- Abortion — Gender discrimination — Right to life — Individual rights — Women
Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.
1. Abortion is commonly defined as the intentional termination of pregnancy with reasonable knowledge that such termination will cause the death of the embryo (embryos and embryonic stem cells) or fetus. Yet this definition masks a fundamental ambiguity regarding what qualifies as an abortion. If pregnancy is determined to commence at fertilization rather than implantation, many forms of contraception would be included within the meaning of abortion. Moreover, new methods of early medical abortion by means of a pill rather than surgery further blur the line between contraception and abortion, and test the boundaries of existing abortion laws (Sheldon 192–193). In addition, some assisted reproductive technologies that involve the destruction of embryonic life could also fall within the ambit of abortion. For example, multifetal pregnancy reduction, which is typically used in assisted reproduction in order to decrease the number of fetuses in a multiple pregnancy without terminating the entire pregnancy, arguably constitutes a category of abortion (Rao at 202). But this essay will set aside such medical and technological questions, and assume the traditional legal definition of abortion.
2. Comparative study demonstrates that abortion rights may stem from a constitution, a statute, international law, or even a religious edict. They may be conceptualized as procedural or substantive, and they may take the form of negative rights or affirmative obligations. Comparative study also highlights the divergence between the articulation of a right and its realization. This essay will begin by analysing abortion in the United States (‘US’), South Africa, Germany, Colombia, and Canada because these countries represent geographically and culturally disparate jurisdictions which share an important commonality: each possesses a high court that has analysed the constitutionality of a law proscribing or permitting abortion. Their constitutional jurisprudence provides a wide range of answers to the underlying questions of when life begins, whether a fetus should be deemed a legal person, and how to frame the right to abortion.
3. The US and South Africa both reject the personhood of the fetus in order to safeguard the woman’s right to terminate her pregnancy, whereas Germany and Colombia allow abortion in spite of their conclusion that life begins at or near conception and the fetus is the bearer of constitutional rights. In the US, the debate over the constitutional basis for abortion has shifted from the language of ‘privacy’ to ‘liberty’ (right to privacy; right to liberty). Other countries have framed the issue in terms of ‘equality’ (South Africa; equality), ‘security of the person’ (Canada; right to security), or the right ‘to make decisions concerning reproduction’ and ‘to security in and control over their body’ (South Africa). Colombia’s Constitution requires access to abortion based upon the woman’s rights to ‘life,’ ‘health’ and ‘human dignity’ (right to life; right to health; dignity and autonomy of individuals). By contrast, Germany’s Basic Law guarantees the right to ‘life’ and ‘human dignity’ of the unborn, thus it compels the government to criminalise abortion, even though it need not attach any penalty. In Canada, procedural issues were prominent, so the court was able to protect access to abortion without addressing the substantive questions of whether the fetus is a person and whether abortion is a right protected under the Canadian Charter of Rights and Freedoms.
4. The issue of abortion also exposes tensions regarding the role of religion and the status of women in society (relation of religion to state and society). The essay concludes with a comparison of abortion law in Ireland, Iran, Thailand, Japan, and India, in order to illustrate the different ways in which these tensions have been resolved. In Ireland, despite a Catholic Constitution with a provision expressly protecting the right to life of the unborn, constitutional rights to freedom of speech and freedom of movement enable women to acquire information about access to abortion elsewhere and to travel to other countries in order to obtain the procedure. In Iran, a predominantly Muslim country governed by Islamic law (Shari’a), public demand for abortion to prevent the birth of children afflicted with disease prompted a religious edict that ultimately was embodied in legislation authorizing therapeutic abortion under limited circumstances. Thailand makes abortion illegal except under very limited circumstances in accordance with the tenets of Buddhism, which rejects abortion as a sin involving the deliberate destruction of life. Yet Japan, which is also a predominantly Buddhist country, takes a pragmatic approach to abortion by making it legal and easily accessible, while recognizing and accommodating religious beliefs through memorial services offered by Buddhist temples to mourn the death of the unborn fetus and mark it with the display of small statues. And although the availability of abortion often empowers women and enhances equality, Japan’s experience as explained later illustrates that abortion may also be used as a tool to oppress women or promote eugenic and other discriminatory policies. Indeed, in India, where abortion is legal even though Hinduism emphasizes nonviolence (ahimsa) and regards the fetus as a person from conception, the widespread preference for sons has led to sex-selective abortions and skewed sex ratios, prompting enactment of a law that expressly prohibits sex-selective abortion, and even the dissemination of information regarding the sex of the fetus.
B. US Articulation of a Fundamental Right to Abortion
1. Historical Evolution of the Right to Privacy
5. In the US, constitutional protection for abortion emerged from recognition of an unwritten right to privacy, which was initially protected by the penumbras of the Bill of Rights, but later came to be seen as an aspect of the ‘liberty’ guaranteed by the Fourteenth Amendment, which provides: ‘[No state shall] deprive any person of life, liberty, or property without due process of law’ (Constitution of the United States of America: 17 September 1787 (US)). The right to privacy was first invoked to strike down a law that criminalized the use of contraceptives by married couples (Griswold (1965)), and later extended to invalidate a law prohibiting the distribution of contraceptives to single persons (Eisenstadt (1972)), based upon the following reasoning:
[T]he marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals, each with a separate intellectual and emotional make-up. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.
6. Thus, in the Roe v Wade Case (US) (1973), the US Supreme Court struck down a Texas law that made procuring an abortion a crime except by medical advice to save the life of the mother, on grounds that
[t]his right of privacy, whether it be founded in the Fourteenth Amendment’s conception of personal liberty and restrictions upon state action, as we feel it is, or, ... the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.
