Gender Equality and the Complete Decriminalisation of Abortion

—Mara Malagodi, The Chinese University of Hong Kong, Faculty of Law

[Editors’ Note: This is one of our biweekly ICONnect columns. For more information on our four columnists for 2021, please see here.]

Recent legal changes in a number of jurisdictions that have entirely decriminalised abortion are steeped in the language of gender constitutionalism and human rights – whether these changes have taken place via constitutional litigation or statutory reform. As a result, the campaigns for complete decriminalisation in other jurisdictions have now begun to engage in a pragmatic comparative law exercise to advance their cause. Activists deploy the legal arguments and strategies marshalled in those jurisdictions that have completely removed abortion from the purview of their criminal laws alongside domestic constitutional principles and international human rights standards. As such, we are witnessing a global cross-pollination of legal ideas anchored in substantive notions of gender equality and human dignity to challenge legal restrictions to women’s bodily autonomy.

Abortion is the only medical procedure that continues to be consistently treated as a crime around the world. Even those jurisdictions that have partially liberalised their legal regimes continue to criminalise abortion outside of the terms explicitly provided by law. Only a handful of jurisdictions such as China (1979 – excluding Hong Kong and Macau), Canada (1988), Northern Ireland (2019), New Zealand (2020), and Australia (2021), have entirely removed abortion from the purview of their penal laws. Canada did so via constitutional litigation, while the other jurisdictions via statutory reform.

The default legal treatment of abortion as a crime across the modern world reflects a context-specific combination of demographic policy controls, patriarchal family structures, religious norms, social taboos, and in many instances colonial transplants. Recently, medical professionals have been increasingly calling upon their respective governments to remove abortion from the purview of criminal law and subject it solely to health law and professional standards like all other medical procedures. For example, in 2017, the UK Royal College of Obstetricians and Gynaecologists voted to remove criminal sanctions for abortion, while not calling for any changes in gestational limits.[1] In the same year, the American College of Obstetricians and Gynaecologists called for the decriminalisation of self-induced abortions.[2]

The enduring treatment of abortion as a criminal law matter has a particularly pernicious effect on a practical and on a symbolic level. First, the threat of criminal sanctions has a chilling effect both on women seeking a termination of pregnancy and on service providers. In fact, law and policy makers deliberately acknowledge that criminalisation of abortion is used as a deterrent. Second, criminalisation symbolises the moral panic and taboo around abortion of the dominant groups in many societies. By default, abortion is defined as a crime. Then – only under a limited set of heavily regulated circumstances – the law suspends its judgment by creating a more or less narrow corridor of legality. While access to abortion is restricted through a mix of criminal sanctions, regulatory standards, and health policies, the criminalisation of abortion functions as a sword of Damocles in the hands of the government. This approach also clearly signals that abortion in general (where there is a blanket criminal ban) or some abortions (where the practice has been partially legalised) amount to unlawful conduct that the state treats as harmful not just to an individual, but to society as a whole.

A comparison between the legal treatment of abortion in Hong Kong and in England & Wales illustrates well how law-in-books can differ from law-in-action, even in two jurisdictions that share the same legal matrix via colonial imposition. With the passing of the Offences Against the Person Act 1861 the criminalisation of abortion in England & Wales affected not just personnel performing the procedure, but also pregnant women, potentially attracting a life sentence for both. This draconian framework was transplanted to Hong Kong in 1865. Similarly, when the UK (except Northern Ireland) partially legalised abortion in 1967, Hong Kong followed suit in 1972 and made further relaxations in 1981 via legislative amendment. Hong Kong law and policy makers, however, remain concerned that liberalisation may result in an increase in pregnancy terminations, but data show that this has not been the case.[3] In fact, women seeking an abortion in Hong Kong continue to face a number of insurmountable barriers in accessing these services – especially teenagers, women from minority groups and those with lesser financial means. The 2017 OECD Gender Index, summarised the situation as follows:

Due to societal pressure, there are reports that unmarried pregnant women get abortions, sometimes illegally, due to its high cost and stringent legal requirements. It was also reported that many women travel to Mainland China instead of having an abortion in Hong Kong, due to lower costs and more lenient laws.[4]

On the one hand, proposals for complete decriminalisation have not gained traction in Hong Kong and prosecutions for abortion under the old colonial law have continued. On the other hand, in 2019 the Panel on Health Services for the Hong Kong Legislative Council urged the Government to improve access to lawful abortions to improve women’s well-being, but also to reduce illegal abortions.[5]

In the UK, the Abortion Act 1967, which partially legalised abortion, was never extended to Northern Ireland. This resulted in drawn out political and legal battles, while Northern Irish women regularly travel to Great Britain to obtain abortions. Northern Ireland’s draconian abortion law was eventually challenged in court and the case resulted in an inconclusive decision by the Supreme Court in 2018.[6] While the majority did not recognise the standing of the applicant – the Northern Ireland Human Rights Commission – the Court clearly stated that the law on abortion in Northern Ireland violated the right to privacy under Article 8 of the European Convention of Human Rights. However, because of the applicant’s lack of standing, the Court could not make a declaration of incompatibility under s.4 of the Human Rights Act 1998. On the political front, in 2019 the UK Parliament exploited the suspension of devolved government in Northern Ireland and succeeded in passing legislation completely decriminalising abortion in Northern Ireland. However, to this day access to services remains abysmal, and legal challenges by both pro-choice and anti-abortion activists continue.

