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This entry explores the possibilities of learning from comparative abortion law. Abortion law is taken to mean primarily criminal law, constitutional law, human rights law and health law governing induced abortion (hereinafter ‘abortion’), its legality, availability, accessibility and social meaning. These areas of law dynamically interact over time by diffusion, reception and transplantation through transnational networks (Prado ), creating convergence and non-convergence in domestic approaches to this contested issue (Dixon and Bond ). Abortion law, in whatever form, is influenced by particular cultural and, for example, health facility frameworks affecting its everyday meaning and application (Cover ). An example of cultural and institutional interaction is the contrast between a liberal application in one jurisdiction and a conservative application of the same or a similar law in another (O’Rourke ; Sheldon and others ).
Comparative analysis of abortion laws has many purposes (→ Aims of Comparative Law) including (i) learning about their legal evolution over time, (ii) understanding laws’ pragmatic and utilitarian role to improve national welfare, and (iii) observing laws’ social meaning (Glenn ; Nelken ). Learning might be egalitarian and multidirectional (Dubber ), where learning flows across borders among courts, legislatures, ministries, and international health agencies and networks. In contrast is the imperial or unidirectional approach, whereby the criminal laws of colonizing countries were downloaded to their colonies (Dubber ), including abortion provisions (Cook and Dickens ; Knoppers and others ). That approach ‘seeks, at best, to teach and, at worst, to oppress, but never to learn’ (Dubber  at 1297). A contemporary version of the imperial approach exists whereby jurists, convinced of the superiority of their framing of abortion law, disregard the legal, cultural and institutional arrangements in the receiving country and how the law functions in practice to facilitate or impede women’s access to safe abortion (Rebouché ).
Six courts upholding liberal laws → Chile, Constitutional Tribunal, STC Rol N° 3729(3751)-17 CPT ; (Croatia, Constitutional Court, U-I-60/1991 ; → France, Constitutional Council, Décision No. 2001-446 DC ; Mexico, Supreme Court (SCJN), Acción de inconstitucionalidad (AI) 146/2007 y su acumulada 147/2007 ; → Portugal, Constitutional Tribunal, Acórdão No. 75/2010 ; Slovakia, Constitutional Court, PL. ÚS 12/01 );
Ten courts deciding that restrictive criminal abortion laws in whole or in part are unconstitutional (→ Argentina, Supreme Court, F., A.L. ; Bolivia, Plurinational Constitutional Tribunal, Sentencia 0206/2014 ; → Brazil, Supreme Court, ADPF 54/DF ; Colombia, Constitutional Court, Sentencia C-355/06 ; Colombia, Constitutional Court, Sentencia C-055 ; Ecuador, Constitutional Court, API No. 34-19-IN/21 ; Korea (Republic of), Constitutional Court, Case on the Crime of Abortion Case No. 2017Hun-Ba127 ; Mexico, SCJN, AI 148/2017 ; Nepal, Supreme Court, Lakshmi Dhikta v Government of Nepal ; Thailand, Constitutional Court, Ruling No. 4/2563 ; United States, Supreme Court, Whole Woman’s Health v Hellerstedt 579 U.S. 582  (now reversed rejecting a federal privacy right); ibid June Medical Services v Russo 140 S.Ct. 2103  (now reversed rejecting a federal privacy right).
Four courts deciding that restrictive laws are constitutional (Costa Rica, Supreme Court, Resolución No. 02792-04 ; El Salvador, Supreme Court, Decision 18/98 ) or restricting existing law (→ Poland, Constitutional Tribunal, Case No. K 1/20 ; United States, Supreme Court, Dobbs v Jackson Women’s Health Organization 142 U.S. 2228-2354 ). The Dobbs decision represents an exceptional moment peculiar to US abortion politics and is incongruent with the above trend toward global judicial accommodation.
