law dissertation on abortion

2018 Theses Master's

Abortion as a Human Right in the United States: Exploring the Role of CEDAW Cities in Challenging the Hyde Amendment

Pierson, Jessica

Women’s sexual and reproductive rights are foundational to gender equality. Having access to abortion care is fundamental to the full realization of a woman’s human rights. Anti-choice advocates consistently and successfully separate abortion from other basic health care that women need. At the same time, activists for gender equality often shy away from advocating for abortion care as part of their women’s rights agenda because of the political stigma that is associated with abortion. Although abortion is legal in the United States, anti-choice groups and conservative lawmakers have been successful in restricting the right to an abortion, particularly through legislation like the Hyde Amendment, which bans federal funds from covering abortion care for low-income women insured by the Medicaid program. U.S. constitutional law has upheld restrictions on abortion care, leaving a large portion of reproductive age women without the ability to exercise their constitutional right to an abortion. In contrast, international human rights mechanisms have had an impact on liberalizing national abortion laws by requiring that governments take affirmative action to ensure that women can access safe abortion care as a fundamental human right. While the international community is advancing abortion as a human right, several cities have aligned themselves with an international human rights framework by adopting the principles of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), an international women’s rights treaty that the U.S. has refused to ratify at the federal level. This research aimed to discover how these cities could utilize this human rights framework to advance abortion as a human right in their communities, particularly in states that follow the federal Hyde Amendment restrictions on abortion. The research was conducted through qualitative semi-structured interviews with local activists working to pass and implement CEDAW resolutions and ordinances, people working on the Cities for CEDAW (C4C) campaign, reproductive rights professionals, and a local abortion fund. This thesis found that framing reproductive health as a human right is a paradigm shift toward destigmatizing abortion. This thesis concludes that the local CEDAW resolutions and ordinances have the power to influence state policies involving abortion. Furthermore, local CEDAW activists can instigate a political shift by embracing and utilizing the jurisprudence, General Comments, and Concluding Observations identified by the United Nations CEDAW Committee regarding abortion as a human right. The negative human rights impact of the Hyde Amendment, although law of the land, can be challenged by activists through advocacy around passing and implementing local CEDAW ordinances and resolutions.

Geographic Areas

• United States
• Human rights
• Abortion--Law and legislation
• Women's health services
• Constitutional law
• United Nations. Committee on the Elimination of Discrimination Against Women
• Convention on the Elimination of All Forms of Discrimination against Women (1979 December 18)

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Home > Student Scholarship > THESES > 1033

Senior Theses and Projects

Abortion in america after roe: an examination of the impact of dobbs v. jackson women’s health organization on women’s reproductive health access.

Natalie Maria Caffrey Follow

Date of Award

Spring 5-12-2023

Degree Name

Bachelor of Arts

Public Policy and Law

First Advisor

Professor Adrienne Fulco

Second Advisor

Professor Glenn Falk

This thesis will examine the limitations in access to abortion and other necessary reproductive healthcare in states that are hostile to abortion rights, as well as discuss the ongoing litigation within those states between pro-choice and pro-life advocates. After analyzing the legal landscape and the different abortion laws within these states, this thesis will focus on the practical consequences of Dobbs on women’s lives, with particular attention to its impact on women of color and poor women in states with the most restrictive laws. The effect of these restrictive laws on poor women will be felt disproportionately due to their lack of ability to travel to obtain care from other states that might offer abortion services. And even if these women find a way to obtain access to abortions, there is now the real possibility of criminal prosecution for those who seek or assist women who obtain abortions post- Dobbs . To compound the problem, the Court made clear in Dobbs that its decision to revisit the privacy rights issue signals the possibility of new limitations on protections previously taken for granted in the areas of In vitro fertilization, birth control, emergency contraception, and other civil rights such as gay marriage. Finally, this thesis will examine the political and legal efforts of liberal states, private companies, and grassroots organizations attempting to mitigate Dobbs ’s effects. These pro-choice actors have, to some extent, joined forces to protect access for women in the United States through protective legislation and expanding access in all facets of reproductive healthcare, particularly for minority women who will be disproportionately affected by abortion bans in conservative states. The current efforts to mitigate the legal and medical implications of Dobbs will determine the future of women’s rights in America, not only regarding abortion but more broadly in terms of adequate reproductive care access.

Senior thesis completed at Trinity College, Hartford CT for the degree of Bachelor of Arts in Public Policy & Law.

Recommended Citation

Caffrey, Natalie Maria, "Abortion in America After Roe: An Examination of the Impact of Dobbs v. Jackson Women’s Health Organization on Women’s Reproductive Health Access". Senior Theses, Trinity College, Hartford, CT 2023. Trinity College Digital Repository, https://digitalrepository.trincoll.edu/theses/1033

Since May 15, 2023

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Article Contents

1. introduction, 2. current law, 3. the historical purposes of criminalising abortion, 4. the extent and effect of decriminalisation, 5. conclusion.

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The Decriminalisation of Abortion: An Argument for Modernisation

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Sally Sheldon, The Decriminalisation of Abortion: An Argument for Modernisation, Oxford Journal of Legal Studies , Volume 36, Issue 2, Summer 2016, Pages 334–365, https://doi.org/10.1093/ojls/gqv026

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While abortion is now offered as a routine part of modern NHS-funded reproductive healthcare, the legal framework regulating it remains rooted in the punitive, conservative values of the mid-Victorian era. This article argues that this framework is in need of fundamental reform to modernise it in line with the clinical science and moral values of the 21st century. It assesses the current statutory framework regulating abortion against the purposes that are typically claimed to motivate it: the protection of women; and the prevention and condemnation of the intentional destruction of fetal life. It argues that it fails to achieve either of these broad aims and that we should thus remove specific criminal penalties relating to abortion. This, it is suggested, would be likely to have very limited impact on the incidence of abortion but would, however, better recognise contemporary medical realities and moral thinking.

Abortion is a criminal offence in England, Wales and Northern Ireland by virtue of a statute passed at a time when ‘our society was only on the brink of the beginnings of the modern world’. 1 The Offences Against the Person Act 1861 (OAPA) was passed in the middle of the reign of Queen Victoria, some 20 years before married women were recognised as legal persons able to own property in their own right, almost 70 years before the achievement of women’s right to vote on equal terms with men, 2 and at a time that ‘in matters sexual was almost unimaginably different from ours’. 3 As such, it is unsurprising that the Law Commission has recognised that the OAPA is severely outdated and is consulting on how it might be modernised. 4 While far reaching in its extent, however, this consultation explicitly excludes offences relating to abortion on the basis that they ‘are not included in the 1998 draft Bill or previous Law Commission projects on offences against the person, and raise issues going well beyond the law of offences against the person’. 5 While this is true, the refusal of successive governments to update the law governing abortion leaves intact an archaic legal framework that suffers from many of exactly the same problems that the Commission sees as providing a compelling case for general reform of the OAPA. Moreover, while the harshest punitive effects of the OAPA were mitigated by the therapeutic exception carved out by Abortion Act 1967, that too is now a badly outdated piece of law, with multiple inadequacies rendered ever more apparent in the face of evolutions in clinical practice. This article argues that this legal framework is now in need of fundamental reform to modernise it in line with the clinical science and moral values of the 21st century.

Moral consensus in this area is notoriously elusive and I do not aim to contribute to the very extensive literature regarding the ethics of abortion. 6 However, even within this polarised debate, typically dominated by vocal minorities, it seems to me that the following broad principles that provide the premises for my argument are capable of commanding widespread support in the British context. First, women should be enabled fully to participate in the public sphere on equal terms with men and, prima facie, control of one’s own fertility is a fundamental prerequisite for such full participation. 7 Second, states have an important responsibility to support and promote the health, including the reproductive health, of their citizens. 8 Third, while its application in the abortion context is controversial, few would deny the importance of the general principle of respect for patient autonomy in medical practice. 9 In principle, this raises a strong argument in favour of supporting women to make their own, informed medical decisions about a pregnancy, unless there is very good reason to refuse this right. 10 Fourth, it flows from this that there should be robust provision for informed consent before an abortion, with measures to ensure that that the woman’s decision is voluntary; that full, accurate, evidence-based information is given about all the options open to her; and that sufficient time is allowed for her to make a decision. Fifth, while not a full moral person with equal ethical status to someone who has been born, the human fetus is of moral value and holds a significance that increases as it grows throughout pregnancy. 11 Sixth, both for this reason and because of the greater risks to the woman at later gestations, other things being equal, it is better for abortions to take place early in pregnancy. Seventh, where abortions are performed, they should be done in accordance with the best available standards of medical practice. Eighth, debate with regard to law reform should be honest: religious values should be weighed as matters of religion, ethical issues should be debated as matters of ethics, and medical claims should be evidenced through a robust scientific base, with no toleration of political ideology masquerading as scientific fact. And, finally, the criminal law, which involves the most onerous and draconian of state powers, should be invoked only where it provides a necessary and proportionate response. 12

In this article, I suggest that taking these principles seriously requires fundamental, root and branch legal reform, serving to decriminalise abortion (which I take to mean the removal of specific criminal prohibitions relating to abortion, without intending that it should be taken out of the ambit of any general criminal law offences that apply to medical practice). 13 The guiding principle of such reform would be that where self-induced or requested by the pregnant woman, the destruction of an embryo or fetus would no longer form an independent ground for criminal sanction. This would not, of course, leave abortion in a legal vacuum. Rather, it would be treated as any other area of medical practice, remaining subject to the same range of criminal, civil, administrative and disciplinary regulations that apply to all clinical procedures. Specifically, this should mean that criminal sanction remains available where terminations involve a serious harm to the woman concerned, most obviously, where they are non-consensual.

My argument has three parts. First, I set out the relevant law, demonstrating that it is grounded in the medical and social realities of another era and briefly outlining some of the unjustifiable restrictions that it imposes on contemporary clinical practice. These unwarranted limitations, along with the stigmatising impact of criminal sanctions, 14 give cause to reject any suggestion that reform is unnecessary because abortion providers ‘can work around’ existing deficiencies in the law. 15 Second, and more fundamentally, I suggest that the OAPA reflects modern moral values as poorly as it reflects modern medical science. I consider the broad historical purposes that are said to underpin the law, arguing that, as currently enforced, our legal framework plays no useful role in fulfilling them in practice. I finish by discussing briefly what decriminalisation would mean in the UK.

The law governing abortion provides the oldest extant statutory framework governing any specific medical procedure in the UK. 16

A The Offences Against the Person Act 1861

s 58 Every woman being with child, who, with intent to procure her own miscarriage shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of an offence and being convicted thereof shall be liable to be kept in penal servitude for life. s 59 Whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment for a term not exceeding five years. s 60 If any woman shall be delivered of a child, every person who shall, by any secret disposition of the dead body of the said child, whether such child died before, at, or after its birth, endeavour to conceal the birth thereof, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years.

