales for an abortion in 2020, when the new law was already in force,^[70] suggesting that the law has not had as liberalizating an effect as one might expect. In Ireland, as elsewhere in Europe, abortions provided outside of the procedure set by the law are criminally prohibited. Thus, Ireland follows the partial decriminalization model relying on criminal law, medical power in the form of strong oversight by doctors, and legal barriers to regulate abortion.^[71]  The case of Ireland reveals that, despite steps towards liberalization, the framing of abortion continues to be fetocentric and punitive. The post-repeal landscape has failed to break decisively with this orientation.^[72]

Furthermore, and more seriously, the basis of the European consensus continues to curtail and profoundly undermine women’s sexual and reproductive health, autonomy, dignity, integrity and decision-making. Even while some European countries have moved away from more punitive laws, the model, where abortion is a crime unless certain requisites are met, lends itself easily as a platform for retrogressive reforms.^[73]  A ‘deeply troubling’ wave of anti-abortion campaigns has gained ground in Europe (and globally), a worrying trend documented by the Council of Europe’s Commissioner of Human Rights.^[74] In keeping with that trend, Europe has recently seen legislative proposals to impose new restrictions on previously more liberal abortion laws in various countries. Prominent examples include Lithuania and Norway in 2018, Slovakia in 2018, Spain in 2014, and Poland in 2016, 2018 and 2020.^[75]

Poland serves to show how legal restrictions on abortion can repeatedly resurface as a legal and policy position, even after years of more liberal and socially accepted legislation.^[76] The reasons are complex, but one key explanatory factor is that apparently liberal legal approaches remain within a ‘decriminalization’ model. Like many other Central and Eastern European states adopting the Soviet ‘Siemaszko’ model of healthcare from the 1940s until the late 1980s/early 1990s, Poland introduced access to abortion on socio-economic grounds (‘difficult living conditions’) in 1956.^[77] This approach came from the USSR, which had done the same in 1955. The consequence in Poland was a significant reduction in previously widespread illegal abortions, many leading to the deaths of the women concerned (255 reported cases a year in 1956; 12 in 1973).^[78] But - crucially - medical professionals retained control over access to abortion.^[79] This control paved the way to what came next. The Polish Solidarity-led democratization movement from the late 1980s included a reassertion of self-regulation for medical professionals. An alliance between the medical profession and the Roman Catholic Church in Poland meant that a strong lobby for reintroducing restrictions on abortion was able to pursue its agenda, leading to the adoption of the Act on Family Planning, the Protection of the Human Fetus, and Conditions Permitting Pregnancy Termination 1993.^[80] Under this Act, an abortion is lawfully only if an independent doctor determines that there is a threat to the life or health of the woman or a fatal fetal abnormality, or if the public prosecutor determines that the pregnancy is the result of rape or incest.^[81] Abortions must be performed by a doctor, in a hospital.^[82] A provision reintroducing permitted abortions on socio-economic grounds in 1996 was struck down by the Polish Constitutional Tribunal.^[83] After significant constitutional upheaval, associated with severe challenges to democracy and the rule of law, and with the politicization of judicial appointments, the fatal fetal abnormality exception has also been declared unconstitutional, by a decision of the Polish Constitutional Tribunal on 22 October 2020, which was formally published (and became legally binding) on 27 January 2021.^[84] Given that of the 1100 official abortions in 2019, 1074 were on the fatal fetal abnormity ground, the effect is a de facto ban on abortion in Poland.^[85] Consequently, Poland now has one of the most restrictive regimes in Europe,^[86] and many Polish women are forced to seek access to abortion from providers outside of the country.

Poland is a prime example of anti-liberalization strategies that demand stricter vigilance in Europe, and indeed worldwide, given transnational ‘think tank’ support.^[87] Any assumption that a successful process of transition to democracy is feasible without attention to women’s reproductive rights must be carefully scrutinized.^[88] The retrogressive and populist moves in Poland were made under the guise of ‘protecting women’^[89] and part of a ‘broader struggle for equality and human rights for all’ in the words of the Ordo Iuris Institute.^[90] The possibility of co-option of human rights standards in European abortion laws is the subject of the section below.

3.2  Supranational perspective: Council of Europe and European Union

3.2.1 The Council of Europe

The Council of Europe is a human rights organization with 47 European Member countries.^[91] Several Council of Europe legal instruments are relevant to access to abortion. These include the European Convention on Human Rights and Fundamental Freedoms (ECHR), covering ‘civil and political rights’, and the European Social Charter (ESC), covering ‘economic and social rights’. Article 11 ESC protects the right to the highest attainable standard of health and the right to access health care. The European Committee of Social Rights, which oversees compliance with the ESC, has clarified that States Parties have positive obligations to provide appropriate and timely health care on a non-discriminatory basis, including services relating to sexual and reproductive health.^[92] Access to abortion is thus recognized as a human right in the Council of Europe system. Yet, its recognition in the context of the European Committee of Social Rights has not translated into general recognition in the Council of Europe’s main human rights instrument, the ECHR.

Attempts to apply the ECHR in the field of abortion law have steadily increased. Several ECHR provisions could potentially be engaged: these include Article 2 (right to life); Article 8 ECHR (right to respect for private and family life); Article 9 (freedom of conscience, thought and religion); Article 12 (right to marry and found a family); Article 14 which prohibits discrimination in the enjoyment of the rights and freedoms in the ECHR; and Protocol 12 which establishes a more general principle of non-discrimination. The ECHR is unusual as an international legal instrument, because of the role of the European Court of Human Rights (ECtHR) in its enforcement, and especially because of the ability of private litigants to bring claims before the ECtHR once they have exhausted domestic remedies. However, although the ECtHR has firmly taken the view that it is not appropriate for it to rule that a fetus is a human-rights-holder,^[93] the ECtHR has been reluctant to explicitly derive a free-standing right of access to abortion from the ECHR. Instead, the ECtHR has shown a determination to adhere to the principle of subsidiarity, making use of the margin of appreciation doctrine,^[94] a widely criticized approach.^[95] The ECtHR’s position is that ‘a broad margin of appreciation is accorded to the State as to the decision about the circumstances in which an abortion will be permitted in a State’.^[96] The margin of appreciation is, in effect, a device by which the ECtHR avoids determining the question of whether a woman’s right to an abortion, and her bodily self-determination, has been infringed.^[97] The ECtHR tends to treat abortion litigation on a procedural basis, and to avoid substantive decisions.^[98]

Eventually, in the early 2010s, in ABC v Ireland and P and S v Poland, the ECtHR took the view that ‘Article 8 cannot be interpreted as conferring a right to abortion’.^[99]  However, the ECtHR has confirmed that women must be able to access services within the laws of the particular country concerned, once that country decides to adopt statutory regulations allowing abortion in some situations, emphasizing that a country must not structure its legal framework in a way which would limit real possibilities to obtain an abortion:

once the state, acting within its limits of appreciation, adopts statutory regulations allowing abortion in some situations, the legal framework devised for this purpose should be shaped in a coherent manner which allows the different legitimate interests involved to be taken into account adequately and in accordance with the obligations deriving from the Convention.^[100]

This wording became the principle underpinning the regulation of abortion by the ECtHR.

Thus, States Parties to the ECHR have a positive obligation to create a procedural framework enabling a pregnant woman to effectively exercise her right of access to lawful abortion.^[101] As a minimum, clear, accessible and foreseeable legislation; reliable and prompt information about access to abortion; sufficient involvement of women in the decisions being taken, and effective judicial remedies are required.^[102] Moreover, Open Door and Dublin Well Woman v Ireland established that the right to receive and impart information about abortion under the Article 10 right to freedom of expression is of crucial value to women, as it affects their health and well-being.^[103]

The ECtHR has generally conceptualised abortion as a battle between different sets of human rights and their holders.^[104] This conceptualization of human rights sees the legal and political world as a ‘market’ of rights, competitively asserted against other (market) actors.^[105] Conceptualizing human rights as inherently individualistic and competitive does not sit easily with women’s practical experience.^[106] Nor is the balance struck appropriately, especially given an emerging European consensus^[107] to the effect that the balance should fall in the woman’s favour, at least when either the grounds (such as a threat to the woman’s health) or where the requirements or conditions (such as in the early stages of pregnancy) for access to abortion are met.^[108]

Outside the ECtHR, the Council of Europe has adopted various resolutions with increasingly stronger language around abortion. In 2008, Parliamentary Assembly Resolution 1607 on Access to safe and legal abortion in Europe asserted that ‘abortion should not be banned within reasonable gestational limits’, and that ‘a ban on abortion does not result in fewer abortions but mainly leads to’ illegal abortions, that result in a number of adverse effects, such as increased maternal mortality, ‘abortion tourism’, and social inequalities.^[109] In the same vein, the Council of Europe’s Committee on Equal Opportunities for Women and Men invited Member States to decriminalize abortion, if they have not already done so; to guarantee women’s effective exercise of their right to abortion; and lift to restrictions which hinder, de jure or de facto, access to safe abortion.^[110]

While these initiatives lend further support to the position that access to abortion is a human right duly recognised in European contexts, none gives any practical assistance to women in Europe seeking to access abortion.

3.2.2 The European Union

An alternative approach to the human-rights focus, which is centered on the ECHR, has been explored by some scholars and activists.^[111] Counter-intuitively, it focuses not on women as human rights holders, but on women as economic actors, giving and receiving medical services. It frames women as exercising autonomy not against the state per se, but to secure access to or to provide medical treatment in a trade or professional context. Bringing this line of legal reasoning together with that involving the ECtHR involves conceptualizing transnational law as ‘private’ rather than ‘public’, although both conceptualizations can operate in tandem.^[112] It is an example of feminist activists pushing legal boundaries, revealing the hypocracies of law,^[113] but also its hidden potentialities.

The European Union (EU) comprises 27 ‘Member States’,^[114] which have agreed to a dense set of legally binding arrangements to create inter alia among them an ‘internal market’, in which the factors of production (including services) should circulate with the minimum restrictions consistent with the agreed rules.^[115] Three further European states^[116] also participate in the internal market, with a similar set of rules.^[117] EU law is unusual, because it creates not only obligations and rights for the EU’s Member States (which is normal for international law), but also rights for individual (economic) actors within the EU.^[118] What is particularly unusual about EU law is that those rights can - in certain circumstances - be directly enforced by individuals in their domestic courts. Furthermore, domestic courts can (and sometimes must) refer matters of interpretation of EU law to the Court of Justice of the European Union (CJEU).^[119] These qualities of EU law give it a particular potency, especially in the use of litigation to effect change.^[120] They set EU law apart from other systems of transnational law, such as WTO law, or bilateral trade agreements.

The law of the EU’s internal market, as interpreted by the CJEU, protects patient autonomy and choice, health professionals’ access to extra-jurisdictional patients, and also to some extent the principle of non-discrimination within the EU’s own human rights framework.^[121] It has taken some time to reach this position, as it was originally assumed by many governments and others that EU law did not apply to health services, because of the way in which health systems are organised in Europe, on the basis of solidarity rather than private relationships.

The steps taken to reach this legal position include establishing the following: (i) abortion is a ‘service’ in internal market law;^[122] (ii) electronic services in internal market law include medical consultations undertaken through a website;^[123] (iii) ‘remuneration’, which is necessary for something to constitute a ‘service’ in internal market law, may be provided by a third party;^[124] a service provider need not be seeking a profit to count as a service provider in internal market law;^[125] EU law gives enforceable rights^[126] to both providers and recipients of cross-border services;^[127] a ‘restriction’ on cross border services is very broadly construed;^[128] and justifications, which must be on the basis of objective public interests such as ‘public policy, in particular the prevention, investigation, detection and prosecution of criminal offences … public health … the protection of consumers’, or where the service presents a ‘serious and grave risk of prejudice to those objectives’,^[129] are narrowly construed.^[130]

The legal position now is that where health professionals are operating within the legal constraints of the jurisdiction in which they are established, any ‘restrictions’ on their ability to provide services to patients in other countries within the internal market must be carefully justified within EU law. The burden of proof lies with the Member State to justify a restrictive policy. Justification is only on a narrow set of grounds, and only where the restrictive policy or practice is proportionate to the public interest it seeks to protect.^[131] In principle, the service of abortion by telemedicine should be treated no different to any other medical service offered across an internal EU border in this regard. Any restrictions must be part of a ‘proportionate, consistent and evidence-based national law and policy, designed to achieve its stated objectives’.^[132] The approach here is very different from the wide ‘margin of discretion’ discussed above in the context of the ECtHR.

Some EU Member States permit telemedical abortion services. Austria, for example, requires a ‘personal and direct assessment of the patient’, but so long as this is carried out, the service can lawfully be provided to a patient in another country.^[133] For this reason, some organizations carry out their prescribing of abortion pills from Austria. Remote prescribing of abortion pills was seen as problematic in many jurisdictions, although the available medical evidence suggest that it carries very few risks - all the more so when considered alongside the risks associated with carrying an unwanted pregnancy to term,^[134] or travelling to procure an abortion.^[135] Hervey and Sheldon argued in 2017 that no justification based on health protection grounds preventing cross-border abortion services provided by an organization prescribing from Austria, would logically stand up to scrutiny in the CJEU, or by a national court of an EU Member State properly applying EU law.^[136] The COVID-19 pandemic has perhaps changed the narratives here to strengthen their view: remote consultation (in general) has been seen to be feasible, and legal changes in many European countries permitted women to take abortion pills at home, and manage the outcomes themselves, although still under the formal care of a health professional.^[137] Although a small group of outlier European countries restricted access to abortion under COVID-19,^[138] the overall normalization of remote consultation is likely to have an effect on the question of justification for policies that restrict access to abortion remotely, across an EU internal border. Where countries revert to pre-COVID rules, it will be harder to argue that a policy is proportionate on health grounds, given evidence that it did not cause disproportionate health problems during the COVID-19 pandemic.

If there is any available proportionate justification, argued Hervey and Sheldon, it would be on public policy grounds, concerning the moral status of the fetus. However, as they point out, this argument would in effect require a Member State to defend the very controversial position that a fetus is a human-rights-holder in EU law. That interpretation would be fundamentally incompatible with abortion law in almost every EU Member State/European country, and with the position of the European Court of Human Rights. It would also be difficult to defend as such a position would breach not only trade rights of the woman receiving the service, and the (often) woman providing it, but also their rights to respect for private and family life, integrity of the person, human dignity and so on. Arguably it would breach non-discrimination provisions, not only because only women,^[139] who are members of a protected category in European human rights law and in EU law, seek abortions, but also potentially because women with disabilities and in poverty are more likely to seek cross-border abortion services than women who are able to travel to another jurisdiction.

Attempts by strategic litigation to make use of this potential route to challenge restrictive European abortion laws have so far been unsuccessful. In part, this is because of the uncertainty of litigation as a strategy: in order succeed, such litigation would need to overcome not only the possibility of a Member State arguing that its law is justified on health or public policy grounds, but also the fact that this litigation would be based on the ‘quasi-constitutional’ provisions of the EU’s founding treaties, setting aside provisions of more technical EU legislation which provide that such legislation should not affect the prohibition of supply or use of abortifacients.^[140]

4.   Future/Direction of travel

While there are a series of important innovations happening on the ground, there is no room for complacency in an assessment of the future direction of travel of abortion laws in Europe.

In practice, the partial decriminalization or criminalization with exceptions model excludes many people across Europe from access to abortion. European human rights instruments are either empty rhetoric or the institutions interpreting and applying them adopt an extremely deferential approach to national positions. Coupled with anti-liberal reform movements, this deference is worrying: if national governments or legislatures move to more restrictive approaches, there will be no possibility to rely on European human rights standards to oppose such moves.^[141]

Women’s bodies have always been threatened by state institutions dominated by the medical profession. This is the case whether those states are moving towards or away from democratization and the rule of law. The contemporary European context is no different. Although European transnational trade law might help medical professionals to provide cross-border access to abortion pills for women in European countries where practical or legal access is restricted, the legal hurdles to be overcome here are significant. As in other contexts, assessing the strategic wisdom of deploying law to challenge patriarchal structures and to assert women’s autonomy is a complex, contested and fraught process, about which feminists express competing views. Using the law - norms that are carved out through the institutions that are made by and through the patriarchy - holds the danger of strengthening the very systems that have made women’s bodies subject to state interference and control in an unequal manner as compared to men’s bodies.

While these worrisome trends merit a high degree of vigilance,^[142] some steps have been taken that may be broadly positive for the future for abortion law in Europe. As we complete this chapter, 62 percent of Gibraltar’s citizens have voted ‘yes’ in a referendum intended to approved changes in the law that will allow abortions within the first 12 weeks of pregnancy if a woman’s mental or physical health is considered by a doctor to be at risk, or later in cases of severe fetal abnormality.^[143]  The European Parliament strongly condemed Poland on its de facto ban on abortion,^[144] and has adopted Resolution 2020/2215(INI) Sexual and reproductive health and rights in the EU, in the frame of women’s health, in which the Parliament urges all EU Member States to ensure universal access to safe and legal abortion.^[145]

Furthermore, the COVID-19 pandemic has profoundly disrupted health practice, forcing legal change in ways unimaginable before March 2020. Some legal changes have enhanced patient autonomy, especially those involving securing access to healthcare remotely. These changes could result in a move towards a different, less medicalized model for abortion law.^[146]

The landscape of European abortion laws is also the site of renewed efforts of advocacy, strategic litigation and interpretation of legal norms.^[147] We see increased commitment from legal scholars to analyze and challenge abortion laws, firmly positioning themselves as feminist scholars.^[148] Feminist legal activism is a productive disruptive force, challenging the dominant understandings about what is legally and practically possible, and wresting the tools of law from professional ‘ownership’, to force change for the better in women’s lives.^[149] Increased activism also happens outside of legal fields. Initiatives of transnational solidarity based on mutual aid, like Abortion Without Borders,^[150] and projects that make use of drones to deliver abortion medicines^[151] are also prime examples of the relentless activism of people determined to secure access to abortion across the continent.

European human rights and trade legal settlements offer at least potential opportunities for challenging the lived experience of access to abortion for women in Europe, even if they do not offer much of a platform for challenge to its fundamentally problematic orientation: that of criminalization of abortion unless it falls within a legal exception. Much more work is needed to establish stronger regional standards, expand access and ensure universal access to safe and legal abortion.^[152]

^[1] Quita Muis, Tim Reeskens and Inge Sieben, “Polarisering in Nederland: Opleidingsniveau als scheidslijn?”, Religie en Samenleving, 14, no 2 (2019): 124-143.

^[2] In this chapter, we use the socially-determined term ‘women’, rather than the biologically-determined term ‘pregnant person’, while acknowledging that men and gender non-conforming people may also need access to safe abortion. With notable exceptions such as Ireland, abortion laws still retain ‘women’ as the legal subjects, and the state of abortion access for men and gender non conforming people in Europe is still under-explored. Contrast this US study, Heidi Moseson, Laura Fix, Sachiko Ragosta, Hannah Forsberg, Jen Hastings, Ari Stoeffler, Mitchell R. Lunn, Annesa Flentje, Matthew R. Capriotti, Micah E. Lubensky, and Juno Obedin-Maliver, “Abortion experiences and preferences of transgender, nonbinary, and gender-expansive people in the United States”, American Journal of Obstetrics and Gynecology, 224, no 4 (2021): 376.e1-376.e11 or this one focusing on Argentina: Blas Radi, “Reproductive injustice, trans rights, and eugenics.” Sexual and reproductive health matters 28, no 1 (2020): 1824318. doi:10.1080/26410397.2020.1824318.

^[3] Council of Europe. 2017. Women’s Sexual and Reproductive rights in Europe. Available at <https://rm.coe.int/women-s-sexual-and-reproductive-health-and-rights-in-europe-issue-pape/168076dea>.

^[4] Silvia De Zordo, Joanna Mishtal and Lorena Anton, eds., A fragmented landscape: Abortion governance and protest logics in Europe (New York and Oxford: Berghahn Books, 2016), Bill Rolston and Anna Eggert, Abortion in the New Europe: A Comparative Handbook (Santa Barbara: Greenwood Press, 1994).

^[5] Lucía Berro Pizzarossa and Lorena Sosa, “Abortion laws: the Polish symptom of a European malady?” Ars Aequi (June 2021): 587.

^[6] Committee on Economic, Social and Cultural Rights, General Comment No. 22: Right to sexual and reproductive health (Article 12 of the Covenant), UN Doc. No. E/C.12/GC/22 (2016). Available at https://www.escr-net.org/resources/general-comment-no-22-2016-right-sexual-and-reproductive-health#_ftn12, paras 56 and 57.

^[7] Ibid, paras. 28, 34, 40 and 49 (a) and (e).

^[8] Committee on Economic, Social and Cultural Rights, General Comment No. 22: Right to sexual and reproductive health (Article 12 of the Covenant), UN Doc. No. E/C.12/GC/22 (2016). Available at https://www.escr-net.org/resources/general-comment-no-22-2016-right-sexual-and-reproductive-health#_ftn12,  para. 49; Committee on Economic, Social and Cultural Rights, 2020. General comment No. 25 (2020) on Science and economic, social and cultural rights Art. 15.1.b, 15.2, 15.3 and 15.4. UN Doc. E/C.12/GC/25.

^[9] Lucía Berro Pizzarossa and Patti Skuster, “Towards a human rights and evidence-based legal frameworks for (self-managed) abortion: a review of the last decade of legal reform” Health and Human Rights Journal 23, no 1, (June 2021) 199-212.

^[10] Lucía Berro Pizzarossa and Rishita Nandagiri, “Self-managed abortion: a constellation of actors, a cacophony of laws?” Sexual and Reproductive Health Matters 29, no 1 (2021): 1899764.

^[11] Centre for Reproductive Rights, 2021. “The World’s Abortion Laws”. Available at https://maps.reproductiverights.org/sites/default/files/WALM_2021update_V1.pdf.

^[12] Centre for Reproductive Rights. 2021. “European Abortion Law: A Comparative Overview” https://reproductiverights.org/european-abortion-law-comparative-overview-0/.

^[13] Ivana Tucak and Anita Blagojević, “Abortion in Europe”, EU and Comparative Law Issues and Challenges Series 4, (2020) 1135–1174. https://doi.org/10.25234/eclic/11943;  Federico Fabbrini, “The European Court of Human Rights, the EU Charter of Fundamental Rights and the right to abortion: Roe v. Wade on the other side of the Atlantic?” Columbia Journal of European Law, 18, no 1, (2011) 1-54.  See for example wording of Great Britain’s Abortion Act 1967 Section 1: “Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated...”.

^[14] Caroline Moreau, Mridula Shankar, Anna Glasier, Sharon Cameron and Kristain Gemzell-Danielsson, “Abortion regulation in Europe in the era of COVID-19: a spectrum of policy responses”  BMJ sexual & reproductive health (2020) https://doi:10.1136/bmjsrh-2020-200724. 

^[15] See, for example, Center for Reproductive Rights. World’s Abortion Laws Map. Available at https://maps.reproductiverights.org/worldabortionlaws.

^[16] World Health Organization. Global Abortion Policies Database. Available at https://abortion-policies.srhr.org. We use the WHO’s database that divides Europe in 4 regions (Southern, Northern, Eastern and Western) and includes 44 countries. We acknowledge other configurations exist but we decided to follow the database’s classification for simplicity and easy replicability of the analysis.

^[17] Fiona de Londras and Mairead Enright  Repealing the 8th: Reforming Irish Abortion Law (Bristol: Policy Press, 2018) https://library.oapen.org/handle/20.500.12657/30834; Mairead Enright, “ ‘The Enemy of the Good’: Reflections on Ireland’s New Abortion Legislation”  feminists@law, 8 no 2, (2018) https://doi.org/10.22024/UniKent/03/fal.658;

^[18] Ireland, Health (Regulation of Termination of Pregnancy) Act 2018. Available at https://abortion-policies.srhr.org/documents/countries/07-Ireland-Health-Regulation-of-Termination-of-Pregnancy-Act-2018.pdf.

^[19] Polish Constitutional Court, Dz.U.2021.175, reviewing Dz.U.1993.17.78, Article 4a, para 1 (2).

^[20] See for example, Government of Ireland, Health (Regulation of Termination of Pregnancy) Act (HRTPA), 2018, section 23 (No. 31 of 2018): “It is an offense (1) For a person, by any means whatsoever, to intentionally end the life of a foetus otherwise than in accordance with the provisions of this Act; (2) It shall be an offence for a person to prescribe, administer, supply or procure any drug, substance, … or other thing knowing/reckless whether it is used for abortion otherwise than in accordance with the provisions of this Act.”.

^[21] Lucía Berro Pizzarossa and Lorena Sosa, “Abortion laws: the Polish symptom of a European malady?” Ars Aequi (June 2021): 587.

^[22] World Health Organization. Global Abortion Policies Database. Available at https://abortion-policies.srhr.org. 

^[23] World Health Organization. Global Abortion Policies Database. Available at https://abortion-policies.srhr.org. 

^[24] Portaria No 741-A/2007 and Lei No 16/2007 (Termination of Pregnancy Act) 2007, Article 8 and Annex II.

^[25] Code de la santé publique (Public Health Code) 2013, Article L2212-1.

^[26] Law on the Basics of Health Protection of the Citizens, Article 55.

^[27] Strafgesetzbuch (Criminal Code) section 97 (1).

^[28] Law on Abortion 1975,

^[29] World Health Organization. Global Abortion Policies Database. Available at https://abortion-policies.srhr.org.

^[30] German Criminal Code, section 218a (1) StGB  Available at https://abortion-policies.srhr.org/documents/countries/01-GERMANY-PENAL-CODE-2015.pdf.