7. The US Supreme Court explicitly refrained from deciding when life begins in Roe. Nevertheless, after examining every instance where the Constitution makes use of the term ‘person,’ the Court concluded that the word ‘person’ as used in the Constitution does not include the unborn. Roe held that women possess a fundamental constitutional right to terminate pregnancy, thus restrictions upon abortion should be subject to strict scrutiny, which requires that they be narrowly tailored to further compelling governmental interests. To balance the competing interests, Roe set forth a trimester framework, which divided the nine months of pregnancy into three trimesters. The Court found no compelling interest in the first trimester, thus it ruled that abortion could proceed virtually free from government regulation. In the second trimester, the government could regulate abortion procedures in order to further its compelling interest in protecting the woman’s health. In the third trimester, after the fetus attained viability—defined as the capacity for survival outside the woman’s womb—the government could proscribe abortion in order to further its compelling interest in protecting potential life, except when abortion is necessary to preserve the woman’s life or health.
2. Liberty and the Undue Burden Test
8. More recently, US constitutional law has shifted from the language of privacy to liberty as the basis for the abortion right. In Planned Parenthood v Casey (1992), the Supreme Court emphasized that constitutional protection for abortion derives from the Due Process Clause of the 14th Amendment, and declared: ‘It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.’ Although Casey avoided reliance upon the right of privacy, it reaffirmed ‘the essential holding of Roe,’ that women have a constitutional right to terminate pregnancy prior to fetal viability. Yet Casey rejected Roe’s ‘rigid trimester framework,’ replacing it with the ‘undue burden standard,’ pursuant to which government may regulate abortion so long as it does not impose an undue burden by enacting a law whose purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability. Applying the undue burden standard, the Court struck down a provision requiring that a married woman notify her spouse, based upon the prediction that it would be likely to impose an undue burden in a substantial fraction of cases, in light of statistics revealing the prevalence of domestic violence. But the Court upheld the remaining provisions of the Pennsylvania law, including a provision requiring parental consent, as well as a provision mandating informed consent coupled with a waiting period, which provided that, at least 24 hours before performing an abortion, the physician inform the pregnant woman of the nature of the procedure, the health risks of abortion and of childbirth, and the probable gestational age of the fetus, and also required the physician or a qualified assistant to make available information regarding childbirth assistance, child support, and alternatives to abortion, such as adoption.
9. The US Supreme Court’s recent decisions address the issue of what constitutes an undue burden upon the constitutional right to an abortion. Whole Woman’s Health v Hellerstedt (2016) involved a Texas law requiring physicians who provide abortions to have admitting privileges at nearby hospitals, and mandating that abortion clinics upgrade their facilities to be capable of surgery. The plaintiffs argued that the law imposed an undue burden upon a woman’s right to terminate her pregnancy because it had already resulted in the closure of almost half of the abortion clinics in the state, and the remaining clinics would not be able to satisfy the demand for abortion. According to Solicitor General Donald Verrilli, this case posed the question whether a woman’s constitutional right to abortion ‘really only exists in theory and not in fact,’ because if such onerous requirements upon abortion providers are upheld, many women who possess a constitutional right to an abortion would be unable to avail themselves of this right as a matter of practical reality (Whole Woman’s Health v Hellerstedt, Transcript of Oral Argument). The Court struck down the provisions of the Texas law, concluding that they do in fact constitute an undue burden without furthering the government’s alleged interest in protecting women’s health. Yet in Gonzales v Carhart (2007), the Court upheld a federal law proscribing ‘partial-birth abortion’ on grounds that it did not impose an undue burden upon a woman’s right to terminate her pregnancy prior to fetal viability. Even though the law lacked any health exception, the Court found the law constitutional because it prohibited a relatively rare procedure in which the fetus was partially extracted from the woman’s body before its life was terminated. In so doing, the Court endorsed the proposition that ‘government may use its voice and its regulatory authority’ in order to ‘express … respect for the dignity of human life’ by proscribing ‘a method of abortion in which a fetus is killed just inches before completion of the birth process.’ Gonzales v Carhart completely ignores the health of the woman and invokes the human dignity of the fetus in a way that seems surprising, in light of the fact that the US Constitution does not contain any provision protecting human dignity. Indeed, the appeal to the human dignity of the fetus appears to mirror German abortion jurisprudence, even though the German approach to abortion is often characterized as the antithesis of the United States.
C. South Africa’s Emphasis on Equality
10. Like the US, South Africa also rejects fetal personhood and permits abortion, but this result rests upon a framework of equality rather than privacy/liberty and flows from the idea that conferring personhood upon the fetus would undermine the status of women. Prior to 1975, abortion was prohibited under South African common law unless necessary to save the woman’s life. In 1975, the South African government enacted the Abortion and Sterilization Act of 1975, which attempted to medicalise the abortion decision by permitting abortion when a physician certified that the pregnancy endangered the woman’s life, posed a serious threat to her physical or mental health, or presented a serious chance that the child would be irreparably handicapped. In theory, this law liberalized access to abortion, but in practice, access to abortion was effectively determined by the woman’s class and racial background: only 40 per cent of applications for abortion were approved pursuant to this law, generally for privileged white women on psychiatric grounds.
11. The status of abortion in South Africa changed dramatically after the end of apartheid. The new South African Constitution enshrined a general commitment to human rights and equality. Moreover, although the Constitution did not specifically legalise abortion, Sections 12(2)(a) and (b) protected the right of everyone ‘to make decisions concerning reproduction’ and ‘to security in and control over their body.’ Consistent with these provisions, South Africa enacted the Choice of Termination of Pregnancy Act (‘COTOPA’) in 1996. The preamble to the COTOPA sets forth the philosophical principles underlying the act, which include ‘the values of human dignity, the achievement of equality, security of the person, non-racialism and non-sexism, and the advancement of human rights and freedoms which underlie a democratic South Africa,’ as well as the determination that ‘the Constitution protects the right of persons to make decisions concerning reproduction and to security in and control over their bodies.’ Under COTOPA, abortion may be performed upon the woman’s request during the first 12 weeks of pregnancy. Abortion is also permitted from the 13th to the 20th week if a medical practitioner believes that pregnancy would pose a risk of injury to the woman’s physical or mental health, the fetus would suffer from a severe abnormality, the pregnancy resulted from rape or incest, or continued pregnancy would significantly affect the social or economic circumstances of the woman. After the 20th week, abortion is permitted only if a medical practitioner, in consultation with another medical practitioner or registered midwife, is of the opinion that pregnancy would endanger the woman’s life or result in a severe malformation or injury to the fetus.