These provisions were passed without any debate within Parliament or, indeed, outside it, with a remarkable silence in the editorial columns of the Lancet and British Medical Journal and an absence of ‘letters to The Times from mid-Victorian clergymen’. 17 Potts, Diggory and Peel conclude that ‘[s]ociety in 1861 had not developed the machinery to discuss any aspect of sex openly or objectively’ and that ‘prior to the sort of vocabulary and insight which Darwin and Freud gave to the world, some problems were just not open to analysis—and abortion was one of them.’ 18

The provisions of the OAPA had largely carried forward those of an older statute, 19 which itself had framed abortion offences in broadly similar terms to those contained in its first (1803) legislative prohibition, when procurement of miscarriage attracted a potential death sentence if the woman was ‘quick with child’ or a 14-year prison term or transportation where she was not. 20 Since 1861, apart from some minor changes in the available sentences, 21 these ancient provisions have survived unaltered. They make no explicit exception for therapeutic abortion, 22 and provide no difference in available sentence between a woman who self-induces her own miscarriage and a third party abortionist. Further, the OAPA draws no distinction between abortions earlier and later in pregnancy, with any procedure that occurs after implantation (6–12 days after ovulation) potentially caught by the law, 23 creating serious impediments to the development and use of potentially beneficial treatments that operate very soon after intercourse. 24 In line with the punitive values of mid-Victorian Britain, s 58 provides one of the harshest penalties for unlawful abortion imposed by any country in Europe: only Ireland (with a maximum 14-year prison term) currently foresees a similarly onerous sanction. 25

While s 60 is seldom discussed in accounts of abortion, the offence is closely related to s 58, offering the possibility of prosecution for the lesser offence of concealment of birth when a more serious offence (unlawful procurement of miscarriage or murder of a newborn child) is suspected but cannot be proven. 26 While this aim is itself difficult to square with a presumption of innocence, the section might nonetheless be said to retain some modern justification as a public health measure, aiming to prevent the irregular disposal of human bodies. However, such justification would support classifying concealment of birth as an administrative and not a moral offence, implying a far lower penalty. 27 Indeed, any facts that would support a prosecution under s 60 would already also be punishable as such, given that they would ex hypothesi involve the failure to register a birth, the failure to notify the registrar of the place and date of disposal of a dead body 28 and, possibly, the common law offence of preventing the lawful and decent burial of a dead body. 29 As such, there appears no clear need to retain this offence on the statute books and, at the very least, there is a strong case for its continued purpose to be considered as part of the Law Commission’s current review.

Sections 58–60 of the OAPA are infrequently charged. Police statistics record fewer than ten prosecutions per year under ss 58 and 59 combined in England and Wales, 30 the great majority of which would appear to have been brought in the context of assaults on a pregnant woman or the non-consensual administration of abortifacients. 31 I have succeeded in finding accounts of just two convictions of women who have unlawfully procured miscarriages in the last ten years (each acting well after viability), 32 and no convictions of clinicians who have done so while acting in a professional role. 33 Cases involving concealment of birth are similarly rare. Only one conviction under s 60 has been legally reported over the last ten years, with a newspaper search revealing a small number of further cases, none of which resulted in custodial sentences. 34

B. The Infant Life Preservation Act 1929

While the OAPA makes no distinction between abortions early and late in pregnancy, a second statute, the Infant Life (Preservation) Act 1929 (ILPA), which applies in England and Wales, 35 prohibits the intentional destruction of ‘the life of a child capable of being born alive… before it has an existence independent of its mother’, unless this is done ‘in good faith for the purpose only of preserving the life of the mother’. 36 The statute was not intended to regulate abortions but rather to close a legal loophole whereby someone who killed a baby during the process of spontaneous birth would commit neither the offence of unlawful procurement of miscarriage nor murder, if the child did not yet have an existence independent of the mother and was thus not yet ‘a person in being'. 37 The Act contains a rebuttable presumption that capacity for life is acquired at 28 weeks of gestation, 38 reflecting the state of neonatal medicine in the 1920s: subsequent advances mean that today this capacity is generally accepted to be acquired around four weeks earlier. 39

The hypothetical possibility for which the ILPA was introduced is one for which it appears never to have been charged. Rather, the few prosecutions brought under the ILPA (numbering fewer than five per year) seem again to have involved assaults against pregnant women, resulting in miscarriage. 40 In this regard, the ILPA offers an example of the overlapping offences that the Law Commission notes as a matter of concern elsewhere, providing an alternative charge to (late) unlawful procurement of miscarriage under s 58 of the OAPA. Further, if it is accepted that terminations very late in pregnancy are more serious than those that occur earlier, the fact that conviction under the ILPA attracts the same upper sentence as that foreseen in s 58 provides an example of the problematic inconsistency in sentencing cited by the Law Commission as a reason for reform in other contexts. 41

The ILPA is also important for the significant role that it has played in judicial interpretation of the OAPA. It has been held that the word ‘unlawfully’ in s 58 presupposes that, on the contrary, in certain circumstances abortion must be lawful, with the interpretation of the term inferred from the exception contained in the ILPA: that a miscarriage was procured for the purpose of ‘preserving [the woman’s] life’. 42 This continues to form the basis for legal abortions performed in Northern Ireland each year, where it has been subject to an extremely restrictive interpretation. 43 Only a very small number of women in Northern Ireland who wish to end their pregnancies are thus able to do so within the jurisdiction, 44 with others either doing so clandestinely or travelling outside it to access legal services. This means that that while taxes in Northern Ireland contribute to NHS-funded services for other UK women, women in Northern Ireland must find the money for a termination and any associated travel and accommodation costs themselves. 45 Along with any problems caused by the need to arrange time off work or find childcare cover, this may put legal abortion beyond the reach of many, leading to increasing reliance on the purchase of abortion drugs via the internet. This offers a potentially far cheaper option and one that avoids the need to arrange time off work or child care cover. However, it leaves women to negotiate the risk of encountering unscrupulous traders who supply pills that are harmful or contain no active ingredients, or simply send nothing at all, leaving them now facing more advanced pregnancies. 46 It is thus no surprise that women in Northern Ireland who seek legal abortions in other parts of Britain are treated at higher gestational ages than other resident women, 47 or that the status quo has been criticised as significantly in breach of human rights norms. 48

C. The Abortion Act 1967

1. (1) Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith— that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.

In deciding whether the continuance of a pregnancy would involve ‘risk of injury to health’ for the purposes of s 1(a) or (b), doctors may take account of the pregnant woman's ‘actual or reasonably foreseeable environment’. 50

The overwhelming majority of legal terminations are performed on the basis of s 1(1)(a), which explicitly allows for a broad exercise of clinical discretion. 51 Modern abortion procedures are very considerably safer than carrying a pregnancy to term and thus in all cases there will be a basis for a doctor to reach a good faith determination that termination is indicated on the basis of the so-called ‘statistical argument’ that it would pose a lesser risk to a woman’s health than would continuing the pregnancy. 52 There is likewise a clear basis for an abortion to be authorised where two doctors form a good faith view that continuing an unwanted pregnancy is likely to pose a risk to a woman’s mental health.

The AA thus recognises an important role for doctors as gatekeepers to abortion services. 53 In addition to placing limitations on who may authorise and perform procedures, the AA restricts the locations in which they may be offered, 54 and sets out notification requirements. 55 Through such limitations, the UK parliament of the late 1960s aimed to address the problem of backstreet abortions, ensuring that henceforth terminations would be performed openly by an appropriately skilled doctor, in approved premises, following a second opinion. While the Act has been subject to repeated attempts at reform, 56 it has been amended just once. In 1990, along with some other minor amendments, 57 the upper time limit for abortion under s 1(1)(d) was extended, rendering abortion potentially lawful until term in the presence of a substantial risk of serious fetal anomaly.

Turning to how the AA has been applied in practice, it can be seen that reported numbers of lawful terminations steadily increased from 1968, before stabilising in the region of 200,000 procedures per year for women resident in England, Wales and Scotland, with 2014 seeing the lowest incidence of abortions for over a decade. 58 This represents an abortion rate that is broadly in line with that seen in other Western countries. 59 One in three women will have an abortion at some point in her life, 60 making this the most common gynecological procedure performed in the UK and one that is sought by women of all ages and from all walks of life. The majority (and a steadily increasing proportion) of terminations take place early in pregnancy, with 92 per cent carried out within the first 12 weeks, only 2 per cent at over 20 weeks, and one tenth of one percent after 24 weeks. 61 While unsafe abortion remains one of the most significant causes of maternal mortality worldwide, 62 in line with the hopes of those who had advocated liberalisation of the law as a public health measure, mortality resulting from abortion is now virtually unknown in the UK, with termination very significantly safer than carrying a pregnancy to term. 63 With the notable exception of terminations for women in Northern Ireland, 64 almost all procedures are funded by the NHS. 65 In sum, since 1967, abortion has become entrenched as a normal part of routine healthcare, with the AA offering a platform for the provision of safe, high quality, state-funded services, typically provided in the first trimester of pregnancy.

However, 50 years is a long time in clinical practice and the multiple cracks in what is now a very dated statutory framework are clear. In 1967, the overwhelming majority of abortions were performed by risky, technically demanding surgical techniques, 66 whereas today abortions are generally performed by straightforward, highly effective, low-risk procedures in early pregnancy. 67 Further, a high level of deference to medical authority made it natural to entrust doctors with the kinds of social and ethical decisions that would today be seen as self-evidently belonging to patients. And the dangerous backstreet procedures that provided such compelling impetus for reform have all but disappeared in the face of the availability of safe, legal, state-funded services. Yet while these underlying concerns have largely evaporated, the legal infrastructure that was shaped around them continues to have a significant effect on the way that services can be offered.

First, the Act’s requirement that two doctors must certify the need for an abortion is grounded in the assumption that doctors, rather than women, are best placed to decide whether an abortion is justified. In 1967, the understanding that medical control of abortion should go well beyond that which would accrue merely on the basis of a technical expertise reflected the belief that ‘social conditions cannot be and ought not to be separated from medical considerations’ and that the AA ‘by its very drafting… [encourages] the concept of socio-medical care'. 68 While this captures well the values that characterised 1960s practice, modern medicine has shifted fundamentally away from ‘doctor knows best’ paternalism: today patients are routinely trusted, and indeed expected, to make medical decisions for themselves, with pregnant women not treated as an exception to this fundamental legal principle in other contexts. 69 Contemporary abortion practice reflects this same evolution in attitudes, with the broad wording of s 1(1)(a) having permitted doctors to exercise their discretion liberally in favour of authorising abortions. However, in the context of a consistently liberal interpretation, the requirement for two medical signatures becomes an entirely bureaucratic one, serving no obvious broader purpose. 70 Moreover, it has also been suggested that this requirement may, in some circumstances, breach the European Convention on Human Rights. 71

Second, the legal requirements that abortions should be performed only by a doctor and only on approved premises are likewise unsupported by any current medical evidence base. These provisions reflected a desire to eradicate dangerous, clandestine abortions and to recognise the best practice of the late 1960s when, as noted above, abortion was a far more technically demanding and risky procedure. Today, however, these requirements have become particularly nonsensical in the context of early medical abortion (EMA), which accounts for around half of the terminations performed in England and Wales and over 80 per cent of those in Scotland. 72 In EMA, there is no clinical need for drugs to be taken on approved premises nor for it to be a doctor who administers or prescribes them. Indeed, the same drugs are already taken at home in other contexts; 73 a woman undergoing an EMA is allowed to leave the approved premises immediately after taking them in order to arrive home before her miscarriage begins; the most commonly used EMA drugs are comparable to or safer than many drugs which are routinely prescribed by appropriately trained other providers; 74 and nurses are already permitted to prescribe mifepristone, one of the drugs used in an EMA, for other medical reasons. 75 Further, looking beyond EMA, while late surgical procedures are likely to require the training and skill of an experienced doctor, it seems plausible that earlier procedures might be performed equally well by other trained professionals. 76 These restrictions thus appear redundant in terms of safeguarding women’s health and, moreover, their rigid enforcement risks impeding the efficient delivery of services so as to delay timely access to abortion. Given the greater risks involved in later terminations, this creates a clear potential for these provisions to increase the dangers to women seeking abortion services. 77 The questions of where and by whom abortion procedures can be safely provided are, of course, empirical ones raising important health concerns that should be answered through reference to a robust evidence base. The modest claim defended here is that the evidence base in question should be that offered by best current medical practice and knowledge, rather than that of the 1960s.