^[31] European Parliamentary Forum for Sexual & Reproductive Rights and IPPF European Network, Sexual and Reproductive Rights during the COVID‐19 pandemic (2020) https://www.ippfen.org/sites/ippfen/files/2020-04/Sexual%20and%20Reproductive%20Health%20during%20the%20COVID-19%20pandemic.pdf. 

^[32] World Health Organization. Global Abortion Policies Database. Available at https://abortion-policies.srhr.org.

^[33] Center for Reproductive Rights, Mandatory waiting periods and biased counselling requirements in Central and Eastern Europe (Genève: CRR, 2015).

^[34] Mechteld Visser, et al, Evaluatie Wet afbreking zwangerschap (Enschede: PrintPartners Ipskamp, 2005), Available at http://anr-dpn.vjf.cnrs.fr/sites/default/files/%C3%A9valuation%20%20avortement.pdf.  

^[35] See, for example, NL Times, “ChristenUnie wants five-day mandatory reflection period before abortion, even in case of rape” March 2021, Available at https://nltimes.nl/2021/03/06/christenunie-wants-five-day-mandatory-reflection-period-abortion-even-case-rape.

^[36] World Health Organization. Global Abortion Policies Database. Available at https://abortion-policies.srhr.org.

^[37] UK Secretary for Health and Social Care, Decision: Temporary approval of home use for both stages of early medical abortion. (19 July 2021), Available at: https://www.gov.uk/government/publications/temporary-approval-of-home-use-for-both-stages-of-early-medical-abortion--2.

^[38] Neva Bojovic, Jovana Stanisljevic, Guido Guinti, “The impact of COVID-19 on abortion access: Insights from the European Union and the United Kingdom” Health Policy 125, no. 7 (2021) 841-858 https://doi: 10.1016/j.healthpol.2021.05.005.

^[39] Criminal Code, Article 296.

^[40] Under the Wet Afbreking Zwangerschap (Termination of Pregnancy Act) 1981.

^[41] Criminal Code, Article 296 (5).

^[42] See news report of the case of access to abortion during COVID19 here https://www.vnva.nl/nieuws/algemeen/request-to-dutch-minister-to-guarantee-access-to-abortion-care-during-the-covid-19-measures/.

^[43] Neva Bojovic, Jovana Stanisljevic, Guido Guinti, “The impact of COVID-19 on abortion access: Insights from the European Union and the United Kingdom” Health Policy 125, no. 7 (2021) 841-858 https://doi: 10.1016/j.healthpol.2021.05.005.

^[44] World Health Organization. Global Abortion Policies Database. Available at https://abortion-policies.srhr.org.

^[45]Lucía Berro Pizzarossa and Rishita Nandagiri, “Self-managed abortion: a constellation of actors, a cacophony of laws?” Sexual and Reproductive Health Matters 29, no 1 (2021): 1899764.

^[46] Ireland, Health (Regulation of Termination of Pregnancy) Act 2018, section 23.

^[47] World Health Organization. Global Abortion Policies Database. Available at https://abortion-policies.srhr.org.

^[48] Spain, Ley Orgánica 11/2015. Available at https://www.boe.es/diario_boe/txt.php?id=BOE-A-2015-10141.

^[49] El Diario, “La ONU recomienda al Gobierno que no modifique la ley del aborto para las chicas de 16 años” (19 December 2014) Available at https://www.eldiario.es/sociedad/expertas-onu-recomiendan-gobierno-modifique_1_4455131.html.

^[50] Alejandro Ortega, “¿Qué dice la reforma de la ley del aborto del 2015 que quiere derogar Irene Montero?” La Razon, 7 October 2020. Available at https://www.larazon.es/espana/20201007/cme2oncstzfndocfoo4mpw3bvu.html.

^[51] Sam Rowlands  and Kevin Thomas, “Mandatory waiting periods before abortion and sterilization: Theory and practice” International Journal of Women's Health, 12, (2020) 577-586, https://doi.org/10.2147/IJWH.S257178.

^[52] Lula Mecinska, Carolyne James and Kate Mukungu, “Criminalization of Women Accessing Abortion and Enforced Mobility within the European Union and the United Kingdom”, Women & Criminal Justice, 30 no 5,  (2020) 391-406, https://doi.org/10.1080/08974454.2020.1758868.

^[53] Center for Reproductive Rights, Addressing Medical Professionals’ Refusals to Provide Abortion Care on Grounds of Conscience or Religion: European Human Rights Jurisprudence on State Obligations to Guarantee Women’s Access to Legal Reproductive Health Care (Geneva: Center for Reproductive Rights, 2018) https://reproductiverights.org/sites/default/files/documents/GLP_Refusals_FS_Web.pdf.

^[54] Francesca Minerva, “Conscientious objection in Italy” Journal of Medical Ethics, 41, no 2 (2015) 170-173; Elena Caruso, “The Ambivalence of Law: some observations on the denial of access to abortion services in Italy” Feminist Review 124, (2020) 183–219 .

^[55] Marwan Habiba, et al, “Late termination of pregnancy: a comparison of obstetricians’ experience in eight European countries” BJOG: An International Journal of Obstetrics & Gynaecology, 116 no 10, (2009) 1340-1349.

^[56] For  review of abortion travels in Europe, see https://europeabortionaccessproject.org.

^[57] Fiona Bloomer and Kellie O’Dowd, “Restricted access to abortion in the Republic of Ireland and Northern Ireland: exploring abortion tourism and barriers to legal reform” Culture, health & sexuality 16 no 4 (2014) 366-380.

^[58] Ben Kasstan and Sarah Crook, “Reproductive rebellions in Britain and the Republic of Ireland: Contemporary and past abortion activism and alternative sites of care” Feminist Encounters: A Journal of Critical Studies in Culture and Politics 2 no 2, (2018) 1-16.

^[59] Sydney Calkin, “Healthcare not airfare! Art, abortion and political agency in Ireland” Gender, Place & Culture 26, no 3 (2019) 338-361; Sally Sheldon, “How can a state control swallowing? The home use of abortion pills in Ireland”  Reproductive Health Matters 24, no 48 (2016) 90-101.

^[60] BBC, “Covid: Locked-down women turn to pills amid Malta abortion ban” 9 January 2021. Available at https://www.bbc.com/news/world-europe-55579339.  

^[61] In the Netherlands, the law allows for abortions to happen until the 24th week, but in reality abortions are performed until 21 weeks 6 days. See, for example, Volksrant, “Zij moest naar Belgie  voor de abortus van haar ernstig gehandicapte kind, omdat artsen verzwegen dat het ook in Nederland kon” 5 June 2021. Available at:  https://www.volkskrant.nl/nieuws-achtergrond/zij-moest-naar-belgie-voor-de-abortus-van-haar-ernstig-gehandicapte-kind-omdat-artsen-verzwegen-dat-het-ook-in-nederland-kon~b741c8ed/.

^[62] Abortion Without Borders. Press release, 2021. Available at: https://www.asn.org.uk/press-release-abortion-without-borders-helps-more-than-17000-with-abortion-in-six-months-after-polish-constitutional-court-ruling/.

^[63] Tamara Hervey and Sally Sheldon, “Abortion by Telemedicine in Northern Ireland: patient and professional rights across borders” Northern Ireland Law Quarterly 68 no 1, (2017) 1-33; Federico Fabbrini, “The European Court of Human Rights, the EU Charter of Fundamental Rights and the right to abortion: Roe v. Wade on the other side of the Atlantic?” Columbia Journal of European Law, 18, no 1, (2011) 1-54.

^[64] Lucía Berro Pizzarossa and Lorena Sosa, “Abortion laws: the Polish symptom of a European malady?” Ars Aequi (June 2021): 587.

^[65] Aart Hendriks, “Promotion and Protection of Women's Right to Sexual and Reproductive Health under International Law: The Economic Covenant and the Women's Convention Conference on the Interventional Protection of Reproductive Rights: The Right to Health” American University Law Review, 44 no 4, (1995) 1123-1144.

^[66] Sally Sheldon, “The decriminalisation of abortion: An argument for modernisation” Oxford Journal of Legal Studies 36 no 2 (2016): 334-365.

^[67] Lucía Berro Pizzarossa and Patti Skuster, “Towards a human rights and evidence-based legal frameworks for (self-managed) abortion: a review of the last decade of legal reform” Health and Human Rights Journal 23, no 1, (June 2021) 199-212.

^[68] Ireland, Health (Regulation of Termination of Pregnancy) Act 2018. Available at https://abortion-policies.srhr.org/documents/countries/07-Ireland-Health-Regulation-of-Termination-of-Pregnancy-Act-2018.pdf.

^[69] Abortion Rights Campaign, Abortion law in Ireland. Available at https://www.abortionrightscampaign.ie/abortion-law-in-ireland/.

^[70]  United Kingdom. Department of Health and Social care. National Statistics Abortion Statistics, England and Wales: 2020. 10 June 2021. Available at https://www.gov.uk/government/statistics/abortion-statistics-for-england-and-wales-2020/abortion-statistics-england-and-wales-2020.

^[71] Sydney Calkin, “Transnational abortion pill flows and the political geography of abortion in Ireland” Territory, Politics, Governance (2020): 1-17.

^[72] Fiona De Londras, “ ‘A hope raised and then defeated’? The continuing harms of Irish abortion law” Feminist Review 124 no 1 (2020): 33-50.

^[73] Lucía Berro Pizzarossa and Lorena Sosa, “Abortion laws: the Polish symptom of a European malady?” Ars Aequi (June 2021): 587.

^[74] https://rm.coe.int/women-s-sexual-and-reproductive-health-and-rights-in-europe-issue-pape/168076dea.

^[75] Human Rights Monitoring Institute, “Lithuanian Parliament To Debate Abortion Ban” 2018. Available at https://hrmi.lt/en/seimo-zmogaus-teisiu-komitete-kelia-skinasi-siulymas-drausti-abortus/; Reuters, “Thousands Protest in Norway against Restricting Abortion” 17 November 2018. Available at: https://www.reuters.com/article/us-norway-politics-abortion/thousands-protest-in-norway-against-restricting-abortion-idUSKCN1NM0HR; The Guardian, “Spain abandons plan to introduce tough new abortion laws” 23 September 2014. Available at https://www.theguardian.com/world/2014/sep/23/spain-abandons-plan-introduce-tough-new-abortion-laws.

^[76] Julia Hussein, Jane Cottingham, Wanda Nowicka and Eszter Kismodi, “Abortion in Poland: politics, progression and regression” Reproductive Health Matters 26 no 52 (2018) 11-14.

^[77] Act on the Conditions of Lawful Pregnancy Termination 1956, Dz.U.1956.12.61.

^[78] Atina Krajewska, “Rupture and Continuity: Abortion, the Medical Profession, and the Transitional State -  A Polish Case Study” Feminist Legal Studies (2021) https://doi.org/10.1007/s10691-021-09465-3.

^[79] Atina Krajewska, “Rupture and Continuity: Abortion, the Medical Profession, and the Transitional State -  A Polish Case Study” Feminist Legal Studies (2021) https://doi.org/10.1007/s10691-021-09465-3.

^[80] Dz.U.1993.17.78.

^[81] Dz.U.1993.17.78, Article 4a (1) and (5).

^[82] Dz.U.1993.17.78, Article 4a (3).

^[83] Dz.U.1996.139.646; TK K 26/96, OTK 1997/2/19. 

^[84] Decision 1/21 Polish Constitutional  Court. Dz.U.2021.175. The provision under review, Dz.U.1993.17.78, Article 4a para 1 (2) had decriminalized abortion in cases where there was ‘a medical indication that there existed a high risk that the foetus would suffer severe and irreversible impairment or an incurable illness that could threaten its life’.

^[85] Atina Krajewska, “Connecting Abortion, Democracy and the Rule of Law” German Law Journal forthcoming 2021.

^[86] Atina Krajewska, “Connecting Abortion, Democracy and the Rule of Law” German Law Journal forthcoming 2021; Atina Krajewska, “The judgment of the Polish Constitutional Tribunal on abortion: a dark day for Poland, for Europe, and for democracy” UK Constitutional Law Association blog 12 November 2020 https://ukconstitutionallaw.org/2020/11/12/atina-krajewska-the-judgment-of-the-polish-constitutional-tribunal-on-abortion-a-dark-day-for-poland-for-europe-and-for-democracy/; Atina Krajewska, ‘Recent changes of abortion law in Poland: in search of a silver lining’ Social & Legal Studies Blog 23 November 2020 https://socialandlegalstudies.wordpress.com/2020/11/23/abortion-law-in-poland/.

^[87] See for instance: Ordo Juris, involved in the drafting of the 2016 ban. http://en.ordoiuris.pl/.

^[88] Atina Krajewska, “Connecting Abortion, Democracy and the Rule of Law” German Law Journal forthcoming 2021.

^[89] Inga Koralewska and Katarzyna Zielińska, “ ‘Defending the unborn’,‘protecting women’and ‘preserving culture and nation’: anti-abortion discourse in the Polish right-wing press” Culture, Health & Sexuality, (2021) https://doi.org/10.1080/13691058.2021.1878559.

^[90] Elżbieta Korolczuk, “The fight against ‘gender’ and ‘LGBT ideology’: new developments in Poland” European Journal of Politics and Gender, 3 no 1, (2020) 165-167.

^[91] The Council of Europe was set up on 5 May 1949 by 10 countries (Belgium, Denmark, France, Ireland, Italy, Luxembourg, Netherlands, Norway, Sweden, United Kingdom), joined by Greece and Turkey in August 1949. It now has 47 member states : Iceland and Germany (1950), Austria (1956), Cyprus (1961), Switzerland (1963), Malta (1965), Portugal (1976), Spain (1977), Liechtenstein (1978), San Marino (1988), Finland (1989), Hungary (1990), Poland (1991), Bulgaria (1992), Estonia, Lithuania, Slovenia, the Czech Republic, Slovakia, Romania (1993), Andorra (1994), Latvia, Albania, Moldova, Ukraine, ‘the former Yugoslav Republic of Macedonia’ (1995), Russian Federation and Croatia (1996), Georgia (1999), Armenia and Azerbaijan (2001), Bosnia and Herzegovina (2002), Serbia (2003), Monaco (2004), Montenegro (2007).

^[92] International Planned Parenthood Federation – European Network (IPPF EN) v. Italy, complaint No. 87/2012, decision on the merits of 10 September 2013, paragraph 66.

^[93] Vo v France 8 July 2004 paragraphs 82 and 85.

^[94] Daniel Fenwick, “The modern abortion jurisprudence under Article 8 of the European Convention on Human Rights” Medical Law International, 12 no 3-4 (2012) 249-276.

^[95] Ivana Tucak and Anita Blagojević, “Abortion in Europe”, EU and Comparative Law Issues and Challenges Series 4, (2020) 1135–1174. https://doi.org/10.25234/eclic/11943; Federico Fabbrini, “The European Court of Human Rights, the EU Charter of Fundamental Rights and the right to abortion: Roe v. Wade on the other side of the Atlantic?” Columbia Journal of European Law, 18, no 1, (2011) 1-54; Daniel Fenwick, “ ‘Abortion Jurisprudence’ at Strasbourg: Deferential, Avoidant and Normatively Neutral?” Legal Studies 34, no. 2, (2014) 214-245.

^[96] A., B. & C v. Ireland, ECHR (Grand Chamber), 16 December 2010, Application 25579/05, paragraph 249.

^[97] Janneke Gerards, “Margin of appreciation and incrementalism in the case law of the European Court of Human Rights” Human Rights Law Review, 18 no 3, (2018) 495-515; Steven Greer, The margin of appreciation: interpretation and discretion under the European Convention on Human Rights. (Strasbourg: Council of Europe, 2000).

^[98] Daniel Fenwick, “The modern abortion jurisprudence under Article 8 of the European Convention on Human Rights” Medical Law International, 12 no 3-4 (2012) 249-276.

^[99] A., B. & C v. Ireland, ECHR (Grand Chamber), 16 December 2010, Application 25579/05, paragraph 214 and P and S v. Poland, ECHR (Fourth Section), 30 October 2012, Application 57375/08, paragraph 96.

^[100]  A. B. and C. v. Ireland paragraph 249; R. R. v. Poland paragraph 187; P and S v. Poland, ECHR (Fourth Section), 30 October 2012, Application 57375/08, paragraph 99; see also Tysiac v. Poland, ECHR (Forth Section), 20 March 2007, Application 5410/03, paragraph 116.

^[101] P and S v. Poland, ECHR (Fourth Section), 30 October 2012, Application 57375/08, paragraph 99 and Tysiac v. Poland, ECHR (Fourth Section), 20 March 2007, Application 5410/03, paragraphs 116 to 124.  

^[102] Janneke Gerards, “Margin of appreciation and incrementalism in the case law of the European Court of Human Rights” Human Rights Law Review, 18 no 3, (2018) 495-515.

^[103] Open Door and Dublin Well Woman v. Ireland, paragraphs 63-80.

^[104] Nicola Lacey, “Feminist Legal Theory and the Rights of Women” in Karen Knop, ed, Gender and Human Rights (Oxford: Oxford University Press, 2004).

^[105] Nicola Lacey, “Feminist Legal Theory and the Rights of Women” in Karen Knop, ed, Gender and Human Rights (Oxford: Oxford University Press, 2004).

^[106] Stephanie Palmer, Feminism and the promise of human rights: Possibilities and paradoxes in Susan James and Stephanie Palmer, eds, Visible women: Essays on feminist legal theory and political philosophy (Oxford: Hart Publishing, 2002).

^[107] Spyridoula Katsoni, “The Right to Abortion and the European Convention on Human Rights: In Search of Consensus among Member-States”, Völkerrechtsblog, 19.03.2021, https://doi:10.17176/20210319-085654-0.

^[108] Elizabeth Wicks, “A, B, C v Ireland: Abortion Law under the European Convention on Human Rights” Human Rights Law Review 11 no 3 (2011) 556-566.

^[109] Resolution 1607 (2008), Access to safe and legal abortion in Europe, Available at: http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=17638.

^[110] Available at : https://pace.coe.int/pdf/828b7ea5d2ec797aab752ff546aa3cd52aa965dcaca3765a25c8ebe2e3ca924e/doc.%2011576.pdf.

^[111] See Tamara Hervey and Sally Sheldon, “Abortion by Telemedicine in Northern Ireland: patient and professional rights across borders” Northern Ireland Law Quarterly 68 no 1, (2017) 1-33; Laura Robinson, Women’s Right to Choose in EU Law, University of Sheffield. Available at: https://www.sheffield.ac.uk/sure/301/casestudies.

^[112] See Atina Krajewska, “Transnational Health Law Beyond the Private/Public Divide: The Case of Reproductive Rights”, Journal of Law and Society, 45 no S1, (2018) S220-S244.

^[113] See, eg, Mairead Enright, Kathryn McNeilly, Fiona de Londras, “Abortion activism, legal change, and taking feminist law work seriously” Northern Ireland Law Quarterly 71 no 3 (2020) OA7-OA33; Ruth Fletcher, “Abortion Needs or Abortion Rights? Claiming State Accountability for Women’s Reproductive Welfare” Feminist Legal Studies 13 no 1, (2005) 123-134.

^[114] The original six Member States (Belgium, France, Germany, Italy, Luxembourg, Netherlands) were joined by Denmark, Ireland and the United Kingdom in 1973. Further expansions in 1980 (Greece), 1986 (Portugal, Spain), 1995 (Austria, Finland, Sweden), 2004 (Cyprus, Czechia, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, Slovenia), 2007 (Bulgaria, Romania) and 2013 (Croatia). The United Kingdom left the European Union in 2020.

^[115] Treaty on European Union Official Journal C 202 7.6.2016, p. 13-361; Treaty on the Functioning of the European Union Official Journal C 326, 26.10.2012, p. 47–390. This aspect of EU law is a little bit like the US ‘Commerce Clause’.

^[116] Iceland, Liechtenstein, Norway.

^[117] Agreement on the European Economic Area, Available at: https://eur-lex.europa.eu/legal-content/DE/TXT/?uri=OJ:L:1994:001:TOC.

^[118] Case 26/62 Van Gend en Loos ECLI:EU:C:1963:1.

^[119] Article 267 TFEU.

^[120] R Daniel Keleman, Eurolegalism: The Transformation of Law and Regulation in the European Union (Cambridge: Harvard University Press, 2011).

^[121] Tamara Hervey and Sally Sheldon, “Abortion by Telemedicine in Northern Ireland: patient and professional rights across borders” Northern Ireland Law Quarterly 68 no 1, (2017) 1-33, at 4. See, in general, for discussion of EU law as applicable in health contexts, Tamara Hervey and Jean McHale, European Union Health Law: Themes and Implications (Cambridge: Cambridge University Press, 2015).

^[122] Case C-159/90 SPUC v Grogan EU:C:1991:378.

^[123] Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (E-Commerce Directive) OJ 2000 L 178/1, Article 1 (2), 2(a), referring to Directive 98/43/EC, Article 1 (2).

^[124] Case 352/85 Bond van Adverteerders EU:C:1988:196.

^[125] Case C-281/06 Jund EU:C:2007:816.

^[126] Case 33/74 Van Binsbergen EU:C:1974:131.

^[127] Joined Cases 286/82 & 26/83 Luisi and Carbone EU:C:1984:35.

^[128] A ‘restriction’ in this context covers “any national rules which have the effect of making the provision of services between Member States more difficult than the provision of services purely within a Member State”, see Case C-444/05 Stamatelaki EU:C:2007:231, paragraph 25. See Tamara Hervey and Jean McHale, European Union Health Law: Themes and Implications (Cambridge: Cambridge University Press 2015) 77-83; Wouter Gekiere, Rita Baeten and Willy Palm, ‘Free Movement of Services in the EU and Health Care’ in Elias Mossialos, Govin Permanand, Rita Baeten and Tamara Hervey (eds) Health Systems Governance in Europe: The Role of European Union Law and Policy (Cambridge: Cambridge University Press, 2010); Leigh Hancher and Wolf Sauter, EU Competition and Internal Market Law in the Healthcare Sector (Oxford: Oxford University Press, 2012).

^[129] Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (E-Commerce Directive), Article 3 (4).

^[130] This is a long-established principle of EU law, see Case 71/76 Thieffry EU:C:1977:65; Case 340/89 Vlassopoulou EU:C:1991:193 and is also enshrined in EU legislation, see Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications [2005] OJ L255/22.

^[131] In Case C-137/09 Josemans EU:C:2010:774, paragraph 70, ‘a restrictive measure can be considered to be suitable for securing the attainment of the objective pursued only if it genuinely reflects a concern to attain that objective in a consistent and systematic manner’.  The CJEU adopts a strict scrutiny of public morality as an objective public interest justifying restrictions on free movement of services or goods, with particular care to decline to accept any double standards, see, eg, Case 121/85 Conegate EU:C:1986:114 concerning import of sex toys, and Cases 115&116/81 Adoui and Cornuaille EU:C:1982:183 and Case C-268/99 Jany and Others EU:C:2001:616 concerning prostitution.

^[132] Tamara Hervey and Sally Sheldon, “Abortion by Telemedicine in Northern Ireland: patient and professional rights across borders” Northern Ireland Law Quarterly 68 no 1, (2017) 1-33, at 21.

^[133] See UVS 30.1.2012, UVS-06/0/2829/2010-23, cited in Tamara Hervey and Sally Sheldon, “Abortion by Telemedicine in Northern Ireland: patient and professional rights across borders” Northern Ireland Law Quarterly 68 no 1, (2017) 1-33, at note 65.

^[134] MBRRACE-UK, Saving Lives, Improving Mothers’ Care 2020: Lessons to inform maternity care from the UK and Ireland Confidential Enquiries in Maternal Death and Morbidity 2016-18 (Oxford: Nuffield Department of Population Health, 2021).

^[135] See, for example, the observations of the UN Human Rights Committee on the ICCPR in its views on communication No. 2324/2013, concerning Amanda Jane Mellet, CCPR/C/116/D/2324/2013, at paragraph 7.5 (p 16) to the effect that ‘many of the negative experiences described that she went through could have been avoided if the author had not been prohibited from terminating her pregnancy in the familiar environment of her own country’ https://www.ohchr.org/Documents/Issues/Women/WRGS/Mellet_v_Ireland.pdf.

^[136] Tamara Hervey and Sally Sheldon, “Abortion by Telemedicine in Northern Ireland: patient and professional rights across borders” Northern Ireland Law Quarterly 68 no 1, (2017) 1-33, at 21-23.

^[137] Neva Bojovic, Jovana Stanisljevic, Guido Guinti, “The impact of COVID-19 on abortion access: Insights from the European Union and the United Kingdom” Health Policy 125, no. 7 (2021) 841-858 https://doi: 10.1016/j.healthpol.2021.05.005.

^[138] Poland being one of these, see Atina Krajewska, “Connecting Abortion, Democracy and the Rule of Law” German Law Journal forthcoming 2021.

^[139] We acknowledge here that some trans men or gender non binary people might seek an abortion, but would argue that they are also in a protected group.

^[140]  Article 4 (4) Directive 2001/83/EC, OJ L 311, 28.11.2001, p. 67

^[141]  Every report adopted by the European Parliament was met with great opposition from actors like Citizen Go. For example, this organization collect­ed nearly 60,000 signatures against the Tarabella re­port on equality between women and men in the European Union. CitizenGO, Stop Tarabella relaunching Estrela! No EU support to abortion. Available at: https://citizengo.org/en/15605-protection-subsidiarity-and-no-eu-support-abortion.

^[142] See Elena Zacharenko, Anti-gender mobilisations in Europe Study for policy makers on opposition to sexual and reproductive health and rights (SRHR) in European institutions (Brussels: European Parliament Green Parties, 2020) Available at: https://heidihautala.fi/wp-content/uploads/2020/12/Anti-gender-Mobilisations-in-Europe_Nov25.pdf and  Borbála Juhász and Enikő Pap,  Study on Backlash on Gender Equality and Women’s and Girls’ Rights, (Brussels: European Parliament FEMM Committee, 2018) Available at: https://www.europarl.europa.eu/RegData/etudes/STUD/2018/604955/IPOL_STU(2018)604955_EN.pdf.