12. In 1998, the Christian Lawyers Association challenged the law as unconstitutional under Section 11 of the 1996 Constitution, which ensured that ‘everyone had the right to life’ (Christian Lawyers Association of SA and Others v Minister of Health and Others (1998)). But the Transvaal Provisional Division of the High Court dismissed the challenge and upheld COTOPA, concluding that Parliament did not intend Section 11 to encompass unborn fetuses, as reading ‘everyone’ so broadly would ‘introduce a significant new class of rights-bearer’ throughout the Constitution. In addition, the Court reasoned that conferring the legal status of personhood on a fetus would impinge upon women’s constitutional rights to equality, dignity, freedom and security of the person. The Court emphasized the importance of equality in the South African Constitution, stating that it is ‘primarily and emphatically’ an egalitarian Constitution (egalitarianism), and that ‘proper regard must be had to the rights of women as enshrined in Section 9 of the Constitution (the right to equality, which includes the full and actual enjoyment of all rights and freedoms and the protection that the state may not unfairly discriminate against anyone inter alia on the grounds of sex).’
13. In 2004, the Christian Lawyer’s Association brought another challenge to COTOPA, arguing that allowing minors under the age of 18 to seek an abortion without parental consent violated the Constitution, specifically the right of every child to family care, to protection from maltreatment, to equality before the law and to equal protection under the law. But the Transvaal Provisional Division of the High Court rejected this challenge as well, ruling that COTOPA did regulate minors’ access to abortion by requiring ‘informed consent,’ and that allowing minors to give informed consent was consistent with the right of every woman to choose whether to terminate her pregnancy or not, which is protected under Sections 12(2)(a) and (b) of the South African Constitution, as well as the right to equality before the law and equal protection from unfair discrimination on the ground of age embodied in Sections 9(1) and (3) of the Constitution (Christian Lawyers Association v Minister of Health and Others (Reproductive Health Alliance as amicus curiae) (2005)).
14. Thus, South Africa affords a legal right to an abortion on grounds of equality, but this does not mean that abortion is actually available to all women as a matter of practical reality. Many women in South Africa, particularly poor women in rural areas, are not even aware of the existence of a legal right. Moreover, structural barriers and the stigma of abortion have resulted in a dearth of legal providers. Many communities, particularly among black South Africans, hold strong pro-life views, and these attitudes have discouraged medical providers, who do not want to perform abortions for fear of being shunned or rejected by the hospital or by their own communities. The lack of access to legal abortions providers has resulted in the rise of quick, illegal abortion services, which also appeal to many women because they offer abortion pills that can be taken at home, whereas legal abortions must be performed in an authorized clinic.
D. Germany’s Creation of a Constitutional Duty to the Unborn
15. Around the same time that the US Supreme Court decided Roe v Wade, the Constitutional Court of Germany also confronted the issue of abortion (Schwangerschaftsabbruch I (1975)), but in contrast to the US and South Africa, Germany regards the fetus as a person and requires the government to take affirmative steps to protect fetal life. Initially, the German Constitutional Court ruled that the government possesses a duty to criminalise abortion, but later it adopted the position that abortion could be illegal but not necessarily punishable if the government attempted to reduce the incidence of abortion by other means, such as counselling.
16. The first abortion case arose as an abstract judicial review proceeding by which 5 state governments and 193 members of the Bundestag (the popularly elected branch of the legislature) petitioned the Constitutional Court to review the Abortion Reform Act of 1974, on grounds that it violated the right to life and human dignity clauses of the Basic Law (the German Constitution). The statute liberalized abortion law by providing that an abortion would not be punished if performed during the first 12 weeks of pregnancy by a physician with the consent of the pregnant woman after preventive counselling. However, criminal penalties would continue to be enforced with respect to abortions performed after 12 weeks, unless necessary to protect the woman’s life or health or justified by genetic indications.
1. Schwangerschaftsabbruch I
17. The German Constitutional Court began by construing Art. 2(2)(1) of the Basic Law, which provides: ‘Everyone shall have the right to life …’ (Basic Law of the Federal Republic of Germany: 23 May 1949 (Ger)). The Court declared:
Life, in the sense of the developmental existence of a human individual begins, according to established biological–physiological knowledge, on the 14th day after conception.... The process of development which has begun at that point is a continuing process which exhibits no sharp demarcation .... Therefore, the protection of Article 2(2)(1) of the Basic Law cannot be limited either to the ‘completed’ human being after birth or to the child about to be born which is independently capable of living. The right to life is guaranteed to everyone who ‘lives’; no distinction can be made here between various stages of the life developing before birth or between prenatal and postnatal life. ‘Everyone’ in the sense of Article 2(2)(1) of the Basic Law ... includes the yet unborn human being.
18. The German Constitutional Court derived the government’s obligation to protect unborn life not just from Art. 2(2)(1), but also from Art. 1(1) of the Basic Law, which provides that ‘[h]uman dignity shall be inviolable,’ stating:
Wherever human life exists, it merits human dignity; whether the subject of this dignity is conscious of it and knows how to safeguard it is not of decisive moment. The potential faculties present in the human being from the beginning suffice to establish human dignity.
19. Thus, in contrast to the US Supreme Court, which held that the fetus is not a person protected by the Constitution, the German Constitutional Court found that ‘[l]ife ... begins, according to established biological–physiological knowledge, on the 14th day after conception’ and ruled that the Basic Law guarantees the right to life of ‘everyone who lives’––including the unborn. The German Constitutional Court buttressed its interpretation of the Basic Law with a reference to German history, observing that, ‘unlike the Weimar Constitution, the express incorporation of the self-evident right to life in the Basic Law may be explained principally as a reaction to the ‘destruction of life unworthy to live,’ to the ‘final solution’ and the ‘liquidations’ that the National Socialist Regime carried out as measures of state. Art. 2(2)(1) of the Basic Law implies
an affirmation of the fundamental worth of human life and of a state concept which emphatically opposes the views of a political regime for which the individual life had little significance and which therefore practiced unlimited abuse in the name of the arrogated right over life and death of the citizen.