In sum, UK abortion law is characterised by archaic language, overlapping offences, inconsistencies in available sentences and clinically unwarranted restrictions on best practice. It has also been argued that it breaches international human rights obligations. 78 So far as possible, service providers have worked around the deficiencies in the law, resulting in a situation of good access to state-funded services in England, Wales and Scotland. This, in turn, has served to mitigate some of the worst consequences of the very restrictive provision in Northern Ireland and maternal mortality resulting from abortion has been close to eradicated in the UK. However, in addition to stigmatising women and service providers, this criminal law framework creates a number of clinically unwarranted impediments to the provision of high quality abortion services. If the need for good, modern abortion services is accepted, it is thus important to question whether these negative consequences can be justified with reference to any ongoing useful role played by the existing criminal law framework in policing its boundaries. I move now to consider this question.

Criminal law represents the most onerous, intrusive and punitive of state powers and it is reasonable to assume that it should be invoked only where it offers a necessary and proportionate means to achieve an important objective, with the onus on those who would seek to deploy it to demonstrate that these criteria are met. 79 Moreover, any such demonstration should be subject to particularly robust scrutiny in the abortion context, given the significant considerations of gender equality, autonomy, and reproductive health that point powerfully in favour of liberal access to safe, legal services. I move now to consider the purposes served by ss 58–60 of the OAPA, read in the light of the therapeutic exception carved out by the AA, in order to assess whether they outweigh these other kinds of considerations.

First, it is necessary to identify what precise purpose is served by these sections. While the legislation clearly reflects archaic, highly conservative attitudes to gender norms, female sexuality and fertility control, 80 and has been read as part of the medical profession’s fight to establish professional dominance over the management of pregnancy and childbirth, 81 it is commonly taken as representing an ongoing commitment to two specific purposes. It is said to be necessary, first, to prevent or to condemn the intentional destruction of fetal life; and, second, to prevent harm to women. 82 As noted above, the ILPA was introduced for very specific reasons unrelated to abortion. Broadly, however, it also might be said to be concerned with the protection of late fetal life.

Today, the OAPA and ILPA must also be read in conjunction with the AA, which is equally said to be underpinned by two broad parliamentary purposes. First, the AA also reflects a concern with preventing harm to women, aiming to ‘ensure that the abortion is carried out with all proper skill and in hygienic conditions’. Second, it was to extend access to abortion in a way that foresaw ongoing control over a controversial procedure, being intended ‘to broaden the grounds upon which abortions may be lawfully obtained’, permitting only those abortions that were deemed ‘socially acceptable’. 83 Combined, then, we might say that the current criminal framework aims both to prevent harm to women and to prevent or condemn the intentional destruction of fetal life when this does not take place within tightly medically controlled circumstances. How well does current legislation further these goals?

A. Preventing Harm to Women

In 1861, abortion was a technically demanding, dangerous surgical procedure, offering clear medical grounds to support limiting its use to only the most compelling of cases. 84 By 1967, while termination procedures were far safer, they still carried significant risks. 85 Today, however, the claim that the restrictive, criminal prohibitions contained in the OAPA might be in any way justified by concerns for women’s health is simply unsustainable. As noted above, in the UK abortion carries a far lower risk of maternal death than does carrying a pregnancy to term. 86 Claims that abortion causes breast cancer or infertility have been demonstrated to be scientifically baseless. 87 Likewise, in mental health terms, there is no good evidence to support suggestions that abortion injures women psychologically. 88 While women are not harmed by safe, legal abortion, however, they are significantly and demonstrably harmed where the enforcement of restrictive criminal laws obliges them to seek out illegal terminations. While maternal mortality resulting from abortion has now been close to eliminated in the UK, 89 unsafe abortion is estimated to result in around 47,000 deaths each year worldwide, with these deaths overwhelmingly concentrated in countries with strictly enforced prohibitive legislation. 90 Further, there is some evidence to suggest that women with negative attitudes towards abortion are more likely to experience mental health problems following a termination, 91 and it therefore also seems probable that the stigmatising effect of criminal prohibitions on abortion may contribute to damaging women’s psychological health.

We had an Islamic girl forbidden from leaving the house without a chaperone. How is she going to get to an abortion clinic? She can’t. For her, her only option might be that she could get the medicine sent to her by post. We have British women in abusive relationships whose boyfriend will beat the hell out of her if he finds out she is pregnant and wants an abortion. 92

While it would clearly be preferable for these women to have the possibility of accessing formal health services (and, where necessary, a referral to other support), the threat of potential life imprisonment does not obviously perform any useful role in protecting them. Further, insofar as the purpose of the abortion prohibition is to safeguard women’s health, it seems odd to include women themselves within its scope: concerns regarding the dangers of women being injured in the course of elective cosmetic surgery, for example, have rightly led to calls for greater regulation of services rather than demands that women who put their health in the hands of unskilled providers should be punished for so doing. 93 These women are, of course, unlikely to be prosecuted. However the fact that a law is not likely to be enforced is the poorest of justifications for its retention.

Might the existence of legal abortion be harmful to women in a different way, leaving them open to coercion to terminate wanted pregnancies? This claim has been significant in discussions regarding sex selective abortion, where it was presented as the dominant concern motivating one recent reform attempt purporting to clarify the illegality of this practice. 94 The sponsor of the Bill, Fiona Bruce MP, described three cases, each of which focused on harm to pregnant women. Her first case was that of a vicious, unlawful assault by a husband on his pregnant wife, following his discovery that she was carrying a female fetus. 95 His actions would clearly be punishable under existing criminal law, whether or not he provoked a miscarriage, and while her situation highlights the need for services to support those suffering domestic abuse, the attacked woman would be assisted in no obvious way by a criminal prohibition on sex selective abortion. Bruce’s second example concerned women who come under familial pressure to abort female fetuses, being forced to lie to abortion providers about their reasons for seeking to terminate a pregnancy. 96 Such cases underline the importance of robust procedures in clinics to ensure the voluntariness of a woman’s consent: specifically, clinics should see each woman with no escort present, in order that she is given the fullest opportunity to discuss any pressures on her; and any translator used should be independent (rather than a partner or family member). 97 Again, however, it is unclear that a specific prohibition on sex selective abortion adds anything to the existing law (particularly in circumstances where women are coerced to lie about their reasons for terminating a pregnancy). Further, if the harm cited involves coercion, there is no obvious reason to single out sex selection for specific regulation: the voluntariness of consent is important in all cases.

[Rupinder] was the eldest of six girls and she recalls that each time her mother went to hospital how disappointed everyone was when each time it was a girl. This experience traumatised and consumed her so much that the thought of giving birth to a girl meant disappointment, betrayal and lowered status within the family and the community. Rupinder made a painful decision to abort which she now regrets as she felt that she had no other choice. 98

This tragic case again underlines the need for robust informed consent provisions, the availability of high quality counselling and for women to be allowed adequate time fully to consider their choices. However, it is naïve to imagine that banning sex selective abortion would address the structural sexism identified here and it is these cultural pressures that are harmful to Rupinder rather than the existence of legal abortion, not least as refusing access to such services does not remove the possibility of terminating a pregnancy but only limits her ability to do so safely. It is also cruelly ironic to focus efforts on addressing such sexism through the state aligning itself with Rupinder’s family and community in refusing her control over her own fertility.

In sum, the structural sexism that leads to the practice of sex selective abortion is deplorable, a fortiori, when it manifests itself in violence and coercion. However, the examples above do not present a case for specific criminal prohibition but rather illustrate that fully respecting women’s autonomy in this context requires not just robust consent procedures but also active commitment to securing the best possible conditions within which reproductive choice may be exercised. Moreover, there are strong practical reasons for being wary of seeking a response to these problems within the criminal law. A specific prohibition on sex selection is likely to be unworkable in practice and, if rigorously pursued, could not fail to be highly intrusive. Either screening out the very small number of cases where a termination might be sought for this reason would involve close questioning of all woman (not least given Bruce’s concern with women persuaded to lie about their motivation) or, alternatively, it might potentially lead to a kind of racial profiling, with enhanced suspicion and scrutiny of women from particular ethnic communities.

Bruce’s arguments reflect the currency of what Siegel has identified as a significant ‘woman protective turn’ in arguments for restricting access to abortion. 99 However, I have argued that the claim that liberal access to abortion harms women is as unconvincing in this specific context as it is more generally. If there is a continuing purpose for criminal prohibitions against abortion, then this can only lie in the claim that they are necessary to prevent or condemn the intentional destruction of fetal life.

B. Preventing or Condemning the Intentional Destruction of Fetal Life

As I noted earlier, in Britain there would appear to be significant support for the view that while not a full moral person with equal ethical status to someone who has been born, the human fetus is of moral value and holds a significance that increases as it grows throughout pregnancy. 100 However, this alone is insufficient to ground a criminal prohibition on abortion. First, the moral respect due to fetal life must be weighed against the significance of respect for women’s autonomy, gender equality and reproductive health. And, second, even if the scales are judged to come down on the side of protection of fetal life, it is also necessary to consider whether a criminal prohibition performs a useful function in achieving that end (either through preventing or condemning the destruction of the fetus).

Do restrictive abortion laws serve to prevent abortion? While the answer to this question is less straightforward than is often suggested, it is clear that even the most stringent attempts to enforce restrictive abortion laws will not succeed in all cases. At the extreme, Ceausescu’s Romania saw abortion prohibitions rigorously enforced, with illegal abortion nonetheless remaining commonplace and maternal mortality rates soaring. 101 International data confirms that strictly enforced legal prohibitions are, at best, a poor indicator of low abortion rates and, indeed, tend to correlate negatively with them. 102 Rather, a lower incidence of abortion reflects a lower incidence of unplanned pregnancy which, in turn, reflects the availability and use of contraception. 103 However, it is also true that not all women who are refused a legal termination will seek out and secure an illegal one: sometimes, a refusal will result in a pregnancy continuing. While there is no good data regarding the relative incidence of illegal abortions and continuing pregnancies following a refusal, we can conclude that restrictive laws will prevent some, but by no means all, abortions. The cost of preventing some terminations and, thus, saving some fetal lives in this way must thus be measured not just in the moral, social and physical harms of enforced pregnancy, childbirth and child rearing; it must also be measured in the financial and emotional costs to women of needing to access terminations outside of their own jurisdiction and the maternal mortality and morbidity that typically accompany illegal abortions.

