Abortion law is legislation and common law which prohibits, restricts or otherwise regulates the availability of abortion. Abortion has been a controversial subject in many societies through history on religious, moral, ethical, practical, and political grounds. It has been banned frequently and otherwise limited by law. However, abortions continue to be common in many areas, even where they are illegal, with according to the World Health Organization (WHO) abortion rates being similar in countries where the procedure is legal and in countries where it is not, due to unavailability of modern contraceptives in areas where abortion is illegal. The number of abortions worldwide is declining due to increased access to contraception according to WHO. Almost two thirds of the world's women currently reside in countries where abortion may be obtained on request for a broad range of social, economic or personal reasons. Abortion laws vary widely by nation. Seven countries in Latin America and Europe ban the procedure entirely. Abortion in Canada is available to women without any legal restrictions, while in Ireland abortions are illegal except when a woman's life is at imminent risk and Chile bans abortion with no exception for the life of the pregnant woman.
|This section does not cite any references (sources). (January 2014)|
Abortion has been part of family planning since ancient times, with natural abortifacients being found amongst a wide variety of tribal people and in all our written sources. Our earliest texts contain no mention of abortion or abortion law. When it does appear, it is entailed in concerns about male property rights, preservation of social order, and the duty to produce fit citizens for the state or community. The harshest penalties were generally reserved for a woman who procured an abortion against her husband's wishes, and for slaves who produced abortion in a woman of high status. Religious texts often contained severe condemnations of abortion, recommending penance but seldom enforcing secular punishment. As a matter of common law in England and the United States, abortion was illegal anytime after quickening—when the movements of the fetus could first be felt by the woman. Under the born alive rule, the fetus was not considered a "reasonable being" in rerum natura; and abortion was not treated as murder in English law.
In the 19th century, many Western countries began to codify abortion law or place further restrictions on the practice. Anti-abortion groups were led by a combination of conservative groups opposed to abortion on moral grounds, and by medical professionals who were concerned about the danger presented by the procedure and the regular involvement of non-medical personnel in performing abortions. Nevertheless, it became clear that illegal abortions continued to take place in large numbers even where abortions were rigorously restricted. It was difficult to obtain sufficient evidence to prosecute the women and abortion doctors, and judges and juries were often reluctant to convict. For example, Henry Morgentaler, a Canadian pro-choice advocate, was never convicted by a jury. He was acquitted by a jury in the 1973 court case, but the acquittal was overturned by five judges on the Quebec Court of Appeal in 1974. He went to prison, appealed, and was again acquitted. In total, he served 10 months, suffering a heart attack while in solitary confinement. Many were also outraged at the invasion of privacy and the medical problems resulting from abortions taking place illegally in medically dangerous circumstances. Political movements soon coalesced around the legalization of abortion and liberalization of existing laws.
By the early 20th century, many countries had begun to liberalise abortion laws, at least when performed to protect the life of the woman, and in some cases on woman's request. Under Vladimir Lenin, the Soviet Union legalized abortions on request in 1920, but in 1936 Joseph Stalin placed prohibitions on abortions this was restricted to medically recommended cases only in order to increase population growth. In the 1930s, several countries (Poland, Turkey, Denmark, Sweden, Iceland, Mexico) legalized abortion in some special cases (pregnancy from rape, threat to mother's health, fetal malformation). In 1948 abortion was legalized in Japan, 1952 in Yugoslavia (on a limited basis), and 1955 in the Soviet Union (on demand). Some Soviet allies (Poland, Hungary, Bulgaria, Czechoslovakia, Romania) legalized abortion in the late 1950s under pressure from the Soviets.
The availability of contraceptives in the 1950s and 1960s in Western countries resulted in comparatively few changes in abortion law. In the United Kingdom, the Abortion Act of 1967 clarified and prescribed abortions as legal up to 28 weeks. Other countries soon followed, including Canada (1969), the United States (1973 in most states, pursuant to Roe v. Wade, the federal Supreme Court decision which legalized abortion nationwide), Tunisia (1973), Austria (1974), France (1975), New Zealand (1977), Italy (1978), the Netherlands (1980), and Belgium (1990). However, these countries vary greatly in the circumstances under which abortion was to be permitted. In 1975 the West German Supreme Court struck down a law legalizing abortion, holding that they contradict the constitution's human rights guarantees. In 1976 a law was adopted which enabled abortions up to 12 weeks. After Germany's reunification, despite the legal status of abortion in the former East Germany, a compromise was reached which deemed most abortions up to 12 weeks legal. In jurisdictions governed under sharia law, abortion after the 120th day (17 weeks and another day) is illegal.