20. The German Constitutional Court further reasoned that the fetus’ right to life imposes a corresponding obligation upon the government ‘to take a position protecting and promoting this life ... [and to] preserve it even against illegal attacks by others.’ Moreover, the obligation to protect developing life ‘exists, as a matter of principle, even against the mother.’ The Court explained that the government’s constitutional duty demands criminalization of abortion except when pregnancy endangers the woman’s life, poses risk of a grave impairment to her health, or imposes other extraordinary burdens. Accordingly, the German Constitutional Court concluded that the Abortion Reform Act of 1974 was incompatible with the Basic Law and void insofar as it failed to criminalise abortion in cases where no reasons exist which have priority over the value order contained in the Basic Law.
21. Thus, in the United States, women have a fundamental constitutional right to terminate their pregnancies prior to fetal viability, whereas in Germany, the government has a fundamental constitutional duty to protect unborn life by outlawing abortion except under very limited circumstances. This disparity highlights a dramatic difference in the concept of constitutional rights––as negative rights that shield the citizen from state intrusion, or as positive rights that impose affirmative obligations upon the government. The German Constitutional Court arguably applied constitutional rights as a sword rather than a shield, to compel the government to protect unborn life by criminalizing abortion, except under very limited circumstances.
2. Schwangerschaftsabbruch II
22. After the Schwangerschaftsabbruch I case, abortion was permitted in the Federal Republic of Germany (West Germany) only under limited circumstances, such as for medical, genetic, ethical, and serious social ‘indications.’ The law also required a physician other than the one performing the abortion to certify the presence of a legal ‘indication’ and called for counselling of the pregnant woman. In the absence of these ‘indications,’ abortion was a criminal offense. At the time of German unification in 1990, abortion on demand at public expense in the first trimester was legal in the German Democratic Republic (East Germany). The Unification Treaty permitted each portion of the country to maintain its own practice on abortion until 1992, when a unified law was to be enacted.
23. The Bundestag’s first attempt to pass a unified law was struck down again by the German Constitutional Court in 1993 (Schwangerschaftsabbruch II, BVerfGE 88, 203 (1993)). According to Professor Donald Kommers, ‘Abortion II [Schwangerschaftsabbruch II] ... reaffirmed the essential core of Abortion I [Schwangerschaftsabbruch I] while simultaneously adjusting the character of this protection to meet the needs of post-unification Germany’ (Kommers (1997) 349–51). In a major departure from Schwangerschaftsabbruch I, the Constitutional Court in Schwangerschaftsabbruch II ruled that nonindicated abortions performed during the first twelve weeks of pregnancy need not be punished. Thus the Court upheld the legislature’s decision to replace criminal penalties with a system of counselling that allowed women themselves to judge whether abortion was justified. Yet the Constitutional Court struck down the provision of the new law classifying abortions performed during the first trimester of pregnancy as ‘not illegal,’ holding that abortions not justified by ‘indications’ must remain illegal even when they are not punished. The Court also ruled that abortions without a third-party finding of ‘indications’ cannot constitutionally be covered by Germany’s national health plan, although welfare assistance must be provided to poor women who seek nonindicated abortions but cannot afford them. In 1995, a new unified law was enacted that adhered to the guidelines given by the Constitutional Court in Schwangerschaftsabbruch II by labelling abortion illegal without attaching criminal penalties.
24. On the surface, the German approach to abortion appears to be diametrically opposed to that of the United States, yet Professor Gerald Neuman suggests that in practical terms, the situation in Germany after Schwangerschaftsabbruch II ‘now resembles the post-Casey situation in Pennsylvania’ because, in both places, ‘[a]bortion is available after burdensome preliminaries,’ such as waiting periods and counselling (Neuman). Indeed, abortion is more widely available in Germany than it is in the United States because the state must pay for the procedure for all women when it is justified by ‘indications’ (through the national health insurance), and for poor women, even when it is not justified, through the welfare system. Despite these practical realities, abortion remains illegal in principle in Germany, even though it is not punished so long as the pregnant woman undergoes counselling. Professor Mary Ann Glendon suggests that such an approach is preferable to the American approach because it ‘names the underlying problem as one involving human life, not as a conflict [between] a woman’s individual liberty or privacy and a non-person’ (Glendon). But another commentator contends that the German approach may be criticized as contradictory:
[T]he distinction between ‘illegality’ of a crime and its punishment represents a concept lawyers have difficulty understanding. This is more true of the average citizen. How illegal is an abortion that goes unpunished not only in exceptional cases but in principle? The illegality of abortion, stressed by the Constitutional Court, may be transformed in reality into an empty legalistic shell (Werner).
E. Colombia’s Incorporation of Health and International Human Rights
25. Like the German Constitutional Court, the Colombian Constitutional Court also concluded that the fetus is a constitutional person and that the state possesses a duty to protect unborn life. Nevertheless, the Colombian Constitutional Court struck down a statute criminalizing all abortion on grounds that it violated women’s rights to life, health, and human dignity, which are guaranteed under the Colombian Constitution and international human rights treaties. Article 49 of the Colombian Constitution expressly provides: ‘All individuals are guaranteed access to services that promote, protect and restore health’ (Constitution of the Republic of Colombia: 5 July 1991). Relying upon this provision, the Colombian Constitutional Court invalidated one of the most restrictive abortion laws in the world, ruling that abortion must be legally permitted when the life or health (physical and mental) of the woman is in danger, when pregnancy is the result of a crime such as rape or incest, or when grave fetal malformations make life outside the uterus unviable. See Decision C-355/2006 (Colombia 2006). The Court found that ‘the right to health,’ even though it is not expressly protected as a fundamental right under the Colombian Constitution, ‘has a fundamental character when it is in close relation to the right to life.’ The Court perceived restrictive abortion laws as a threat to women’s health and their lives because the large number of illegal abortions performed prior to this decision contributed to Colombia’s high rate of maternal mortality. The Court held that the state can protect prenatal life, but only in a way that is compatible with the rights to life and health of women: ‘the state cannot oblige a person, in this case a pregnant woman, to perform heroic sacrifices and give up her own rights for the benefit of others or for the benefit of society in general. Such an obligation is unenforceable, even if the pregnancy is the result of a consensual act, in light of Article 49 of the Constitution, which mandates that all persons take care of their own health.’ According to the Court, ‘laws criminalizing medical interventions that specially affect women constitute a barrier to women’s access to needed medical care, compromising women’s right to gender equality in the area of health, and amounting to a violation of states’ international obligations to respect those internationally recognized rights’ (gender discrimination).
