Chapter 18: Beyond abortion decriminalization: human rights perspectives on the role of law in creating enabling environments for abortion access
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There have been growing calls by human rights bodies and public health experts for the full decriminalization of abortion. These calls reflect evidence that the overarching criminalization of abortion, even with certain exceptions, continues to lead to negative human rights, public health, and social justice outcomes which most acutely impact marginalized populations. While recent scholarship has outlined this arc towards recognition of abortion decriminalization as a state obligation in human rights law, few articles have explored states’ positive obligations beyond decriminalization and the role of laws and policies in creating an enabling environment for abortion access. Reflecting human rights standards, sexual and reproductive rights advocates in many countries are succeeding in developing unprecedentedly inclusive and intersectional coalitions for full decriminalization of abortion; however, fears that existing positive guarantees will be lost and that inequality in access to abortion will continue have acted as persistent challenges in building movements. Drawing on state obligations under human rights law and comparative perspectives where abortion is no longer penalized in law, this chapter outlines a vision for the role of law following decriminalization. It argues that, in addition to full decriminalization, states must take positive measures to address inequities and structural barriers to abortion, including for the most marginalized. The chapter concludes with a case study of the Philippines, where advocates recently took the bold step of releasing a draft bill to fully decriminalize abortion - in a country where abortion has been restricted without explicit exceptions since colonial times. This bill draws on human rights standards and lessons learned from comparative jurisdictions to address the role of law following abortion decriminalization. This draft bill aims to move beyond decriminalization and proactively call for positive measures in recognition of established human rights standards to ensure access to abortion care.

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