In many countries, a response to this moral calculation has been non-enforcement of the restrictive, punitive laws retained on the statute books, turning a blind eye to widespread disregard of them. Britain offered a clear example of this phenomenon even before the partial decriminalisation achieved by the AA, with few convictions for abortion offences and vanishingly small numbers of prosecutions of women who had undergone terminations or of doctors who had performed them in line with good medical practice. 104 As noted above, there have been still fewer such prosecutions since 1967. Likewise, the very restrictive legal framework in Northern Ireland currently appears to coexist with a significant incidence of illegal terminations using drugs purchased on line. The absence of appetite for prosecuting the women who break the law in this way was recently demonstrated by the lack of any official response to an open letter, signed by over one hundred people, stating that they had either terminated pregnancies using this means or assisted others to do so. 105

This situation of practical access to abortion and non-enforcement of the criminal law can be viewed as a response to the moral calculation described above, suggesting that as a society we have already implicitly chosen to value women’s autonomy and health over the attempt to protect fetal life through the criminal law. This is demonstrated through the weak enforcement of the law, the fact that even opponents of liberal abortion law now often frame their arguments in terms of women’s health rather than the sanctity of fetal life, 106 and in surveys showing strong popular support for a woman’s right to choose. 107 In other contexts, the fact that criminal prohibitions are so rarely and selectively enforced might be accepted as reason for their removal. Here, however, the stigma attached to abortion and the reluctance of politicians to confront the issue has led to legislative stagnation and the achievement of good access to legal abortion services through an implicit acceptance of liberal interpretation of the law, rather than the statutory reform that would be necessary to bring it into line with modern practice. Yet in the light of this current liberal interpretation, it is difficult to escape the conclusion that our current abortion legislation serves no ongoing purpose in preventing the destruction of fetal life.

Here, of course, it might be objected that the appropriate response is precisely not to accept this liberal exercise of discretion as a basis for viewing controls over abortion as redundant but rather to demand that they be more rigorously enforced. Such a view seems implicitly to inform the Department of Health’s recent ‘Guidance in Relation to Requirements of the Abortion Act 1967’, which suggests that whilst not strictly legally required, it is ‘good practice’ for at least one of the doctors who authorises an abortion to see the pregnant woman in person (rather than relying on the assessment of other members of the healthcare team, as might be accepted medical practice in other contexts). 108 It further provides that the doctor must make an individual assessment of the woman, rather than simply relying on a general application of the ‘statistical argument’ described above as a justification for the legality of any early termination, or relying on the assessment of other members of the multi-disciplinary team treating the woman. 109

No justification for requiring a more robust level of medical scrutiny appears in the ‘Guidance’ and, notably, reference is given neither to legal authority nor to a medical evidence base in support of the Department’s restrictive reading of the legislation, leaving the reader to speculate as to what it aims to achieve. It may be, for example, that the intention is that an enhanced level of medical scrutiny is intended to result in more women being dissuaded from terminating pregnancies or refused access to legal services. One powerful justification advanced in the 1960s in favour of entrenching the doctor as ‘gatekeeper’ was precisely that doctors might somehow take control of a woman’s situation and offer the kind of persuasion and support that would convince her to continue with her pregnancy. 110 Yet whatever force this idea had in the 1960s, to modern eyes it appears troublingly coercive to suggest that the doctor’s role should be one of active discouragement of abortion. Such conduct would constitute as clear a breach of the professional obligation to provide accurate information and non-directive counselling as would an attempt to persuade a woman to end a pregnancy (as the ‘Guidance’ appears to recognise). 111 Further, there would appear to be no strong contemporary support for requiring doctors to refuse more abortions: at least in early pregnancy (when a large majority of terminations occur), modern views tend towards seeing abortion as the woman’s choice. 112 As noted above, this is implicitly accepted even in many political attacks on abortion services, which often argue not against liberal abortion access per se but rather suggest that existing consent provisions are insufficiently robust, leaving vulnerable women open to exploitation and abuse. Yet if it is not the intention that the doctor’s role should be to refuse or to persuade against abortion, then demanding a tighter level of medical scrutiny appears, oddly, to be demanding that control happens entirely for its own sake.

Finally, it might be suggested that even if the criminal law is not enforced, it nonetheless offers the best available means for society to express its strong condemnation of the intentional destruction of fetal life as an important prima facie moral wrong or, at least, to underscore the moral gravitas of the abortion decision. However, even putting to one side more general concerns regarding the deployment of criminal law as a means of expressing moral disapproval, there are reasons for rejecting the specific application of this justification here. First, it seems strange to require our criminal law to express a moral message that is so poorly aligned with contemporary moral views on abortion. In a recent poll, just over half of those surveyed supported the view that ‘a woman should not have to continue with her pregnancy if she wants an abortion’. 113 A second question, asked in the same survey, provided an even stronger response (with the difference between these two figures perhaps reflecting a restrictive view of the appropriate role of government in this context): when asked to select the statement that best reflected their views, only 17 per cent selected the statement that ‘the Government has a responsibility to reduce the number of abortions’, compared to the 70 per cent who chose the statement that ‘it’s a woman’s right to choose whether or not to have an abortion and the Government should not interfere’. 114 While any polling data will be influenced by virtue of the exact question asked, no major poll in the last five years has identified the kind of substantive moral consensus against abortion that might justify its criminal prohibition, at least prior to viability. 115 This remains the case for polling data gathered from those who identify as Christian. 116

What they point towards is an approach to the law which, instead of treating patients as placing themselves in the hands of their doctors … treats them so far as possible as adults who are capable of understanding that medical treatment is uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives, and living with the consequences of their choices. 119

In the light of such a shift, which is equally visible in codes of professional ethics, 120 the fact that ending a pregnancy involves a morally serious decision appears to be all the more reason for formally recognising, and strongly communicating, that it is pregnant women themselves who must make it.

Thirdly, in any case, it is by no means obvious what message the OAPA succeeds in expressing. Given that people are far more likely to be aware of the widespread availability of abortion services in Britain than of the wording of the relevant statutes, they might reasonably believe that law communicates a rather permissive message. 121 For those who know the formal letter of the law, the criminal prohibitions of the OAPA taken alone might appear to express the idea that abortion is a serious moral wrong (potentially meriting the same life sentence as does murder), 122 at all gestations, and regardless of by whom it is performed. However, read in conjunction with the AA, the message is rather different: that abortion is seriously morally wrong when not carried out under medical orders and in line with the best medical practice of the 1960s. In this light, the clearest message expressed by the two statutes taken together might appear to be one of women’s relative incapacity to make morally significant decisions and a refusal of the importance of updating laws in line with modern medical science, even when this serves to hinder clinical best practice.

In sum, our abortion law, as currently interpreted, fails to fulfil any demonstrable modern purpose. While its bearing on the incidence of abortion is unknown, it serves to stigmatise women seeking abortions and those who care for them, 123 and to impose clinically unwarranted, purely bureaucratic restrictions on medical practice. While it is likely that a more rigorous enforcement of the law would result in preventing some (but by no means all) abortions, this would come with inevitable costs measurable not just in terms of gender equality, reproductive health, and autonomy but also, potentially, in maternal mortality and morbidity. These are costs which modern British society appears unwilling to pay. Further, it would be contrary to accepted ethical practice for doctors to attempt to dissuade women from terminating pregnancies and there appears to be no general public appetite for Government to assume a more active role in seeking to reduce the number of abortions. 124 Yet if the law is not enforced in this more active, restrictive way, it appears to be redundant and this, in itself, offers a strong justification for root and branch reform.

Legal reform resulting in abortion being available on request as a part of mainstream healthcare services would serve to update our laws in line with current medical practice and modern moral values. Moreover, such a move would provide a far better reflection of the broad principles set out at the beginning of this paper. It would recognise the importance of fertility control as a key part of ensuring women’s reproductive health and full participation in society, and it would accord with respect for patient autonomy, removing a significant anomaly in the current law. The elimination of the current unnecessary bureaucracy built into the existing framework might make a modest contribution to abortions taking place earlier in pregnancy and in ways that are safer, more effective and more acceptable to women. 125 Further, there is no reason to believe that decriminalisation would have any negative impact on provision for informed consent: this would remain, as now, subject both to the standards of general medical practice and specific professional guidance. Finally, as noted throughout, a substantial evidence base supports the clinical safety and acceptability of these changes.

The most significant objection to my argument lies, of course, in the claim that decriminalisation of abortion would offer less appropriate recognition of the moral respect due to the human fetus. I conceded at the outset that I am unlikely to convince those who hold that the fetus is a full moral person and that ending a pregnancy is morally equivalent to murder. 126 Yet speaking to those others, who appear to form a very substantial majority in modern Britain, I have sought to demonstrate that there is a strong case for reform. First, as currently interpreted, existing law does not play any role in preventing the intentional destruction of fetal life: were the law to be modernised in the way that I suggest, there is no reason to believe that this would have a significant impact on the incidence of abortions. 127 Second, liberalising the law is likely to have a modest effect in further improving the proportion of abortions that take place very early in pregnancy, 128 with this a welcome outcome for those who take a gradualist view of the moral value of fetal life. Most notably, if decriminalisation paves the way to the opening up of abortion services within Northern Ireland, then early abortion rates for Northern Irish women might potentially improve in line with those elsewhere in the UK. Third, there is a wealth of evidence that suggests that a concern for protecting fetal life can be more effectively pursued through policies that attack the incidence of unwanted pregnancy (for example, through improving the quality of sex education and contraceptive provision, and making motherhood a more realistic possibility for women struggling to balance childcare alongside other commitments). 129 Fourth, for those who accept the merits of an expressivist role for the law, I have suggested above that the message communicated by our current legislation is, at best, ambiguous. Decriminalisation would, however, mean that it would be women who would carry the responsibility for decisions regarding abortion, including weighing the ethical significance of ending the life of the embryo or fetus. Reform might, therefore, be seen as expressing the view that women are as capable as their doctors of making morally serious decisions.

Finally, it should be acknowledged that a minority of people are likely to continue to believe that abortion constitutes a significant moral wrong. In a plural democracy, it is important that nothing would require those who hold this view to make use of abortion services. Further, of course, they would retain the right to make known their views and to attempt to convince others through legitimate forms of political protest. Finally, as I suggest below, a right of conscientious objection could offer continued protection to those healthcare professionals who do not wish to be involved in the provision of abortion services. However it is equally important that the views of a vocal minority should not be able to impede access to services or to stigmatise the many who take an equally sincerely held different moral view.

The removal of specific criminal penalties relating to abortion in the UK would, of necessity, require a process of parliamentary reform, 130 involving a radical revision of the law, yet one that would be likely to have anything but a radical impact on practice in England, Wales and Scotland. I have space here to do no more than to suggest some broad principles that should inform such a process. Most fundamentally, under the reform proposed, the destruction of fetal life would no longer provide an independent justification for criminal sanction, though such sanction should remain available to recognise the important harm done to a woman who is subjected to a non-consensual abortion. Below, I briefly consider the general impact of the removal of specific criminal penalties relating to abortion, before noting two particular ‘hard cases’, which would require careful consideration within any reform process.

A. The Broad Impact of Decriminalisation

a profound shift in the relationship between the state and its female citizens. It changes both nothing and everything. Nothing, because the number, rate and incidence of abortion will not change. And everything, because for the first time women will be recognised as the authors of our own lives. With that comes our full citizenship. 133

Given current, liberal access to abortion services within the existing law, there is good reason to believe that this claim would hold generally true in the UK.