In New Zealand, the Labour Party manifesto in the 2017 elections pledged to decriminalise abortion entirely.[7] The new government successfully passed the Abortion Legislation Act in March 2020 following concerted grassroot campaigns and political lobbying by pro-choice activists. Parliament received 25,776 written submissions on the proposed legislation from interested groups and individuals both supporting and opposing the proposed reforms.[8] Significantly, even if decriminalisation was achieved via statutory reform, both its process and substance were embedded in domestic and international human rights principles and standards. The 2018 Ministerial Briefing Paper prepared by the New Zealand Law Commission clearly stated that “any reform of abortion law will need to be considered in the context of human rights law, including the New Zealand Bill of Rights Act 1990 and New Zealand’s international obligations, and the Treaty of Waitangi”.[9] The Paper also took into account the jurisprudence of the higher judiciary and concluded that “the position in New Zealand is that a fetus is not treated as a legal person and does not have any legal rights unless and until it is born alive”.[10]

In Nepal abortion was partially legalised only in 2002; until then it featured one of the most repressive legal regimes in the world. In 2010, the Supreme Court issued a landmark judgment in the case of Lakshmi, in which abortion rights were deemed to be at the core of sexual and reproductive rights and integral to the right against discrimination and the right to equality.[11] It held that abortion equates to the right to self-determination for women and as such it holds a special place within reproductive rights. It clearly stated that a woman is the master of her own body and must have the final word in deciding whether to have sexual relations, when to give birth to a child, and how to use her body. The Court also held that the criminalisation of abortion disproportionally impacts women, and that abortion should be entirely decriminalised. More specifically, it ruled that it was inappropriate to criminalise abortion, and especially to do so under the Country Code’s Chapter on Crimes Against Human Life since under Nepali law the foetus is not classified as human life. Thus, the foetus cannot be granted more importance than the protection of the physical and mental health of the mother. The Court concluded that a forced pregnancy and a forced continuation of pregnancy constitute violence against women.[12]

Nepal’s Parliament, however, did not follow the recommendations of the Supreme Court in the case of Lakshmi to decriminalise abortion entirely. Abortion outside the scope of Section 15 of the Safe Motherhood and Reproductive Health Rights Act 2018 remains a criminal offence under Section 188 of Nepal’s new Penal Code in Chapter 13, Offences against the Protection of Pregnancy.[13] However, constitutional litigation demanding the complete decriminalisation of abortion both for pregnant women and service providers is already under way in the Constitutional Bench of the Supreme Court relying extensively on the Lakshmi decision, comparative legal analysis, and international human rights standards.[14] In this respect, Nepal has been urged to decriminalise abortion both by the CEDAW Committee in 2018 and during the Universal Periodic Review in 2021.[15]

To conclude, legal campaigns for the decriminalisation of abortion have acquired a comparative dimension that straddles criminal, health, constitutional, and international law. Successful arguments and strategies reflect the growing importance of contextually sensitive intersectional approaches to legal reform in this area that place gender equality and human dignity at the centre of their campaigns.[16]

Suggested citation: Mara Malagodi, Gender Equality and the Complete Decriminalisation of Abortion, Int’l J. Const. L. Blog, Nov. 10, 2021, at: http://www.iconnectblog.com/2021/11/gender-equality-and-the-complete-decriminalisation-of-abortion/

[1] See: https://www.rcog.org.uk/en/news/rcog-backs-decriminalisation-of-abortion/

[2] See: https://www.acog.org/clinical-information/policy-and-position-statements/position-statements/2017/decriminalization-of-self-induced-abortion

[3] See: https://www.legco.gov.hk/yr83-84/english/lc_sitg/hansard/h840627.pdf

[4] See: https://www.genderindex.org/wp-content/uploads/files/datasheets/2019/HK.pdf

[5] See: https://www.legco.gov.hk/yr18-19/english/panels/hs/reports/hs20190703cb2-1737-e.pdf

[6] Northern Ireland Human Rights Commission’s Application for Judicial Review [2019] 1 All E.R. 173.

[7] See: https://www.theguardian.com/world/2017/sep/05/jacinda-ardern-decriminalise-abortion-new-zealand-election

[8] See: https://www.parliament.nz/resource/en-NZ/SCR_94828/dd87c15733b01d9d26c3f7a79c8f0188ab898d3a

[9] See: https://www.lawcom.govt.nz/sites/default/files/projectAvailableFormats/Law%20Commission%20-%20ALR%20Ministerial%20Briefing%20Paper%20-%20FINAL.pdf

[10] Ibid.

[11] Lakshmi v. Office of the Prime Minister, 2067, 52(9) NKP 1551 (2010).

[12] See: Mara Malagodi “Nepal” in W. Chang, K. Loper, M. Malagodi, and R. Rubio Marín (eds.) Gender, Sexuality and Constitutionalism in Asia (Hart Publishing, forthcoming 2022).

[13] Country Penal (Code) Act 2017.

[14] Bandana Upreti and Samana Kafle v. Government of Nepal (Writ No. 077 of year 2077). Petition filed on 7 March 2021.

[15] Centre for Reproductive Rights and FWLD, 2021. Decriminalisation of Abortion in Nepal: Imperative to Uphold Women’s Rights. Available at: https://oltem1bixlohb0d4busw018c-wpengine.netdna-ssl.com/wp-content/uploads/2021/06/Decriminalization-of-Abortion-in-Nepal_02June021_-Final-Version-1.pdf [Accessed on 20/06/2021].

[16] See: Online workshop “Reproductive Rights as Social Rights: Fostering Access and Implementation” hosted by CUHK LAW on 10-11 May 2021, https://www.law.cuhk.edu.hk/app/?page_id=34246&preview=1&_ppp=56a707348a