There have been numerous court battles over the application of the right of conscience (for example, → Canada, Ontario Court of Appeal, Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario  ONCA 393; Chile, Constitutional Tribunal, STC Rol N° 5572-18-CDS/5650-18-CDS (acumuladas) ; Colombia, Constitutional Court, SU-096/18 ; Mexico, SCJN, AI 54/2018 ; New Zealand, High Court, NZ Health Professionals’ Alliance v Attorney-General,  NZHC 2510; United Kingdom (UK), Greater Glasgow Health Board v Doogan  UKSC 27), including doctors’ rights to provide services, individual or institutional rights to object and the importance of respecting others’ rights to exercise their conscience (Dickens ; Enright ; Nejaime and Siegel ). In decriminalizing abortion until the 24th week of pregnancy, the Colombian Constitutional Court underscored women’s rights to conscience (C-055 ).
Through the legislatures or the courts, countries have used different reform models, including:
The indications model, exempting abortion from criminal liability for certain reasons, such as pregnancies posing risks of harm to the life or health of women and girls, rape, incest, fetal anomaly (usually severe or fatal) and socio-economic circumstances.
The periodic model, decriminalizing abortion early in pregnancy and thereafter for certain indications.
The decriminalization model, regulating abortion without specific criminal penalty like most other medical procedures.
Regressive reforms are propelled by religious and moral beliefs that life begins at conception and needs protection by the criminal prohibition of abortion (Poland, Constitutional Tribunal, Case No. K 1/20 ). Other rationales include the use of criminal law to protect women from unsafe practices and enlist the medical profession in doing so (Finnis [1967–1970]). Regressive moves can also come in restrictive interpretations of abortion laws that deny women their equal citizenship (Zimbabwe, Supreme Court, Mildred Mapingure v Minister of Home Affairs, Minister of Health, Minister of Justice Legal and Parliamentary Affairs, Judgment No. SC 22/14, Civil Appeal No. SC 406/12 ; Ngwena and Cook ).
The rationales for criminalization of abortion include those regarding women (→ Gender), sex and the fetus. Women-focused rationales stress the need to protect women from unsafe practitioners and methods. Variants of this rationale include protecting women from the alleged but discredited ‘post abortion syndrome’ (Siegel ). Another women-focused rationale is deterrent and punitive: women need to be deterred by punishment for gender non-conforming conduct, namely avoiding or delaying motherhood. Sex-focused rationales include the need to threaten punishment of women and girls for non-procreative sex, including before or outside marriage. Foetal-focused rationales include the imperative to protect prenatal life from conception through punishment of abortion service providers and often women seeking abortion and those who assist them, irrespective of the consequences for the health and wellbeing of women and girls (Zureick and others ).
How these specific rationales are applied depends on socio-cultural frameworks around sex, reproduction, prenatal life and women’s status in society (Ferriter ) and on how societies envision the aims of criminal abortion law. Aims include the enforcement of morality, the need to reinstate recognition of sin and pay tribute to virtue through punishment (retribution), and the protection from harm. Not everyone who considers abortion a sin or a wrong against society accepts that it needs to be legally punished.
Some consider the use of criminal law inappropriate in the context of abortion because such use offends criminal law principles. These principles include application of criminal law only as a last resort in combating undesirable conduct (the ultima ratio principle) (Brazil, Supreme Court, ADPF 54/DF ; Chile Constitutional Court, STC Rol No. 3729(3751)-17 CPT ) and in ensuring that sanctions be proportionate to the seriousness of the offence (the principle of proportionality) (Hörnle  at 679; Brazil, Supreme Court, ADPF 54/DF ). In examining the criminal prohibition of abortion, the Supreme Court of Mexico condemned the use of criminal law ‘as a symbolic tool and not as a mechanism of ultima ratio’ (AI 146/2007 y su acumulada 147/2007  at 184).
States vary in their punishment regimes, ranging from sentence of death (→ Death Penalty) or life imprisonment to two years’ imprisonment (Eser and Koch ). Most states punish providers of abortion services and accessories to the crime such as those who supply the means of abortion. Some states, but not all, punish the women and girls obtaining or attempting to obtain abortion. Most states do not punish the men involved. The lack of prosecution of men is partly due to criminal laws being gendered: they were drafted by men when women were considered men’s possessions rather than legal persons and had no right to vote or own property of their own (Sheldon ).