Further, there seems little reason to fear that sweeping away specific criminal prohibitions might lead to the re-emergence of the problems that provided the impetus for the introduction of the AA, with profit driven, sometimes poorly qualified providers left free to prey on vulnerable women. 134 In the same way that a specific criminal law provision prohibiting amateur dentistry is unnecessary to discourage patients from seeking out unqualified providers, women are highly unlikely to frequent backstreet abortionists in a context where free, safe, confidential services are available within the NHS. 135 And were recourse to the backstreets to occur, surgical terminations would fall within common law provisions governing all invasive procedures where consent does not offer a defence to the infliction of actual or grievous bodily harm. 136 Whether this prohibition would capture abortions performed by unqualified providers using less invasive techniques is not clear. However, if the guiding concern is not with the ending of a pregnancy per se but rather, as for other procedures, with ensuring fully informed, voluntary consent and safeguarding women’s health, then this question would appropriately turn on the intention of the abortionist, the woman’s consent, the seriousness of the invasion and the level of harm caused, with these factors relevant to the determination of the existence and severity of the general criminal offences of common assault, or assault causing actual or grievous bodily harm. 137 Where the safety of patients is negligently or wilfully jeopardised, professionals (like unqualified abortionists) can likewise face potential action in the civil or criminal courts, 138 with deviations from appropriate practice also potentially provoking disciplinary sanction or action by the Care Quality Commission. In practice, abortion doctors who act outside accepted medical practice may already be more likely to find themselves sanctioned by disciplinary bodies rather than by courts, with the General Medical Council sometimes seen as better equipped to provide a thorough exploration of the boundaries of acceptable medical practice. 139

In any fundamental reform of abortion law, it would be necessary for legislators to pay close attention to the existence of specific circumstances that would merit the imposition of a criminal sanction. It was noted above that the majority of prosecutions under both the OAPA and ILPA have been brought against men who assault pregnant women in order to provoke miscarriages. Given the harm to the women involved, such actions should continue to be chargeable and would be so under general offences relating to the causing of actual and grievous bodily harm. It would be necessary, however, to consider whether any amendment to the scope of these offences is required to ensure that the extent of harm caused to a woman by the loss of a desired pregnancy is fully recognised in law. 140 Close attention should also be paid to the small group of cases where men have been prosecuted for attempts to procure the miscarriage of pregnancies that were wanted by the women concerned, through administering abortion drugs to them without their knowledge. 141 While such conduct might fall within existing criminal prohibitions on the administration of ‘a poison or other destructive or noxious thing’, 142 again it would be necessary to clarify that the scope of this offence covers these factual circumstances and that the available sentence captures the full harm caused by the loss of a desired pregnancy.

Finally, within the process of reform, it would also be necessary to consider whether it would be valuable to retain some aspects of the AA. While I have no space to expand here, in my view, it would be appropriate to maintain a right of conscientious objection for healthcare professionals who choose to opt out of participating in abortion procedures. Notification requirements might also continue to perform a useful role, not least in allowing for the rigorous testing of the claim made above: that decriminalisation would be likely to have little impact on the incidence of legal abortion.

B. Two Hard Cases

There are, however, two cases where decriminalisation would make a significant difference to legal access to abortion, potentially impacting on abortion rates. Further, to the extent that my argument is grounded in permissive public opinion regarding abortion, these are also cases that would require particularly close attention in any reform process.

First, it is impossible to know what impact there would be on the incidence of abortion if decriminalisation were also to extend to Northern Ireland, as there is no reliable means of estimating current numbers of terminations each year. Beyond the few dozen women who terminate pregnancies within the jurisdiction and the several hundred who give addresses in Northern Ireland when accessing services in Britain each year, there are undoubtedly many more who access legal services without using their real addresses and others who procure illegal abortions. 143 However, while decriminalisation would have an unknown impact on the absolute incidence of abortion among women in Northern Ireland, it would nonetheless have the very significant effect of opening the door to far greater provision of legal services within the jurisdiction. While assessing the legal and political fallout of such a move is beyond the scope of this paper, it is certain to be significant. While some data exists to suggest that public opinion in Northern Ireland would favour modest moves towards a less restrictive law, 144 and steps are underway to assess the merits of some very limited legal changes, 145 Northern Ireland MPs have consistently raised vocal opposition to liberalising reform. 146 However, if, faced with decriminalisation, the Northern Ireland Assembly chose to make use of its powers to regulate on abortion that would at least mean that women in Northern Ireland would gain a law that is the product of a modern, local, democratic debate. Moves towards decriminalisation might also provoke the kind of public consultation on the reform of the law in Northern Ireland that has been repeatedly demanded by CEDAW. 147

Second, removal of the specific criminal prohibitions regarding unlawful procurement of miscarriage in the OAPA, child destruction in the ILPA and corresponding offences in Scots common law, would have the effect also of decriminalising post-viability abortions. It should be acknowledged that later terminations raise particularly acute moral concerns for many and that the retention of criminal law restrictions would be likely to command more popular support in this context. 148 While this issue would thus require particularly close deliberation, such consideration should take seriously the question of what is to be gained by criminalising women at any stage of gestation and, further, the importance of removing barriers that discourage women from accessing professional advice and support. The difficulty and risks involved in later procedures also offer some reason to suppose that the removal of criminal penalties would not lead to a dramatic escalation in later terminations. In addressing this issue, Victoria chose to take women and healthcare professionals out of the criminal law altogether, while retaining criminal penalties against professionally unqualified abortionists at all gestations, and foreseeing the threat of professional sanctions as an appropriate way of building in safeguards against healthcare professionals who act outside of recognised practice around access to later terminations. 149 While there is no hard data on this point, this appears not to have resulted in increased numbers of later terminations in Victoria, as healthcare professionals have set their own limits on services. 150 If notification requirements were retained in the UK, the better data thus available would, of course, allow for this aspect of reform to be monitored closely.

The fact that a statute is old is not a problem in and of itself. However, any law fossilises the values and assumptions of the era in which it was introduced and the statutory framework regulating abortion is embedded within particularly deep historical strata. The OAPA provides a fascinating snapshot of the anxieties and realities of Victorian Britain, entrenching a motley collection of specific offences, including those of impeding a person endeavouring to save himself from shipwreck, 151 failure to provide ‘apprentices or servants with food, &c. whereby life is endangered’ 152 and ‘assaults with intent to obstruct the sale of grain, or its free passage’. 153 It is no surprise that legislation grounded in those concerns appears anachronistic to modern eyes. 154 While they raise additional ‘broad policy considerations’, the offences relating to abortion suffer just as seriously from this problem as do those other parts of the Act that the Law Commission has identified as requiring reform.

In general, the danger of such legal ‘fossilisation’ is guarded against by a range of strategies. First, any statute is subject to interpretation by those who apply it day to day: here, service providers and doctors. This interpretation has evolved over time, in the obiter opinion of one judge, leading to a situation where the law is now ‘wrongly, liberally construed in practice so as to make abortion available essentially on demand prior to 24 weeks with the approval of registered medical practitioners’. 155 Yet while this may reflect the judge’s own moral or religious view, with respect, there is no basis for describing a liberal construal of the AA as ‘wrongful’ in legal terms. On the contrary, the Act is ‘built on the premise of non-interference with clinical freedom’: 156 in 1967 Parliament fully intended that the ‘great social responsibility’ for regulating access to abortion should be placed on the shoulders of doctors. 157 In exercising this responsibility and using their discretion liberally, doctors have done no more than to develop abortion services in line with evolutions in broader popular morality and best medical practice, interpreting the law in a way that is fully supported by concerns for women’s reproductive health and patient autonomy. Further, this interpretation is one that respects the original purpose of the Act: to ensure that ‘socially acceptable abortions should be carried out under the safest conditions attainable.’ 158

Second, laws are subject to interpretation by the judiciary, who are tasked to read them as ‘constantly speaking’ ‘living statutes’, with considerable judicial creativity sometimes deployed to limit the extent to which our aged statutory framework impedes the modern provision of high quality services. 159 There are, however, limits to the elasticity of legal language. The judge’s primary duty is to give effect to the ordinary (or, where appropriate, technical) meaning of words, yet this task becomes difficult when legislation needs to be applied in the context of medical realities unimaginable to its architects. 160 This is most graphically illustrated by the challenge of applying laws developed during an era of now rarely used surgical techniques in the context of a widespread reliance on medical abortion. 161

Where the gulf between the plain language of a statute and a sensible interpretation of it becomes too great, a third strategy becomes necessary: for lawmakers to step in to remove or revise offending provisions. Here, the Law Commission plays an important role, aiming ‘to ensure that the law is fair, modern, simple [and] effective’. 162 Yet this work is blocked where issues are perceived as raising policy considerations that render them unsuitable to be considered by a law reform body and, a fortiori, if they are perceived as too controversial to be tackled by government. Abortion is, perhaps, the paradigmatic example of this problem, with the Commission’s exclusion of offences relating to abortion from the scope of its current consultation providing only the most recent example of a longstanding official reluctance to put abortion law reform before Parliament. Many domestic abortion laws (including the AA) were introduced by way of private members’ bills, often denying them the benefit of the skilled drafting that would be provided by parliamentary draftspersons. 163 Many reforms (again, including revisions to the AA) have taken the form of amendments tagged onto the vehicle of other statutes, of necessity thus offering a tinkering at the edges of existing statutory frameworks rather than providing the coherent, root and branch measures that might be envisaged in a specific reform bill. The costs of such political expediency are felt in the form of uncorrected poor drafting, archaic terminology that fits uneasily with modern reproductive healthcare practice, and—most fundamentally—underpinning values and assumptions that remain grounded in the moral mores and medical practices of a long distant era.

Writing some 30 years ago, the veteran pro-choice campaigner, Madeleine Simms, argued that ‘the 1967 Abortion Act was a half-way house. It handed the abortion decision to the medical profession. The next stage is to hand this very personal decision to the woman herself.' 164 In practice, this second step has already been taken: doctors have used the broad discretion accorded to them under the AA to respect patient autonomy in this as in other contexts. What remains is to update the law to bring it into line with modern medical practice, leaving abortion services subject to the same complex web of regulation that governs other aspects of healthcare provision. Such a change would not remove social contestation around abortion. It would, however, recognise that a law is overdue reform when there is no appetite for enforcing it in the context for which it was intended, where it has no impact on abortion rates, where it imposes clinically unnecessary impediments that restrict the provision of a high quality, safe and compassionate service, and where it stigmatises one third of British women and the healthcare professionals who care for them. In 2018, we will mark not just the fiftieth anniversary of the coming into effect of the Abortion Act 1967 but also the one hundredth anniversary of the first British women achieving the right to vote. 165 It would be a fitting commemoration of each of these anniversaries were the MPs, who as women we are now formally empowered to share in electing, to recognise our formal legal right to control our own fertility.

I am grateful to Brendon Borer and Joseph Hartland for their very valuable assistance with the research for this article and to the participants in staff seminars at the universities of Birmingham and Edinburgh for robust discussion of earlier drafts. I am also particularly indebted to the following for their constructive and incisive feedback: Jennie Bristow, Emily Jackson, Dermot Walsh, Marie Fox, Sheelagh McGuinness and two anonymous reviewers for the OJLS.

