The Origins of the Abortion Law and Abortion Laws Today
By Tory Hu
Translation: Sky Hu, Luxi Zhao
Preface
With the latest decision from the U.S. Supreme Court to overturn the landmark 1973 Roe v. Wade, abortion is now severely restricted in nearly half of the states. This article will present the matter from an international perspective; clarifying the origins of anti-abortion laws, their distribution, and the impact of the Roe v. Wade decision around the world.
The Origin and Expansion of Abortion Law
Over recent decades, people's views of abortion have evolved to realize that although parents can create life through the birth of their children, they do not have the absolute right to end their children's lives. To some extent, it means that children are no longer regarded as appendants of their parents and have control of their personal rights, including the right to life, which cannot be arbitrarily disenfranchised even by their parents. When did new thoughts about abortion start to rise, such as Is the fetus human? When should the fetus be regarded as an independent individual? Which is more critical, the fetus's right to life or the female's (reproductive) choice?
The first time that the formal distinction between legal and illegal abortion was made was when the British Parliament passed Lord Ellenborough's Act in 1803, which regarded abortion after the fetal movement as a kind of murder. This was also in line with many people's opinion at the time: "abortion is a cruel act of murder, as the fetus has been proven to be conscious.
By the end of the 19th century, almost every country had legal restrictions on abortion. The most important sources of such laws were the European imperialist countries——Britain, France, Portugal, Spain, and Italy——and laws banning abortion developed and spread globally with colonialism. They can be divided into three main categories:
Common law: Britain and most of its former colonies——Australia, Bangladesh, Canada, India, Ireland, Malaysia, New Zealand, Pakistan, Singapore, the United States, and the English-speaking countries of Africa, the Caribbean, and Oceania.
Civil law: much of the rest of Europe, including Belgium, France, Portugal, Spain and its former colonies, Turkey and Japan, much of Latin America, non-English speaking sub-Saharan Africa, and the former Soviet republics of Asia in the Midwest. In addition, the laws of some North African and Middle Eastern countries have been influenced by French civil law.
Islamic law: predominantly Muslim countries such as North Africa and West Asia, such as Bangladesh, Indonesia, Malaysia, and Pakistan, have an impact on personal law.
In general, the anti-abortion concept that arose throughout history was not constructed as barbaric oppression but rather an advancement in civilisation and legislation ——people began to take the opinion that even the unborn fetus has a right to a life worthy of respect. The anti-abortion law has, nevertheless, transformed into a cruel notion with the development of contemporary medical understanding, which is, at its core, a problem of modernity.
The Landscape of Today’s Abortion Law and Classified Discussion of Its Causes
Health Risks
In 97% of countries and territories, abortion is legal when the mother’s life is at risk. Latin America has some of the most extreme anti-abortion laws in the world. In El Salvador, Nicaragua, and Honduras, abortion is illegal in all circumstances; abortion is punishable with up to 35 years of imprisonment in El Salvador. In several countries, including Egypt, the Democratic Republic of Congo, and Senegal, abortion is completely illegal. Legal abortion is offered in almost all European countries, but it remains illegal without exception in Andorra, Malta, and Vatican City. In Laos and the Philippines, abortion is still completely illegitimate.
Rape
In South America, compared to other parts of the world, pregnancy is treated more liberally when it is caused by rape than when the mother faces health issues. In the Arab world, with the exception of Tunisia and South Sudan, abortion is completely prohibited even when the mother is sexually assaulted. It is easy to assume that this has something to do with religion, but several other Muslim-majority countries do allow abortion if the mother is raped, such as Indonesia, the Balkans in Europe, and Central Asia. In most countries where abortion is allowed in cases of rape, abortion is allowed in cases of incest. However, about a quarter of these countries only allow abortion in cases of rape and not for incest. For example, Brazil’s criminal code explicitly provides an exception to its abortion law for rape and sexual assault but does not mention incest. New Zealand is the only country that explicitly allows abortion in cases of incest but not in cases of rape, although notably, New Zealand’s mental health exception could be interpreted to include abortion in cases of rape. (Law and Policy Guide) There are more countries that allow abortion than those where rape results in pregnancy.
Fetal Injury
Another reason why a mother may choose to terminate a pregnancy is due to severe birth defects forming during the pregnancy." These may be caused by genetics, certain diseases or poisonings, or even the age of the mother. Many countries that do not allow abortion in the case of rape also do not allow abortion in the case of birth defects. There are 116 countries that allow abortion when birth defects are known to be present, which accounts for less than 60%.