The Mexican Supreme Court determined that imprisoning women was a disproportionate response to the crime. As a result, they voided those portions of the Criminal Code of the state of Coahuila, thus enabling the release of women in that state who had been imprisoned for abortion (AI 148/2017 ). Imprisonment of providers who procure abortion has also been considered disproportionate (Colombia, Constitutional Court, C-355/06  at §10.1).
III. Constitutionalization of abortion
In comparing the constitutionalization of abortion, we learn, for example, how courts channel conflict among parties with different views (Siegel ), how they consider legislative attempts to protect prenatal life by outlawing trait-selection abortion such as disability, sex or race traits (Murray ) and how they consider institutional structures, especially health facilities, to better protect women’s rights (Machado and Prado ). It has been explained that ‘constitutionalisation of abortion can be understood as a multidimensional and dynamic process that takes place within the discursive interaction of players with different views, by their sharing constitutional values as a legitimizing language’ (Machado and Cook  at 187; Bergallo and Michel ; Siegel ).
Tracing patterns in constitutionalization might start with constitutions that primarily protect civil and political rights and are silent on the specific issue of abortion (Rubio-Marίn ). Judicialization of general constitutional rights begins when judges apply general rights, such as the rights to → privacy, dignity, security, integrity, conscience, freedom from inhuman and degrading treatment and equality, to abortion. For example, the Canadian Supreme Court interpreted the right to security of the person to hold the then criminal abortion law unconstitutional (Canada, Supreme Court, R. v Morgentaler 1 S.C.R. 30 ).
Another pattern begins with constitutional texts that variously address constitutional rights, interests and values related to life. A few constitutions, such as of El Salvador, recognize ‘as a human person every human being since the moment of conception’ (El Salvador, Constitution , amended by Article 1 ). Whether this language establishes a constitutional interest or value in protecting life from conception rather than a legal right to protection from conception is unclear. Other constitutions contain language explaining that the ‘State [. . .] shall equally protect the life of the mother and the life of the unborn from conception’ (Philippines, Constitution  at Article II, Section 12).
Some constitutions reference → Islamic Sharia as the principal interpretive source (Egypt, Constitution  at Preamble, Article 2). Islamic schools differ as to when ensoulment, which precludes abortion, occurs ranging from 40 to 120 days from conception (Sachedina  125–44).
The Mexican Supreme Court ruled that states cannot establish a right to life from the moment of conception in their local constitutions (AI 106/2018 and 107/2018 ). Some courts have interpreted legal protection of life from conception despite the lack of specific constitutional text. For example, the 1997 → Polish Constitution left the meaning of ‘life’ ambiguous, drafters deferring its elaboration to the legislature (Gliszczyńska-Grabias and Sadurski  at 143). Despite this ambiguity, the Polish Constitutional Tribunal declared unconstitutional legal provisions allowing abortion where there is high probability of fetuses suffering severe impairment or an incurable, life-threatening disease (Case No. K 1/20 ; contrast UK, In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland)  UKSC 27). This Polish approach might be characterized as constitutional nationalism, usually sustained by gendered hierarchies that resist reforms regarding sexuality and reproduction (Malagodi ).
Another pattern of comparison addresses modern constitutions that have specific provisions protecting reproductive autonomy and health. For example, the → South African Constitution specifies that ‘everyone has the right to bodily and psychological integrity, which includes the right (a) to make decisions concerning reproduction (b) to security in and control over their body’ ( at section 12 (2)). Such constitutions guarantee rights to access healthcare services, including reproductive health care (ibid at section 27). These constitutions, characterized as universalist (Law ), tie the legitimacy of the state to supranational norms and its international obligations, thus enabling the judiciary to act as guardian of international human rights, including those under the 1979 United Nations Convention on the Elimination of All Forms of Discrimination against Women (Malagodi ). Reasoning under universalist constitutionalism invokes comparative constitutional law (Croatia, Constitutional Court, U-I-60/1991  at sections 17–20), international human rights treaties to which states are parties (ibid at sections 7–16) and international health guidance (ibid at section 26.2).
However constitutions are characterized, courts use various rationales for reform, including public health, autonomy and gender non-discrimination and equality.