26. The Colombian Constitutional Court connected women’s access to reproductive health care to their dignity and equality, concluding that ‘women’s sexual and reproductive rights have finally been recognized as human rights, and, as such, they have become part of constitutional rights, which are the fundamental basis of all democratic states’ (reproductive rights). The Court explained: ‘Sexual and reproductive rights also emerge from the recognition that equality in general, gender equality in particular, and the emancipation of women and girls are essential to society. Protecting sexual and reproductive rights is a direct path to promoting the dignity of all human beings and a step forward in humanity’s advancement towards social justice.’ Thus the Colombian Constitutional Court, like the German Constitutional Court, relied upon human dignity. But unlike the German Constitutional Court, it attributed human dignity to the woman rather than the fetus, stating that
when the legislature enacts criminal laws, it cannot ignore that a woman is a human being entitled to dignity and that she must be treated as such, as opposed to being treated as a reproductive instrument for the human race. The legislature must not impose the role of procreator on a woman against her will.
27. The Court declared: ‘A woman’s right to dignity prohibits her treatment as a mere instrument for reproduction, and her consent is therefore essential to the fundamental, life-changing decision to give birth to another person.’
28. One of the most distinctive features of the Colombian approach to abortion is that it incorporates international human rights provisions into domestic constitutional law. Article 93 of the Colombian Constitution explicitly refers to the incorporation of international treaties into domestic legislation. Borrowing from the French doctrine of ‘bloc de constitutionalité,’ the Colombian Constitutional Court expanded its conception of the constitution from a formal text to a corpus that encompasses multiple sources, including the provisions of international human rights treaties that have been ratified by the government. Specifically, the Court invoked Art. 6 of the International Covenant on Civil and Political Rights (ICCPR), which protects the right to life; Art. 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which protects the right to the highest attainable standard of health; and Art. 12.1 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which protects women’s equality in accessing health care (Undurraga and Cook).
F. Canada’s Reliance upon Procedural Justice
29. Canada presents a stark contrast to all of the preceding jurisdictions by addressing abortion under the rubric of procedural justice rather than substantive rights. In Morgentaler, Smoling and Scott v The Queen (Supreme Court of Canada 1988), the Canadian Supreme Court struck down a statute that outlawed abortion but created an exception by which women could obtain legal abortions if a ‘therapeutic abortion committee’ composed of three doctors certified that ‘the continuation of the pregnancy of such female person ... would be likely to endanger her life or health.’ The Canadian Supreme Court held that this law violates Section 7 of the Canadian Charter of Rights and Freedoms, which provides that ‘everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.’ The Court ruled that the procedures established by Parliament to qualify for the statutory exception were ‘illusory or so difficult to attain as to be practically illusory’ because, in many parts of the country, it was impossible to satisfy them and obtain a therapeutic abortion. The Court found it unnecessary to determine whether the fetus is a person or whether the Charter guarantees a substantive right to an abortion because ‘the procedures ... for obtaining a therapeutic abortion do not comport with the principles of fundamental justice.’ After this decision, it was theoretically possible for the Canadian Parliament to enact another law regulating abortion, but it failed to do so.
30. Comparing the Canadian approach to abortion with that of the United States, some scholars suggest that Morgentaler is a narrower ruling than Roe because it invalidated the abortion law on procedural grounds without granting a substantive right. In so doing, the Canadian Supreme Court started a dialogue with the legislature, but left Parliament free to enact another abortion law (Conkle). But consider the Canadian Supreme Court’s decision to hold the government accountable for the circumstances that made therapeutic abortions practically unavailable to many women, such as the dearth of qualified physicians and hospitals. Measured along this axis, the ruling arguably provides broader protection to women seeking abortion in Canada than is available in the United States, where abortion is a fundamental constitutional right in theory, yet the Supreme Court refuses to hold the government responsible for the conditions that prevent many women from actually exercising this right because it blames the market, or nature, or even the women themselves (see Maher v Roe (1977)); Harris v McRae (1980) (constitutional for government to fund childbirth but not abortion because ‘government may not place obstacles in the path of a woman’s exercise of her constitutional right to an abortion, but it need not remove those obstacles not of its own creation’); Webster v Reproductive Health Services (1989) (constitutional for government to prohibit public employees from performing abortions and to bar access to public facilities)).
G. Ireland’s Invocation of Freedom of Travel and Information
31. Access to abortion may be protected under the rubric of procedural justice rather than substantive rights, or it may be achieved by means of other substantive constitutional rights, such as freedom of speech and freedom of movement. Ireland possesses an unabashedly Catholic-Christian Constitution, with a Preamble that creates a constitutional polity in ‘the name of the most Holy Trinity’ and acknowledges its ‘obligations to our Divine Lord, Jesus Christ.’ In keeping with its embrace of Catholicism, Art. 40.3.3 of the Eighth Amendment to the Irish Constitution explicitly protects the right to life of the unborn, providing: ‘The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.’ In Attorney General v X and Others (1992) 53–54, the Irish Supreme Court attempted to reconcile these competing rights by holding that a woman is entitled to have an abortion if pregnancy presents a ‘real and substantial risk’ to her life. Thus, abortion is prohibited within Ireland except when it is necessary to avoid a real and substantial risk to the life of the mother.