^[143] https://www.nytimes.com/2021/06/24/world/europe/gibraltar-abortion-law.html.

^[144] European Parliament resolution of 26 November 2020 on the de facto ban on the right to abortion in Poland (2020/2876(RSP)) - https://www.europarl.europa.eu/doceo/document/TA-9-2020-0336_EN.html.

^[145] European Parliament resolution of 24 June 2021 on the situation of sexual and reproductive health and rights in the EU, in the frame of women’s health (2020/2215(INI)). https://www.europarl.europa.eu/doceo/document/TA-9-2021-0314_EN.html.

^[146] Mariana Prandini Assis and Sara Larrea. “Why self-managed abortion is so much more than a provisional solution for times of pandemic” Sexual and Reproductive Health Matters 28, no. 1 (2020): 1779633.

^[147] Silvia De Zordo, Joanna Mishtal and Lorena Anton, “Introduction” in Silvia De Zordo, Joanna Mishtal and Lorena Anton, eds., A fragmented landscape: Abortion governance and protest logics in Europe (New York and Oxford: Berghahn Books, 2016).

^[148] Fiona Bloomer, Claire Pierson and Sylvia Estrada Claudio, Reimagining global abortion politics: A social justice perspective (Bristol: Policy Press, 2020).

^[149] Mairead Enright, Kathryn McNeilly, Fiona de Londras, “Abortion activism, legal change, and taking feminist law work seriously” Northern Ireland Law Quarterly 71 no 3 (2020) OA7-OA33, at OA12; see also Ruth Fletcher, “Abortion Needs or Abortion Rights? Claiming State Accountability for Women’s Reproductive Welfare” Feminist Legal Studies 13 no 1, (2005) 123-134.

^[150] https://abortion.eu.

^[151] Melanie Ehrenkranz, ‘Activists use Robots to send Abortion Pills to Northern Ireland Gizmodo 30 May 2018 Available at: https://gizmodo.com/activists-are-using-robots-to-send-abortion-pills-to-no-1826432802  and Doctors for Choice, Malta, see https://www.facebook.com/Drs4ChoiceMalta/posts/1063913324143656.

^[152] European Parliament Resolution of 24 June 2021 on the situation of sexual and reproductive health and rights in the EU, in the frame of women’s health (2020/2215(INI)). https://www.europarl.europa.eu/doceo/document/TA-9-2021-0314_EN.html.

En-gendering Democracy; Advancing Reproductive Justice

The Legalization of Abortion in Argentina[1]

Alicia Ely Yamin[2] & Agustina Ramón Michel[3]

<a>Introduction

In the early hours of 30 December 2020, tears of joy, mixed with relief, and cheers erupted outside the Congress in Buenos Aires, Argentina, and across the country in public plazas and private living rooms alike. The Senate had passed Law 27.610[4] after having been approved by the Chamber of Deputies some weeks earlier. The landmark Law 27.610 legalized abortion to the 14th week of pregnancy and thereafter under certain circumstances thereafter threats to life/health; and rape. Together with the abortion law, Senators also passed a bill known colloquially as the ‘1,000-Day Plan,’ which would provide more comprehensive and quality healthcare and social support for pregnant women and mothers of young children.

The context could not have been stranger, given the COVID-19 pandemic restricting the people's movement, coupled with a crippling economic crisis. Many had given up on 2020, doubting whether abortion could be a priority given the situation. But in December 2020, newly-elected President Alberto Fernández (Frente de Todos party) sent to Congress a draft of the Law on Legal Interruption of Pregnancy, thus fulfilling a promise made in his electoral campaign.[5] The Argentine feminist movement had successfully pushed the new government to honor its declared commitment to legalize ‘voluntary interruption of pregnancy’ (interrupción voluntaria del embarazo, IVE, for its acronym in Spanish), and multi-party collaboration in the highly polarized legislature had made Argentina the largest country in Latin America to legalize elective abortion.[6]

In a still heavily Catholic country with increasing presence of evangelical Christians situated in a region that has historically had some of the most restrictive laws in the world, abortion had long been a taboo subject in Argentina. Abortion also rested on various fault lines in a country faced with re-constructing democratic institutions and practices: between private morality and public policy; between political agendas and judicial review; between deference to medical authority and reproductive agency; and between social development and individual autonomy. Thus, it is unsurprising that the achievement of this law came at the end of a long and winding road: since Argentina’s return to democracy in 1983, 149 bills on abortion were introduced in Congress before Law 27.610 was finally passed.

Until 2020, like most Latin American countries, Argentina’s penal code provided exceptions for criminalization of abortion on the grounds of risk to the life or health of the pregnant woman or rape.[7] The Argentine Congress was relatively liberal when it introduced this model of exceptions or indications in 1921 in Article 86 of the federal Criminal Code. At the time, most European countries had a total ban on abortion.[8] Nonetheless, the default of prohibition in a conservative Catholic context led to a web of informal rules and institutional practices that chilled the possibility of gaining access even when they met legal indications, which contributed to high numbers of unsafe abortions, as well as to profound stigma around abortion.[9] 

At a time when COVID-19 has spurred broader public reflection on the connections between population health, human rights, and democracy and countries across the world face backlash against sexual and reproductive rights (SRR), the Argentine case offers critical insights regarding strategies to promote more gender-just and democratic post-pandemic futures. It also contributes to both broadening and deepening our understanding of effective use of rights for progressive social transformation in health and beyond. Despite the proliferation of so-called ‘human rights-based approaches to health’ (HRBAs) over the last decade or more, there remains contestation over the meaning of these frameworks, as well as the ways to assess the impacts of these strategies in sexual and reproductive health (SRH) and beyond. Here we suggest the inherent complexities of using rights to advance reproductive justice require thick culturally and socio-historically grounded understandings in addition to assessments of formal norm change. The Argentine story reveals a constructivist process whereby universal rights in international law were adapted, used, and internalized by an array of different actors over time.

This chapter proceeds as follows. In Part 1, we draw on socio-legal scholarship as well as emerging accounts in legal experimentalist literature to set out a framework for understanding how deploying human rights in even the most contested arenas of SRH can produce transformative social change. In Part 2, we set out the socio-historical context for the struggle for abortion rights in Argentina, emphasizing shifting opportunities and barriers over time in relation to key actors, legislative precedents, and normative frameworks at both national and international levels. In Part 3, focusing on the fifteen years preceding the passage of Law 27.610 since the National Campaign for Legal, Safe and Free Abortion was formed, we explore in greater depth the massive social mobilizations, critical judicial decisions, the weaving of cross-party alliances in Congress, and the significant relationships between different actors, including lawyers and health providers, and between the formal and informal systems of service provision. We conclude that the Argentine case confirms the importance of understanding sexual and reproductive rights (SRR), and human rights more broadly, in experimentalist terms, as Gráinne de Búrca argues: ‘as the product of ongoing interaction and contestation between an array of actors, institutions and norms,’ including the claims and demands of people affected and the international normative standards and domestic institutions which reinforce and support claims.[10]

1.      A Dialectical and Constructivist Process with Multiple Impacts

There is an abundance of socio-legal, anthropological, and other literature regarding the impacts of ratification of international human rights treaties and on how rights create change. The responses of course vary across repressive regimes as well as the kinds of rights at issue, as advancing ‘classic’ civil rights follow different trajectories than the social norm transformation that occurs with issues such as SRH. Nonetheless, in the general human rights literature there are broadly two competing understandings of how human rights function to effect social change. Two general interpretations might be characterized as the ‘international’ top-down model, which places substantial weight on the role of international norms and international actors in pressuring governments for compliance.[11] Others, such as Beth Simmons, have argued that it is ‘bottom-up’ domestic activism that generates ideational change through persuasion and in turn leads to political and institutional change.[12] On the other hand, more recent literature in socio-legal scholarship and legal experimentalism suggests that the process is far messier and more dialectical than either of these two general models suggests.[13] As de Búrca writes, ‘the human rights project is a dynamic one, which is activated, shaped, and given its meaning and impact through the ongoing mobilization of affected populations, groups and individuals, and through their iterative engagement with an array of domestic and international processes over time.’[14]

Addressing these questions take on heightened importance in global health, and sexual and reproductive health and rights (SRHR) in particular, as a top-down approach to implementing ‘HRBAs’ and measuring their impacts have become widespread at the intersections of global health, development and human rights. By contrast, we argue here that the normative force as well as social legitimacy of human rights comes from the messy process whereby rights are made real in people’s lives, whereby rights are not complementary to social justice struggles but are central animating forces as well as key tools in these struggles. In turn, measuring impacts of using rights calls for looking beyond legal and regulatory change in the abstract to understand how rights get metabolized and reshaped within institutional settings of health systems as well as social practices and discourses.

<b> Theorizing How Human Rights Create Change

There is a marked trend in the loosely defined field of ‘global health and human rights’ toward perceiving the realization of human rights in health as a matter of applying guidance developed by experts in global governance institutions. Benjamin Mason Meier and Lawrence Gostin capture this posture: ‘Where social justice incites change from the “bottom up,” driven by those who are most affected by social inequality, human rights law incites change from the ‘top down.”’[15] In this view, international human rights standards relating to health, including SRH, are ‘operationalized’ downward by state bureaucracies based on guidance from global institutions. On the other hand, social justice movements operate on the ground and in the street, pressuring the government to implement the guidance from supra-national institutions.[16]   

This theory of social change in health and SRH in particular calls for universalizing a set of standard human rights ideas in governance across the UN. In the case of rights relating to health and SRHR in particular, the suggestion is not just that the emphasis lies with the official Human Rights system, but with the ‘archipelago’ of other international agencies involved in health, such as the World Health Organization, UNFPA, and the like.[17]  Although states must bear primary responsibility for human rights compliance, accountability relationships are redrawn in this model. Human rights specialists or experts are meant to guide monitoring and review of the state machineries that are required for the design and implementation of ‘human rights-based’ policies in health, including SRH.[18] Monitoring and review by these global institutions to assess compliance and progress, is based largely on an administrative framework, as opposed to the judicial remedies or social mobilizations used in democratic claims.[19]

Martti Koskeinini and other scholars critique precisely what they perceive as this managerialist bureaucratization in human rights, which is perceived as displacing political struggles with policy guidance.[20] However, here we argue that the model itself fundamentally misconstrues the nature of how rights unfold and produce social change in health, including the most contested domain of SRH. Far from displacing politics in a bureaucratic institutionalization process, the successful deployment of rights in the Argentine abortion case suggests an intensification of democratic political (not narrowly partisan) struggle whereby supra-national standards and mechanisms are adapted and incorporated into domestic legal, social and political debates. Far from mechanical ‘implementation,’ advancing abortion rights in Argentina has called for unpacking how the complicated social/religious/historical narratives about morality and sex get embedded in law and public discourses to create systems of social stratification that affect women and their well-being in daily life. 

Moreover, as this chapter recounts, the process of adopting and adapting norms to change institutional practices and political discourses is far from linear. Indeed, the relationship between global and national norm making is, as Terence Halliday and Bruce Carruthers assert, deeply recursive, where norms are created in relation to preceding ideas either in the other space or in another legal system.[21] In SRHR in particular, recursivity is driven by the inherent indeterminacy and lack of gender specificity of rights definitions, contradictions between national and international norms, and, among international norms, contestation over interpretation among the diverse actors engaged in distilling and applying norms—including health providers. With respect to abortion, comparative constitutional law and regional networks across Latin America are equally important ‘other spaces’ for the iterative production of norms.

In de Búrca’s work, she points to the complex interactions among domestic activists, including lawyers who identify wrongs and articulate them in rights terms, and social movements that generate awareness and move issues to the public agenda, gather and provide information, challenge official accounts, and advocate for political change.[22] At the same time, independent domestic institutions, including but not limited to courts and media, provide domestic opportunity structures and can catalyze pressure on the political organs of government, whether to issue protocols or adopt legislation. International institutions and transnational research as well as advocacy networks generate and pool information, develop legal standards, and promote external accountability, which help to refine strategies and amplify the demands of domestic actors. The Argentine case reveals that crucially, these sets of actors are related in a dynamic and dialectical manner, rather than a vertical top-down one.

The abortion struggle in Argentina was fueled both by common dreams of a more inclusive democracy, as well as by indignation at the profound and systemic violence inflicted on women’s bodies. Sally Engle Merry’s theory of ‘vernacularization’ is particularly useful in understanding this latter aspect of rights mobilization in the Argentine abortion case. Merry describes how human rights ideas regarding gender equality and reproductive justice have been translated by domestic activists from ‘the discourses and practices from the arena of international law and legal institutions to specific situations of suffering and violation’ by advocates across a number of countries. [23] The shifting opportunities and barriers to legalizing abortion in Argentina underscores the importance of ‘how these rights are vernacularized in a particular polity, who dominates that process, whether the state has the capacity to respond, and what institutional avenues there are for claiming and realizing rights.’[24]  

<b> Theorizing Impacts of Deploying Rights

The way in which we attempt to assess the changes produced by human rights strategies in health and more broadly is directly related to our theoretical starting points about what we do with law and why it matters. Thus, much recent debate has looked at ‘compliance’ or ‘implementation’ of discrete court judgments in socio-economic rights litigation.[25] Even when compliance is understood beyond an exclusively norms-based or instrumental lens, focusing on litigation as the trigger for change can convert other critical dimensions—including social mobilization, political dynamics, and the range of diverse actors involved and the relations among them—into merely background to the judicial dramas.[26]

At the same time, at the intersections of global health, human rights and development, there is an increasing tendency to adopt quantitative indicators to capture SRHR realization. For example, in the Sustainable Development Goals (SDGs), in addition to indicators on services (target 5.6.1) progress on target 5.6.2, ‘ensuring universal access to sexual and reproductive health and reproductive rights,’ is measured by the existence (yes or no) of laws and regulations in five areas (with sub-areas), and then the answers are tallied and analyzed statistically.[27] The continual push and pull we see in the Argentine case between legal decisions or the issuance of protocols, and resistance to compliance illustrates that reducing ‘universal access to sexual and reproductive health and reproductive rights’ to checklists abstracted from context, cultural significance, sociological and normative legitimacy is not an appropriate way to measure or think about human rights advancement.[28]

Abortion rights—and all rights—are concise formulations of profound arguments about justice, equality, and dignity.[29] In turn, advancing SRHR often requires discerning where the barriers to effective enjoyment of these rights lie in specific contexts and how laws can be crafted to address them. As the experience in Argentina illustrates, these barriers are complex—inexorably sitting at the boundaries between psychology and role adoption among actors in different disciplines, layers of politics, and moral philosophy, as well as law. As we describe, how laws that prescribe indications for legal abortion function cannot be deduced by reading them as a formalistic set of rules, divorced from the informal background norms and practices which varied across Argentina and across time. The account of the Argentine process also illustrates that the context for rights recognition matters, and that abortion and SRHR struggles cannot be isolated in a modular way from the democratic political and legal frameworks that enable civil society actors to have physical space to protest and congregate and the freedom to formulate social demands.

In short, as Rosga and Satterthwaite assert, ‘…because human rights compliance indicators threaten to close space for democratic accountability and purport to turn an exercise of judgment into one of technical measurement, advocates of human rights should remain vigilant to effects of the elisions at work in the indicators project.’[30] In abortion, and SRHR more generally, which are inherently contested and unstable norms, and where informal norms often shape behavior, the Argentine case suggests we should be particularly circumspect in the indicators we choose to measure progress and the inferences we draw from them.

Here we argue for a different understanding of impacts which understands abortion legalization not just as legislative reform but as a transformation of foundational elements of Argentine society and democracy. Further, we engage explicitly with what Alice Miller calls the messy ‘context-specific questions of how abortion rights were made real in Argentina’—how services were revised and policy makers and local authorities were convinced that their practices must change, and how affected persons were moved to act as if these rights could in fact underpin their actions and demands.[31] Evaluation of those impacts is a much trickier enterprise, which acknowledges the incommensurability of certain effects, and requires the capacity to accept ‘learnings’ at multiple levels that are not always equivalent to ‘impact.’[32]

Cesar Rodríguez-Garavito and Diana Rodríguez-Franco’s insightful work on socio-economic rights litigation is helpful in understanding broader sociological consequences of judicial decisions relating to rights, which go beyond the direct effects on litigants.[33] Here we liberally adapt some of their concepts of material and symbolic impacts to broaden our understanding of use of rights more generally beyond the courtroom.[34] Thus, for example, over the course of this history we can identify material impacts which stem from court-mandated actions or the introductions of abortion protocols. These entail tangible changes in abortion access for women directly involved in litigation, as well as indirect impacts on the general class of affected persons who gestate and might require abortions. However, we also emphasize indirect changes in organizational structures and procedures that reveal shifts in institutional agendas. In Argentina, there were also major changes in actors and power relations within the national as well as provincial Ministries of Health over time, as well as within Congress.

Rodríguez Garavito and Rodríguez Franco emphasize the need to go beyond material effects (both direct and indirect) to examine ‘symbolic effects.’ These include both direct symbolic effects (reframing of media coverage, shifts in public discourses around the issue of abortion) and indirect symbolic effects (the transformation of public opinion on the matter, appropriation of agency by ‘victims’ of rights violations).[35] In the Argentine case, there is no question that political discourses changed over this period, and especially beginning in 2018: the issue of abortion was transformed from a taboo issue of immorality to an issue of democracy and equality. However, perhaps the most profound transformation has occurred in the consciousness of people of all genders who understand abortion as an issue of fundamental rights, and of the inclusiveness of Argentina’s democracy.

2. <a> Argentina’s return to democracy and the struggle to vindicate women rights

In 1983, Raúl Alfonsín (Unión Cívica Radical party) was elected president and Argentina emerged from over seven years of a brutal civico-military dictatorship. The military Junta had explicitly linked the defense of ‘tradition, family and property’ and portrayed itself as the guardian of Christian values that in effect consigned women to essentialist roles and denied them control over their bodies and lives.

In the transition to democracy, human rights principles of equality, dignity, and freedom became a principal framing for official and civil society actors alike. While the white kerchiefed mothers and grandmothers of the Plaza de Mayo (Madres y Abuelas de Plaza de Mayo, respectively) had been among the few groups allowed to protest during the vicious regime, the return to democracy ushered in far broader use of public space for political expression, including demands based on human rights discourse. These newly enlarged freedoms ushered in with the democratic transition in turn and catalyzed opportunities for the feminist movement to build their agenda, within which the issue of abortion was to gain an increasingly prominent place.

Over the quarter century since the country’s restoration of democracy, iterative struggles for gender equality, SRHR, as well as sexual orientation and gender identity (SOGI) rights created the scaffolding for the successful legalization of abortion. These struggles were shaped both by domestic political and institutional shifts and evolving standards in international law, and importantly, by the interaction between the two. 

<b> 1970s: Setting the Stage Globally and Nationally; Dictatorship

As in many countries around the world, the inception of articulated claims for abortion can be traced back to the early 1970s before the military Junta took power. In Argentina, the Movimiento de Liberación Femenina (Movement for Women’s Liberation, MLF) and the Unión Feminista Argentina (Argentine Feminist Union, UFA) began exposing sex discrimination in existing laws as well as regulatory gaps regarding social and economic issues being advanced by so-called “Left feminists” around the world (free daycare, public cafeterias), though few of them dared to mobilize against clandestine abortion.^[36]

The issue of abortion was still restricted to a handful of feminists and groups.[37] At the time, Argentine feminists were still fighting for legal divorce and shared ownership of family property as well as representation in public service. Thus, expanding access to abortion in public hospitals was one claim among many other priorities from the MLF. Indeed, the last few years of the Peronist government (1973-76) and the following years under the military government (1976-1983) were especially difficult in terms of SRR.

During the third Perón mandate of 1973-76, contraception and abortion were officially considered to be ‘strategies of imperialist domination of Third World regions by the United States.’[38] Along with a number of other countries in the non-aligned movement and global South, Argentina pursued policies relating to the well-being of the family, which were aimed at economic and social development, and on raising the income level of the poor.[39]

In 1974, the United Nations convened the first inter-governmental conference on population in Bucharest, Romania, attempting to bridge some gaps between North and South and establish criteria for demographic policies that respected the ability of couples and individuals to decide responsibly the number and spacing of their children.[40] Shortly thereafter, the UN Secretary General announced that 1975-1985 would be known as the UN Decade on Women, a program that prioritized the equal rights of women. Backlash from conservative governments, in the North and South alike, was swift and focused on reproductive rights. Often resistance centered around opposition to abortion, as in the so-called ‘Mexico City Policy’ adopted by the United States government at the International Conference on Population and Development in 1975. As the Mexico City policy, adopted through executive order, prohibited the US government from providing foreign assistance to any organization offering information about abortion in addition to services, it came to be known as the ‘Global Gag Rule.’[41]

Feminists were not united either. At a ‘Tribune’ of non-governmental organizations in Mexico City—which would set the stage for mass convenings of women at later UN Conferences—tensions surfaced between the better educated and more elite women from North and South alike, and those disproportionately from the global South who prioritized material security and land rights over reproductive autonomy.[42]

In Argentina, the Peronist discourse insisted that reducing birth rates would threaten the future development of the country, which was based on population growth.[43] This pro-natalist discourse was put into effect with a ban on contraceptives including information about contraceptive methods (Decree 659 from 1974).[44] This internal gag rule was reinforced and became even more chilling with respect to freedom of information during the dictatorship (Decree 3938 from 1978).[45] Despite the differences in political affiliation across the feminist movement within Argentina and debates over the path to achieve the ‘emancipation of women,’ Decree 659/74 united different groups in outrage and drew them out into the street.[46]

By the time the Convention on the Elimination of Discrimination Against Women (CEDAW) was promulgated in 1979, the brutal military Junta had taken power. CEDAW was ground-breaking in enshrining issues relating to discrimination in private life as well as public life, and the role of traditional cultural norms in perpetuating discrimination against women. For the first time, a binding international treaty outlined obligations that bridged the divide between the public and private spheres, which was essential to make rights realization relevant to the lives of women.

Nevertheless, in Argentina, these advances in women’s rights were entirely resisted by the civico-military dictatorship and opposition to SRR was at the core of the regime’s resistance. Indeed, after the rise to power of the military Junta and the state of siege, raids, and illegal detentions that came with it, the feminist groups that had been fighting for SRR self-dissolved or withdrew from public spaces.[47]

It was only as the military Junta’s iron grip began progressively breaking down in the early 1980s that some feminist groups started to regroup.

<b> 1980s: The ‘Democratic Spring’

Human rights consciousness and accountability were at the center of official and activist discourses upon the transition to democracy that began at the end of 1983. In addition to collective reflection and accountability for the atrocities of the Junta, President Alfonsín quickly took several measures to eliminate the policies that had so drastically limited reproductive autonomy. Moreover, although affirmative promotion of reproductive justice was not incorporated into the government’s official human rights agenda, other issues of gender were on the human rights agenda in the 1980s.

A major victory came with the 1985 enactment of the Shared Parental Authority Law.[48] The adoption of this law had symbolic as well as material importance as it began to redress the incompleteness of democracy at the socio-political level—when there was a complete lack of democracy within patriarchal households.[49] The Shared Parental Authority Law was quickly followed by other legislative landmarks that were also seen as essential to enabling women to be equal at home and in public life: in 1986, legislation equalizing protections for male and female workers with family responsibilities;[50] in 1987, the legalization of divorce;[51] and in 1988, pension entitlement for married spouses.[52]

In 1986, President Alfonsín repealed the ban on contraception and recognized—in keeping with international declarations—'the right for a couple to decide freely on the number an spacing of children.’[53] That same year, the government dissolved the National Commission for Demographic Policy (CONAPODE), created in 1977 by the military Junta to ‘eliminate birth control activities’ and ‘incentivize the protection of the family,’ marking a definitive end to the demographic paradigm of population policy in Argentina.[54]

In the newly democratic environment, mobilizations by the public in public became commonplace; and ‘the climate was conducive to convenings, visibility, and initiation [into political consciousness],’ making 1983-1986 known as the ‘democratic spring.’ Feminists have often appropriated public space, not just for instrumental ends but also as the space women inhabit is symbolic of the identities we inhabit. It was during this democratic spring, the first commemorations of International Women’s Day (March 8^th),[55] the Multisectorial de la Mujer, a large collective of women’s groups that collaborated with unions and other left-leaning groups and the Encuentros Nacionales de Mujeres (National Women’s Encounters) emerged, all of which have continued to date. As would occur later with ‘Ni una menos’ (‘Not One Woman Less’ [Not One More Death]), the mobilization against gender violence and femicide that started in 2015, campaigns against violence towards women in the late 1980s and early 1990s allowed for convergence of multiple strands of feminism across the political spectrum.[56]

Just as in other countries, it was also during the 1980s that Argentine feminists recognized the need for more empirical research on abortion. For example: Who was having abortions? Who was providing them? What were the health effects of clandestine abortion? How many women were dying from unsafe procedures, and which women—and girls—were dying? At the time, there was a paucity of empirical data on women’s health, beyond fertility rates.[57] This new academic research was quickly shared with activists who saw the power of empirical findings for policy and legal advocacy and political discussions. Building linkages between academic public health researchers, within Argentina and abroad, and activists from multiple disciplines continued to be important throughout the struggle for legalization.