Socio-economic Factors
Having children is demanding both financially and from a time-wise perspective. People’s financial situation can change rapidly, both positively and negatively, affecting family planning decisions. As a result, some countries allow abortion for socio-economic reasons; however, most regions in Africa and the Middle East do not allow abortion for reasons like these. This is in sharp contrast to Europe, where Poland is the only country in which abortion is highly restricted, and following the introduction of a legislative ban in 2021, abortion can only be carried out if the pregnancy is caused by an illegal act such as rape or incest, or if it threatens the woman’s health. Last December, Poland also announced plans to introduce a centralized pregnancy registry that would require the doctor to report all pregnancies and abortions to the government. Most regions of Asia allow abortion for socio-economic reasons.
The Mother’s Will
Perhaps the situation that receives the most attention today is abortion on a personal basis. Someone may want an abortion because of an unplanned pregnancy. The termination of pregnancy, regardless of the reason other than the mother wishes to do so, is something that many feminist activists consider important. The term elective abortion or voluntary abortion describes the interruption of pregnancy before viability at the request of the woman, but not for medical reasons. Most abortions done today are elective, and thus, it is one of the most frequently performed medical procedures.
Overall, 970 million women, representing 59% of women of reproductive age, live in countries that broadly allow abortion. While a majority of women live in countries where they can exercise their right to abortion, 41 percent of women live under restrictive laws(Center for Reproductive Rights). India, Finland, Poland, Japan, and the Northern Territory of Australia all ban abortion in such circumstances, and the Northern Territory is the only Australian territory that completely bans abortion in any circumstance, regardless of how many months a woman has been pregnant. Britain is also divided on this issue. Since 2020, Northern Ireland is the only part of the United Kingdom that allows abortion within 12 weeks at one’s own will. Scotland, Wales, and England all have a complete ban on abortion of personal wish.
The Global Impact of Overturning Roe v. Wade
Global political leaders and international reproductive rights groups emphasized in their immediate response that the ripple effects of the overturn of Roe v. Wade spread throughout the world, especially in regions like Latin America and Africa, where controversies over access to abortion and other forms of reproductive health care continue. Recent victories in Argentina, Colombia, Ireland, Mexico, and Kenya have brought widespread progress to the global reproductive rights movement, adding some of the most conservative countries to the list of about 60 countries that have expanded abortion rights over the past three decades.
The United States is now one of the few countries that significantly restricted abortion rights during this time and is by far the largest and most influential to do so. Such a move will undoubtedly encourage conservative voices in various countries, thus dealing a heavy blow to the abortion rights movement around the world that has just achieved great results.
“The opposition (anti-abortion activists) will be emboldened by the Supreme Court’s decision,” said Giselle Carino, CEO of Fòs Feminista, an international reproductive rights advocacy organization. As an Argentinean, Carino fought for the passage of legislation to legalize abortion in her native country in 2019. It is reported that the bill allows women within 14 weeks of pregnancy to have legal abortions. Previously, abortion was allowed only in cases of pregnancy resulting from rape and when the woman’s life was at risk, while it was illegal in all other cases.
Throughout Latin America and the Caribbean, only Cuba, Paraguay, French Guiana, and Guyana are known to allow elective abortions. In Mexico, abortion services are only available upon request in Mexico City (the capital city) and the state of Oaxaca, while abortion is severely restricted in all other regions. Colombia, Costa Rica, Guatemala, and Panama allow abortion only to protect the life of the woman. As for Saldova, Dominica, Haiti, Honduras, Nicaragua, and Suriname, abortion is completely prohibited.
“The regression of rights here in the United States will affect our work on everything from comprehensive sexual education to access to abortion care to contraception,” Carino said. “It will have very difficult consequences for all of us in the Global South. It will make our work much harder.”
**This article was originally written in Chinese and published at VTT China.
References
A brief history of global abortion rights in the map, this article takes you to understand the whole picture of global abortion rights, https://mbd.baidu.com/newspage/data/landingsuper?rs=3271475466&ruk=gyKPXtV8wR_RYaw7WazA5Q&isBdboxFrom=1&pageType=1&urlext=%7B%22cuid%22%3A%22luSC8_u22tjguSaq0aSpiliNBu0Z82im0O258guWvi_p82aUguvKa_8eWP5JiHOC_h8mA%22%7D&context=%7B%22nid%22%3A%22news_9643513215294243620%22%7D.
“Law and Policy Guide: Rape and Incest Exceptions.” Center for Reproductive Rights, 18 Jan. 2022, https://reproductiverights.org/maps/worlds-abortion-laws/law-and-policy-guide-rape-and-incest-exceptions/.
“The World's Abortion Laws.” Center for Reproductive Rights, 29 Sept. 2022, https://reproductiverights.org/maps/worlds-abortion-laws/.
Abortion Law and Policy Around the World - An Exploration in Decriminalization, https://weibo.com/ttarticle/p/show?id=2309404788720531276261.