32. Yet the Irish Supreme Court interpreted the state’s duty to ‘defend and vindicate’ the right to life of the unborn to not only restrict abortion within the country, but also to require the government to limit speech and travel promoting abortion overseas, so it ‘issued a sweeping injunction restraining the dissemination of information to pregnant woman concerning abortion facilities abroad’ (Kommers (2011) 443). In 1992, the European Court of Human Rights ruled that the injunction against abortion counselling was an unjustified interference with the free speech provisions of the European Convention on Human Rights. This decision provoked the passage of the Thirteenth and Fourteenth Amendments to the Irish Constitution, which expressly guarantee ‘freedom to travel’ and ‘freedom to obtain or make available ... information relating to services lawfully available in another state’ (Art. 40(3)(3) Constitution of Ireland: 29 December 1937 (Ir)). Thus, the Irish solution is to prohibit abortion within the country except when it poses a threat to the woman’s life, but to employ other constitutional rights to free speech and free movement in order to enable women to acquire information about abortion elsewhere and travel abroad in order to obtain the procedure.
H. Iran’s Adherence to Islamic principles
33. Iran is a predominantly Shiite Muslim country that permits abortion under limited circumstances within a framework of adherence to principles of Islamic law, or Shari’a. The evolving attitude towards abortion in Iran is the product of interplay between the Islamic prohibition on killing an ensouled person, on the one hand, and the juristic rule of La-haraj, on the other hand, which holds that ‘no unbearable burden should be imposed on a Muslim.’ La-haraj justifies an abortion if pregnancy imposes an unbearable burden on the woman or her family, but it does not permit the killing of an ‘innocent person,’ which includes a fetus that has been ensouled.
34. Prior to the 1979 revolution, abortions were permitted under certain circumstances, but in 1982, Iran instituted criminal sanctions for abortion. The Iranian Penal Code was amended to include a blood money system of monetary compensation for abortion, known as diyaat, with the exact amount of money owed determined by the Koranic stage of embryonic development. The six stages of embryonic development set forth in the Koran include: (1) a sperm deposited in the uterus; (2) a clot of blood (alaqa); (3) a small shapeless mass of flesh (mudgha); (4) a fetus with developed bones but not covered with flesh; (5) a fetus with developed bones and flesh but no soul; and (6) a fetus with a soul. Ensoulment occurs after 16 weeks of pregnancy, at which point the amount of diyaat owed depends on the sex of the fetus. The diyat must be paid to those harmed by the act (valiy-i dam).
35. A new era of decriminalization for abortion began in 1985, when the Iranian Guardian Council indicated that physicians who perform abortion for the purpose of saving the mother’s life before ensoulment of the fetus should not be prosecuted. And the advent of prenatal screening technologies prompted widespread demand for abortion in cases of fetal impairment, as well. In 1998, Ayatollah Khamenei issued a fatwa that authorized abortion for fetuses diagnosed with Thalassemia. This opened the door to legal abortions that were not solely for the purpose of saving the mother’s life. His religious edict was ultimately embodied in legislation in 2005, with the passage of the Therapeutic Abortion Act (‘TAA’), which allows abortion in the first four months of pregnancy, prior to ensoulment of the fetus, if the woman’s life is endangered or if the fetus is mentally or physically disabled. The TAA provides that:
Therapeutic abortions may be performed under the following conditions. First, the fetus must be less than four months of age, that is, before the spirit is breathed into it. Second, the fetus must be suffering from profound developmental delay or profound deformations or mal-formations. Third, these fetal problems must be causing extreme suffering or hardship for the mother or the fetus. Fourth, the life of the mother should be in danger. Fifth, both the mother and the father give their consent to the procedure. The physician performing the abortion shall not be penalized for the performance of these services.
36. The TAA legalizes abortion when three licensed physicians diagnose the fetus with a condition or disorder that has been classified as a severe condition by the Iranian Legal Medicine Organization (‘LMO’), a medical organization affiliated with the judiciary. The LMO has identified 51 disorders that qualify for an abortion under the TAA. In 2007, the Iranian Parliament passed another law that legalized abortion in additional instances of fetal deformity. As under the 2005 TAA, to qualify for an abortion under the 2007 Act, the woman requires the agreement of three licensed physicians regarding a fetal deformity, and the parents must show that raising the child would cause undue financial and emotional burdens. Thus, Iran permits abortion based upon threats to the woman’s life or fetal health, within a framework of adherence to Islamic principles. Religious support for the liberalization of abortion law may have been motivated in part by recognition of the fact that 80,000 illegal abortions were already occurring annually in Iran, and poor families were experiencing financial hardship in coping with children with long-term, severe health problems.
I. Thailand’s Observance of Buddhism
37. Abortion is considered to be a life-destroying act that constitutes a serious sin (bap) according to Buddhism. Thus, abortion is illegal in Thailand except in cases of risk to the woman’s health or if the pregnancy is the result of rape or another sexual crime. Initially, the ‘health’ criterion was interpreted narrowly to encompass only physical health, but in 2005, new medical regulations were approved to permit abortion when the woman’s mental health is in jeopardy, as well. Despite liberalization of the abortion law, Thailand still has a large number of illegal abortions, with 300,000 to 400,000 abortions estimated to occur each year, the majority of these being illegal abortions with very high rates of morbidity and mortality. In fact, more than 2000 aborted fetuses from illegal abortions were found hidden at a Buddhist temple in Bangkok in November 2010, leading to calls for further reform of abortion laws.
J. Japan’s Experience with Eugenics
38. Japan is also a predominantly Buddhist country, yet abortion is not only legal but a common practice. The Japanese accommodation of religion is accomplished by means of a memorial service (mizuko kuyo) offered by Buddhist temples to mourn the death of the fetus and make ceremonial offerings to mizuko jizo, which are small statues commemorating unborn fetuses. In fact, Japan was one of the earliest countries to legalise abortion: it passed the Eugenics Protection Act (the ‘EPA’) in 1948, in order to cope with high birth rates post-World War II and prevent overpopulation. The EPA was intended to ‘prevent the birth of inferior descendants’ and to protect the ‘life and health of [the] mother.’ Thus, the EPA originally authorized both compulsory and voluntary sterilization, as well as legal abortion in situations where pregnancy resulted from rape or involved the transmission of inheritable disease. In 1949, the EPA was revised to add ‘economic hardship’ as an acceptable basis for abortion.