At the same time, the inclusion of abortion as an issue of SRHR generated resistance and contestation within the feminist movement in Argentina in the 1980s. Many groups considered that it was wrong to focus on issues associated with sexuality when the country was still facing a raft of serious problems inherited from the civico-military dictatorship.[58] It was not surprising therefore that feminists chose to prioritize contraception over abortion.[59] This activism resulted in the first SRH programs in the local ministries of health[60] and the enactment of provincial laws on SRH.[61] Nonetheless, some of the so-called ‘autonomous’ feminists argued that marginalization of the abortion issue also responded to the institutional interests of the women who had joined the constitutional government.[62]

<b> 1990s: New international frameworks, new social contract

The early 1990s ushered in tectonic shifts in the understanding of women’s rights across the world. At the Vienna Conference on Human Rights in 1993, there was a hugely successful global mobilization by feminist organizations that dwarfed prior convenings, including from Argentina and Latin America, which featured among other things a Global Tribunal on Violations of Women's Human Rights.[63] Indeed, it could be argued that the ground-breaking Vienna Declaration was the beginning of international human rights norms being interpreted in a gender sensitive way that was responsive to women’s rights, needs, and experiences of injustice. As Rebecca Cook wrote, at the time, prior to Vienna, the failure to enforce women’s human rights include ‘a lack of understanding of the systemic nature of the subordination of women; the failure to recognize the need to characterize the subordination of women as a human rights violation; and a lack of state practice to condemn discrimination against women.’[64] But in the early 1990s, these barriers began to give way across many countries, including in Argentina.

Following quickly on the mass mobilization of women’s movements at Vienna, the International Conference on Population and Development in Cairo in 1994 (ICPD or Cairo) created a paradigm shift away from population as a matter of demographic imperatives to one of women being subjects of their own bodies and lives and having reproductive rights.[65] Just one year later, in 1995, the Fourth World Conference on Women at Beijing built on all of the mobilization and activism that came out of ICPD and extended ideas of women’s health as requiring political movements for equality in the overall society across the life course.[66] The divide between feminists in the South and North was bridged in these conferences by a shared understanding of reproductive justice and gender equality requiring transforming political and social structures.[67] Nonetheless, abortion itself was still largely addressed in the context of ‘the health impact of unsafe abortions.’[68]

In Argentina, where women’s health advocates had participated in regional and international organizing in the years leading up to the international conferences, these shifts were especially pivotal for two reasons. First, ICPD and Beijing deepened and broadened gendered readings of human rights under international law that had begun with Vienna—including crucially in relation to sexual and reproductive health. Second, Argentina’s post-dictatorship amended constitution of 1994 included an array of economic and social rights, both directly and through the incorporation of international treaty norms.

The Constitution of 1994 elevated international human rights to constitutional status through a so-called ‘constitutional bloc’ (bloque de constitucionalidad), a device which originated in the doctrines of the French Constitutional Council and had been utilized in jurisprudence from a variety of countries.[69] In the late 1980s and early 1990s, a number of countries in the region had similarly reformed their constitutions in the aftermath of dictatorships or at pivotal social moments (e.g. Brazil, 1988; Colombia, 1991) and incorporated international human rights standards through such a constitutional bloc.

The incorporation of international standards into the Argentine Constitution transformed the nature of the dialogue between the national and international and the iterative process of interpretation and adaptation of norms. The constitutional reform proved pivotal to abortion struggles as activists used standards elaborated progressively in Cairo and Beijing and other international conferences, as well in general comments and recommendations, as interpretative tools regarding the obligations of the Argentine state.[70]

At the same time, the Menem regime eagerly adopted the neoliberal dogma of the International Monetary Fund (IMF), which hollowed out the Keynesian state apparatus necessary to ensure the ESC rights, including health, which had just been incorporated into the Constitution.[71] Just as health and other social rights were incorporated into Argentina’s newly reformed social contract, the realization of these rights often clashed with neoliberal reforms that privatized health and social protection. This would affect the multi-track strategies that the pro-abortion movement needed to adopt over the next twenty years, at times more successfully than others. Establishing legal claims to reproductive agency had to be accompanied, directly and indirectly, by social policies that reflected the realities of Argentina’s political economy.

The ‘Menem decade’ (for President Carlos Saúl Menem who governed for two mandates), was marked by a particular ambiguity with respect to women’s rights. Despite a rhetorical embrace of individual liberties, and a repeal of the military’s total prohibition on contraception the administration adopted a conservative stance on SRR. For example, the official Argentine delegation at ICPD aligned itself with conservative Islamic countries, the Holy See, and others. Above all, the delegation forcefully opposed the recognition of abortion as a means of regulating fertility and asserted that the right to life began from the moment of conception.[72]

The conservative posture of the government became even more evident in the context of the modification of the Constitution in 1994, when then Minister of Justice of the Nation, Rodolfo Barra, proposed the incorporation a ‘pro-life clause’ in the new text. A multisectoral political coalition made up of feminist activists and political party members quickly organized to defeat the incorporation of the clause. [73] The defeat of this clause in the democratic social contract was a pivotal legal and political triumph, which had consequences for the vernacularization of reproductive rights as human rights in Argentina. For Straw, the debate at the Constituent Constitutional Assembly reflected a second period of reproductive rights advocacy, notable for its aggressive defense of rights.[74] 

Indeed, in 1995, advocates took the offensive. The year following the Constitutional reform, MADEL and other organizations promoted a national bill on SRH.[75] The bill was passed in the Chamber of Deputies but was blocked in the Senate.[76] Nonetheless, the parliamentary discussions that led to approval in the Chamber of Deputies raised critical public awareness about reproductive rights as rights, and strengthened the position of the women's movement in relation to SRR.[77] For Straw, this legislative debate marks the beginning of a ‘persistent debate,’ during which issues related to sexuality and reproduction become part of the public agenda, and are discursively reframed as a matter of democratic rights.[78]

<b> 2000s: Pushing for Institutionalization; Defending SRR in the Courts

In 2002, in the middle of a crushing economic crisis in Argentina, the ‘National Law on Sexual and Reproductive Health and Responsible Procreation’ was enacted, creating the National Program for Sexual and Reproductive Health within the National Ministry of Health.[79] The Minister of Health at the time, Ginés González García, one of the law’s most prominent defenders, declared that ‘[with this law], the country is able to move forward with an institutional framework that supported the effectiveness of sexual and reproductive rights.’[80] Law 25.673, which at one level can be characterized as activists ‘bringing Cairo and Beijing home’ was a breakthrough in the process of institutionalizing a rights approach to issues of sexuality and reproduction, and the foundation for other key laws and public policies.

Nonetheless, implementation of the law faced huge obstacles. Argentina’s dire economic situation which caused it to default on the massive external debt the country had accumulated, in particular under the civico-military dictatorship in December 2001.[81] Unsurprisingly, no adequate budget was provided for implementation of the law. At the same time, religious and conservative sectors immediately deployed a variety of strategies to stop or limit the implementation of this national policy.

Faced with a liberalizing political and regulatory environment, it was conservative groups who more assertively turned to courts to restrict SRR, litigating such issues as the ‘abortifacient’ nature of certain contraceptive methods, the rights of adolescents to access reproductive health information and services, and conscientious objection.[82] In Portal de Belén, a Catholic entity in the province of Córdoba, a suit was filed against the federal Ministry of Health to prohibit the manufacture, distribution, and commercialization of the morning after pill (AHE for its Spanish acronym) made by Gador S.A. laboratories, for which the commercial name was Imediat.[83] The Supreme Court ruled in favor of the group in 2002, accepting a series of pseudo-scientific religious arguments—including a few paragraphs from papal encyclicals.[84] However, the Court ruled narrowly, prohibiting the specific pill ‘Imediat.’ But by the date of the decision Imediat was no longer on the market; the laboratory that manufactured it had modified the formula and had changed the commercial name to ‘Imediat N.’

Toward the end of the first decade of the millennium, Straw identifies a stage of ‘legislative expansion’ relating to sexual orientation and gender identity (SOGI) rights.[85] The most prominent of these were Law 26.618 on Same Sex Marriage,[86] and Law 26.743 on Gender Identity, both of which were extraordinarily progressive by global standards.[87] As family law in Argentina’s federalist system is regulated at the federal level, a third national law, Law 26.862 on Comprehensive Access to Medically Assisted Human Reproduction Treatments, then ensured that access to technologies regulated under the new Civil and Commercial Code were available to persons of all genders.[88]   

SOGI rights were also being recognized and promoted through comparative and international law during these years, through litigation at national level as well as the Yogyakarta Principles and through the work of special procedures and treaty bodies.[89] Moreover, as Jordi Diez writes, in Argentina it was important that these demands were ‘framed as an issue of equality and human rights (a ‘collective action frame’) that resonated with larger social debates (‘master frames’), [in which] human rights [were seen] as central elements in democratic citizenship.’[90] Thus, unlike at supra-national level, where SOGI rights and abortion rights have had very different constituencies and trajectories in international law, in Argentina the expansion of SRR legislative struggles to SOGI rights was in keeping with the master frame of human rights and democracy, which proved critical in enlarging the circle of allies in the abortion struggle, in particular after 2015.[91]

3. <a> The Evolving Actors and Fronts on the Path to Legalization

The Argentina case illustrates the inherently iterative nature of the use of rights for abortion reform, and all structural change. However, as Gráinne de Búrca notes, this in no way applies that it is a ‘calmly adaptive, routine, mechanical process,’ but that short-term mobilization or an isolated focus on one element of change rarely brings sustained shifts in legal and social norms and institutional practices.[92] Indeed, the Argentina experience sharply reveals both the ongoing contestation punctuated by disruption that occurs during the iterative process, where triumphs in one domain led quickly to opening new fronts, as well as the array of different actors involved in such a profound legal, social, and institutional transformation.

<b> Actors and Movements

While at the beginning, feminist groups were largely advancing access to abortion rights on their own, new actors were drawn into the fray as opportunity structures shifted over time. In 1987, two women's groups emerged that would become key in mobilizing for the right to abortion: Catholics for Choice (CDD, for its Spanish acronym) and the Commission for the Right to Abortion (CDA, for its Spanish acronym). At the beginning of the 1990s, other groups dedicated to the same cause emerged that would lead years later to the formation of the National Campaign for Legal, Safe and Free Abortion.[93]

The CDA played an especially significant role throughout the struggle for abortion in Argentina.[94] As early as 1991—before the amended Constitution was adopted, before ICPD, before even the Global Tribunal on violence against women at Vienna—CDA held a symbolic trial on illegal abortion, in which congressional representatives, doctors, priests, and many women testified as to the risks involved in the clandestine practice. In 1995, the Bar Association of the province of San Martín replicated the event by organizing a self-consciously dramaturgical oral trial proceeding entitled ‘Decriminalization or punishment?’ in which feminist activists, prosecutors, and a coordinating ‘judge’ took part.[95]

During the 1990s, abortion had begun to be discussed in the Encuentros Nacionales de Mujeres (National Women's Encounters, ENMs). But it was after the social, political and economic crisis of 2001 that abortion became a central issue. During the 2003 ENM, more than 300 women participated in an ‘assembly for the right to abortion,’ including almost all the country's feminist groups, workers, labor organizations, state workers, students, congressional representatives, members of leftist political parties, Mothers of Plaza de Mayo and other independent groups. In 2004, proposals for access to legal, safe, and free abortion were consolidated, which paved the way for the creation of a nation-wide campaign.[96]

On 15 May 2005, the ‘National Campaign for the Right to Safe and Free Legal Abortion’ (National Campaign) was launched, with the aim of creating a Campaign that sought to ‘advance the construction and the strengthening of a critical mass, capable of fighting for sexuality education to decide; contraception to not abort; legal abortion to not die.’[97] Since then, more than 500 distinct organizations from different parts of the country have joined the National Campaign.

From the beginning, the National Campaign promoted a comprehensive program for SRR and managed to position itself in public debates for the decriminalization and legalization of abortion, as well as in dialogues with social movements, health providers, universities, and political parties.[98]At the same time, other campaigns such as the ‘Yo aborté’ campaign (‘I had an abortion’), in which women from various backgrounds ‘confessed’ to having had an abortion became increasingly common and had a significant impact in raising awareness and de-stigmatizing the issue.[99] For example, in an interview  Zulema Yoma, ex-wife of President Menem, made public that she had had an abortion with the support of her ex-husband in the run-up to the 1999 presidential elections.[100]

By the end of the 1990s, the Central de Trabajadores Argentina (CTA)—the principal confederation of trade unions—had decided to include the decriminalization of abortion in its platform, which was a major milestone in breaking through abortion being seen as a dissident or elitist issue.[101] In first decade of the 21^st century, LGBTQ+ groups joined the fight for the right to abortion, which permitted speaking of persons with the capacity to gestate, rather than just ‘women.’[102] The integration of mainstream human rights organizations, originally linked to progressive sectors of the Catholic Church, took longer. When the Centro de Estudios Legales y Sociales (Center for Legal and Social Studies, CELS)—one of the largest and most important human rights organizations in Argentina—took an institutional stance in favor of abortion in 2009, the issue was squarely framed on the mainstream human rights agenda. Others followed.

The strength of the National Campaign came from continuously incorporating new actors, but this also implied continual reaccommodating and inevitable tensions. For example, by 2014, Socorristas en Red, a network of feminist groups, was not just advocating for legal change but was providing information and accompaniment over the phone and in person to women who chose to have an abortion using Misoprostol.[103] The shift from claims for ‘Legal abortion in the hospital’ to ‘abortion anywhere,’ produced tensions and debates, although the Socorristas’ role in the larger puzzle was ultimately accepted and embraced.

At the same time as informal providers were building momentum, initiatives to collectively gather health professionals who were providing abortion under exceptions to criminalization took shape. In 2011, the Center for the Study of the State and Society (CEDES, for its Spanish acronym) together with partners organized a series of trainings and meeting with the few abortion providers in the country, which would later become the Argentine Safe Abortion Access Network (REDAAS, for its Spanish acronym), the first abortion network of health and legal professionals associated with public and community health services in America.[104] In 2014 the Equipo Latinoamericano de Justicia y Género (Latin American ‘Team’ on Justice and Gender, ELA) became a co-leader of RedAAS, which now has a presence in 21 out of 23 provinces.

<b> Exposing Barriers to ‘Non-Punishable Abortions;’ the Intersection between Rights and Institutional Practices in the Health System

In the early 2000s, with the mobilization and support of feminist groups, the creation of the National Campaign, a national health minister committed to the implementation of access for legal abortion, and the creation of networks of health-care professionals, among other factors, individual women began demanding their rights to abortions under the exceptions provided for in Article 86 of the Criminal Code.[105] At the time, access to abortions was still illegally denied in the vast majority of these cases or limited by bureaucratic burdens, such as the requirement of ‘judicial permission’ or the involvement of a hospital ethics committee.

By 2005, the Campaign decided to make public the volume of documented cases in which pregnant women facing health risks, and adolescents who had been raped, were inappropriately forced to undergo judicial proceedings to access their legal rights. The strategy of revealing the ineffectiveness of domestic courts was not just occurring in Argentina. At the time, the interpretations of rights under international law that had been spurred by the UN Conferences in the 1990s, enabled feminist lawyers across the region to litigate abortion cases domestically and to pursue supra-national accountability where domestic remedies proved futile.[106]

In Argentina, the first guidelines on non-punishable abortion were issued by the Health Ministry of the province of Buenos Aires in January 2007, in response to the ‘LMR’ case before the UN Human Rights Committee issued its findings. LMR was an adolescent with a mental disability who was denied a non-punishable abortion in a hospital despite a favorable ruling of the provincial Supreme Court. Four years later, in 2011, the Human Rights Committee, which monitors compliance with the International Covenant on Civil and Political Rights, condemned Argentina for violating LMR's right to a legal abortion on rape grounds.[107]

By 2010, multiple provincial courts ruled that the ‘judicial approval’ for individual access was not called for under article 86. Feminist lawyers had taken on these individual cases across the country, but they were not done in isolation. Increasingly pro-abortion lawyers had the benefit of networks not just through the National Campaign but also from across the region. The Red América Latina Alternativa Social (Red ALAS), a network of feminist law professors had been established in 2002 to imbue pedagogy in law schools with gender perspectives and greater understanding of SRR issues in particular.[108] Latin American Consortium against Unsafe Abortion (Consorcio Latinoamericano Contra el Aborto Inseguro, CLACAI), a regional coalition of abortion activists had been founded in 2011. CLACAI, together with other regional and global networks allowed for the intense exchanges of information as well as strategy, which Margaret Keck and Kathryn Sikkink note as critical in human rights advocacy.[109]

These conditions proved decisive for the a landmark Supreme Court decision in 2012, F, A. L. s/ MedidaAutosatisfactiva (F,A.L.).[110]

<b> The Supreme Court Reframes the Debate: F, A. L. s/ MedidaAutosatisfactiva (Supreme Court of Justice of the Nation.)

In F,AL, the Supreme Court declared Article 86 of the Criminal Code unconstitutional, recognized non-punishable abortion as a woman's right, and established that the rape indication for abortion applied to any woman, adolescent, or girl, and not only to those with mental disabilities. F,A.L. was critical not just for expanding specific grounds for legality. It was also critical in changing public discourses and consciousness regarding abortion. The Court specifically identified and dismantled gender stereotypes that were presenting obstacles to accessing abortion rights in the strongest possible language: ‘[t]his Court is compelled to remind both health professionals and adjudicators from the different national or provincial judicial powers, that…’

1. [h]ealth professionals [are hereby advised] ‘of the impossibility of avoiding their professional responsibilities when faced with the factual situation foreseen [of a woman seeking to abort a pregnancy resulting from sexual assault].’
2. On the other hand, [I]t is the pregnant woman who requests the procedure to a health professional, and it is the doctor—and not a judge on the request of the doctor—who must decide whether to perform it. That to do otherwise would mean that a power of the State … interferes by interposing an extra [barrier], [which] would make the exercise of a right recognized expressly by the legislator…dependent upon an unnecessary and senseless bureaucratic proceeding.[111]

Further, the Court went on to state that:

The practice of requiring [medical] consultations and certificates unduly conspires against the rights of a rape victim, and results in bureaucratic proceedings that delay the legal interruption of the pregnancy and entail a potentially implicit prohibition of an abortion authorized by the penal legislator. This practice is therefore contrary to the law. Moreover, it must be pointed out that this irregular practice not only contravenes the obligations [of] the State with respect to every victim of violence, but can also be considered to be, in and of itself, an act of institutional violence…

By explicitly stating that judicial authorization was not necessary to obtain an abortion for indicated reasons, and a police report was not required for cases of rape, the Court was directing local courts, health ministries and governments to dramatically reform their practices and approve protocols to guarantee access to abortion when it was legal.  

F,AL had sweeping impacts, both material and symbolic. After F,AL, the National Ministry of Health updated its protocol to comply both with the judgment as well as the new Civil and Commercial Code (sanctioned in 2015)—particularly with regard to the consent of girls, adolescents and persons with disabilities—and the latest recommendations regarding medical procedures recommended by the World Health Organization.[112] Moreover, the guidelines changed the name from non-punishable abortion to legal interruption of pregnancy ‘National Protocol for the comprehensive care of people entitled to legal termination of pregnancy.’[113] More than a semantic change, this represented a symbolically important move towards a paradigm shift where the emphasis would be placed on the legality of the practice and not on the conditions for criminalization.

In 2015, the Ministry of Health framed the new version of the protocol in terms of rights to personal autonomy, privacy, health, life, education, and information, including portions dedicated to the international human rights system.[114] Health-care professionals were encouraged to interpret the exemption for ‘risk to the health of the pregnant women’ broadly as opposed to restrictively and to see themselves as having obligations to uphold women’s rights. For example, the interpretation of the right to information took into account background asymmetries of power and knowledge. Later versions of the protocol mandate health professionals (and judges) to proactively and transparently provide information regarding the right to access an abortion to adolescents and women who might need one despite not asking directly due to the lack of information about this legal option (e.g.: a woman who goes to a domestic violence for reporting his husband and is pregnant but she does not know she has a right to terminate her pregnancy due to the sexual violence grounds).[115] Formulating the right to receive information as a proactive duty on the part of health and judicial agents was key in an environment where women were unaware of their rights.

<b> 2010s: Resistance in the Provinces

Argentina is a highly diverse country with varying degrees of cultural and religious conservatism across different provinces. Despite the Supreme Court’s F,AL ruling, and the national guidelines, noncompliance and resistance to ensure access to safe abortion services persisted across many of the more conservative provinces. Legal mobilizations during this period began to emerge around the gaps in these inadequate protocols.

Provincial courts became a principal domain for these abortion battles. In the emblematic case of AV, the provincial justice of Chubut denied authorization to a girl victim of rape to access legal abortion, right after the Supreme Court ruling.[116] However, the judge who had denied the abortion was then sanctioned by the Superior Court of the province of Chubut for having obstructed the girl's access to legal abortion.[117]

Likewise, there was a proliferation of cases regarding health-care professionals, judges, and other judicial actors who hindered access to abortion.[118] Perhaps the most paradigmatic court decision exemplifying the persistence and harm of the criminalization paradigm, was ‘Belén,’ an impoverished young woman from Tucumán, a conservative province in the north of Argentina, who was detained for almost 900 days after being charged with having an abortion.[119] In March 2014, ‘Belén’ arrived at the emergency service of a public hospital in San Miguel de Tucumán with intense vaginal bleeding.[120] The attending doctor diagnosed her with a miscarriage of a 20-week pregnancy. Nonetheless, based on concocted evidence, Belén was accused by the health workers of having given birth to ‘a baby’ and trying to kill him in a hospital toilet, and was subsequently sentenced by to 8 years in prison.[121] A year after the initial Kafkaesque trial, a new lawyer, accompanied by the National Campaign for Abortion, and others, appealed and prevailed at the Supreme Court of Tucumán.

The travesty of justice Belén suffered illustrated keenly the imperative of changing the broader legal framework to move from exceptions to a default of legalization.[122]

<b> Building bridges: lawyers and health providers; formal and informal providers

Resistance to legal abortion within the formal health sector had led to the creation of networks offering extra-systemic responses when Lesbians and Feminists for the Decriminalization of Abortion who first launched a service to provide information about abortion in 2010. A few years later, the Socorristas en red was established[123] The Socorristas did not limit themselves to building an informal system of access to safe abortion; they also built relationships with feminist lawyers, researchers dedicated to sexual and reproductive health, human rights NGOs, and above all with the formal health system itself, or rather with some health professionals who were part of the system.[124] The availability of Misoprostol was key to enabling these possibilities, allowing more women to safely terminate their pregnancy within or outside of the health system.

The 0800 Sexual Health helpline[125] created by the government’s Sexual and Reproductive Health Directorate in 2010 allowed gestating persons, health professionals, activists, and state employees and local officials, to obtain information about health services and submit complaints for mistreatment or obstruction of access to legal abortion.[126] From its launch in 2010 to 2019, the 0800 line received around 80 thousand calls from providers as well as individual women, the most frequent topic of which related to abortion.[127]

Beyond the new protocols discussed above, dialogue—and time—were required to overcome misunderstandings and build trust. In time, the rights language came to be a way for abortion providers to legitimize their actions and combat the stigma associated with this practice. Assuming the mantle of rights defenders was a way to distinguish themselves from other ‘paternalistic,’ ‘misogynistic,’ or ‘abusive’ professionals.[128] When feminist lawyers and actors from the women’s movement began working closely with health professionals toward the end of the first decade of the millennium, there was a a small group of ‘champions’ within the formal health system who were willing to provide abortion under certain legal grounds though the professional and political environment was conservative in this regard.[129] Hundreds of trainings for health workers were carried out in different parts of the country by feminist lawyers, sometimes for dozens of health providers, sometimes for just a few.[130] 

This engagement, coupled with protocols and other measures, was critical for making inroads into the democratization of the health system. Further, providers in formal health system not only appropriated identities as guarantors of rights but began engaging in advocacy (e.g., interventions in the Congress and drafting training materials).[131] At the same time over the last decade, based on weaving together relationships, the Socorristas began to engage more systematically with the formal system with the common aim of meeting diverse person’ needs for access to safe abortion.

<b> 2018: Abortion arrives in Congress

Although the history of the fight for the right to abortion in Argentina began in the 1970s, it was not until 2018 that it gained visibility never seen before. In March 2018, then President Macri (‘Juntos por el Cambio’ coalition), who himself did not support abortion, nevertheless gave the green light for a legislative debate. In a matter of weeks seven similar bills were introduced.[132] The debate in the Chamber of Deputies included weeks of hearings, where more than 700 people testified. Testimonies on both sides of the debate came from activists, legal scholars, clergy, health researchers, civil servants, legislators, students, victims of barriers to legal abortion, and an array of international experts.[133]

The polarized context for this debate in Argentina was matched by a polarizing global context, and the Congressional debates in Argentina were a site of contestation in those global debates as well as local ones. By 2018, a clear divergence was evident relating to abortion and other SRR at across the globe. Unlike the Millennium Development Goals, which had not included references to SRHR, SRHR were explicitly integrated across the sustainable development agenda—in both the health goal (Goal 3) and the gender equality goal (Goal 5)—which was launched by the United Nations in 2016 as a blueprint for progress in the world until 2030.[134] On the other hand, conservative and sometimes openly autocratic populists increasingly used opposition to ‘gender ideology’ as a symbolic glue and mobilizing political force.[135] As Grzbalska, Kavts, and Peto argue, ‘equality politics, both in the narrow sense of policies aimed at eradicating various forms of inequality, and as a symbol of a positive, progressive vision of the future,’ had come to ‘signify everything that was wrong with the current state of politics and the globalized, neoliberal social order. In this context, conservative legislative retrenchment relating to SRR, proliferated across many countries of varied income levels.