1 R (Smeaton) v Secretary of the State for Health [2002] EWHC 610 (Admin), [2002] FCR 193 [332] (Munby J), who has since gone on to become President of the Family Division of the High Court and a member of the Court of Appeal.

2 Some women gained the vote via the Representation of the People Act 1918, with full female franchise achieved in the Equal Franchise Act 1928. The Married Women's Property Act 1882 changed the law to permit married women to own, buy and sell property in their own right.

3 Smeaton (n 1) [332] Munby J.

4 The Commissions Act 1965, s 3, sets out the Law Commission’s duty with regard to ‘the elimination of anomalies, the repeal of obsolete and unnecessary enactments, the reduction of the number of separate enactments and generally the simplification and modernisation of the law’. In its own words, the Commission is charged to ensure that the law is fair, modern, simple and effective, see Law Commission, < www.lawcom.gov.uk > accessed 11 August 2015.

5 Law Commission, Reform of Offences Against the Person: A Scoping Consultation Paper (Law Com, CP No 217, 2014) 54. The draft Bill referenced here was published as part of an earlier Consultation exercise, entitled Violence: Reforming the Offences against the Person Act 1861.

6 For a very small taste of the voluminous literature, see J Finnis and others, The Rights and Wrongs of Abortion (Philosophy & Public Affairs Readers 1974); R Dworkin, Life’s Dominion: An Argument about Abortion and Euthanasia (HarperCollins 1993); RP Petchesky, Abortion and Woman's Choice: The State, Sexuality, and Reproductive Freedom (Longman 1984); and J Harris, The Value Of Life (Routledge 1985).

7 R Siegel, ‘Sex Equality Arguments for Reproductive Rights: Their Critical Basis and Evolving Constitutional Expression’ (2006–07) 56 Emory LJ 815.

8 Reproductive health is recognised as a basic right by the World Health Organisation, which understands it to include the right ‘to be informed of and to have access to safe, effective, affordable and acceptable methods of fertility regulation’. WHO, ‘Reproductive Health’ < www.who.int/topics/reproductive_health/en/ > accessed 11 August 2015.

9 This received a clear judicial articulation in the case of Re T (Adult) [1992] 4 All ER 649 (CA) and, more recently, in the Supreme Court decision in Montgomery v Lanarkshire Health Board [2015] UKSC 11, [2014] 2 All ER 1031. The latter is further discussed below.

10 Even Foster, in a sustained critique of what he sees as undue weight given to autonomy in modern medical ethics and law, does not deny that it has a vital role: C Foster, Choosing Life, Choosing Death: The Tyranny of Autonomy in Medical Ethics and Law (Hart 2009) .

11 Neither is the fetus a legal person until it is born alive and separate from the body of its mother, Rance v Mid-Downs Health Authority [1991] 1 QB 587 (QB). I make no attempt to convince those who object to abortion on the basis of what Dworkin calls the ‘Derivative Objection’: that the fetus is a creature with interests of its own right from the start, including an interest in remaining alive, and that it therefore has the rights that all humans have. As Dworkin suggests, however, moral objections to abortion are, for most, not grounded in this view but rather stem from what he calls the ‘Detached Objection’: that human life has intrinsic innate value and is sacred in itself, detached from any particular rights or interests: Dworkin (n 6). This final empirical claim appears to be borne out by the polling data discussed at nn 100 and 113–16 and accompanying text.

12 See eg, N Jareborg, ‘Criminalization as Last Resort’ (2005) 2 Ohio St J Crim L 512; A Ashworth, ‘Conceptions of Overcriminalization’ (2008) 5 Ohio St J Crim L 407; D Husak, Overcriminalisation: The Limits of the Criminal Law (OUP 2008); and H Packer, The Limits of the Criminal Sanction (Stanford University Press 1968).

13 The applicability of such offences in the context of abortion is briefly explored in section 3.

14 R Cook, ‘Stigmatized Meanings of Criminal Abortion Law’ in R Cook, JN Erdman and BM Dickens (eds), Abortion Law in Transnational Perspective: Cases and Controversies (University of Pennsylvania Press 2014).

15 The head of Britain’s largest charitable abortion service provider, the British Pregnancy Advisory Service (bpas), reports that ‘[m]inisters and officials at the Department of Health have repeatedly said to us that they see no need to change the law because it is possible to “work around” its deficiencies. This is not good enough. The law as it stands undermines the delivery of safe, evidence-based abortion services.’ A Furedi, ‘A Shocking Betrayal of Women’s Rights’ ( Spiked , 28 October 2008) < www.spiked-online.com/index.php?/site/article/5845/ > accessed 11 August 2015.

16 The statutory framework for abortion is contained within the first four pages of the chronologically ordered 270 pages of Blackstone’s Statutes on Medical Law (5 th edn, OUP 2007), which begins with the OAPA 1861.

17 M Potts, P Diggory and J Peel, Abortion (CUP 1977) 281–82.

18 ibid 282.

19 Offences Against the Person Act 1837.

20 Quickening is the moment when the pregnant woman first feels the fetus moving inside her. See William Blackstone, Commentaries on the Laws of England (first published 1765, University of Chicago Press 1979).

21 See J Keown, Abortion, Doctors and the Law (CUP 1988) 167 for a helpful summary of the changes.

22 This omission was addressed in R v Bourne [1939] 1 KB 687 (CA). The lack of consideration of therapeutic abortion was ‘consistent both with the theological position, which fears for the after-life of the unbaptised soul, and with the medical position, the legislation dating from a time when no safe surgical procedure had been devised for the operation’, B Dickens, Abortion and the Law (MacGibbon & Key 1966) 39. See further Potts, Diggory and Peel (n 17) 277.

23 Smeaton (n 1) [126]–[127].

24 See S Sheldon, ‘The Regulatory Cliff Edge Between Contraception and Abortion: The Legal and Moral Significance of Implantation’ (2015) J Med Ethics < http://jme.bmj.com/content/early/2015/06/17/medethics-2015-102712.abstract > accessed 11 August 2015; EG Raymond and others, ‘Embracing Post-Fertilisation Methods of Family Planning: A Call to Action’ (2013) 39 J Fam Plann Reprod Health Care 244; V Tunkel, ‘Abortion: How Early, How Late, and How Legal?’ (1979) 6184 BMJ 253.

25 See Ireland’s Protection of Life During Pregnancy Act 2013. For a comparative analysis of European laws, see K Nebel and S Hurka, ‘Abortion: Finding the Impossible Compromise’ in C Knill, C Adam and S Hurka (eds), On the Road to Permissiveness? Change and Convergence of Moral Regulation in Europe (OUP 2015).

26 See A Loughnan, Manifest Madness: Mental Incapacity in the Criminal Law (OUP 2012) ch 8, locating this provision within broader concerns for women's sexual ‘immorality’, illegitimacy and poverty. Scotland’s equivalent measure, contained in the Concealment of Birth (Scotland) Act 1809, is framed more narrowly, providing only for cases where infanticide (rather than procurement of miscarriage) is suspected, see GH Gordon, The Criminal Law of Scotland (W Green & Son 1967) 113.

27 G Williams, The Sanctity of Life and the Criminal Law (Faber and Faber 1958) 24.

28 Births and Deaths Registration Act 1953, ss 2 and 3(1) respectively.

29 See generally, I Jones and M Quigley, ‘Preventing Lawful and Decent Burial: The Boundaries of the Criminal Law?’ forthcoming, Legal Studies .

30 Office for National Statistics (ONS), Crime in England and Wales, Year Ending June 2014 , table A4 (16 October 2014) < www.ons.gov.uk/ons/taxonomy/index.html?nscl=Crime+and+Justice#tab-data-tables > accessed 11 August 2015.

31 eg R v Magira [2008] EWCA Crim 1939, [2009] 1 Cr App R (S) 68; R v Erin (2009, unreported). Few such cases are legally reported and I rely here on media reports to support the claim that prosecutions appear typically to involve non-consensual abortions, eg, BBC News, ‘Man Jailed for Miscarriage Attack’ (22 January 2003) < http://news.bbc.co.uk/1/hi/england/2684387.stm > accessed 11 August 2015; J Newton and T Thornhill, ‘Man is Jailed for Six Years for Putting Abortion Pills into his Ex-Girlfriend's Smoothie’ Daily News (18 March 2015) < www.dailymail.co.uk/news/article-3000249 > accessed 11 August 2015.

32 R v Catt [2013] EWCA Crim 1187, [2014] 1 Cr App R (S) 35; and R v Mohamed (unreported), see N Britten, ‘Jury Convicts Mother who Destroyed Foetus’ Telegraph (26 May 2007) < www.telegraph.co.uk/news/uknews/1552651/Jury-convicts-mother-who-destroyed-foetus.html > accessed 11 August 2015.

33 Since the Abortion Act (1967) was passed, there appears to have been just one such conviction: R v Smith [1974] 58 Cr App R 106 (CA). In Erin (n 31), a doctor who had attempted to procure the abortion of his pregnant lover by slipping abortifacients into her drink acted outside his medical role.

34 R v Hopkins [2005] NICC 1 Crown Court (21 January 2005). See further, eg, ‘Grandmother Admits Concealing Births of FOUR Stillborn Babies’ Daily Mail (7 December 2010) < www.dailymail.co.uk/news/article-1311600 > accessed 11 August 2015; ‘Mother Dumped Baby in Lake’ Independent (15 October 1992); < www.independent.co.uk/news/uk/mother-dumped-baby-in-lake-after-birth-in-lavatory-1557501.html > accessed 11 August 2015; ‘Cheating Girlfriend Hid Body of Newborn Baby’ Telegraph (14 July 2008) < www.telegraph.co.uk/news/uknews/2403771/Cheating-girlfriend-hid-body-of-newborn-baby-in-car-boot-to-conceal-love-affair.html > accessed 11 August 2015.

35 In Northern Ireland, similar provision is made by s 25 of the Criminal Justice Act (NI) 1945. In Scotland, such provision is unnecessary because the High Court of Justiciary has inherent power to extend the scope of existing crimes to cover unusual situations and, possibly, to create new crimes: K McKnorrie, ‘Abortion in Great Britain: One Act, Two Laws’ [1985] Crim LR 475.

36 ILPA 1929, s 1(1).

37 See Lord Russell, HL Deb 6 December 1928, vol 72 col 444, confirming that the offence was not concerned with abortion .

38 ILPA 1929, s 1(2).

39 N Marlow and others, ‘Neurological and Developmental Disability at Six Years of Age after Extremely Preterm Birth’ (2005) 352(1) NE J Med 9.

40 See ONS (n 30) data tables. Again, while the cases are not legally reported, some facts can be gleaned from media accounts, eg, J Narain, ‘Teenage Rapper is Charged with Child Destruction’ Daily Mail (17 August 2014) < www.dailymail.co.uk/news/article-2727147 > accessed 11 August 2015.

41 The Law Commission cites s 20 (maliciously wounding or inflicting grievous bodily harm), which is seen as more serious than s 47 (assault occasioning actual bodily harm) but carries the same maximum penalty, Law Commission, Eleventh Programme of Law Reform (Law Com No 330, 2011) para 2.62.