39. In 1996, the eugenic components of the law were dropped and the EPA was rewritten and passed as the Maternal Protection Act (‘MPA’), also known as the Mother’s Body Law, which permits abortion only in cases of rape or risk to the mother’s health based upon her physical or economic circumstances. But in practice, the economic hardship provision has been interpreted liberally to permit abortions to take place freely. Despite the rejection of eugenic principles, women with disabilities are still advised to have abortions or avoid having children. Moreover, working women may also face pressure to terminate their pregnancies. Indeed, the Economist reports that bosses explicitly urge women to have abortions and one-fifth of young mothers experience office harassment concerning their pregnancy. Maternal harassment––termed matahara––was even the subject of a landmark case in 2014, in which the Japanese Supreme Court ruled in favour of an employee who was demoted for requesting less demanding work during her pregnancy. Recently, there have been fears that expansive interpretation of the economic hardship provision coupled with the proliferation of new prenatal screening technologies may lead to the resurgence of abortion for eugenic reasons.
K. India’s Prohibition of Sex-Selection
40. In India, abortion is legal even though Hinduism emphasizes nonviolence (ahimsa) and regards the fetus as a person from conception. In 1971, India enacted the Medical Termination of Pregnancy Act, which allows abortion in the first 12 weeks of pregnancy under a variety of circumstances. But the ready availability of abortion coupled with a widespread preference for sons has led to sex-selective abortions and skewed sex ratios. This prompted India to enact the first national law against sex selection. In 1994, the Indian Parliament passed the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act (‘PNDT’), which proscribes the use of medical diagnostic technology for the purpose of sex selection. The PNDT prohibits conducting prenatal diagnostic tests to determine the sex of the fetus, and it even criminalizes the communication of information regarding the sex of the fetus. Yet the PNDT was routinely ignored, and the practice of sex selection continued until 1998, when a Public Interest Litigation Petition was filed with the Indian Supreme Court.
41. In response to this petition, the Indian Supreme Court took on the problem of sex selective abortion, issuing a series of rulings that condemned the practice as ‘immoral’ and acknowledged its impact in terms of skewed sex ratios (Centre for Inquiry into Health and Allied Themes v Union of India (2001)). Moreover, the Indian Supreme Court issued clear and specific directives to the Central and State governments, ordering all government officials to implement the law ‘with all vigor and zeal’ (Lemoine and Tanagho 206). In 2003, the PNDT was amended to bar pre-conception and embryonic sex selection as well, an expansion of the law reflected in the change in title to the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act.
42. The late US Supreme Court Justice Scalia used to proclaim that American abortion law is ‘out of step’ with the rest of the world because the United States is ‘one of only six countries that allow abortion on demand until the point of viability’ (Roper v Simmons (2005) (Scalia, J, dissenting); see also Dorsen). Technically, he may have been correct: only five countries besides the US expressly permit abortion until viability (estimated to occur between 20 and 24 weeks) or a later point in pregnancy. The five include Canada, China, Korea, the Netherlands, and Vietnam, although Sweden and Singapore could also be added to this list because they permit abortion for any reason up until eighteen weeks and twenty-four weeks of pregnancy, respectively (see Center for Reproductive Rights, ‘The World’s Abortion Laws’ (May 2007)). Yet 56 countries, containing almost 40 per cent of the world’s population, currently allow abortion for any reason in the early stages of pregnancy, generally the first trimester (see Center for Reproductive Rights, ‘The World’s Abortion Laws’ (May 2007)). Moreover, close study of comparative abortion law reveals that the reality is too complex to be captured in a series of statistics. Even in those countries where abortion appears to be illegal in principle, the language of the law often belies the reality. Justice Scalia’s critique appears to reduce comparative abortion law to the level of simple arithmetic, when the reality is much more complicated.
43. Comparative study reveals the gap between the articulation of a right and its realization, for abortion may be more widely available to women in countries where there is no right. South Africa, for example, affords a legal right to an abortion on grounds of equality, but this does not mean that abortion is equally available to all women as a matter of practical reality. Stigma and structural barriers impede access to abortion, particularly for poor and rural women. And lack of access to legal abortion providers has resulted in the prevalence of illegal abortion services in South Africa. In the United States, abortion is a fundamental constitutional right in theory, but government has no duty to fund this right, even for indigent women. Moreover, the US Supreme Court generally refuses to hold the government responsible for conditions that restrict access to abortion, even when they are the result of government regulation. On the other hand, Germany’s Basic Law imposes an affirmative duty upon the government to protect unborn life by criminalizing abortion, yet the government must also pay for the abortion procedure for all women when it is justified by ‘indications’ through the national health insurance, and for poor women, even when it is not justified, through the welfare system. And although there is no substantive right to an abortion in Canada, the Canadian Supreme Court is willing to hold the government accountable for conditions that prevent access to the abortion procedure, such as a dearth of qualified physicians and hospitals.
44. Comparative study also illustrates the dramatically different ways in which the same right may be interpreted. Rights to life and health may justify abortion restrictions, but they may also be used to vindicate abortion rights. Thus, Ireland protects the right to life of the fetus by prohibiting abortion except when necessary to avoid a substantial risk to the life of the mother, and the state of Texas defends regulations that shut down a substantial number of abortion clinics as necessary to preserve the health of women. But abortion may also be mandated in order to safeguard the right to life and health of the woman, as lack of access to legal abortion may cause women to resort to illegal options, which jeopardise their health and their lives. In Thailand, strict legal limits on access to abortion have led to a large number of illegal abortions, with very high rates of maternal morbidity and mortality. In response to similar facts, the Colombian Constitutional Court required access to abortion in order to protect a woman’s constitutional rights to life, health, and human dignity. The Colombian Constitutional Court perceived restrictive abortion laws as a threat to women’s health and their lives, relying upon the fact that the large number of illegal abortions performed prior to its ruling had contributed to Colombia’s high rate of maternal mortality. Yet in Iran, promoting fetal health ironically serves as the rationale for a law that permits therapeutic abortion in order to prevent the birth of children afflicted with serious disease. Such contradictory conceptions of health demonstrate that abortion may advance health, empower women, and promote equality, or it may be used to undermine health, oppress women, and enable discrimination. Japan’s experiences with eugenic abortion and maternal harassment, as well as India’s recent struggles with sex selection, suggest some of the risks that are posed by the right to abortion.