At the same time, there was a clear trend toward expanding legal access to abortion and recognizing the barriers that informal rules and background norms pose. These coalescing standards were drawn upon in testimonies before Congress and, even more importantly, fed into the strategic thinking of feminist lawyers assisting in drafting the bill. That is, in its 2016 General Comment 22, the UN Committee on Economic, Social and Cultural Rights, explicitly addressed the lack of availability and accessibility of abortion services as a violation of the right to sexual and reproductive health.[136] In 2017, the CEDAW Committee adopted General Recommendation No. 35, which construes restrictive abortion laws as a form of structural violence against women.[137] In its General Comment 36, the UN Human Rights Committee extended the right to life to a right to life with dignity and called on states to provide the necessary conditions for a life with dignity, including sexual and reproductive health and abortion in particular.[138] Despite approaching safe abortion from distinct perspectives—as a matter of a life of dignity, freedom from structural violence, and the equal enjoyment of the right to sexual and reproductive health—the UN treaty bodies’ collective conclusions point to an overlapping consensus in international standards for the protections of women’s health rights. 

Feminist lawyers drew on the further elaboration of these standards in comparative as well as international law and on networks of support formed over years, while conservative networks and actors (including the Pope, who is Argentine) weighed in on the other side. The hearings, which were livestreamed, fostered an intense debate across Argentine society: among family members, in schools and universities, on television and radio shows, on social media, within health services unions and political parties, and even on the streets.

The degree of public learning and debate about a piece of legislation was unprecedented in Argentine history. Moreover, what had once been a taboo topic in Argentine society was now discussed not just in the formal halls of government but at family dinner tables, school rooms, universities, workplaces, and in casual encounters among people going through their routines, from barber shops to butcher shops.[139]    

As the white kerchief had been the symbol of Mothers of the Plaza de Mayo, the green kerchief (pañuelo verde) became a symbol tied around necks and attached to backpacks and handbags of thousands of people in the country, as well as across Latin America and other countries.[140] The occupation of public space by loud unruly women, and people of all genders—with the symbolic green kerchiefs-- was as transformative as it was transgressive.

When the vote took place,  thousands of people gathered in Buenos Aires to watch the vote on a giant screen outside Congress and thousands more in their homes watching on television and YouTube, on the morning of June 14, 2018, after a session of over 30 hours, the Chamber of Deputies passed the bill. The inter-generational ‘Green Wave’ as it had come to be called, starring ‘the revolution of the daughters’[141] and supported by the ‘pioneers’[142] literally swayed collectively as activists clung to each other with joy.[143]

Passing the legislation in the Chamber of Deputies, could only have been achieved because representatives from different parties—the so-called ‘sororas’—worked tirelessly together, setting aside their party differences in a context of extreme political polarization. For months they gathered in confidential meetings to discuss strategy and iron out the final text of the bill. Over this period, the sororas connected individually and collectively with National Campaign activists, NGOs, health experts, feminist lawyers, public officials as well as like-minded politicians outside of Congress.[144] In a highly charged political culture with deep party divisions, this was only feasible as a result of trust having been built over time among the sororas. The experience of having worked together on the Law on Gender Parity in Spheres of Political Representation, which had been enacted in 2017, was pivotal. The dynamics of trust and working collectively that they had constructed were fresh as the debate on abortion got underway.[145]

When in August 2018, the Senate—historically the more conservative body of the bicameral legislature—narrowly rejected the bill,[146] the struggle did not end there. The Green Wave continued, in schools and universities, and among health providers and was carried forward through various policies in the Ministry of Health.[147] Moreover, #SeráLey (It will be Law) was integrated into the social demand for ‘Ni una menos’ (‘Not one woman less’) which arose as a broad social clamor in the 2010s due to the high rates of femicide. As in the 1980s and early 1990s activists understood that gender inequality was organized around structural violence, manifested in both lack of access to life-saving services as well as gender-based violence. The linkage to this very wide social demand for preventing and sanctioning gender-based violence and femicide further changed social views in Argentina about abortion, undercutting the opposing narrative that abortion rights was a dissident, elitist or internationally-imposed agenda.  

<b> The Final Push in A Complicated National and Global Context

Argentina’s economy was deeply affected by the center-right Macri administration’s austerity policies. When a primary election in August 2019 signaled Alberto Fernandez’s victory in the general election, the currency further plummeted.[148] By the time Fernandez took office in 10 December 2019, the country was clearly facing an economic and social crisis. Indeed, the Executive assumed emergency powers before the pandemic broke out in 2020. When the dimensions of the COVID-19 pandemic emerged in March, the government extended those, and Argentina was among the first Latin American country to issue extremely restrictive confinement orders which were also among the most prolonged in the world. The sweeping devastation of the pandemic, in health and economic impacts (Argentina defaulted again in May 2020), coupled with the Fernández administration’s responses were a source of extreme partisan divisiveness in an already polarized political context.

Nonetheless, the work built to consolidate trust between the sororas was maintained throughout 2019—and 2020. Moreover, in 2020, systematic coordination began between officials in the administration—in particular, the Head of the President’s Office of Legal Counsel (Secretaría Legal y Técnica), Vilma Ibarra, the then-Health Minister, Ginés González García and the Minister of Women and Gender, Elizabeth Gómez Alcorta—and these congressional representatives from different political parties.

In December 2020, the Congressional debate was re-opened. The bill provided for abortion to be legalized until 14 weeks of pregnancy (described as ‘voluntary termination of pregnancy,’ IVE by its Spanish acronym). Thereafter, abortion would be allowed on certain grounds almost identical to those that had been in force since 1921. Additionally, Law 27.610 guaranteed coverage for abortion within the Obligatory Medical Program (PMO) (social insurance scheme) and granted a right to conscientious objection to health professionals, but not institutions. A protocol regulating Misoprostol across the country was designed to provide access at the same time as overcome weak regulatory environments in some provinces. Along with this initiative on abortion, President Fernández presented the bill for the Comprehensive Health Care and Attention during Pregnancy and Early Childhood Law known as the ‘1,000-Day Plan.’[149] The strategy was to show a comprehensive policy on the subject of women’s and children’s rights and well-being, emphasizing the social support and public health approach for both.

By comparison with the 2018 debate, the arguments made by ‘Green’ politicians and legislators before and during the 2020 debate were strongly anchored in public health, alongside the rights arguments.[150] Another difference with respect to 2018, resulting in part from what was learned in 2018, was that the text of the law was informally agreed upon among ‘Green Senators,’ before being approved in the Chamber of Deputies in order to avoid attempts to modify it.[151]

On 11 December 2020, the Chamber of Deputies approved both projects and a few weeks later, on 30 December 2020, the Senate, by 38 votes in favor to 29 against, passed both bills. After fifteen years of building precedents and decades of struggle for women’s equality in Argentina’s democracy, in the midst of the Christmas holiday at the end of a horrific pandemic year, Law 27.610 on Access to Voluntary Interruption of Pregnancy became the law of the land. From being a marginalized concern, cloaked in stigma, abortion had become an entry point to legal, political and broad societal discussions about dignity and equality in Argentina. And one of the traditionally most divisive political issues around the world had become a bridge across profound partisan and institutional divides at a time of immense uncertainty.

Conclusions

The conquest of abortion rights in Argentina presents a complicated narrative in which a wide array of actors played important roles as opportunity structures evolved over decades. This history reveals the deeply-entrenched structural violence in a patriarchal society such as Argentina, as well as the idiosyncratic institutional and political contingencies through which gender relations are organized and maintained in any country. Far from a linear narrative, inspirational ideas nourished theory and legal analysis, which in turn were revised as different strategies gained purchase within courts, among providers, and across different social actors. Throughout this struggle, rights were used as tools of social, political, and legal mobilization, but they also have represented important sites of contestation over concepts of justice and equality in a democratic Argentina. 

In this chapter we have described how the democratic transition framed heavily in terms of human rights, allowed for both reproductive justice issues to be placed on the advocacy agenda, and for feminists to collectively define and make their demands known. Initially, a committed group of feminist activists, including lawyers, began articulating their demands in terms of rights and equality, and found support as gendered interpretations of international human rights standards became elaborated further in ICPD and Beijing. Feminist groups convened over time and established the National Campaign, which in turn remained dynamic by expanding to include and articulate ever-more different sorts of civil society organizations and social movements, from labor to human rights to health providers. The broadness of the National Campaign enabled generating public awareness through a wide variety of strategies, as well as moving the abortion issue (as well as contraception and sexuality education) to the public agenda. Health professionals grew to trust and work with advocates to gather and provide information regarding the impacts of a default of criminalizing abortion, as well as to challenge official accounts and advocate for political change. 

At the same time as advocates collaborated actively with progressive ministries of health at the national and provincial levels where possible; and they also turned to courts to defend individuals’ rights and eventually to catalyze broader pressure on the political organs of government to change the legal framework. International human rights bodies, as well as discourses from international conferences, were critical in developing legal standards and promoting external accountability but those normative frameworks were vernacularized and adapted by advocates to meet specific need, whether trainings and protocols or litigation. Likewise, transnational research and advocacy networks generated and collected both empirical information and normative analysis which domestic feminist lawyers drew on in their argumentation. At every stage, alliances constructed carefully over time based on horizontal relationships of trust were crucial to building bridges between informal and formal providers, between providers and lawyers, between lawyers across the region, between civil society actors and government officials, and among congressional representatives from different political parties.

As the chapter has described, this process was far from linear, responding to shifting political and legal opportunity structures over these decades. For example, the courts and ministries of health were the two institutional settings in which the production of norms regarding circumstances for abortion access primarily occurred from 2005 to 2018.[152] In contrast, until 2018 Congress and provincial legislatures were generally reactive and conservative. Nonetheless, as Ruibal and Anderson argue, the interaction between these many different strategies over years ‘created a powerful synergy that strengthened the movement and made the [2018] legislative debate possible, even under the leadership of an anti-choice president.’[153]

The new abortion law is as an inflection point for Argentine democracy and a case study in how rights concepts can be deployed to advance reproductive justice. The Argentine story also highlights the complex impacts of using rights for social change. By using rights to advance reproductive justice Argentine advocates not only ‘vernacularized’ formulations of rights in international law; they also challenged and transformed fundamental understandings of the demands of justice and democracy in Argentina. Constructing abortion rights required enlarging social understandings of individual agency and full citizenship and the people who are entitled to assert it. To achieve abortion rights, the material and symbolic changes had to occur in the ‘private sphere’ close to home where, as Eleanor Roosevelt said, human rights begin.[154] But it also required enlarging public understandings of citizenship and equality, through democratic deliberation and judicial accountability. It required changing understandings of the health system as a democratic social institution through which rights are effectively enjoyed, or which alternatively mirror patterns of exclusion and punishment in the larger society.[155] Patricia Williams famously likened rights to a “magic wand of visibility and invisibility, of inclusion and exclusion, of power and no power.’[156] The Green Wave brought visibility and inclusion to swathes of society whose dignity claims that had been ignored too long in Argentina’s democracy. And, as it spreads throughout the region, the fight goes on.

[1] We are deeply grateful to Salomé Garnier, Dana Repka, and Amanda Wibben for their invaluable assistance in preparing this chapter for publication.

[2] Lecturer on Law and Senior Fellow at the Petrie-Flom Center at Harvard Law School, Adjunct Senior Lecturer at the Harvard TH Chan School of Public Health, and Research Leader on Gender, Sexuality and the Law, UiB-CMI Centre on Law and Social Transformation (Bergen, Norway). ayamin@law.harvard.edu. 

[3] Adjunct Professor at the Law School at Universidad de Palermo, and Associate Researcher at Centro de Estudios de Estado y Sociedad (CEDES) (Buenos Aires, Argentina). rmichelagus@gmail.com.

[4] Ley de Acceso a la interrupción Voluntaria del Embarazo y a la atención postaborto (2020) Argentina Law No 27.610

[5] ‘Alberto Fernández participó de la presentación del libro "Somos Belén" sobre el derecho al aborto’ (Télam Digital 2019) <https://www.telam.com.ar/notas/201911/408864-alberto-fernandez-participo-de-la-presentacion-del-libro-somos-belen-sobre-el-derecho-al-aborto.html>.

[6] ‘Aborto Legal 2020: Alberto tenés un atraso’ (Cuartopoder Salta 2020) <https://cuartopodersalta.com.ar/aborto-legal-2020-alberto-tenes-un-atraso/> 1

[7] ‘Libro segundo de los delitos: Titulo i—Delitos contra las personas: Capítulo I: Delitos contra la vida’ (2020) Article 86, Argentine Penal Code <http://servicios.infoleg.gob.ar/infolegInternet/anexos/15000-19999/16546/texact.htm>

[8] Paola Bergallo and Ramón Michel, ‘El aborto no punible en el derecho argentino’ (2009) CEDES < http://repositorio.cedes.org/handle/123456789/3734>

[9] Rachel Rebouché, ‘A Functionalist Approach to Comparative Abortion Law’ Abortion Law in Transnational Perspective: Cases and Controversies (University of Pennsylvania 2015) 98-117 <https://muse-jhu-edu.ezp-prod1.hul.harvard.edu/chapter/1309245>.

[10] Gráinne de Búrca, Reframing Human Rights in a Turbulent Era (University of Oxford 2021) 3

[11] Thomas Risse, Stephen C. Ropp, and Kathryn Sikkink, ‘Introduction’ The Persistent Power of Human Rights: From Commitment to Compliance (Cambridge University Press 2013) 350

[12] Beth A. Simmons, Mobilizing for Human Rights (Cambridge University Press 2009)

[13] Gráinne De Búrca, Robert O Keohane, and Charles Sabel, ‘Global Experimentalist Governance’ (2014) 44 British Journal of Political Science 477; Gráinne De Búrca and Joanne Scott, Law and New Governance in the EU and the US (1st ed Bloomsbury Publishing 2006); Charles Sabel, ‘Dewey, Democracy, and Democratic Experimentalism’ (2012) 9 Contemporary Pragmatism 35

[14] ibid. de Búrca (n 10)

[16] Eric A Friedman, Matiangai V. S Sirleaf, and Lawrence O Gostin, ‘Global Health Law’ in Lawrence Gostin and Benjamin Mason Meier (eds), Foundations of Global Health & Human Rights (Oxford University Press 2020) 45

[17] Paul Hunt, ‘Configuring the UN Human Rights System in the Era of Implementation: Mainland and Archipelago’ (2017) 39 Human Rights Quarterly 489

[18] Benjamin Mason Meier, Hanna Huffstetler, Judith Bueno de Mesquita, ‘Monitoring and Review to Assess Human Rights Implementation’ in Lawrence Gostin and Benjamin Mason Meier (eds), Foundations of Global Health & Human Rights (Oxford University Press 2020) 155; Paul Hunt, Rébecca Steward, Judith Bueno de Mesquita, and Lisa Oldring, Neglected Diseases: a human rights analysis (World Health Organization 2007) 201

[19] ibid. Gostin (n 15) 197; ibid. Hunt (n 17)

[20] Martti Koskenniemi ‘The Effect of Rights on Political Culture’ in Philip Alston, Mara R. Bustelo, and James. Heenan (eds), The EU and Human Rights (Oxford University Press 1999) 99

[21] Terence C Halliday and Bruce G Carruthers, ‘The Recursivity of Law: Global Norm Making and National Lawmaking in the Globalization of Corporate Insolvency Regimes’ (2007) 112 The American Journal of Sociology 1135; Alicia Ely Yamin, When Misfortune Becomes Injustice: Evolving Human Rights Struggles for Health and Social Equality (Stanford University Press 2020) 75

[22] ibid. de Búrca (n 10) 45

[23] Sally Engle Merry, ‘Gender Violence and the CEDAW Process’ in Human Rights & Gender Violence: Translating International Law into Local Justice (Chicago University Press 2006) 1-35, 72-102; Sally Engle Merry, ‘Transnational Rights and Local Activism’ (2006) 108 American Anthropologist 35, 39

[24] ibid. Brinks (n 27) 291

[25] Malcolm Langford, César Rodríguez-Garavito, and Julieta Rossi, Social Rights Judgments and the Politics of Compliance (Cambridge University Press 2017)

[26] Yamin, Alicia Ely, Neil Datta, and Ximena Andion, ‘Behind The Drama: The Roles Of Transnational Actors In Legal Mobilization Over Sexual And Reproductive Rights’ (2018) 19 The Georgetown Journal of Gender and the Law 533

[27] UN General Assembly, ‘Report of the Inter-Agency and Expert Group on Sustainable Development Goal Indicators’ (2016) <https://sustainabledevelopment.un.org/content/documents/11803Official-List-of-Proposed-SDG-Indicators.pdf>

[28] Alicia Ely Yamin, ‘Power, Politics and Knowledge Claims: Sexual and Reproductive Health and Rights in the SDG Era’ (2019)10 Global Policy 52–60

[29] Alicia Ely Yamin, When Misfortune Becomes Injustice: Evolving Human Rights Struggles for Health and Social Equality (Stanford University Press 2020)

[30] AnnJanette Rosga and Margaret L Satterthwaite, ‘The Trust in Indicators: Measuring Human Rights’ (2009) 27 Berkeley Journal of International Law 253

[31] Alice M. Miller, ‘Sexual Orientation as a Human Rights Issue’ in Alicia Ely Yamin (ed) Learning to Dance: Case Studies on Advancing Women's Reproductive Health and Well-Being from the Perspectives of Public Health and Human Rights (Harvard University Press 2005) 159, 159

[32] Alicia Ely Yamin, ‘Power, Politics and Knowledge Claims: Sexual and Reproductive Health and Rights in the SDG Era’ (2019)10 Global Policy 52–60.

[33] Cesar Rodríguez-Garavito, Diana Rodríguez Franco, Cortes y cambio social: cómo la Corte Constitucional transformó el desplazamiento forzado en Colombia (DeJusticia 2010)

[34] ibid. Rodríguez-Garavito (n 33); Cesar Rodríguez-Garavito, ‘Beyond the Courtroom: The Impact of Judicial Activism on Socioeconomic Rights in Latin America,’ (2011) 89 Texas Law Review 1669

[35] ibid Rodríguez-Garavito (n 33)

[36] Mabel Bellucci, Historia de una desobediencia: aborto y feminismo (Capital Intelectual 2020) 161

[37] Ibid. Bellucci (n 36) 176

[38] Susana Novick, ‘La posición argentina en las tresconferencias mundialesde población.’ (1999) 5 Papeles de población; Karina Alejandra Felitti, ‘La politica demografica del tercer gobierno peronista: justificaciones, repercusiones y resistencias a las restricciones al control de la natalidad (1973-1976)’ (2004-2005) 30-1 Trabajos y comunicaciones 287 <http://www. fuentesmemoria.fahce.unlp.edu.ar/art_revistas/pr.318/pr.318.pdf>

[39] Naila Kabeer, ‘Tracking the gender politics of the Millennium Development Goals: struggles for interpretive power in the international development agenda’ (2015) 36 Third World Quarterly 377.

[40] ‘Report of the UN World Populations Conference’ (1974) United Nations <https://undocs.org/en/E/CONF.60/19>

[41] The Mexico City Policy/Global Gag Rule: Its Impact on Family Planning and Reproductive Health : Hearing before the Committee on Foreign Affairs, House of Representatives, One Hundred Tenth Congress, First Session, October 31, 2007 (U.S. G.P.O. 2008)

[42] Lucy Delap and Walter de Gruyter, Feminisms: a Global History. Chicago (The University of Chicago Press 2020) 254

[43] ibid Felitti (n 38)

[44] ‘Salud Pública. Se encomienda la realización de un estudio sobre aspectos demográficos’ (1974) Argentine Decree No 659/74

[45] ‘Organismos del Estado. Comisión Nacional de Política Demográfica. Apruébanse los objetivos y políticas nacionales de población’ (1977) Argentine Decree No 3938/77

[46] ibid Felitti (n 38)

[47] ibid Bellucci (n 36)

[48] ‘Ley de Igualdad ante la ley de hijos extramatrimoniales y ejercicio conjunto de la patria potestad’ (1985) Argentine National Law No 23.264 <https://www.un.org/esa/documents/ga/cedaw/17/country/Argentina/cedawc-arg2en.htm>

[49] Julia Burton, ‘Aproximaciones al movimiento de mujeres y al feminismo en Argentina, 1970–post 2001’ X Jornadas de Sociología (Universidad de Buenos Aires 2013) <https://cdsa.aacademica.org/000-038/398>

[50] ‘Apruébase el Convenio sobre la igualdad de oportunidades y de trato entre trabajadores y trabajadoras: Trabajadores con responsabilidades familiares, adoptado por la 67 reunión de la Conferencia General de la O.I.T’ (1986) Argentine National Law No 23.451 <https://www.un.org/esa/documents/ga/cedaw/17/country/Argentina/cedawc-arg2en.htm>

[51] ‘Ley de Divorcio Vincular’ (1987) Argentine National Law No 23.515 <https://www.un.org/esa/documents/ga/cedaw/17/country/Argentina/cedawc-arg2en.htm>

[52] ‘Ley de Jubilaciones y Pensiones’ (1988) Argentine National Law No 23.570 <http://www.ilo.org/dyn/natlex/docs/ELECTRONIC/109474/135812/F-187052250/LEY%2023570%20ARGENTINA.pdf>

[53] ‘Derógase el Decreto No 2274/86’ (1986) Decree No 2274 < https://e-legis-ar.msal.gov.ar/htdocs/legisalud/migration/html/4063.html>

[54] Cecilia Straw, ‘La visión socio-política de los derechos reproductivos en Argentina’ (2017) 35 Revista Jurídica 171, 174

[55] For example, on March 8, 1984, in the Plaza de los Dos Congresos, women from various sectors presented themselves with banners that read ‘Free abortion,’ ‘We give birth, we decide,’ ‘Decriminalize abortion now,’ ‘Enough with phallocracy,’ and ‘Let's reclaim the clitoris;’ ibid. Bellucci (n 36) 278

[56] Elisabeth Jay Friedman and Constanza Tabbush, ‘#NiUnaMenos: Not One Woman Less, Not One More Death!’ (2016) NACLA < https://nacla.org/news/2016/11/01/niunamenos-not-one-woman-less-not-one-more-death>

[57] ibid. Yamin (n 28) 52

[58] ibid. Bellucci (n 36) 287

[60] The one in the City of Buenos Aires (1988) was the first program of its kind in the country.

[61] Mónica Petracci and Silvina Ramos, ‘La política pública de salud y derechos sexuales y reproductivos en la Argentina: aportes para comprender su historia’ (2006) CEDES

[63] ibid. Kabeer (n 39) 379

[64] Rebecca J. Cook, “Women's International Human Rights Law: The Way Forward” (1993) Human Rights Quarterly 231.

[65] ‘International Conference on Population and Development’ (1994) United Nations <https://www.unfpa.org/sites/default/files/pub-pdf/programme_of_action_Web ENGLISH.pdf>

[66] ‘Report of the Fourth World Conference on Women: Article 8,’ (1995) UN <https://www.un.org/womenwatch/daw/beijing/pdf/Beijing%20full%20report%20E.pdf>

[67] ibid Kabeer (n 39)

[68] ‘Beijing Platform for Action,’ (1995) UN <https://www.un.org/en/events/pastevents/pdfs/Beijing_Declaration_and_Platform_for_Action.pdf>

[69] ibid. Yamin (n 28) 89

[70] ibid. Yamin (n 28) 75

[71] Laura Pautassi, Gustavo Gamallo, and Pilar Arcidiácono, El bienestar en brechas (Editorial Biblos 2015)

[74] ibid Straw (n 54)

[75] María Alicia Gutiérrez, ‘Ahora que estamos Juntas, ahora que sí nos ven: El debate por la Ley de Interrupción Voluntaria del Embarazo en Argentina’ (2018) CIVICUS <https://www.civicus.org/index.php/re-imagining-democracy/stories-from-the-frontlines/3483-ahora-que-estamos-Juntas-ahora-que-si-nos-ven-el-debate-por-la-ley-de-interrupcion-voluntaria-del-embarazo-en-argentina>

[76] ibid Straw (n 54)

[77] N. Zamberlin, ‘Derechos sexuales y reproductivos y acción colectiva en Argentina’ in E. Jelin, S. Caggiano, and L. Mombello (eds), Por los derechos-hombres y mujeres en la acción colectiva (Nueva Trilce 2011) 79

[78] ibid Straw (n 54)

[79] ‘Creación del Programa Nacional de Salud Sexual y Procreación Responsable,’ Argentine National Law No 25.673

[80] ibid Straw (n 54) 177

[81] ‘Argentina's Debt Default Is the Largest in World History: December 23, 2001’ (2017) The 21st Century: 2000-2016: 2000-2003.

[82] María Eugenia Monte and Juan Marco Vaggione, ‘Cortes irrumpidas. La judicialización conservadora del aborto en Argentina’ (2019) Rupturas 107 <https://dialnet.unirioja.es/servlet/articulo?codigo=6671417>; Paola Bergallo ‘The struggle against informal rules on abortion in Argentina,’ in R. Cook, J. Erdman, and B. Dickens (eds), Abortion Law in Transnational Perspective: Cases and Controversies (Penn University Press 2014)

[83] Portal de Belén, ‘Asociación Civil sin Fines de Lucro. Ministerio de Salud y Acción Social de la Nación amparo, No 709, Libro XXXVI’ (Supreme Court of Justice of the Nation 2002)

[84] Mariana Carbajal, ‘Hasta un falso Premio Nobel’ (Pájina/12, 2009) <https://www.pagina12.com.ar/diario/elpais/subnotas/1-43138-2009-10-19.html>

[85] ibid Straw (n 54)

[86] ‘Matrimonio Igualitario,’ (2010) National Law No 26.618 <https://identidadydiversidad.adc.org.ar/normativa/ley-26-618-matrimonio-igualitario-2010/#:~:text=El%20art%C3%ADculo%202%20de%20la,mismo%20o%20de%20diferente%20sexo%E2%80%9D.>

[87] ‘Ley de Identidad de Género,’ National Law No 26.743 <https://www.icj.org/soginationallegislat/argentina-ley-26-743-identidad-de-genero-2012/>

^[88] ‘Ley de Acceso Integral a los Procedimientos y Técnicas y Médico-asistenciales de reproducción médicamente asistida,’ National Law No 26.862 <http://www.psi.uba.ar/academica/carrerasdegrado/psicologia/sitios_catedras/obligatorias/723_etica2/material/normativas/ley_26862_y_reglamentacion.pdf>

[89] Andrew Novak, ‘Using International and Foreign Law in Human Rights Litigation: The Decriminalization of Homosexuality in Belize’ (2018) 10 Journal of Human Rights Practice 346-354

<https://academic-oup-com.ezp-prod1.hul.harvard.edu/jhrp/article/10/2/346/5043127>; ‘Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender identity’ (2006) <http://www.yogyakartaprinciples.org/principles_en.html>

[91] AM Miller & M.Roseman. “Sexual and Reproductive Rights at the United Nations: Frustration or Fulfilment?” (2011). 19(38) Reproductive Health Matters, 102-118.