There are international or multinational treaties that directly deal with abortion, but human rights law touches on the issues. The American Convention on Human Rights, which in 2013 had 23 Latin American parties, declares human life as commencing with conception.
While abortions are legal in most countries, the grounds on which they are permitted vary. According to the United Nations publication World Abortion Policies 2011 abortion is allowed in most countries in order to save a woman's life (97% of countries). Other commonly accepted reasons are preserving physical (67%) or mental health (63%). Abortion in the case of rape or incest is accepted in about half of all countries (49%), and performing them because of economic or social reasons in about a third (34%). Performing abortion only on the basis of a woman's request is allowed in 29% of all countries, including in North America and in most European countries.
In some countries additional procedures must be followed before the abortion can be carried out even if the basic grounds for it are fulfilled. For example, in the United Kingdom and Finland, where abortions are not granted based merely on a woman's request, approval for each abortion must be obtained from two doctors. How strictly all of the procedures dictated in the legislature are followed in practice is another matter. For example, in the United Kingdom Care Quality Commission's report in 2012 found that several NHS clinics were circumventing the law, using forms pre-signed by one doctor, thus allowing abortions to patients who only met with one doctor.
The effect of national laws as of 2011[update] for each of the 193 Member States of the United Nations and two non-Member States (the Holy See and Niue) is listed in the U.N. World Abortion Policies 2011 report, and summarized in the following table. The publication also includes information on national estimates of abortion rate, fertility rate, maternal mortality ratio, levels of contraceptive use, unmet need for family planning, and government support for family planning, as well as regional estimates of unsafe abortion.
- Category definitions
- 0 : Abortion not allowed.
- 1 : General legal principles allow abortion to be performed in order to save a woman's life.
- 2 : Abortion explicitly allowed in order to save a woman's life.
- 3 : Abortion explicitly allowed in order to save a life and for certain other reasons.
- 4 : Abortion allowed on request.
- Category varies by subnational region.
- See Abortion in Mexico
- See Abortion in the United States
- See Abortion in Australia
Despite a wide variation in the restrictions under which it is permitted, abortion is legal in most European countries. The exceptions are micro-states where it is totally illegal (Vatican and Malta), micro-states where it is mostly illegal and severely restricted (San Marino, Liechtenstein and Andorra) and more notably Ireland, the only relatively normal sized European state where great prohibitions on abortion exist. The other states with existent, but less severe restrictions are Finland, Poland, Iceland and the United Kingdom. All the remaining states make abortion legal on request. Although nearly every European country makes abortion available on demand during the first trimester, when it comes to later-term abortions, there are very few with laws as liberal as those of the United States. Restrictions on abortion are most stringent in countries that are more strongly observant of the Catholic faith.
Most countries in the European Union allow abortion on demand during the first trimester. After the first trimester, abortion is allowed only under certain circumstances, such as risk to woman's life or health, fetal defects or other specific situations that may be related to the circumstances of the conception or the woman's age. For instance, in Austria, second trimester abortions are allowed only if there is a serious risk to physical health of woman (that cannot be averted by other means); risk to mental health of woman (that cannot be averted by other means); immediate risk to life of woman (that cannot be averted by other means); serious fetal impairment (physical or mental); or if the woman is under 14 years of age. Some countries, such as Denmark, allow abortion after the first trimester for a variety of reasons, including socioeconomic ones, but a woman needs an authorization to have such an abortion.
It should be noted that the access to an abortion in much of Europe depends not as much on the letter of the law, but on the prevailing social views which lead to the interpretation of the laws. For instance, in parts of Europe, laws which allow a second trimester abortion due to mental health concerns (when it is deemed that the woman's psychological health would suffer from the continuation of the pregnancy) have come to be interpreted very liberally, while in other conservative areas it is difficult to have a legal abortion even in the early stages of the pregnancy due to the policy of conscientious objection, under which doctors are allowed to refuse to perform an abortion if it is against their moral or religious convictions.
Malta is the only European country that bans abortion in all cases, and does not have an exception for situations where the woman's life is in danger. The law however is not strictly enforced in relation to instances where a pregnancy endangers the woman's life (see Abortion in Malta).