42 Under Bourne (n 22) 619.

43 Department of Health, Social Services and Public Safety (DHSSPSNI), ‘The Limited Circumstances for Lawful Termination of Pregnancy in Northern Ireland’ (April 2013). For criticism, see G Horgan, ‘A Holy Alliance? Obstacles to Abortion Rights in Ireland North and South’ in C Conlon, A Quilty and S Kennedy (eds), The Abortion Papers Ireland Vol II (Cork University Press, 2015 forthcoming).

44 Between 2006 and 2014 there were 23–57 abortions per year in HSC hospitals in Northern Ireland: K McClelland and C Kennedy, ‘Northern Ireland Termination of Pregnancy Statistics, 2013/14’ (DHSSPSNI 2015) table 2.

45 R ( A and B ) v Secretary of State for Health [2014] EWHC 1364 (Admin).

46 Horgan (n 43).

47 73 per cent of NI women are treated at under ten weeks (compared to 80 per cent of resident English and Welsh women) and 87 per cent at under 13 weeks (compared to 92 per cent of English and Welsh women), Department of Health, ‘Abortion Statistics, England and Wales: 2014’ (June 2015).

48 A successful application for judicial review of the law has been brought by the NI Human Rights Commission, with the judgment still pending at the time of writing, H Macdonald, ‘Northern Ireland High Court Grants Judicial Review of Abortion Law’ Guardian (2 February 2015) < www.theguardian.com/world/2015/feb/02/northern-ireland-high-court-hears-abortion-challenge-rape-incest > accessed 11 August 2015.

49 The Act’s differential operation in Scotland, where it carves out a therapeutic exception to a common law offence rather than statute, is considered by McKnorrie (n 35).

50 AA 1967, s 1(2).

51 In 2014, 98 per cent of abortions for English and Welsh resident women were carried out on the basis of this section alone. See Department of Health, ‘Abortion Statistics’ (n 47).

52 From 2006–08, there was an overall maternal mortality rate of 11.39 per 100,000 maternities in the UK and a maternal mortality rate relating to abortion of 0.32 per 100,000 maternities: Centre for Maternal and Child Enquiries (CMACE), ‘Saving Mothers’ Lives. Reviewing Maternal Deaths to Make Motherhood Safer: 2006–2008’ (2011) 118 BJOG (Suppl 1:1) 203.

53 Keown (n 21); S Sheldon, Beyond Control: Medical Power and Abortion Law (Pluto 1997).

54 Except in an emergency, under s 1(3), any treatment for the termination of pregnancy may only be performed in NHS hospitals or places approved by the Government.

55 AA 1967, s 2.

56 See Keown (n 21) ch 6, for a good account of attempted reform between 1967 and 1979; and bpas, ‘Abortion: Trusting Women to Decide and Doctors to Practise’ (bpas 2015) ch 4, for a brief overview of all major reform efforts from 1967 to 2015.

57 A new s 3A provided a specific power to approve a ‘class of places’ for the performance of medical abortions; s 5(2) clarified that both the AA and OAPA are engaged in the context of selective reduction of a multiple pregnancy; s 5(1) extended the AA to offer protection from prosecution under the ILPA. In addition to the various other drafting problems with the AA discussed below, it is noteworthy that this section is worded so as apparently to offer protection only to the doctor and not to other healthcare professionals involved in the termination: I Kennedy and A Grubb, Medical Law (Butterworths 2000) 1429.

58 184,571 for women resident in England and Wales and 11,475 for women resident in Scotland, see Department of Health, ‘Abortion Statistics’ (n 47), and Information Services Division (ISD) Scotland, ‘Termination of Pregnancy Statistics. Year Ending 31 December 2014’ (May 2015). It is, of course, impossible to know precisely what impact the AA has had on the numbers of abortions performed because of the difficulty of obtaining data regarding illegal procedures.

59 15.9 per 1000 resident women in England and Wales aged 15–44; 11.0 resident women per 1000 resident women in Scotland. This is the lowest rate for 17 years in each country, Department of Health, ‘Abortion Statistics’ (n 47), ISD, ibid. Globally, the age standardised abortion rate stood at around 28 per 1000 in 2008, with 24 per 1000 in developed countries or 17 per 1000 with Eastern Europe excluded, see G Sedgh and others, ‘Induced Abortion: Incidence and Trends Worldwide from 1995 to 2008’ (2012) 379 Lancet 625.

60 See Royal College of Obstetricians & Gynaecologists (RCOG), ‘The Care of Women Requesting Induced Abortion’ (Evidence-based Clinical Guideline No 7, 2011).

61 A total of 211 in 2014. 80 per cent of abortions in England and Wales, and a similar proportion in Scotland, occurred at under 10 weeks (compared to 77 per cent in 2012 and 58 per cent in 2003). This figure conceals some marked regional variation, with 89 per cent of terminations in North Staffordshire but only 54 per cent of those in the Vale of Glamorgan occurring at under ten weeks. Department of Health, ‘Abortion Statistics’ (n 47), and ISD (n 58).

62 The World Health Organization reports that around 47,000 deaths resulted from unsafe abortion in 2008, representing 13 per cent of all maternal deaths, WHO, Unsafe Abortion: Global and Regional Estimates of the Incidence of Unsafe Abortion and Associated Mortality in 2008 (6 th edn, WHO 2011).

63 RCOG (n 60).

64 A and B (n 45).

65 98 per cent of abortions were funded by the NHS in 2013, with 67 per cent taking place in the independent sector under NHS contract, Department of Health, ‘Abortion Statistics’ (n 47).

66 See Potts, Diggory and Peel (n 17) ch 6, on the evolution of abortion procedures.

67 95 per cent of terminations are either medical abortions (induced by drugs) or performed by vacuum aspiration.

68 D Steel, ‘Foreword’ in K Hindell and M Simms (eds), Abortion Law Reformed (Peter Owen 1971) 7.

69 Montgomery (n 9); Re MB (Adult, Medical Treatment) [1997] 38 BMLR 175 (CA).

70 The argument that it is this liberal interpretation of the law that is at fault is discussed at nn 108–12 and accompanying text.

71 R Scott, ‘Risks, Reasons, and Rights: The European Convention on Human Rights and English Abortion Law’ Med L Rev (forthcoming). Scott argues that to make access to lawful abortion within early pregnancy conditional on fulfilment of the terms of s 1(1)(a) is an unjustified interference with a woman’s private life under article 8(2). She also raises concerns regarding the lack of a system of formal review in the event that doctors decide not to grant a termination.

72 Department of Health, ‘Abortion Statistics’ (n 47), and ISD Scotland (n 58). In 2014, for the first time, medical abortions accounted for over half (51 per cent) of the total number of abortions performed in England and Wales, Department of Health ibid. The term ‘medical abortion’ is used to refer to any termination of pregnancy that is provoked using drugs.

73 eg where misoprostol is used in the treatment of miscarriage, see Science and Technology Committee, Scientific Developments Relating to the Abortion Act 1967 (2006–07, HC 1045-1) vol 1, 105.

74 For a small taste of the literature on the safety of EMA provided by mid-level providers, see M Kishen and Y Stedman, ‘The Role of Advanced Nurse Practitioners in the Availability of Abortion Services’ (2010) 24 Best Practice & Research Clinical Obstetrics and Gynaecology 569.

75 Science and Technology Committee (n 73) 105.

76 Nurses routinely fit contraceptive coils, a procedure seen as requiring about the same level of skill as an early surgical abortion performed by vacuum aspiration, ibid; see further V Argent and L Pavey ‘Can Nurses Legally Perform Surgical Induced Abortion?’ (2007) 33(2) J Fam Plann Reprod Health Care 79. The World Health Organisation recommends that vacuum aspiration can be safely provided by associate clinicians, midwives, and nurses. See WHO (2015) Health Worker Roles in Providing Safe Abortion Care and Post-Abortion Contraception , < http://www.who.int/reproductivehealth/publications/unsafe_abortion/abortion-task-shifting/en/ > accessed 7 September 2015, describing how, in many parts of the world, vacuum aspirations are already offered by midlevel providers, with similar safety records to those enjoyed by doctors.

77 See Science and Technology Committee (n 73) ch 4 for consideration of the evidence on this point.

78 See Scott (n 71). The Committee on the Elimination of Discrimination Against Women (CEDAW) has repeatedly expressed concerns about access to abortion in Northern Ireland: CEDAW, ‘Report of the Committee on the Elimination of Discrimination Against Women’ ( A/54/38/Rev 1, 1999) paras 309–10; CEDAW, ‘Summary Record of the 844th Meeting’ (CEDAW/C/SR 844, 2008) para 289.

79 Jareborg, Husak, Packer (all n 12). This principle might be extended to suggest that criminal laws should be occasionally reviewed and not allowed to stagnate on the statute books, Packer (n 12).

80 As a powerful illustration of late 19th century moral norms, Munby J describes the 1878 case of Annie Besant, whose daughter was removed from her custody with Besant judged unfit to raise her because she had written and published a treatise on contraceptive methods, Smeaton (n 1) [174]–[178], discussing R e Besant (1878) 11 Ch D 508.

81 Keown (n 21).

82 These were accepted as the twin purposes of the OAPA in Smeaton (n 1) [354]. See further Keown ibid and Dickens (n 22). Williams (n 27) 146 identifies this second purpose as the more important one, suggesting that ‘[t]he chief evil of an abortion is no longer thought to be the loss of the unborn child, but the injury done to the mother by the unskilled abortionist’.

83 R oyal C ollege of N ursing v D epartment for H ealth and S ocial S ecurity [1981] AC 800 (HL) 827, 835. Cited approvingly in Doogan v G reater Glasgow Health Board [2014] UKSC 68, [2015] AC 640 [27].

84 Potts, Diggory and Peel (n 17) 282; Keown (n 21) 36–37.

85 Potts, Diggory and Peel (n 17) ch 6. S Sood ‘Some Operative and Postoperative Hazards of Legal Termination of Pregnancy’ (1971) 5782(4) BMJ 270 describes a morbidity rate of 16.8 per cent and one death among 1317 patients admitted for NHS abortions from 1967–70.

86 RCOG (n 60).

87 ibid 42–44. The RCOG does note a small increase in the risk of subsequent preterm birth, which increases with the number of abortions, concluding however there is insufficient evidence to imply causality, ibid 44–45.

88 ibid 45–46; Academy of Medical Royal Colleges (AOMRC), ‘Induced Abortion and Mental Health: A Systematic Review’ (December 2011).

89 CMACE (n 52).

90 Sedgh and others (n 59).

91 AOMRC (n 88).

92 Rebecca Gomperts, cited in H Rumbelow, ‘The Woman who Offers Abortions on the High Seas’ The Times, 2 Supplement (22 October 2014).

93 Department of Health, ‘Review of the Regulation of Cosmetic Interventions’ (April 2013).

94 Abortion (Sex Selection) Bill (2014–15), HC Deb 4 November 2014, vol 587, cols 677–79. This Bill was withdrawn before its second reading, with a similarly worded proposed amendment to the Serious Crime Bill (2014–15) subsequently defeated. See HC, Notices of Amendments 1479: < www.publications.parliament.uk/pa/bills/cbill/2014-2015/0116/amend/pbc1162201a.1479-1480.html > accessed 11 August 2015.

95 ibid 678.