- Ballantyne, A, Newson, A, Luna, F, and Ashcroft, R, ‘Prenatal Diagnosis and Abortion for Congenital Abnormalities: Is It Ethical to Provide One Without the Other?’ (2009) 9 The American Journal of Bioethics 48.
- Banwell, SS, and Paxman, JM, ‘The Search for Meaning: RU 486 and the Law of Abortion’ (1993) 1 Reproductive Health Matters 68.
- Center for Reproductive Rights, ‘The World’s Abortion Laws’ http://worldabortionlaws.com (7 October 2016).
- Conkle, DO, ‘Canada’s Roe: The Canadian Abortion Decision and Its Implications for American Constitutional Law and Theory’ (1989) 6 Const Comment 299.
- Dorsen, N, ‘The Relevance of Foreign Legal Materials in US Constitutional Cases: A Conversation between Justice Antonin Scalia and Justice Stephen Breyer’ (2005) 3 Int’l JConstL 519.
- Frankenberg, G, ‘Critical Comparisons: Re-thinking Comparative Law’ (1985) 26 HarvInt’l LJ 411.
- Glendon, MA, Abortion and Divorce in Western Law (HUP 1989).
- Hedayat, KM, Shooshtarizadeh, P and Raza, M, ‘Therapeutic Abortion in Islam: Contemporary views of Muslim Shiite scholars and effect of recent Iranian legislation’ (2006) 32 Journal of Medical Ethics 652.
- Hemminki, E, Wu, Z, Cao, G, and Viisainen, K, ‘Illegal Births and Legal Abortions—The Case of China’ (2005) 2 Reproductive Health 5.
- Jonas, RE, ‘West German Abortion Decision: A Contrast to Roe v Wade’ (1976) 9 John Marshall JPracProc 605.
- Kommers, DP, ‘Autonomy, Dignity and Abortion’ in Ginsburg, T and Dixon, R, (eds), Comparative Constitutional Law (EE Publishing 2011) 441.
- Kommers, DP, The Constitutional Jurisprudence of the Federal Republic of Germany (DUP 2nd ed 1997).
- Langbein, JH, ‘The Influence of Comparative Procedure in the United States’ (1995) 43 Am JCompL 545.
- Lemoine, K and Tanagho, J, ‘Gender Discrimination Fuels Sex-Selective Abortion: The Impact of the Indian Supreme Court on the Implementation and Enforcement of the PNDT Act’ (2014) 15 UMiami Int’l and CompLRev 203.
- Liptak, A, ‘Supreme Court Appears Sharply Divided as it Hears Texas Abortion Case’ (2016) NYT A1.
- Moosa, N, ‘A Descriptive Analysis of South African and Islamic Abortion Legislation and Local Muslim Community Responses’ (2002) 21 Med and L 257.
- Neuman, GL, ‘Casey in the Mirror: Abortion, Abuse and the Right to Protection in the United States and Germany’ (1995) 43 Am JCompL 273.
- Sheldon, S, ‘The Medical Framework and Early Medical Abortion in the UK: How Can a State Control Swallowing?’ in Cook, R, Erdmann, J and Dickens, J (eds.) Abortion Law In Transnational Perspective (UPP 2014) 189.
- Undurraga, V, and Cook, R, ‘Constitutional Incorporation of International and Comparative Human Rights Law: The Colombian Constitutional Court Decision C-355/2006’ in Williams, S, (ed.) Constituting Equality: Gender Equality and Comparative Constitutional (CUP 2009) 215.
- Werner, U, ‘The Convergence of Abortion Regulation in Germany and the United States: A Critique of Glendon’s Rights Talk Thesis’ (1996) 18 Loy LA Int’l and CompLJ 571.
- Attorney General v X and Others (1992) 1 IR 1 (Ir).
- Centre for Inquiry into Health and Allied Themes v Union of India (2001) 5 SCC 577 (India).
- Christian Lawyers Association of SA and Others v Minister of Health and Others 1998 (11) BCLR 1434 (T), 1998 (4) SA 1113 (T) (S Afr).
- Christian Lawyers Association v Minister of Health and Others (Reproductive Health Alliance as amicus curiae) 2005 (1) SA 509 (T) (S Afr).
- Constitutional Claim Decision Abortion (2006) Decision C-355/2006 (Colom).
- Doe v Bolton (1973) 410 US 179 (US).
- Eisenstadt v Baird (1972) 405 US 438 (US).
- Gonzales v Carhart (2007) 550 US 124 (US).
- Griswold v Connecticut (1965) 381 US 479 (US).
- Harris v McRae (1980) 448 US 297 (US).
- Maher v Roe (1977) 432 US 464 (US).
- Morgentaler, Smoling and Scott v The Queen (1988) 1 SCR 30 (Can).
- Planned Parenthood v Casey (1992) 505 US 833 (US).
- Roe v Wade (1973) 410 US 113 (US).
- Roper v Simmons (2005) 543 US 551 (US).
- Schwangerschaftsabbruch I (1975) BVerfGE 39, 1 (Ger).
- Schwangerschaftsabbruch II (1993) BVerfGE 88, 203 (Ger).
- Webster v Reproductive Health Services (1989) 492 US 490 (US).
- Whole Woman’s Health v Hellerstedt Transcript of Oral Argument (2016) No. 15–274 (US).