In Italy abortion is legal, but, in the past years, it has become more and more difficult to access it, due to the rising number of objectors among doctors and nurses. Most women seeking abortions now resort to going abroad, paying a large price, or obtaining a clandestine abortion in unauthorized clinics.
In Ireland abortion is illegal with the exception of cases where a woman's life is endangered by the continuation of her pregnancy (see Abortion in the Republic of Ireland). Andorra allows for abortions only when there is a threat to the woman's life.
With the exception of Poland, Europe's formerly Communist countries have liberal abortion laws. Poland is a country with a strict abortion law, and where it is also difficult to have a legal abortion on request. Abortion is allowed only in cases of risk to the life or health of the woman, when the pregnancy is a result of a criminal act (the criminal act has to be confirmed by a prosecutor), or when the fetus is seriously malformed. A doctor who performs an abortion which is deemed to not have a legal basis is subject to criminal prosecution, and, out of fear of prosecution, doctors avoid abortions, except in the most extreme circumstances.
Most European countries have laws which stipulate that minor girls need their parents' consent or that the parents must be informed of the abortion. In most of these countries however, this rule can be circumvented if a committee agrees that the girl may be posed at risk if her parents find out about the pregnancy, or that otherwise it is in her best interests to not notify her parents. The interpretation in practice of these laws depends from region to region, as with the other abortion laws.
In countries where abortion is illegal or restricted, it is common for women to travel to neighboring countries with more liberal laws. It was estimated in 2007 that over 6,000 Irish women travel to England to have abortions every year.
Exceptions in abortion law
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There are a few common exceptions sometimes found in legal domains where abortion is generally forbidden. Legal domains which do not have abortion on demand will often allow it when the health of the mother is at stake. "Health of the mother" may mean something different in different areas: for example, the Republic of Ireland allows abortion only to save the life of the mother, whereas pro-lifers in the United States argue health exceptions are used so broadly as to render a ban essentially meaningless.
Laws allowing abortion in cases of rape or incest often go together. For example, before Roe v. Wade, 13 US states allowed abortion in the case of either rape or incest, but only 1 allowed for it just for rape (Mississippi), and none for just incest.
- Abortion trial of Emily Stowe (1879)
- Azoulay v. The Queen (1952)
- Morgentaler v. The Queen (1976)
- R. v. Morgentaler (1988)
- Borowski v. Canada (Attorney General) (1989)
- Tremblay v. Daigle (1989)
- R. v. Morgentaler (1993)
- Attorney General v. X (1992)
- Roe v. Wade (1973)
- Doe v. Bolton (1973)
- H. L. v. Matheson (1981)
- City of Akron v. Akron Center for Reproductive Health (1983)
- Webster v. Reproductive Health Services (1989)
- Hodgson v. Minnesota (1990)
- Planned Parenthood v. Casey (1992)
- Bray v. Alexandria Women's Health Clinic (1993)
- Stenberg v. Carhart (2000)
- McCorvey v. Hill (2004)
- Ayotte v. Planned Parenthood of New England (2006)
- Gonzales v. Carhart (2007)
- A. B. and C. v. Ireland (2009)
- Abortion debate
- Conscience clause
- History of abortion
- Medical law
- Mexico City Policy
- Religion and abortion
- Roe v. Wade
- World Abortion Policies 2013
- Abortion Rates Similar in Countries That Legalize, Prohibit Procedure, a WHO Study Says
- Singh, Susheela et al. Adding it Up: The Costs and Benefits of Investing in Family Planning and Newborn Health, pages 17, 19, and 27 (New York: Guttmacher Institute and United Nations Population Fund 2009): "Some 215 million women in the developing world as a whole have an unmet need for modern contraceptives…. If the 215 million women with unmet need used modern family planning methods....[that] would result in about 22 million fewer unplanned births; 25 million fewer abortions; and seven million fewer miscarriages....If women’s contraceptive needs were addressed (and assuming no changes in abortion laws)...the number of unsafe abortions would decline by 73% from 20 million to 5.5 million." A few of the findings in that report were subsequently changed, and are available at: "Facts on Investing in Family Planning and Maternal and Newborn Health" (Guttmacher Institute 2010).
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(1) the right of a woman to have an abortion during the first six months of a pregnancy; (2) an abortion performed on a woman solely at her own request
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