[92] ibid. de Búrca (n 10) 24

[93] ibid. Bellucci (n 36)

[95] Dora Coledesky, ‘Reseña para compartir,’ (Compaña nacional por el Derecho al Aborto Legal, Seguro y Gratuito, 2007) <http://www.abortolegal.com.ar/historia-de-la-comision-por-el-derecho-al-aborto/>

[96] Amanda Alma and Paula Lorenzo, ‘Mujeres que se encuentran’ Temas contemporáneos (Faminaria Editoria 2009) <http://www.rimaweb.com.ar/wp-content/uploads/2012/08/mujeres_que_se_encuentran_Alma_Lorenzo_feminaria_2009.pdf>

[97] ibid. Bellucci (n 36) 400

[98] Julia Burton, ‘De la comisión al socorro: trazos de militancia feminista por el derecho al aborto en Argentina.’ (2017) Descentrada; Julia Burton ‘Prácticas feministas en torno al derecho al aborto en Argentina: aproximaciones a las acciones colectivas de Socorristas en Red’ (2017) 7 Revista Punto Género 91

[99] ibid. Bellucci (n 36)

[100] Mariana Carbajal, ‘Yo no puedo ser una hipócrita’ (Página/12, 1999)

 <https://www.pagina12.com.ar/1999/99-09/99-09-16/pag03.htm>

[101] Deborah Daich and Monica Tarducci, ‘Antropólogas feministas por el derecho a decidir. aportes para una historia de la lucha por la despenalización y legalización del aborto en argentina’ (2018) 24 Antropología y Ciencias Sociales

[102] Verónica Gago, ‘On the Precipice of Decision: The Struggle for Abortion Rights in Argentina’ (Verso 2020) <https://www.versobooks.com/blogs/4958-on-the-precipice-of-decision-the-struggle-for-abortion-rights-in-argentina>

[103] Socorristas en Red (feministas que abortamos), ‘Quiénes somos’ (Socorristas en Red, 2021) <https://socorristasenred.org/quienes-somos/>; Ana Carrozzo, ‘Las historias de nuestros abortos: desde la clandestinidad a los acompañamientos socorristas’ (LATFEM, 2018) <https://latfem.org/las-historias-de-nuestros-abortos-desde-la-clandestinidad-los-acompanamientos-socorristas/>

[104] ‘About us’ (REDAAS 2021) <http://www.redaas.org.ar/english>

[105] Paola Bergallo ‘The struggle against informal rules on abortion in Argentina,’ in R. Cook, J. Erdman, and B. Dickens (eds), Abortion Law in Transnational Perspective: Cases and Controversies (Penn University Press 2014)

[106] K.L. vs Peru [2002] UNHRC, [2003] CPPR; L.C. vs Peru [2011] CEDAW; Paulina del Carmen Ramírez Jacinto vs Mexico [2007] IACHR

[107] Mariana Carbajal, El Aborto en Debate. Aportes para una discusión pendiente (Catolicas por el Derecho a Decidir Argentina y la Asociacion por los Derechos Civiles 2010)

[108] ‘La Red-ALAS’ (Red-ALAS, 2021) <http://www.red-alas.net/>

[109] Margaret E Keck and Kathryn Sikkink, ‘Transnational Advocacy Networks in International and Regional Politics’ (2018) 68 International Social Science Journal 65.

[110] ibid. Bergallo (n 105)

[111] F, A. L. s/ MedidaAutosatisfactiva, Expediente Letra “F”, N° 259, Libro XLVI (2012) Argentina, Supreme Court of Justice of the Nation Unofficial English translation by Hugo Leal-Neri, LL.B., LL.M., J.D., Fellow of the International Reproductive and Sexual Health Law Programme, Faculty of Law, University of Toronto, Canada.

[112] WHO handbook for guideline development (2nd ed., World Health Organization, 2014) <https://apps.who.int/iris/handle/10665/145714>

[113] Luciana Peker, ‘Buenas Noticias’ (Pájina/12, 2015) <https://www.pagina12.com.ar/diario/suplementos/las12/13-9816-2015-06-20.html>

[114] ‘Guía Técnica Para La Atención Integral De Los Abortos No Punibles’ (2007) Secretaría de programas sanitarios <http://www.abortolegal.com.ar/pdf/abortonopunible.pdf.>

[115] See, for example, ‘Protocolo para la atención integral de las personas con derecho a la interrupción legal del embarazo’ (2019) 14 <http://iah.salud.gob.ar/doc/433.pdf>

[116] Soledad Vallejos, ‘El juez que desafía a la Suprema Corte’ (Pájina/12, 2016) <https://www.pagina12.com.ar/diario/sociedad/3-205696-2012-10-16.html>; Mariana Carbajal, ‘Los maltratos que la Justicia no investiga’ (Pájina/12, 2013) <https://www.pagina12.com.ar/diario/sociedad/3-230040-2013-09-28.html>; (Gebruers & Gherardi, 2015)

[117] Council of the Magistrate of the province of Chubut, ‘Guerrero Adriana Inés y otras s/denuncia contra juez penal de Esquel.’

[118] Mariana Carbajal, ‘Médicos indagados por no realizar un aborto’ (Pájina/12, 2017) <https://www.pagina12.com.ar/77281-medicos-indagados-por-no-realizar-un-aborto>; Mariana Carbajal, La “falta grave” de no respetar la ley’ (Página/12, 2014) <https://www.pagina12.com.ar/diario/sociedad/3-255024-2014-09-11.html>; Jorge Sansó, ‘Sancionan a una psicóloga que indujo a una niña a que no abortara’ (La Capital 2017) <https://www.lacapital.com.ar/la-region/sancionan-una-psicologa-que-indujo-una-nina-que-no-abortara-n1385731.html> 

[119] See Interview with Soledad Deza, lawyer from Belén, ‘La justicia ya no puede hacer lo que quiere con las mujeres’ (La vaca 2016) <https://www.lavaca.org/notas/entrevista-a-soledad-deza-abogada-de-belen-la-justicia-ya-no-puede-hacer-lo-que-quiere-con-las-mujeres/>

[120] ‘Habló Belén, la joven que estuvo presa casi tres años por un aborto espontáneo.’ (Infobae 2017). <https://www.infobae.com/sociedad/2017/03/30/hablo-belen-la-joven-que-estuvo-presa-casi-tres-anos-por-un-aborto-espontaneo/>

[121] Florencia Halfon Laksman, ‘El “caso Belén:” libre’ (Anfibia 2017) <http://revistaanfibia.com/cronica/libre/>

[122] ibid. Bergallo (n 105)

[123] ibid. Socorristas en Red (n 103)

[124] Belén Grosso and Ruth Zurbriggen, ‘Coaliciones y alianzas entre activistas feministas y el sistema de salud: Relato de una experiencia situada en pos del derecho a abortar’ (2016) 8 Documento REDAAS <http://www.redaas.org.ar/nuestro-trabajo-documento.php?a=38>

[125] ‘Línea 0800 Salud Sexual’ (Argentina Unida) <https://www.argentina.gob.ar/salud/saludsexual/lineasaludsexual>

[126] ‘El 65 por ciento de los llamados al 0800 de Salud Sexual es realizado por mujeres de entre 15 y 39 años’ (Argentina Unida, 2019) <https://www.argentina.gob.ar/noticias/el-65-por-ciento-de-los-llamados-al-0800-de-salud-sexual-es-realizado-por-mujeres-de-entre#:~:text=En%20el%20marco%20del%20D%C3%ADa,0800%2D222%2D%203444>

[127] ‘Acceso a Métodos Anticonceptivos-MACy a Interrupción Legal del Embarazo -ILE’ Ministerio de Salud Argentina (2020) <http://www.redaas.org.ar/archivos-recursos/508-Informe%200800%20(Reporte%20Abr-May%202020).pdf>

[128] See, for example, ‘Conversatorio "El abordaje de la IVE en el marco de la ESI"’ (Argentina Unida, 2021) <https://www.argentina.gob.ar/noticias/conversatorio-el-abordaje-de-la-ive-en-el-marco-de-la-esi>; ‘Interrupción Legal del Embarazo: vencer el miedo y la falta de información’ (Rio negro 2019) <https://www.rionegro.com.ar/interrupcion-legal-del-embarazo-vencer-el-miedo-y-la-falta-de-informacion-940721/>

[129] ibid. Bergallo (n 105)

[130] ibid. Carbajal (n 118)

[131] See, for example, the interventions of health providers, members of REDAAS, in the abortion debate in the Congress during 2008: Daniel Teppaz, Ob/gyn from Santa Fe <https://www.youtube.com/watch?v=vdxH0ZaJg4w>; Analía Messina, Chief of Ob/gyn in a public hospital of from Buenos Aires city, <https://www.youtube.com/watch?v=aK6DqPCORvQ>; Carolina Comaleras, midwife from Entre Rios <https://www.youtube.com/watch?v=_yAaB164Ml0>; Viviana Mazur, general/family doctor from Buenos Aires city <https://www.youtube.com/watch?v=XYPeKY-9Jgg>, Gabriela Luchetti, Ob/gyn from Neuquén <https://www.youtube.com/watch?v=GFuhkFIJZ3k>

[132] Donda Pérez, Victoria Analía, ‘0230-D-2018 Interrupción Voluntaria del Embarazo. Régimen’ (2018).; Marcelo Germán Wechsler, ‘0569-D-2018 Interrupción Voluntaria del Embarazo. Modificaciones al Código Penal’ (2018); Daniel Filmus, ‘0897-D-2018 Ley Integral De Interrupción Voluntaria del Embarazo,’ (2018); Mayra Soledad Mendoza ‘1082-D-2018 Interrupción Voluntaria del Embarazo -IVE-. Régimen. Modificaciones al Código Penal,’ (2018); Marta Teresita Villavicencio, ‘1115-D-2018 Interrupción Voluntaria del Embarazo. Modificación del artículo 86 y Derogación del Artículo 88 del Código Penal’ (2018); Facundo Suárez Lastra, ‘1376-D-2018 Interrupción Voluntaria del Embarazo. Régimen’ (2018); Daniel Andrés Lipovetsky, ‘1817-D-2018 Interrupción Voluntaria del Embarazo Durante las Primeras 14 Semanas de Gestación. Modificación del Código Penal’ (2018)

[133] ‘Resumen del debate: ¿Cuáles son las cifras del aborto en Argentina?’ (2018) REDAAS <https://www.youtube.com/watch?v=lSFMMden8io&t=1s>

[134] ‘Health Goal 3’ Sustainable Development Goals (2016) United Nations <https://sdgs.un.org/goals/goal3>; ‘Goal 5: Achieve gender equality and empower all women and girls’ Sustainable Development Goals (2016) United Nations <https://www.un.org/sustainabledevelopment/gender-equality/>

[135] Weronika Grzebalska, Eszter Kováts, Andrea Petó, ‘Gender as symbolic glue: how “gender” became an umbrella term for the rejection of the (neo)liberal order’ Krytyka Polityczna & Eiropean Alternatives (2017)

<http://politicalcritique.org/long-read/2017/gender-as-symbolic-glue-how-gender-became-an-umbrella-term-for-the-rejection-of-the-neoliberal-order/>

[136] UN Committee on Economic, Social and Cultural Rights, General Comment on the Right to Sexual and Reproductive Health, UN Doc E/C.12/GC/22 (2016)

[137] Committee on the Elimination of all forms of Discrimination against Women, General recommendation No. 35 on gender-based violence against women, updating general recommendation No. 19 UN Doc. CEDAW/C/GC/35 (2017)

[138] Office of the United Nations High Commissioner for Human Rights (OHCHR), General Comment No. 36 on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life, UN Doc. CCPR/C/GC/R.36/Rev.7 9, 26 (2017)

[139] REDAAS 2020 <http://www.redaas.org.ar/nuestro-trabajo-documento.php?a=188>; Paloma Dulbecco, Santiago L. Cunial y Daniel E. Jones, ‘El aborto en el Congreso: Argentina 2018-2020’ (2020) CEDES <https://repositorio.cedes.org/handle/123456789/4632>

[140] Karina Felitti, Rosario Encartes Ramírez Morales, ‘Pañuelos verdes por el aborto legal: historia, significados y circulaciones en Argentina y México’ (2020) 3 Encartes 111; Camila Montañez, ‘The Green Hankerchief: The New Symbol Of The International Women’s Resistance’ (2019) IPPFWHR <https://www.ippfwhr.org/es/resource/the-green-hankerchief-the-new-symbol-of-the-international-womens-resistance/>

[141] ‘La Revolución De Las Hijas’ (Anfibia 2018) <http://revistaanfibia.com/la-revolucion-de-las-hijas/>; Elizalde S, Mateo N. ‘Las jóvenes: entre la “marea verde” y la decisión de abortar’ (2018) 14 Salud Colectiva 433

[142] María Florencia Alcaraz, ‘Pioneras del aborto legal’ (Anfibia 2018) <http://revistaanfibia.com/cronica/pioneras-del-aborto-legal/>

[143] ibid. Alcaraz (n 142); Claudia Piñeiro, ‘La nelly minyersky club band’ (Anfibia 2018) <http://revistaanfibia.com/cronica/la-nelly-minyersky-club-band/>

[144] María Florencia Alcaraz, ‘CRÓNICA DE L@S SOROR@S’ (Anfibia 2018) <http://revistaanfibia.com/cronica/cronica-de-ls-sorors-2/>

[145] Miguel Jorquera, ‘Una ley aprobada con audacia y convicción’ (Pájina/12, 2017) <https://www.pagina12.com.ar/77983-una-ley-aprobada-con-audacia-y-conviccion>

[146] ‘63% de los votos contra el aborto en el Senado de Argentina fueron de los hombres’ (CNN Español 2018) <https://cnnespanol.cnn.com/2018/08/09/63-de-los-votos-contra-el-aborto-en-el-senado-de-argentina-fueron-de-los-hombres/>

[147] María Florencia Alcaraz, ‘Hasta que sea ley’ (Anfibia 2018) <http://revistaanfibia.com/cronica/hasta-que-sea-ley-2/>

[148] Roberto Gargarella, ‘Argentina: Facing Coronavirus in the Shadow of the Rule of Law’ (2020) Petrie Flom Center at Harvard University <https://blog.petrieflom.law.harvard.edu/2020/06/08/argentina-global-responses-covid19/>; Roberto Gargarella, ‘Concerns Mount About Rule of Law in Argentina During COVID-19’ (2020) Petrie Flom Center at Harvard University <https://blog.petrieflom.law.harvard.edu/2020/09/15/argentina-covid19-democracy-rule-of-law/>; Sam Meredith ‘Argentina’s election surprise triggers historic stock market and currency crash’ (2019) <https://www.cnbc.com/2019/08/12/argentina-election-macri-suffers-setback-as-analysts-warn-of-peso-depreciation.html>

[149] ‘Ley Nacional de Atención y Cuidado Integral de la Salud durante el Embarazo y la Primera Infancia,’ National Law No 27.611

[150] Paloma Dulbecco, Santiago L. Cunial y Daniel E. Jones, ‘El aborto en el Congreso: Argentina 2018-2020’ (2020) CEDES <https://repositorio.cedes.org/handle/123456789/4632>

[151] ibid. Dulbecco (n 149)

[152] ibid. Bergallo (n 105)

[154] Eleanor Roosevelt, ‘Where Do Human Rights Begin’ (1958) Tenth Anniversary of UDHR Speech UN Commission on Human Rights

[155] ibid. Yamin (n 28) 175

[156] P.J. Williams, ‘Alchemical notes: Reconstructing ideals from deconstructed rights. (Minority critiques of the critical legal studies movement; selected papers written for a panel discussion at the 10th National Critical Legal Studies Conference’ (1987) 22 Harvard Civil Rights-Civil Liberties Law Review 433

    The Transformation of Abortion Law in China

Ruby YS LAI

Department of Sociology and Social Policy, Lingnan University

Abstract

This chapter traces and examines the transformation of the abortion law in China from feudal times to the contemporary era and explores the future directions of Chinese abortion policy in the face of socioeconomic challenges. The Chinese abortion law underwent profound changes in the previous century with political transitions and social revolution, and underlying these changes were the country’s age-long effort to achieve modernization. It went through different developmental stages, namely non-intervention, prohibition, and regulation, mirroring China’s socioeconomic evolution and the policy rationales of different regimes. In feudal China, while Confucianism accentuated the value of human life and the paramount importance of procreation within Chinese kinship, there was no law prohibiting women from obtaining abortion. It was not until the Late Qing period—under the influence of the Western legal tradition and with China’s priority on modernization—that legal sanction on abortion was first introduced. The law continued to ban abortion during the Republican era and the early years of the People’s Republic of China (PRC), but it was eventually relaxed in the 1950s when the PRC implemented its family planning program. Since then, abortion has been legalized and became indispensable to the country’s one-child policy. The PRC has strategically regulated abortion by allowing wide access to it and prohibiting sex-selective abortion to achieve its population goal. In this chapter, the author argues that abortion has transformed from a familial matter into a subject of state governance, reflecting the extension of state power into the private domain and the subsumption of individual reproductivity under the state biopolitical agenda. The reform in abortion law was driven by the state modernization project rather than the principle of human rights or collective activism. In this light, abortion access may subject to policy changes, particularly in times of population aging and fertility decline.

Introduction

The People’s Republic of China (PRC) has been implementing one of the most lenient abortion policies in the world. In general, abortion is permitted on request with no legal gestation limit, and it is widely available at different levels of medical facilities, including public and private institutions. Since the enforcement of the one-child policy in 1979, abortion has been a common practice used by individuals and the state to control fertility. Data released by China’s Health and Family Planning Statistical Yearbook showed that the annual number of abortions increased rapidly from 5 million to over 10 million between 1978 and 1992, and it declined steadily to the range of 6 to 9 million between 2010 and 2018 (see Table 1). Scholars suggested that compared to the West or societies where abortion is banned or heavily restricted, abortion appears to be less controversial and stigmatized in China due to its state-endorsed status and wide accessibility, as well as a sense of moral pragmatism derived from the Confucian tradition.[1]^,[2],[3] In fact, China’s abortion laws have undergone substantial changes in the 20^th century, from non-intervention to stringent prohibition to strategic regulation. Underlying these changes was a coherent pursuit of modernization and self-strengthening shared by different political regimes, and their responses to the specific socio-economic and political challenges and opportunities emerged from the corresponding historical circumstances. Through reviewing the process of policy alteration, this chapter shows that abortion was transformed from a familial matter into a subject of state governance, and it also illustrates the extension of state power into the private domain and the subsumption of individual reproductivity under the state biopolitical agenda.

This chapter is structured according to the development of abortion laws and regulations in China, from the feudal period to the post-reform era. It begins with the imperial Chinese law on abortion and analyzes how the political and patriarchal family system jointly produced the non-interventionist legislation. Next, the chapter explains the prohibition of abortion in the early 20^th century and the socio-historical contexts that led to these abrupt legal changes. After that, it examines the successive reforms of abortion regulations under the PRC’s administration and how the Chinese government strategically utilized abortion to complement its population policy. The chapter will be concluded by elaborating on the possible future development of abortion regulations in the face of China’s acute demographic challenges.

Non-intervention: Abortion Law in Feudal China

Throughout the history of China, abortion was a common practice used by individuals and medical practitioners to control fertility and save lives.[4]^,[5],[6] In classical Chinese medical texts and law codes, abortion was referred to as duotai[7] or qutai,[8] which meant ‘causing the fetus to fall’ or ‘dropping out of the womb’. Traditional methods used to induce an abortion were documented in medical texts, such as Chao’s General Treatise on Causes and Manifestations of All Diseases[9] and Compendium of Materia Medica.[10] Even though the practice was common, the folk methods used to induce abortion were evidenced to be dangerous and unreliable.[11] Besides, abortion was a violation of Confucian morality because it was considered as an act of ‘taking life’ and went against the virtue of filial piety, which emphasized the continuation of the patrilineal bloodline. That said, there was no tradition of prohibiting abortion based on medical or moral grounds in feudal China. Chinese physicians would still perform an abortion to save a woman’s life.[12]^,[13] Confucian thinking is more concerned about the conditions in which abortions can be justified, rather than upholding a universal principle that makes no exception.[14] This moral pragmatism became the basis of the non-interventionist approach towards abortion in feudal China.

Traditional Chinese law addressing abortion mainly related to two contexts. The first one concerned abortion in the situation of assault. The penalties of these crimes were relatively light, similar to hurting of an individual’s body part,[15] because the fetus was not perceived as a full human life during gestation; therefore, the taking of a fetus’s life would not be counted as homicide. For example, the Tang Code[16] stipulated that any person who causes an abortion in an assault would be punished by a two-year penal servitude. Similar penalties could be seen in the Ming Code[17] and the Qing Code,[18] which both specified that a person who attacked a pregnant woman and caused her miscarriage shall receive 80 blows with heavy bamboo and two years of penal servitude.[19] The second scenario refers to voluntarily procured abortion that cost a woman’s life, targeting adulterers and abortionists. For example, the Yuan dynasty decree, dated 1339, prohibited unregulated medical practice and the trading of abortifacient drugs.[20] Another example was the Qing Code, which prescribed that any man who engaged in illicit sex with a woman and used a drug to induce abortion that resulted in her death would be sentenced to 100 blows with heavy bamboo and life exile at a distance of 3,000 li. If the woman sent another person to obtain abortifacients to induce abortion without the knowledge of the adulterer, he would be punished only for adultery.[21]  

In both circumstances, the law never prohibited women from procuring abortion voluntarily, and it only penalized the acts that forced a woman to abort or lose the fetus.[22] It seems that traditional Chinese laws in general adopted a non-interventionist approach when dealing with abortion, which allowed considerable freedom for women to decide whether to have an abortion, and also prioritized women’s safety over that of the fetus.[23] Even then, however, this freedom was contingent upon the dominance of the patriarchal family system and the Confucian culture that monopolized the discursive power in defining the meaning and standards of moral righteousness. The seemingly lenient, non-interventionist outlook of the abortion law in feudal China must be understood in relation to its patriarchal societal structure and the Confucian doctrine that consolidated it.

In feudal China, the political regime was closely tied with the kinship structure, with Confucianism as the ideological glue. The Confucian family system was constituted through a set of cultural principles, ethical precepts, and behavioral norms that prioritize family interests over individual’s will, in which strict obedience was required under parental and elders’ orders, particularly concerning spousal and procreative decisions. Confucian ideals and mores instructed interpersonal interactions and individual behaviors within the family and the society and at the same time served as the guiding principles of the ruling class. An example was filial piety, which was widely promoted by state authorities and social institutions as a virtue that, on the one hand, helped maintaining familial harmony and, on the other hand, constructed and reproduced a gendered and generational hierarchy. These hierarchical gender and generational relationships, in turn, constituted and reinforced the sociopolitical and economic order that stabilized the power and status of the regime.[24] The relationship between the imperial court and the kinship groups was symbiotic in nature. According to historian Susan Mann,[25] the imperial familial–political system was constructed by the state as a system of control to maintain the family-based social order through positive rewards and sanctions, including education, honors, public ceremonies, and propaganda campaigns. The state made use of the lineage organizations and local customs to enforce imperial rules at the local level and ‘supported, expanded and gave legal forces to a family system that internalized the values the government wanted to promote through child socialization and adult gratification.’[26] The imperial court recognized the authority of the local clans over familial matters by which parents and kin elders could prescribe penalties for other clan members, especially junior members and women, if their behaviors were perceived as a violation of family rules or against family interests.[27]

In this light, the non-interventionist outlook of the abortion legislation was not grounded in the intention to protect women’s interests or the life of the fetus; the state restrained itself from intervening in deliberately procured abortions (except for those within adulterous relationships) because reproduction stayed within the control of the family under the familial–political system. The legal interests of the state in abortion found their root in the patriarchal family system that built upon lineage power, parental and husband’s authority, and the inferiority of women.[28] An example that reflected the common interest of the state and the local lineage organization was the Qing Code.[29] The 1740 substatute of the Qing Code punished an adulterer who purchased an abortifacient for his partner to induce an abortion and led to her death. Besides, anyone, including a physician, herbalist, or midwife, who provided an abortifacient in such adultery-triggered abortion would also be subject to penalties under the Qing Code.[30]^,[31]

The scrutiny of adultery-related abortion was indeed an attempt to protect the interest of the patriarchal family by maintaining the purity of the family bloodline and securing the ownership of its property — women — the source of reproductive, sexual, and domestic labor.[32] Against this backdrop, it can be said that the imperial Chinese law deliberately left the area of abortion untouched for the kin to retain its control over reproductive matters within the family. At the same time, the laws safeguarded the interests of the patriarchal family by keeping its kin safely away from external threats such as adultery that could contaminate the purity of its bloodline and cause damage to the family assets, including women and children.