Public health rationale: Some constitutional courts take a utilitarian approach by relying on public health evidence pertaining to the consequences of unsafe abortion on differently situated pregnant persons, such as poor women and girls (Kenya High Court, Federation of Women Lawyers (Fida–Kenya) and 3 others v Attorney General and 2 others  eKLR, Petition No. 266 of 2015 at 325). Courts use public health data to understand the causes of unwanted pregnancy, such as rape, and ensure that abortion is legal for rape victims (ibid at 371–7, 398–400).
Courts rely on public health research that shows that restrictive laws have little impact on the rate of abortion (Croatia, Constitutional Court, U-I-60/1991  at section 26.2) and ‘the legal status of abortion has no effect on a woman’s likelihood of seeking induced abortion but dramatically affects her access to safe abortion’ (WHO  at 2). Such data enables courts to question whether criminalization is the most effective means of protecting prenatal life and whether there are alternative means of protection that are less onerous for women (Undurraga ). Judges acknowledge that prenatal life can be protected by complying with women’s rights, by setting conditions that ensure that pregnancy is wanted, and by support for healthy birth outcomes through, for example, improved prenatal care (→ Portugal, Constitutional Tribunal, Acórdão Nº 75/2010 ).
Autonomy rationale: Many constitutional courts converge on holding that restrictive criminal abortion laws are constitutionally incompatible with the reproductive autonomy rationale, applying rights to respect for private and family life, to dignity and to liberty (Chile, Constitutional Court, STC Rol No. 3729(3751)-17 CPT ; Colombia, Constitutional Court, C-355/06 , Croatia, Constitutional Court, U-I-60/1991 ; Korea, Constitutional Court, Case on the Crime of Abortion ; Thailand Constitutional Court, Ruling No. 4/2563 ; UK Supreme Court, Northern Ireland ). The UK Supreme Court took a proportionality approach to determine that the 1861 Offences against the Person Act then prevailing in Northern Ireland was incompatible in principle with the right to private and family life under the European Convention on Human Rights, as domesticated in the UK, because it prohibited abortion in cases of rape, incest and fatal foetal anomaly (UK, Northern Ireland  at para 2). In contrast, the US Supreme Court reversed long standing precedents (US, Supreme Court, Roe v Wade 410 U.S. 113–78 (10973), Planned Parenthood of SE Penn v Casey 505 U.S. 833 (1992) that protected women’s access to abortion as a fundamental privacy right leaving it to individual states to protect or reject women’s rights to abortion (US, Supreme Court, Dobbs v Jackson Women’s Health Organization 142 U.S. 2228 (2022); Siegel, forthcoming ).
Courts decry criminal provisions for instrumental misuse of women’s bodies. For example, the Colombian Constitutional Court explained 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.
(C-355/06  at section 8.1)
That Court reinforced the reproductive rights of women during armed conflict when it issued a damage award to a woman who was recruited forcibly into the Revolutionary Armed Forces as a child and was subsequently forced to undergo an abortion (Colombia, Constitutional Court, SU-599/19 ).
The Chilean Constitutional Court relied on the constitutional guarantee of pluralism that prevents ‘any particular model of thought or morality [. . .] whether of one or more organizations, or of one or more people’ from being imposed upon the rest of society (STC Rol No. 3729(3751)-17 CPT,  at section 34). The Korean Constitutional Court echoes this reasoning in stating that ‘[h]uman beings must never be treated as a means to enhance some values, attain other purposes, or promote legal interest but must be respected as ultimate ends and values of themselves’ (Case on the Crimes of Abortion 2017 Hun-Ba 127 at 12).
Gender non-discrimination and equality rationales: Courts vary in whether they draw links between reproductive autonomy and gender non-discrimination in deciding whether laws against abortion are constitutional. Some courts reject gender discrimination claims outright (Thailand, Constitutional Court, Ruling No. 4/2563 ). Others have recognized their discriminatory nature (→ US, Supreme Court, Planned Parenthood of SE Penn v Casey 505 U.S. 833 , reversed on other grounds), while others hold restrictive laws unconstitutional on such grounds (Nepal, Supreme Court, Lakshmi Dhikta v Government of Nepal 2067, 52(9) NKP 151 ). Still others, such as the Indian Supreme Court (→ India), have laid the groundwork for a gender equality approach (Jain and Shah ).