Prohibition: Abortion Law between 1910 and 1953

In the late Qing Era,[33] abortion was prohibited by law for the first time, which lasted until the early years of the PRC. It signified the departure from the Confucian tradition and non-interventionist approach to abortion. Underlying this radical shift was the quest for modernization fueled by rising domestic political pressure and external diplomatic threats. The legal reform enabled the state to expand its power into the domain of reproduction, which used to be dominated by the patriarchal family, and incorporated abortion law into its biopolitical agenda as part of the pro-natalist policy to strive for national survival in the face of foreign imperialism. Under the influence of Japanese and German legal traditions, the abortion law formulated within this period was said to be highly restrictive.

The consecutive military defeats of China since the 1840s pressured the Qing government to launch successive reforms to modernize the country to resist foreign aggression and consolidate its rule.[34]^,[35] The last attempt was the Late Qing reforms implemented between 1901 and 1911, which covered political, cultural, economic, military, and legal domains. Being part of the grand project, the New Criminal Code of the Great Qing[36] was promulgated in 1910, which was drafted by Japanese consultants and followed the German tradition. The 1910 Code represents a radical shift from the Confucian to the Western legal tradition, as demonstrated in the conception of human life and equality embedded in the code. It also extended the power of the state in various domains, including reproduction, life, and death. For the very first time, procuring abortion became a criminal offense that was punishable by law.

In chapter 27 of the code, ‘Offences related to Abortion,’ abortion was referred to an act ‘cruel to humanity, damaging to [social] order, and contrary to the public interest.’ It stipulated that any woman who induced an abortion by using drugs or other means,[37] anyone who caused a woman to abort with or without her consent,[38] any person who causes a woman’s death because of an abortion,[39] and any physician, midwife, pharmacist, or herb dealer who assisted a woman to abort[40] would be subjected to different degrees of penal servitude[41] and be liable to a complete or partial deprivation of civil rights.[42]^,[43],[44] The law, which was modeled on the Japanese law on abortion,[45] created a new crime that penalized not only abortion-in-assault or adultery abortion but abortion on any grounds. It was highly restrictive in the sense that it punished a woman who procured an abortion and any person, including medical practitioners, who assisted the woman to abort. It made no exemption for abortion resulting from rape or to save a woman’s life. By referring to abortion as an act that would damage the social order and threaten public interest, the law placed abortion under public scrutiny and legitimized the intervention of the state into the private and familial sphere. The power over abortion was hence transferred from the patriarchal family and kin elders to the state.

The 1910 Code formed the basis of abortion legislation in the Republic of China. After the downfall of the Qing government, the Republic of China was founded under the leadership of the Nationalist Party in 1912. Adhering to the modernization agenda, the new government believed that ‘to strengthen the country, one first [had] to strengthen the race.’[46] It saw procreation as a key step to national salvation based on the belief that increasing human capital could multiply national strength. In other words, any attempt that went against the pronatalist objective of the state should be prohibited. In this light, the Republic of China Criminal Law[47] promulgated in 1928 continued to ban abortion; additionally, it also punished unqualified physicians, unlicensed midwives, and ordinary shops for assisting women who sought abortions. Another addition was Article 308, which stipulated that any person guilty of publicly showing the methods and instruments of abortion, or publicizing the performance of abortions by whatever means, would be sentenced to penal servitude of no more than one year and/or a fine of no more than one thousand yuan.[48]

Later, the Penal Laws of the Republic of China[49] were enforced in 1935, which permitted therapeutic abortion when the mother’s life was endangered by the pregnancy, but abortions resulting from rape were still proscribed. By enforcing these restrictive laws, the state further consolidated its power over the reproductive behaviors of the citizens through restricting access to abortion and impeding the circulation of reproductive health knowledge. Compared to the late Qing government, which aimed at modernizing the law through incorporating some Western elements into the law code, the Nationalist government was more proactive in using the law to fulfill its pronatalist agenda as a way to strengthen the country. This legal intent was made clear in the notes published by the Judicial Training Institute[50] on the 1935 Code: ‘The objective of the nation is to multiply into strength. But multiplying and strengthening depends on the people. Unless abortion is severely prohibited, it runs counter to the national objective’.[51] This clearly demonstrated that the Nationalist government restricted the practice of abortion primarily on socio-political grounds.

Despite the difference in political ideology, the Chinese Communist Party (CCP) also shared a pronatalist stance similar to that of the Nationalist Party before 1949. The Marxists saw population as a valuable state-owned resource under a socialist system, as it could contribute to labor-intensive development and military defense. The supreme leader Mao Zedong said in 1949 that China’s huge population was ‘a good thing,’ and the CCP could ‘achieve miracles’ with its people.[52] In the early years of the PRC, abortion remained prohibited.

In 1950, the Ministry of Health and the health division of the Military Commission jointly issued the Measures for Restricting Abortion of Female Cadres in Government Agencies[53] to ban illegal abortion in order to protect the lives of women and minors. Abortion was only permitted on therapeutic or eugenic grounds, including 1) when the woman has severe tuberculosis, heart disease, kidney disease, pernicious anemia, or any other severe disease that would threaten her life; 2) when the woman experienced signs of miscarriage and could not continue the pregnancy; 3) to save the woman’s life; 4) for women who have had two or more miscarriages or cesarean sections due to pelvic stenosis; 5) for women who had given birth to children but are physically unable to have more; and 6) when the woman has a serious mental disease that would be passed on to her child. The 1950 Measures also stipulated that abortion was permitted only if the woman obtained written consent from her husband and the approval of her physician and supervisor in her work unit.[54]

Later, in 1952, the Ministry of Health issued another document titled the Temporary Measures to Restrict Birth Control and Induced Abortion,[55] which further restricted access to contraception. The 1952 Measures permitted abortion in three circumstances that were similar to the first, second, and fourth instances stated in the 1950 Measures, and they penalized any person involved in an abortion that violated the above regulations, including the woman who procured the abortion, the physician who performed the abortion, and others who assisted in the abortion. In addition, the 1952 Measures also restricted the buying and selling of contraceptives by requiring both the sellers and buyers to obtain approval from the local health administrators before any purchase.[56]

Even though the two measures proclaimed that the objectives for prohibiting abortion were to protect the lives of women and minors, it was apparent that their intents were to restrict individual attempts to limit fertility at their will. Through tightening the access to abortion and contraceptives, the CCP was able to monopolize the control over the reproductivity of the population under the state’s biopolitical governance. These earliest reproductive regulations were enforced under the heavy influence of the pronatal military doctors from the Ministry of Health and the military[57] because family planning had not yet been given priority in the agenda of the CCP leaders.[58] That said, soon after they had taken over China, the CCP was aware that population and birth planning were key policy areas that could affect the socioeconomic development of the country and the sustainability of the communist rule, and this realization paved the way for policy alteration in the early 1950s.  

In sum, the ban on abortion from 1910 to 1953 indicated three fundamental changes in the Chinese law on abortion. First, the law departed from Confucian ethics in favor of the Western tradition on abortion. Confucianism took a relatively pragmatic attitude towards abortion,[59] while the Western-patterned abortion laws reflected heavy influence of the Church and emphasized God’s ownership of lives, including the life of the fetus. This change of conception led to the creation of a new offence that equated abortion with other anti-social and repugnant crimes. Secondly, the abortion ban signified a transition of control over reproduction from family elders and parents under the patriarchal family system to the state. Through restricting abortion, the state was able to expand its power into the private domains and intervene in matters related to procreation, fertility, life, and death. Thirdly, the ban indicated the beginning of biopolitics in China, in which the states instrumentally utilized abortion laws to control individuals’ reproductive activities to achieve their population goals. Underlying these changes was a coherent pursuit of modernization shared among different regimes. Despite their claims of protecting women’s rights, the new abortion laws did not effectively challenge the control of the patriarchal family over women’s lives; worse still, the restricting of access to abortion and contraceptives greatly hindered women from obtaining reproductive healthcare and thus threatened their well-being.[60]^,[61]

Strategic Regulation: Abortion Policy of the People’s Republic of China

Throughout the history of the PRC, population control has been an indispensable part of the CCP’s modernization agenda. The regulations and official discourse surrounding abortion have been changing in line with the CCP’s state-making project, from prohibition to relaxation to strategic regulations. Scholars have demonstrated how abortion was utilized by the state to nurture a healthy population of an equilibrium quantity, quality offspring, and a balanced sex ratio.[62]^{,[63],[64],[65]} Even so, the PRC’s abortion policy in the 2000s did incorporate some elements of reproductive rights under the influence of the global trend in advancing sexual and reproductive health, and the rising domestic demands for improving the country’s reproductive healthcare generated from two decades of market reform.  

Liberalization of Abortion and Birth Control Policy

To begin with, it is crucial to note that the regulation related to abortion in the PRC was not explicitly written into law,[66] except the prohibition on sex-selective abortion, but it was largely subsumed into the family planning policy that was comprised of constitutional duties, administrative regulations enacted by the state or the party, and local or provincial policy measures.[67] This approach gave flexibility for the state to adjust its measures according to changing sociopolitical circumstances. As soon as the CCP leaders recognized the urgency of controlling the population, they relaxed the restriction on abortion and contraceptives. Abortion was said to be partly legalized when the Contraceptive and Induced Abortion Procedures,[68] China’s first population act, was enforced in 1953. Drafted by the Ministry of Health and approved by the State Council, the 1953 Procedures permitted abortion if the pregnancy posed risks to the woman’s health or the woman experienced difficulties in breastfeeding due to a short birth interval,[69] but it still restricted abortion to couples with four to six children.[70] Further relaxation was introduced in 1957, when the Ministry of Health issued a new unpublished notice on abortion and sterilization in April. The notice allowed abortion regardless of family size, yet it stipulated that abortion had to be performed within the first three months of gestation and the woman seeking an abortion should have no health impediments and no record of abortion in the preceding year.[71]

The liberalization of abortion provided abortion services to the citizens and also led to a change in terminology. The new measures referred abortion as ‘rengon liuchen,’ which literally meant ‘artificially induced miscarriage,’ instead of ‘duotai,’ meaning causing the fetus to fall. The former was a more value-neutral medical term, whereas the latter conveyed a sense of criminality and an ethical blemish. Despite the support from party and government officials on the relaxation of birth control restriction, there was strong opposition to abortion as a means of demographic control. Some of the major opponents, such as the China Medical Association and the All-China Women's Federation, argued that the liberalization of abortion would increase the burden on China's healthcare system and threatened women’s well-being.[72]^,[73] Yet, the criticisms were not strong enough to change the CCP’s policy direction of limiting birth.

The birth control program was interrupted by the Cultural Revolution[74] and resumed in the 1970s when the CCP took full lead in implementing a series of ambitious population control measures. In 1973, the CCP launched the ‘wan, xi, shao’ campaign, which called for later marriage, a longer interval between each birth, and fewer children.[75] To reduce the population at a faster rate, the CCP took a radical step to limit fertility by enforcing the one-child policy in 1979 and restricted married couples at reproductive age to having just one child. To justify this unprecedented measure, the CCP made use of the law to establish the legal basis of its family planning program. The 1978 Constitution declared that the state ‘advocates and encourages family planning.’[76] Later, the legal obligation of every couple in China to practice family planning was affirmed in the 1980 Marriage Law[77] and the 1982 Constitution.[78] Articles 25 and 40 of the 1982 Constitution, which are still effective now, stipulated that: ‘The state promotes the planned reproduction that makes economic and social development plans keep pace with demographic growth…The husband and the wife have an equal duty to practice family planning.’[79] Through these clauses, the CCP consolidated the duty of family planning of the state and the Chinese citizens in a national scope. At the central administrative level, the state set up the National Family Planning Commission (NFPC)[80] in 1981 to lead the nationwide birth control program and launched massive propagandist campaigns to instill the idea of birth control in the Chinese population. At the local level, grassroots family planning centers were set up to supervise citizens’ birth control practice by requiring women of reproductive age to register with the center and report their pregnancies.[81] Under the one-child policy, any pregnancy outside the birth quota would be considered as an ‘unplanned’ or ‘unauthorized’[82] pregnancy that had to be handled by ‘remedial measures,’ which meant abortion. Local cadres were ordered to implement remedial measures to terminate unauthorized pregnancies in order to meet birth quotas.[83]

Since the implementation of the one-child policy in 1979, abortion was widely used to remedy unplanned births, evidenced by the rapid increase of abortion cases in the 1980s. The annual number of abortions was approximately five million from 1971 to 1978; it then rose to 7.9 million in 1979, 9.5 million in 1980, and 12.4 million in 1982.[84] Statistics on household composition and size also indicated that families in China became noticeably smaller in the 1980s, where the average number of members was 5.5 and 4.4 for rural and urban families in 1981, respectively; in 1988, the figures fell to 4.9 and 3.6, respectively.[85] Besides, the total fertility rate (TFR) also dropped rapidly from 5.8 in 1970 to 2.7 in 1978.[86] Despite the rapid fertility decline, extensive empirical evidence documented the undesirable consequences of the one-child policy, such as forced abortions[87] and sex-selective abortions, which led to a highly distorted sex ratio within the country.[88]^{,[89],[90],[91],[92]}

One Law, Three Regulations, and Abortion Regulations

After a decade of forceful measures, in the beginning of the new millennium, the CCP began to modify its family planning policy in response to domestic and international pressure. Since the 1990s, the CCP’s governmentality had shifted from authoritarian measures to skillful manipulation of various political–economic mechanisms to instill new socio-cultural norms of childbearing and childrearing into Chinese society.[93]^,[94] That said, the CCP still held firm control over the reproductivity of Chinese people. The ‘one law, three regulations’ were introduced in the 2000s to reaffirm the obligation of Chinese citizens to comply with the state’s population policy. ‘One law’ refers to the Population and Family Planning Law of the People’s Republic of China adopted in 2001 (2001 Law).[95] ‘Three regulations’ include the Regulation on the Administration of Family Planning Technical Services[96] issued in 2001 and revised in 2004, which supervised the administration of the family planning technical services at different levels; the Measures for Administration of Collection of Social Maintenance Fees[97] promulgated in 2002, which detailed the administrative procedures of the collections of fines for unauthorized births; and the Regulation on the Family Planning Work for the Migrant Population[98] issued in 2009, which aimed at regulating the reproductive activities of the migrant population. This law and these regulations were the continuation of the CCP’s past efforts in controlling population and an expansion of those efforts to tackle new socio-demographic challenges caused by market reform, urbanization, and massive internal migration. Article 1 of the 2001 Law explained the rationale of the family planning program and recognized it as a fundamental state policy:

This Law is enacted, in accordance with the Constitution, for the purpose of bringing about a coordinated development between population on the one side and the economy, society, resources and environment on the other, promoting family planning, protecting the legitimate rights and interests of citizens, enhancing happiness of families, and contributing to prosperity of the nation and progress of the society.

The 2001 Law, together with other regulations, defined the legal status of birth and specified the penalties for any violations, which confined an individual’s reproductive behaviors within a set of well-structured legal boundaries. Article 41 of the 2001 Law stated that any pregnancy that does not comply with the conditions laid down in Article 18 is subjected to certain penalties. Those who gave birth violating Article 18 of the 2001 Law must pay the social maintenance fee according to the 2002 Measures.[99] Article 3 of the 2002 Measures stipulated that the fee for unauthorized birth is collected based on either the annual per capita disposable income of city dwellers or the annual per capita net income of peasants in their respective localities, taking into account the actual income level of the person and the specific circumstances of the violation. For those who fail to pay the social maintenance fee, their unplanned child would be ineligible for registering for a huokuo, meaning household registration, which is essential for accessing basic social services such as education, healthcare, and other social welfare in China.

Even though the ‘one law, three regulations’ meticulously restricted the conditions of every childbirth, they did not impose any legal limits on the practice of abortion in terms of marital status, gestation period, family size, frequency, grounds of abortion, or requiring the consent and approval from the male partner or the work unit. Pregnancies can be terminated legally at any gestational stage by request, except for sex-selective abortion.[100]^,[101] While abortion was permitted under existing laws, abandoning a newborn was a criminal offence. Article 261 of the Criminal Law[102] and Article 45 of the Public Security Administration Punishments Law[103] both penalized the act of abandoning or neglecting a person who does not possess self-care ability. Taken together, these laws and regulations defined which reproductive activities are lawful and which are not, structuring individuals’ reproductive behaviors to comply with the state’s population target, and thus leaving limited space for individuals to navigate between state regulations and their reproductive agencies. Under these legal constraints, there are limited options available for women or couples if they are confronted by an unplanned pregnancy; very often, abortion is the most practical and handy way to resolve it.[104]

Despite its leniency towards abortion, the PRC imposed stringent restrictions on sex-selective abortion, which was one of the unintended consequences of the one-child policy. The forceful one-child limit was incompatible with the traditional son preference of many families in China, especially rural families, resulting in the maltreatment of women who had given birth to girls, uncountable female infanticides,[105] and a distorted sex ratio.[106]^,[107],[108] To eliminate the ‘two illegitimates’ — prenatal diagnosis of sex for non-medical reasons and sex-selective abortion for non-medical reasons — the PRC enacted a series of laws and regulations beginning in the 1980s.[109] The Law of the People's Republic of China on Maternal and Infant Health Care of 1994 (1994 Maternal and Infant Health Law)[110]^,[111] and the 2001 Law[112] both prohibited the use of medical techniques to identify the sex of the fetus and sex-selective abortion for non-medical reasons. In 2002, the NFPC, the Ministry of Health, and the China Food and Drug Administration jointly issued the Provisions on Prohibiting Fetal Sex Identification for Non-medical Needs and Sex-Selective Pregnancy Termination (2003 Provision),[113] enforced in 2003, to lay down a comprehensive framework to combat the ‘two illegitimates.’[114] Article 3 of the 2003 Provision proscribed the use of prenatal diagnosis of sex and sex-selective abortion based on non-medical grounds; Article 7 required individuals to obtain authorities’ approval for the termination of an eligible pregnancy beyond the 14^th week of gestation; and Articles 9 and 10 regulated the use and the sale of abortifacients, and the latter prohibited the selling of abortifacients to non-authorized individuals or parties. In other words, self-induced medical abortion without the supervision of registered medical practitioners, though it may not be driven by preference for a son, was also deemed unlawful under this regulation. In the 2016 amended version,[115] the penalties of respective violations were specified in detail.

The 2003 and 2016 provisions both outlawed the practice of non-medical prenatal sex diagnosis and sex-selective abortion, but the 2016 Provision allowed several exceptions. For instance, Article 9 stated that pregnancy termination is permitted if 1) the fetus has a serious hereditary disease; 2) the fetus has serious health defects; 3) the continuation of pregnancy may endanger the life of the pregnant woman; and 4) termination is deemed necessary based on legal and/or medical grounds. These exceptions reflected the eugenic nature of the CCP’s family planning policy, in which the quality of the population was increasingly prioritized under the campaign of ‘yousheng youyu’ (literally, excellent birth, excellent rearing) launched in the 1980s, which advocated for a ‘scientific’ way of childrearing based on the belief that fewer children mean better children.[116]^,[117] To fulfill this grand vision, the 1994 Maternal and Infant Health Law made premarital check-ups mandatory before marriage[118] and required physicians to provide medical advice on long-term birth control or sterilization to couples who have been diagnosed with genetic disease of a serious nature,[119] raised intense criticisms, particularly from the Western scientific communities. The Implementation Method of the law[120] was enacted in 2001, and those disputable articles concerning physicians’ advice on birth control measures were revised to avoid controversy. Later, the Marriage Registration Code issued in 2003 abolished the mandatory premarital medical examination as a requirement for marriage registration.[121] Despite these adjustments, the eugenics rationale remains entrenched in the state population policy, as it continued to emphasize the principle of ‘yousheng youyu’ and marginalized the reproductivity of people with disabilities or other health conditions.[122]

Reproductive Healthcare and Abortion Policy

Moving towards the millennium, the PRC continued to strengthen its control over individuals’ reproductive practices by enacting more meticulous regulations. It also put forward a series of new measures to improve reproductive healthcare in China. Around the time of the 1994 Cairo Conference and 1995 Beijing World Conference on Women, the PRC began to gradually adjust its birth control program towards the goals of internationalization, medicalization, feminization, liberalization, and quality of care.[123] These policy changes emphasized the well-being and empowerment of women through healthcare provision and legislations.[124] For example, Article 47 of the Law of the People's Republic of China on the Protection of Women's Rights and Interests[125] affirmed women’s right to bear or not bear children and recognized the duty of the government to provide reproductive health services for women;[126] Article 35 of the 2001 Law strictly prohibited sex-selective abortion due to preference for a son.[127] In 2003, the PRC launched the ‘Care for Girls’ campaign to tackle the social problem of distorted sex ratio by introducing sanctions and material incentives such as subsidies on education, living conditions, and access to health care and old-age supports.[128]

The state also laid down protections for female employees who had had an abortion. The Regulations Concerning the Labor Protection of Female Staff and Workers[129] issued in 1988 required employers to grant female staff and workers who have a miscarriage or abortion a certain period of maternity leave based on the medical certificate.[130] Later, the Special Rules on the Labor Protection of Female Employees,[131] which was enforced in 2012, defined the benefits more concretely. Article 7 of the 2012 Rules stated that female employees who underwent an abortion under or over four months of pregnancy are entitled to 15 days or 42 days of maternity leave, respectively; Article 8 specified that the medical expenses of abortion shall be paid by the maternity insurance or the employer. With these protections in place, the access to abortion care and the support for post-abortion recovery are guaranteed. Nevertheless, in practice, the rights to these benefits were actualized unevenly. While married women could feel entitled to apply for post-abortion maternity leave and medical claims, unmarried women were likely to give up these rights because they rather kept their abortion secret due to the stigma attached to premarital pregnancy.[132]

            Since the mid-1990s, the internationalization of population policy helped facilitate the inflow of foreign ideas and techniques and advanced the provision of reproductive healthcare in China. For instance, the idea of ‘quality care’ was widely promoted in the family planning and healthcare sector, advocating for client-centered and socially sensitive public services.[133] Dating back to the early stage of the family planning campaign in the 1950s, authorized medical institutions that could perform abortions were limited in number in both urban and rural areas. In rural villages, abortion was often carried out by barefoot doctors who used traditional methods such as herbal abortifacients to terminate pregnancy, which often put the women’s lives at risk.[134] The shortcomings of the healthcare provision demonstrated the need to improve technical services not only for safeguarding citizens’ well-being but also for raising population quality. Therefore, the State Council issued the Regulations on Administration of Technical Services for Family Planning[135] (Technical Services Regulations) in 2001 for the purpose of ‘strengthening the administration of the family planning technical services, controlling the quantity of the population, improving the quality of the population and safeguarding citizens’ right to reproductive health.’[136] The Technical Services Regulations tightened the state’s supervision of family planning technical services by mapping out the authorized technical standards of quality for healthcare services, personnel, medicaments, and devices offered to citizens.[137] For example, the establishment of all technical service institutions is subjected to the examination and approval by the health administrative department and the family planning commission of the local government. These institutions are only permitted to provide services stated in the practicing license of these medical institutions issued by the authorities,[138] and their licenses are to be checked every three years.[139] On the one hand, the Technical Services Regulations helped assure the access to safe and effective abortion in authorized public and private medical facilitates; on the other hand, it also defined the ‘authorized’ ways of administering reproductive services, disallowing abortion conducted in any “unauthorized” contexts, such as performed by unlicensed midwives or self-induced abortion. The scrutiny on unauthorized abortion was also stated in Article 36 of the 1994 Maternal and Infant Health Care Law, which stated that anyone without relevant state-issued qualification certificates to conduct abortion causing death, disability, loss, or basic loss of working ability would be investigated for criminal responsibility.

To sum up, the latter half of the 20^th century witnessed drastic changes in the abortion policy of the PRC, from stringent restrictions to gradual relaxation to strategic regulations. However, these changes were far from spontaneous. The CCP deftly devised a variety of legal and administrative measures as biopolitical strategies to circumvent pressing social crises that might threaten China’s stability and economic development, which were the foundations of the regime’s political legitimacy. Despite the success of the CCP in stabilizing population growth,[140] heavy prices were paid, particularly by women. Women’s bodies became the battlefield of the reproductive struggle between the state and the patriarchal family. They were often trapped in between the public responsibility to comply with the birth control measures and the familial obligation to reproduce.[141] The failure of producing a son to continue the family bloodline often led to shame,[142] husband-to-wife domestic violence,[143]^,[144] or even suicide.[145] Feminist scholars criticized the CCP’s birth control policy as a domination of the state over women’s interests that sacrificed their well-being, such as causing involuntary abortion and female infanticide.[146]

Under the existing laws and regulations, the access to safe and affordable abortion was guaranteed, but the legality and accessibility of abortion are not founded upon the principles of human rights but the instrumental calculation of the CCP to attain its modernization goals and maintain political stability. Firstly, the provision of legal abortion aligns well with the eugenic principle of ‘yousheng youyu,’ as it allows the termination of pregnancies in which defects were identified. Secondly, it also provides a handy option for individuals to control their fertility in accordance with the state’s birth limit, thus reducing the number of ‘unauthorized’ births as a whole. Although the state never openly endorsed abortion as the remedy for unplanned birth and repeatedly warned citizens against its potential harms, abortion is in fact an indispensable part of the country’s great endeavor to cultivate a population of high-quality global citizens.[147] Besides, scholars also suggest that the existing abortion policy often neglected the needs of marginalized women and reinforced the discourse of ‘glorious motherhood’ upheld by the state.[148] For instance, Article 21 of the 2001 Law states that married couples of reproductive age can receive basic family planning services for free. In other words, unmarried or single women were not entitled to enjoy free services even though they are still required to follow the birth control rules. These kinds of implicit presumptions mean that marriage and reproduction are still tied closely together under Chinese law.[149]

 That said, this period also reflects the growing international influence on China’s family planning policy and the substantive improvement in the provision of sexual and reproductive health services in the country. Prior to the 1990s, the PRC tried to position its birth control policy with the global effort in controlling population growth. Since the 1990s, the PRC became even more reactive to international pressures over some of its birth control measures. For example, the 1994 Maternal and Infant Health Law, or the so-called ‘eugenic law’, was revised in response to the heightened criticisms from international communities.[150] Besides, increased international collaborations, academic exchanges, and the importation of foreign techniques and healthcare standards also inspired the PRC to incorporate some elements of reproductive health into its birth policy, such as client-centered care, quality care, and women’s well-being.[151]^,[152] The ideas of women’s empowerment and the protection of individuals’ rights were also stated in the 2001 Law. Article 3 officially acknowledged the state’s obligation to improve women’s status:

The population and family planning programs shall be combined with the efforts to offer more opportunities for women to receive education and get employed, improve their health and elevate their status.

The enforcement of the 2001 Law led to some progressive changes in the domain of women’s rights and reproductive healthcare in China. For instance, the emergence of reproductive health non-governmental organizations (NGOs), including internationally affiliated, state-sponsored, and locally founded grassroots NGOs, helped advance the quality of reproductive healthcare through providing basic reproductive health services, including contraception and abortion, and advocating for the actualization of reproductive rights in China.[153]

The Future of China’s Abortion Policy

Three decades of birth control policy helped stabilize China’s population growth within the state’s target, but it also resulted in undesirable repercussions, including population aging and a low fertility rate.[154] The intensified aging problem not only threatens the supply of manpower[155] but also increases the demand for public services.[156] Being well aware of the adverse consequences of a huge aging population, the CCP has introduced successive pronatalist family planning policies to increase fertility since the 2010s. For instance, the policy of dandu erhai (two-children policy for single-child families) was implemented in 2013, which allowed couples to have a second child if one of them was a singleton. The PRC further relaxed the birth limit in 2016 and implemented the two-child policy.[157] Initially, the Chinese government anticipated that the new measure would bring about an increase in fertility and a reduction in the number of abortions.[158] Contrastingly, it was evidenced that the increase in the fertility rate was below the authorities’ expectation. According to the National Bureau of Statistics, despite more Chinese couples having a second child, the overall birth rate in 2017 decreased.[159] Besides, the annual number of abortions increased from 6,237,177 in 2013 to 9,644,724 in 2016, remaining over 9 million until 2018.[160] Empirical studies also indicated that Chinese people are still hesitant to give birth to a second child due to the intensified socio-economic pressures and the increasingly unaffordable childrearing cost.[161]^,[162],[163] To complement these unsatisfactory attempts, on May 31, 2021, the CCP announced the three-child policy that allowed married couples to have up to three children.[164] Nevertheless, the effectiveness of the new initiative is highly uncertain, given the fact that the two-child policy was unable to achieve the state’s fertility target. Meanwhile, on September 8, 2021, the State Council announced the Outline for Women's Development in China (2021-2030)[165] and stated that the state would take actions to improve women's reproductive health, such as guaranteeing access to reproductive care, including post-abortion and post-childbirth care, protecting women's right to make informed choices, encouraging men to share the responsibility of birth control, and improving sex education at schools. However, the Outline also mentioned reducing the number of abortions for "non-medical purposes" but described no concrete actions following this proposed attempt.[166] Against this backdrop, scholars, activists, and feminists have expressed their concern over the possible tightening of China’s abortion policy in the near future. Given the fact that abortion is still an indispensable measure of the family planning policy, it is unlikely for the Chinese government to prohibit abortion by law at the national level. Nevertheless, if the fertility rate continues to decline or remains at a low level in the coming decade, access to abortion may be restricted at the local level in accordance with the state’s pronatalist policy.

            There are several possible directions for the future development of China’s abortion policy. First and foremost, the basic rationale of the family planning policy would not be radically altered. The birth policy will continue to be the PRC’s fundamental state policy, in which the state and individuals are both obliged to practice family planning. By upholding existing laws and regulations, the PRC is able to retain its control over the reproductive behaviors of its citizens. On the one hand, the state is likely to go on with its ‘care as control’[167] strategy by improving the provision of reproductive healthcare through existing regulations such as the 2004 Technical Services Regulations and the 1994 Maternal Law, as a way to enhance population quality and individuals’ well-being; on the other hand, the state will maintain stringent restrictions on prenatal diagnosis of sex and sex-selective abortion for non-medical reasons to correct the skewed sex ratio.

One possible change concerning abortion regulation in China will be the increased obstacles to abortion access with the addition of burdensome procedures. It was observed that some local governments had adjusted their regulations on abortion by imposing additional administrative requirements. Since the implementation of the 2003 Provision, which prohibited the ‘two illegitimates,’ many local governments had formulated and enforced their own regulations on abortion. One of these regulations requires individuals to obtain approval from medical practitioners to justify the medical necessity of an abortion that exceeded the 14^th week of pregnancy. In some provinces, such as Hunan[168] and Henan,[169] individuals who are eligible to have children[170] are not permitted to seek an abortion over the 14^th week of gestation except for a few circumstances: 1) the fetus has a severe genetic disease; 2) the fetus has a severe health defect; 3) the woman is suffering from severe diseases and the pregnancy may cause harm to her life; and 4) the woman is divorced or widowed.[171] The 14^th-week requirement came from Article 7 of the 2003 Provision, which demanded approval from medical professionals before terminating a pregnancy beyond the 14^th week of gestation. Despite the fact that the 14^th-week requirement was removed from the revised provisions implemented in 2016, it eventually became the precedent of the newly formulated abortion regulations implemented in some provinces. For example, in Jiangxi province, a new administrative guideline was issued in 2018 to require women who were pregnant for 14 weeks or above to obtain signed approval from three medical practitioners to justify the medical necessity of an abortion.[172] In some places, women have to sign a ‘Pregnancy Termination Integrity Promise’[173] to declare that the abortion was not procured for sex-selective reasons. The Qingdao[174] city government even required unmarried women to sign the ‘Unmarried Pregnancy Termination Promise’[175] when seeking an abortion. Despite the controversy raised among the general public, local governments continue to introduce new measures to complicate the access to abortion.

To conclude, given the instrumental usefulness of abortion in moderating population quantity and quality, it is unlikely for the PRC to prohibit its legal access by amending national family planning laws and regulations in the near future. Nonetheless, local governments may tighten their regulations on abortion access such as introducing new administrative requirements or imposing gestation limits to get in line with the state’s pronatalist rationale. As long as population development is still considered as part of the PRC’s ‘mid- and long-term developmental strategy’,[176] the Chinese government will hold on to its control over the domain of reproduction, and abortion will continue to be subsumed as a measure of the family planning policy, rather than the actualization of reproductive justice and individual bodily autonomy.

[1] Luk BH, 'Abortion in Chinese Law' (1977) 25(2) The American journal of comparative law 372.

[2] Nie J, Behind the silence: Chinese voices on abortion (Asian voices, The Rowman & Littlefield Publishing Group 2005).

[3] Rigdon SM, 'Abortion law and practice in China: An overview with comparisons to the United States' (1996) 42(4) Social science & medicine (1982) 543.

[4] Bray F, 'A deathly disorder: understanding women's health in late imperial China' in Bates, Don and Donald George Bates (eds), Knowledge and the Scholarly Medical Traditions (Cambridge University Press 1995).

[5] Bray F, Technology and gender: fabrics of power in late imperial China (University of California Press 1997).

[6] Sommer MH, Sex, Law, and Society in Late Imperial China (Stanford University Press 2000).

[7] 墮胎.

[8] 去胎.

[9] Chaoshi zhubingyuan houzonglun, an early medical classic that published in the Sui Dynasty (A.D. 581-618).

[10] Bencao gangmu, authored by the renowned physician and herbalist Li Shizhen and published in 1596.

[11] Sommer MH, 'Abortion in Late Imperial China: Routine Birth Control or Crisis Intervention?' (2010) 31(2) Late imperial China 97.

[12] Bray, note 5 above.

[13] Sommer, note 11 above.

[14] Nie, note 2 above, p. 89.

[15] The penalty for causing the loss of a fetus was slightly more serious than for breaking two fingers or knocking out two teeth, but less severe than for breaking a limb or causing permanent blindness of an eye.

[16] Promulgated in 624 AD.

[17] Issued in 1374.

[18] Issued in 1646.

[19] Luk, note 1 above, p. 374.

[20] Luk, note 1 above, pp. 377-378.

[21] Sommer, note 11 above.

[22] See Luk, note 1 above.

[23] Luk, note 1 above, p. 384.

[24] Stacey J, Patriarchy and socialist revolution in China (Univ. of California Press 1983).

[25] Mann S, Gender and sexuality in modern Chinese history (Cambridge Univ. Press 2011).

[26] Mann, note 24 above, p. 68.

[27] Luk, note 1 above, p. 381.

[28] Ma L, 'Gender, law, and society: Abortion in early-twentieth-century China' (State University of New York at Buffalo 2016).

[29] Ma, note 27 above, p.47.

[30] Several laws could be cited to punish physicians or medical practitioners in such a scenario. According to Sommer (2010), the Qing Code contains a clause related to abortion under the section of ‘fighting (dou ou)’: ‘Whoever severs another person’s tendons, blinds another person in both eyes, aborts another person’s fetus (duo ren tai), or wounds another person with an edged weapon, shall be sentenced to two years of penal servitude.’ In some cases, the 1740 substatute was cited to punish the practitioner, who was considered as an accomplice of the adulterer.

[31] Sommer, note 11 above.

[32] Sommer, note 6 above.

[33] 1840–1912.

[34] One of these reforms was the Self-Strengthening Movement (1861–1895), which introduced Western learning and technology to modernize China in the domains of military, education, diplomacy, and financial policy. 

[35] Fairbank JK and Liu K, The Cambridge History of China: Late Ch'ing, 1800–1911, Part 2, vol 11 (The Cambridge History of China, Cambridge University Press 1980).

[36] Daqing Xinxinglu.

[37] Article 317 stated that any pregnant woman who procures an abortion with drugs or other means shall be sentenced to penal servitude of the fifth degree, detention, or a fine of no more than one hundred dollars.

[38] Article 318 stipulated that any person who aborts a woman’s fetus at her instigation or with her consent shall be sentenced to penal servitude of no higher than the fourth degree, whereas Article 319 punishes anyone who causes a woman to procure abortion or miscarry by using violence, threats, or deception.

[39] According to Article 320, any person who commits the offense described above in Article 318 and caused the woman's death would be sentenced to penal servitude of the third or the fourth degree.

[40] According to Article 321, any physician, midwife, pharmacist, or herb dealer who assists a woman to abort at her instigation or with her consent will be sentenced to penal servitude of the third or the fourth degree; those who aborted a woman’s fetus without her consent will be sentenced to penal servitude of the second or the third degree.

[41] According to Ma (2016), the third degree referred to three to five years of penal servitude; the fourth degree and the fifth degree were one to three years and less than a year, respectively.

[42] Article 323 stated that any person found guilty of any of the offenses described in this chapter may be liable to a complete or partial deprivation of civil rights.

[43] Luk, note 1 above, pp. 385-386.

[44] Ma, note 27, above, pp. 241-242.

[45] Japanese Criminal Code of 1907.

[46] Dikötter F, Sex, culture and modernity in China (1. publ. edn, Hurst 1995), p. 100.

[47] Zhonghua Minguo xingfa.

[48] Ma, note 27, above, p. 244.

[49] Zhonghua Minguo xingfaaf.

[50] Faguang xunlian suoag.

[51] Quoted from Luk, note 1 above, p. 388.

[52] Greenhalgh S and Winckler EA, Governing China's population (Stanford Univ. Press 2005), p. 63.

[53] Jiguan budui funu ganbu datai xianzhi de banfa.

[54] Liang J, 'A comprehensive and accurate understanding of family planning in China between the 1950s and the 1960s' (2009)(4) Population Research 10.

[55] Xianzhi jieyu ji rengong liuchan zhanxing banfa.

[56] Liang, note 54 above, pp. 10-11.

[57] Lampton DM, The politics of medicine in China : the policy process, 1949-1977 (Dawson 1977).

[58] Greenhalgh and Winckler, note 51 above, pp. 64-65.

[59] Nie, note 2 above.

[60] Cao W, 'Exploring ‘Glorious Motherhood’ in Chinese Abortion Law and Policy' (2015) 23(3) Fem Leg Stud 295.

[61] See Ma, note 27, above.

[62] Banister J, China's changing population (Stanford Univ. Press 1987).

[63] Greenhalgh S, Just one child: Science and policy in Deng’s China (University of California Press. 2008).

[64] Greenhalgh S, Cultivating Global Citizens: Population in the Rise of China (Harvard University Press. 2010).

[65] Nie, note 2 above.

[66] Cao, note 58 above, p. 297.

[67] Savage M, 'The Law of Abortion in the Union of Soviet Socialist Republics and the People's Republic of China: Women's Rights in Two Socialist Countries' (1988) 40(4) Stanford law review 1027.

[68] Biyun ji rengong liuchan banfa.

[69] Rigdon, note 3 above, p. 544.

[70] Tien HY, 'Abortion in China: Incidence and Implications' (1987) 13(4) Modern China 441, p. 443.

[71] Tien, note 68 above, p. 443.

[72] Savage, note 65 above, pp. 1077-1078.

[73] Tien HY, China's population struggle; demographic decisions of the People's Republic, 1949-1969 (Ohio State University Press 1973).

[74] 1967–1976.

[75] Tien, note 68 above, p. 442.

[76] 1978 Constitution, art. 53.

[77] 1980 Marriage Law, art. 12.

[78] 1982 Constitution, art. 49.

[79] Constitution of the People's Republic of China, adopted at the Fifth Session of the Fifth National People’s Congress on December 4, 1982.

[80] It was later renamed as the National Population and Family Planning Commission (NPFPC) in 2003 and restructured as the National Health and Family Planning Commission in 2013.

[81] Cao, note 58 above, p. 304.

[82] The Chinese term for ‘unauthorized’ or ‘unplanned’ birth is Jihua wai shengyu, meaning ‘out-of-plan birth.’

[83] Rigdon, note 3 above, pp. 545-546.

[84] Tien, note 68 above, p. 447.

[85] Whyte MK and Parish WL, Urban life in contemporary China (Univ. of Chicago Press 1984).

[86] Banister J, 'An analysis of recent data on the population of China' (1984) 10(2) Population and development review 24, p. 254.

[87] Nie J, 'The Problem of Coerced Abortion in China and Related Ethical Issues' (1999) 8(4) Cambridge quarterly of healthcare ethics 463.

[88] Cai Y and Lavely W, 'China's missing girls: numerical estimates and effects on population growth' (2004) 35(2) Studies in family planning 145.

[89] Coale AJ and Banister J, 'Five Decades of Missing Females in China' (1994) 31(3) Demography 459.

[90] Ebenstein A, 'The “Missing Girls” of China and the Unintended Consequences of the One Child Policy' (2010) 45(1) The Journal of human resources 87.

[91] Murphy R, 'Fertility and Distorted Sex Ratios in a Rural Chinese County: Culture, State, and Policy' (2003) 29(4) Population and development review 595.

[92] Zhou XD and others, 'The Very High Sex Ratio in Rural China: Impact on the Psychosocial Wellbeing of Unmarried Men' (2011) 73(9) Social science & medicine (1982) 1422.

[93] Greenhalgh and Winckler, note 51 above.

[94] Winckler EA, 'Chinese Reproductive Policy at the Turn of the Millennium: Dynamic Stability' (2002) 28(3) Population and development review 379.

[95] Zhonghua renmin gongheguo renkou yu jihua shengyu fa, amended in 2015.

[96] Jihua shengyu jishu fuwu guanli tiaoli.

[97] Shehui fuyang fei zhengshou guanli banfa.

[98] Liudong renkou jihua shengyu gongzuo tiaoli.

[99] Article 3 of the Measure states that ‘Those citizens who bear children out of line with the provisions of Article 18 of the Population and Family Planning Law shall pay social maintenance fees according to the provisions of these Measures.’

[100] Cao, note 58 above, p. 305.

[101] Lai RYS, 'Premarital Abortion: Reproductive Politics in Post-Socialist China' (Chinese University of Hong Kong 2019).

[102] Article 261 of the Criminal Law stated that ‘Those who have the obligation but refuse to support those who are aged, young, sick, or do not have the ability to live independently, if the case is serious, are to be sentenced to five years or fewer in prison or put under criminal detention or surveillance.’

[103] According to Article 45 of the Public Security Administration Punishments Law, a person shall be detained for not more than five days or given a warning if he (she) maltreats his (her) family member or abandons any person who does not have the abilities of living by himself (herself) and needs to be supported by him (her).

[104] Lai, note 95 above, p. 16.

[105] Davin D, 'The single-child family policy in the countryside' in Croll, Elisabeth, Penny Kane and Delia Davin (eds), China’s one-child family policy (Palgrave Macmillan 1985).

[106] Cai and Lavely, note 86 above.

[107] Murphy, note 89 above.

[108] Zhou and others, note 89 above.

[109] Nie J, 'Non-medical sex-selective abortion in China: ethical and public policy issues in the context of 40 million missing females' (2011) 98(1) British medical bulletin 7.

[110] 1994 Law, art. 32.

[111] Zhonghua renmin gongheguo mu ying baojian fa, later revised as the Law of the People's Republic of China on Maternal and Infant Health Care in 2017.

[112] 2001 Law, art. 35.

[113] Guanyu jinzhi fei yixue xuyao de tai'er xingbie jianding he xuanze xingbie de rengong zhongzhi renshen de guiding.

[114] It was later amended in 2016.

[115] Provisions on Prohibiting Fetal Sex Identification for Non-medical Needs and Sex-Selective Pregnancy Termination (Jinzhi fei yixue xuyao de tai'er xingbie jianding he xuanze xingbie de rengong zhongzhi renshen de guiding).

[116] Kuan T, 'The Horrific and the Exemplary: Public Stories and Education Reform in Late Socialist China' (2012) 20(4) Positions : East Asia cultures critique 1095.

[117] Nie J, 'China's one-child policy, a policy without a future. Pitfalls of the “common good” argument and the authoritarian model' (2014) 23(3) Cambridge quarterly of healthcare ethics 272.

[118] 1995 Law, art. 12.

[119] 1995 Law, art. 18.

[120] Zhonghua renmin gongheguo mu ying baojian fa shishi banfa.

[121] Guo S, China: The Maternal and Infant Health Care Law (John Wiley & Sons, Ltd 2012).

[122] Sleeboom-Faulkner ME, 'Genetic Testing, Governance, and the Family in the People’s Republic of China' (2011) 72(11) Social science & medicine (1982) 1802.

[123] Winckler, note 92 above.

[124] Zhang K, Sexual and Reproductive Health in China: Reorienting Concepts and Methodology (Social scientific studies in reform era China, v. 8, Brill 2011).

[125] Zhonghua renmin gongheguo funu quanyi baozhang fa.

[126] Article 47 of the 1992 Law and Article 51 of the 2005 and 2018 amended versions guaranteed women’s right to childbearing and their freedom not to bear a child in accordance with state regulations.

[127] Article 35 states that the use of ultrasound technology or other technological means to identify the gender of a fetus without medical grounds is strictly prohibited; the law also prohibited pregnancy termination based on the gender of a fetus without medical grounds.

[128] Murphy R, 'Sex Ratio Imbalances and China's Care for Girls Programme: A Case Study of a Social Problem' (2014) 219(219) The China quarterly 781.

[129] Nu zhigong laodong baohu guiding.

[130] 1988 Regulations, art. 8.

[131] Nu zhigong laodong baohu tebie guiding.

[132] Lai, note 95 above.

[133] Greenhalgh and Winckler, note 51 above, pp. 146-152.

[134] Rigdon, note 3 above, p. 553.

[135] Jihua shengyu jishu fuwu guanli tiaoli.

[136] Technical Services Regulations, art. 1.

[137] Technical Services Regulations, art. 10.

[138] Technical Services Regulations, art. 18 and 19.

[139] Technical Services Regulations, art. 22.

[140] According to the World Bank Data, the TFR of China declined from 5.725 in 1970 to 1.596 in 2000 after decades of birth control measures.

[141] Stacey, note 23 above.

[142] Lee S and Kleinman A, 'Suicide as resistance in Chinese society' in Perry, Elizabeth J. and Mark Selden (eds), Chinese society: Change, conflict and resistance (Routledge 2003).

[143] Anagnost AS, 'Family Violence and Magical Violence: The Woman as Victim in China's One-Child Family Policy' (1988) 11(2) Women and language 16.

[144] Honig E and Hershatter G, Personal voices: Chinese women in the 1980's (acls humanities e-book, Stanford University Press 1988).

[145] Pearson V and others, 'Attempted Suicide among Young Rural Women in the People's Republic of China: Possibilities for Prevention' (2002) 32(4) Suicide & life-threatening behavior 359.

[146] Stacey, note 23 above.

[147] Greenhalgh, note 62 above.

[148] Cao, note 58 above.

[149] Lai RYS and Choi SYP, 'Premarital Sexuality, Abortion, and Intergenerational Dynamics in China' (2021) 47(3) Modern China 239.

[150] Guo, note 113 above.

[151] Greenhalgh and Winckler, note 51 above, pp. 146-152

[152] Zhang, note 116 above.

[153] Deng G and Ji Y, ‘The Growth Of China's Sexual And Reproductive Health NGOs: Thirty Years In Review’ in Zhang Kaining (ed), Sexual and Reproductive Health in China: Reorienting concepts and methodology (Social Scientific Studies in Reform Era China, Brill 2011).

[154] Guo Z and Gu B, 'China’s Low Fertility: Evidence from the 2010 Census' in Attané, Isabelle and Baochang Gu (eds), Analysing China's Population (INED Population Studies, Springer Netherlands 2014).

[155] Cai F, 'Demographic Transition, Demographic Dividend, and Lewis Turning Point in China' (2010) 3(2) China economic journal 107.

[156] Feng Z and others, 'China’s Rapidly Aging Population Creates Policy Challenges In Shaping A Viable Long-Term Care System' (2012) 31(12) Health affairs 2764.

[157] The revision was announced in 2015 titled ‘Decision of the Standing Committee of the National People's Congress on Amending the Law of the People's Republic of China on Population and Family Planning’.

[158] Zeng Y, Prof and Hesketh T, Prof, 'The Effects of China's Universal Two-child Policy' (2016) 388(10054) The Lancet (British edition) 1930.

[159] 'NBS: Birthrate dropped, but more Chinese couples had second child' China Daily (November 1, 2018) <http://www.chinadaily.com.cn/a/201801/30/WS5a700ec1a3106e7dcc1379b7.html> accessed July 13, 2021.

[160] National Health and Family Planning Commission, China's Health and Family Planning Statistical Yearbook (China Union Medical University Press 2019).

[161] Attane I, 'Second Child Decisions in China' (2016) 42(3) Population and development review 519.

[162] Peng Y, 'Should We Have a Second Child? Reproductive Decisions and Family Negotiation under China's Two-child Policy' (2020) 29(125) The Journal of contemporary China 792.

[163] Wang E and Hesketh T, 'Exploring women's decisions about childbearing after the lifting of the one-child policy' (2018) 20(11) Culture, health & sexuality 1230.

[164] 'Optimizing the fertility policy and improving the population structure' Xinhua News Agency (June 1, 2021) <http://www.gov.cn/zhengce/2021-06/01/content_5614518.htm> accessed July 13, 2021.

[165] Zhongguo funu fazhan gangyao (2021-2030).

[166] State Council of the People's Republic of China. 'Notice of the State Council on Issuing the Outline for Women's Development in China and the Outline for Children's Development in China' (2021) <http://www.gov.cn/zhengce/content/2021-09/27/content_5639412.htm?fbclid=IwAR1hsIyAouPn6Oep7PPVziD_-ybQ5XqBo8czHDxbRwodoTkvSoJqhr699Po> accessed on November 1, 2021.

[167] Murphy, note 128 above, 794.

[168] Regulations on Prohibiting Fetal Sex Identification for Non-medical Needs and Sex-Selective Pregnancy Termination of the Hunan Province (Hunan sheng jinzhi fei yixue xuyao jianding tai'er xingbie he xuanze xingbie zhongzhi renshen guiding), enforced since 2005 and amended in 2011. <http://www.hunan.gov.cn/hnszf/szf/hnzb_18/xxgz/202012/t20201231_14098986.html> accessed July 16, 2021.

[169] Regulations on Prohibiting Fetal Sex Identification for Non-medical Needs and Sex-Selective Pregnancy Termination of the Henan Province (Henan sheng jinzhi fei yixue xuyao tai'er xingbie jianding he xuanze xingbie rengong zhongzhi renshen tiaoli), enforced since 2007. <http://wsjkw.henan.gov.cn/2007/07-19/1280513.html> accessed July 16, 2021.

[170] See Population and Family Planning Law of the People’s Republic of China, art. 18.

[171] Hunan Province Regulations, art. 11; Henan Province Regulations, art. 8.

[172] Kui L, 'China: new rules to prevent sex-selective abortions raise fears' The Guardian (London) (Jun 22, 2018) <https://www.theguardian.com/world/2018/jun/22/china-new-rules-jiangxi-province-prevent-sex-selective-abortions> accessed July 13, 2021.

[173] Rengong zhongzhi renshen chengxin chengnuo shu.

[174] A city in Shandong Province.

[175] Weihun rengong zhongzhi renshen chengnuo shu.

[176] Xinhua News Agency, note 164 above.