Resistance to a gender equality framework might be due to the unresolved dichotomy between protecting life from conception and protecting women’s privacy. Commentators decry that:
the individualism behind the right of privacy (→ Personality Rights) can negate the interconnectedness of individuals and conceal the gender relations which shape childbearing and childrearing. By overstating women’s ability to control their own lives, the privacy approach allows the State to abdicate responsibility for children and parenthood.
The privacy approach focuses on negative freedoms preventing state interference with reproductive choice, as opposed to the positive duty of states to ensure reproductive services and justice necessary to accommodate differently situated women (Albertyn ).
Increasingly, courts address the discriminatory effects of criminalization. For example, the Constitutional Court of Ecuador recognized unjustifiable discrimination in allowing abortion only for raped women with disabilities, therefore extending access to abortion for all raped women (Case No. 34-19-IN/21  at section 5.3). In permitting termination of anencephalic pregnancies, the Brazilian Supreme Court (→ Brazil) recognized the law’s discriminatory impact on poor women because they needed legal assistance they could not afford to obtain the required court authorization for termination (ADPF 54/DF  Lucia opinion at 201–202). The Nepalese Supreme Court recognized the need to transform discriminatory structures by requiring the state to provide poor women with the funds needed to access abortion services (Nepal, Supreme Court, Lakshmi Dhikta v. Government of Nepal 2067, 52(9) NKP 151 ; Upreti ).
Transcending constitutional interpretation is the question of how constitutionalization expresses social meanings about abortion (Cook ). For example, in some countries, constitutionalization enables the transition from a religious framing that finds redemptive value in suffering, justifying criminalization of abortion (Lemaitre ), to a narrative in which abortion is claimable as a constitutional interest, requiring states to give their reasons for noncompliance with such interests (Machado and Cook ).
Countries introduce ministerial guidelines to ensure that women and service providers understand the law, and that women can access abortion services to which they are legally entitled (International Planned Parenthood Federation/Western Hemisphere Region (IPPF/WHR) ). Legal challenges contesting the authority to issue guidelines have emerged, for example, in Kenya and Colombia. The High Court of Kenya ruled that the Minister of Medical Services’ 2014 withdrawal of the ‘Standards and Guidelines’ and ‘Training Curriculum for healthcare professionals on abortion’ was arbitrary and unlawful. The High Court underscored the importance of the Guidelines and Curriculum in enabling women, irrespective of socio-economic status or geographic location, to acquire knowledge about the lawfulness of abortion and thus to access abortion in an effective, not just formal, sense (Fida-Kenya v Attorney General  at 401–402).
In contrast, the State Council of Colombia decided that the Ministry of Health’s guidelines, issued pursuant to the Constitutional Court’s decision liberalizing abortion (C-355/06 ), were null and void because the Ministry was acting beyond its authority (State Council, Exp. 11001-03-24-000-2008-00256-00 ; Ruibal ). These ministerial guidelines sought to address health care providers specifically to make the Court’s decision accessible to providers and to guarantee the decision’s adequate implementation by insurers and hospitals. The lack of such guidance and opposition to the decision has resulted in a lack of services.
Learning how → administrative law determines whether health ministries are acting arbitrarily or beyond their powers in issuing guidelines and standards will provide insights into how such law can facilitate or hinder access to services. Administrative law will play an increasingly important mediating role as legal challenges emerge over pharmaceutical approval of medical abortion products, the nature of their distribution, including through pharmacies and telemedicine/telehealth, the products’ home use and their pricing.
In conclusion, comparative abortion law requires microscopic vision to learn how criminal, constitutional and administrative laws are applied in particular national contexts to address the challenges of unwanted pregnancies. It also requires telescopic vision to learn how these laws are diffused, transplanted and received across jurisdictional borders in order to reinforce or disrupt efforts to achieve reproductive justice.
We gratefully acknowledge the help and insights of Oscar Cabrera, Linda Hutjens, Mariana Prado, Isabel Jaramillo, Katelyn Sheehan, Esteban Vallejo Toledo and Christina Zampas in completing this chapter.
Assis, MP and ErdmanJN, ‘In the Name of Public Health: Misoprostol and the New Criminalization of Abortion in Brazil’ (2021) 8(1) JLB Isab009
Assis, MP and ErdmanJN, ‘In the Name of Public Health: Misoprostol and the New Criminalization of Abortion in Brazil’ (2021) 8(1) JLB Isab009)| false
EnrightM, ‘Mary McGee, Plaintiff v. Attorney General and the Revenue Commissioners, Defendants’ in EnrightM and others (eds), Northern/Irish Feminist Judgments Judges’ Troubles and the Gendered Politics of Identity (Hart2017)
EnrightM, ‘Mary McGee, Plaintiff v. Attorney General and the Revenue Commissioners, Defendants’ in EnrightM and others (eds), Northern/Irish Feminist Judgments Judges’ Troubles and the Gendered Politics of Identity (Hart2017))| false
LemaitreJ, ‘Catholic Constitutionalism on Sex, Women and the Beginning of Life’ in CookRJ and others (eds), Abortion Law in Transnational Perspective: Cases and Controversies (University of Pennsylvania Press2014) 239
LemaitreJ, ‘Catholic Constitutionalism on Sex, Women and the Beginning of Life’ in CookRJ and others (eds), Abortion Law in Transnational Perspective: Cases and Controversies (University of Pennsylvania Press2014) 239)| false
NgwenaCG, ‘Reforming African Abortion Laws and Practice: The Place of Transparency’ in CookRJ and others (eds), Abortion Law in Transnational Perspective: Cases and Controversies (University of Pennsylvania Press2014)
NgwenaCG, ‘Reforming African Abortion Laws and Practice: The Place of Transparency’ in CookRJ and others (eds), Abortion Law in Transnational Perspective: Cases and Controversies (University of Pennsylvania Press2014))| false
RebouchéR, ‘A Functionalist Approach to Comparative Abortion Law’ in CookRJ and others (eds), Abortion Law in Transnational Perspective: Cases and Controversies (University of Pennsylvania Press2014)
RebouchéR, ‘A Functionalist Approach to Comparative Abortion Law’ in CookRJ and others (eds), Abortion Law in Transnational Perspective: Cases and Controversies (University of Pennsylvania Press2014))| false
Rubio-MarίnR, ‘Abortion in Portugal: New Trends in European Constitutionalism’ in CookRJ and others (eds), Abortion Law in Transnational Perspective: Cases and Controversies (University of Pennsylvania Press2014)
Rubio-MarίnR, ‘Abortion in Portugal: New Trends in European Constitutionalism’ in CookRJ and others (eds), Abortion Law in Transnational Perspective: Cases and Controversies (University of Pennsylvania Press2014))| false
UndurragaV, ‘Proportionality in the Constitutional Review of Abortion Law’ in CookRJ and others (eds), Abortion Law in Transnational Perspective: Cases and Controversies (University of Pennsylvania Press2014)
UndurragaV, ‘Proportionality in the Constitutional Review of Abortion Law’ in CookRJ and others (eds), Abortion Law in Transnational Perspective: Cases and Controversies (University of Pennsylvania Press2014))| false
United Nations, Committee on the Elimination of Discrimination against Women. Report of the inquiry concerning the United Kingdom of Great Britain and Northern Ireland under article 8 of the optional Protocol to the convention on the elimination of all forms of discrimination against women. CEDAW/C/OP.8/GBR/1. 2018
UpretiM, ‘Toward Transformative Equality in Nepal: The Lakshmi Dhikta Decision’ in CookRJ and others (eds), Abortion Law in Transnational Perspective: Cases and Controversies (University of Pennsylvania Press2014)
UpretiM, ‘Toward Transformative Equality in Nepal: The Lakshmi Dhikta Decision’ in CookRJ and others (eds), Abortion Law in Transnational Perspective: Cases and Controversies (University of Pennsylvania Press2014))| false
International Reproductive and Sexual Health Law Program, University of Toronto, ‘Abortion Law Decisions’ (2014–) <www.law.utoronto.ca/programs-centres/programs/irshl-reproductive-and-sexual-health-law/irshl-publications/abortion-law>)| false