97 As illustrated in R v Ahmed [2010] EWCA Crim 1949, [2011] QB 512.

98 Bruce (n 94) 677–78.

99 R Siegel, ‘The New Politics of Abortion: An Equality Analysis of Woman-Protective Abortion Restrictions’ [2007] U Ill L Rev 991.

100 See the polling data considered at nn 113–16 and accompanying text. As I note above also, my argument is not likely to convince those who believe that all human life is sacred or that abortion is morally equivalent to murder. However, I follow Dworkin (n 6) in assuming that moral objections to abortion are, for most, not grounded in this view, with this assumption supported by the fact that only 6 per cent of those questioned in a recent survey believed that abortion should be banned in all circumstances: see YouGov poll for the Sunday Times , < http://cdn.yougov.com/cumulus_uploads/document/y4asheswh1/YG-Archives-Pol-ST-results-13-150112.pdf > accessed 11 August 2015, discussed further at n 148.

101 See M Horga, C Gerdts and M Potts, ‘The Remarkable Story of Romanian Women’s Struggle to Manage their Fertility’ (2013) 39 J Fam Plann Reprod Health Care 2, describing the peaking of maternal mortality at 147 per 100,000 in 1989. To compare with the UK maternal mortality rate noted above, see CMACE (n 52).

102 Abortion rates tend to be lower in sub-regions with liberal abortion laws: the lowest sub-regional rates of abortion (12 per 1000 women) are in Western Europe, where laws are least restrictive, and some of the highest sub-regional rates (29–39 per 1000) are in Latin America, where laws are generally very restrictive: Sedgh and others (n 59).

103 ibid. See further, CF Westoff, A New Approach to Estimating Abortion Rates (DHS Analytical Studies No 13, Macro International Health 2008).

104 For discussion, see Sheldon (n 53) 21–24.

105 For details, see R Whitaker and G Horgan, ‘Abortion Governance in the New Northern Ireland’ in L Anton, S De Zordo and J Mishtal (eds), A Right T hat Isn’t ? Abortion Governance and Associated Protest Logics in Postwar Europe (Berghahn 2015 forthcoming). A prosecution is reported to be currently underway, under s 59 of the OAPA, against a woman who is alleged to have purchased abortion drugs online for her daughter, see A Erwin, ‘Belfast Woman Will Go on Trial’ Belfast Telegraph (19 June 2015) < www.belfasttelegraph.co.uk/news/northern-ireland/belfast-woman-will-go-on-trial-for-helping-her-daughter-to-have-a-medical-abortion-31314912.html > accessed 11 August 2015. This has provoked a second letter, now with over 200 signatories, with the Police Service of Northern Ireland said to be looking into the matter, see R Sanghani, ‘“Arrest Us”: Northern Irish Women Want to be Prosecuted’ Telegraph (26 June 2015) < http://www.telegraph.co.uk/women/womens-life/11700651/Abortion-Northern-Irish-women-want-arrest-over-illegal-abortion-pills.html > accessed 11 August 2015.

106 This is more true at the parliamentary level (where it can be seen, for example, in Fiona Bruce’s arguments, discussed at nn 94–98 and accompanying text) than in the activities of pro-life pressure groups, which tend to focus on the need to protect human life from the moment of conception: see, for example, the websites of Abort 67, www.abort67.co.uk and the Society for the Protection of Unborn Children, www.spuc.org.uk/ (each last visited 11 August 2015).

107 See nn 115–17 and accompanying text.

108 See Department of Health, ‘Guidance in Relation to Requirements of the Abortion Act 1967’ (May 2014) para 6.

109 ibid [12], [20] and [21]. For a critical reading of the ‘Guidance’, see D Flower, ‘Certifying Abortions: The Signing of HSA1 Forms’ in bpas, Britain’s Abortion Law: What it Says and Why (bpas 2013) 22.

110 See generally, Sheldon (n 53) 24–27.

111 Department of Health, ‘Guidance’ (n 108) para 32 provides that ‘[p]atients should be able expect impartial advice from the NHS and CCGs’. See also General Medical Council (GMC), ‘Personal Beliefs and Medical Practice’ (March 2013).

112 See the polling data discussed at nn 113–16 and accompanying text.

113 15 per cent very strongly agreed, 12 per cent strongly agreed, 27 per cent agreed and 17 per cent disagreed. Ipsos MORI, ‘Public Attitudes towards Abortion’ < www.ipsos-mori.com/researchpublications/researcharchive/2854/Public-Attitudes-towards-Abortion.aspx > accessed 11 August 2015. A representative quota sample of 953 adults were interviewed face-to-face in their own homes in August 2011 at 156 sampling points across Great Britain, with data then weighted to match the profile of the population.

115 Packer’s authoritative account suggests that ‘the criminal sanction should ordinarily be limited to conduct that is viewed, without significant social dissent, as immoral. The calendar of crimes should not be enlarged beyond that point and, as views about morality shift, should be contracted’ (n 12) 264. For a counterview, see G Lamond, ‘What is a Crime?’ (2007) 27 OJLS 609, 617. The issue of later terminations is considered below.

116 Ipso MORI conducted 1136 face-to-face interviews with those who were recorded as Christian in the 2011 Census, or who would have recorded themselves as such. Of those interviewed, 63 per cent agreed that, within the legal time limit, an adult woman with an unwanted pregnancy should be able to have an abortion if she wants one, compared to 20 per cent against, with the remainder neither agreeing nor disagreeing, not knowing, or preferring not to say. See Ipsos MORI for Richard Dawkins Foundation for Reason and Science (UK), ‘Religious and Social Attitudes of UK Christians in 2011’ < www.ipsos-mori.com/researchpublications/researcharchive/2921/Religious-and-Social-Attitudes-of-UK-Christians-in-2011.aspx > accessed 11 August 2015.

117 See Jackson for an early analysis of the tension between abortion legislation and the increasingly strong commitment to patient autonomy in medical law: E Jackson, ‘Abortion, Autonomy and Prenatal Diagnosis’ (2000) 9 Social & Legal Studies 467.

118 Montgomery (n 9) [81].

120 On the general importance of informed consent in medical practice, see GMC, ‘Consent: Patients and Doctors Making Decisions Together’ (2008) para 5; GMC, ‘Good Medical Practice’ (2013). For confirmation that pregnant women should not be treated as an exception to the principle of respect for patient autonomy, see NICE Guidelines, ‘Caesarean Section’ (CG132, November 2011), providing that: ‘A pregnant woman is entitled to decline the offer of treatment such as CS, even when the treatment would clearly benefit her or her baby's health. Refusal of treatment needs to be one of the woman's options’, para 1.1.2.3. On the need for the provision of clear, evidence-based information that will allow women to make their own decisions in the context of abortion, see RCOG (n 60). For a clear statement that pregnant women themselves should make decisions regarding the termination of pregnancy see Royal College of General Practitioners, ‘Position Statement on Abortion’ (RCGP 2012).

121 As far back as 1972, many people understood the AA 1967 as allowing ‘abortion on demand’: RCOG, ‘Unplanned Pregnancy: Report of the Working Party of the RCOG’ (February 1972) 87. Kadish argues that the ‘moral message communicated by the law is contradicted by the total absence of enforcement’: S Kadish, ‘The Crisis of Overcriminalisation’ (1967) 374 Annals of the American Academy of Pol and Soc Sci 157, 159.

122 eg, Cooke J sentencing Sarah Catt under s 58 OAPA found that ‘the child in the womb here was so near to birth that in my judgement all right thinking people would consider this offence more serious than manslaughter or any offence on the calendar other than murder.’ R v Sarah Louise Catt , Sentencing Remarks (Crown Court Leeds, 17 September 2012) [16].

123 Cook (n 14).

124 See n 114 and accompanying text.

125 Science and Technology Committee (n 73) [99]; EJ Lee and R Ingham, ‘Why Do Women Present Late for Abortion?’ (2010) 24 Best Practice & Research Clinical Obstetrics and Gynaecology 479.

126 See n 11 and accompanying text.

127 The example of Victoria is instructive here (n 131 and accompanying text). I address later terminations and Northern Ireland as two possible exceptions to this claim at nn 143–50 and accompanying text.

128 Science and Technology Committee (n 73).

129 See Sedgh and others (n 59) and Westoff (n 103).

130 There is no mechanism whereby statutory provisions might simply be swept away by decision of a UK court, as in the Canadian Supreme Court decision in R v Morgentaler [1988] 1 SCR 30. Even if (aspects of) the current law were to be found incompatible with the European Convention on Human Rights, a UK court is empowered only to issue a declaration of incompatibility, leaving Parliament to address the offending provisions: s 4, Human Rights Act 1998.

131 See generally, Victoria Law Reform Commission (VLRC), ‘Law of Abortion’ (Final Report 15, 2008); J Morgan, ‘Abortion Law Reform: The Importance of Democratic Change’ (2012) 35 UNSWLJ 142.

132 VLRC ibid.

133 J Wainer, ‘Celebrate Sisters, The Battle is Won’ New Matilda (25 November 2008), < https://newmatilda.com/2008/11/25/celebrate-sisters-battle-won > accessed 11 August 2015.

134 As is clear from Woodside’s important study, the extent to which this generalisation offers an accurate description of early illegal abortion providers is open to debate, see M Woodside, ‘Attitudes of Women Abortionists’ (1963) 11(2) Howard J Penology and Crime Prevention 93.

135 The analogy with dentistry also illustrates, however, that what might well provoke a growth in attempts to secure treatment outside of mainstream health services would be the removal of NHS funding: S Armstrong and M Ruiz del Arbol, ‘The Rise of DIY Dentistry’ Guardian (3 April 2015) < www.theguardian.com/society/2015/apr/03/rise-of-diy-dentistry-britons-doing-own-fillings-to-avoid-nhs-bill > accessed 11 August 2015.

136 R v Brown [1994] 1 AC 212 (HL); Attorney General’s Ref (No 6 1980) [1981] QB 715 (CA).

137 s 39, Criminal Justice Act 1988, s 47 and s 20 OAPA, respectively. Reformers might also consider the alternative solution foreseen in Victoria: an amendment to the Crimes Act 1958 creating a specific criminal offence of performing an abortion while not a qualified person, with the woman who undergoes the abortion remaining excluded from prosecution, s 65.

138 Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 (QB); R v Adomako [1995] 1 AC 171 (HL). The potential application of general legal provisions has been recently illustrated in the announcement that a doctor and two nurses are to be prosecuted after a patient bled to death following an abortion. They have been charged with gross negligence manslaughter and failing to take reasonable care of those affected by omissions at work, contrary to the Health and Safety Act 1974. See BBC, ‘Doctor and Nurses in Abortion Clinic Death Manslaughter Charges’ BBC News (5 June 2015) < www.bbc.co.uk/news/uk-england-london-33032213 > accessed 11 August 2015.

139 eg CPS, ‘CPS Statement on Abortion Related Case’ (5 September 2013) < www.cps.gov.uk/news/latest_news/cps_statement_abortion_related_case/ > accessed 11 August 2015. However, see also Keown (n 21) 136, questioning the GMC’s ability to exercise this supervisory function effectively.

140 The VLRC (n 132) para 7.95 recommended that decriminalisation of abortion should be accompanied by statutory amendment to clarify that the destruction of a fetus caused by assault of a pregnant woman would fall within the definition of ‘serious injury’ to her.

141 As in Magira and Erin (n 31).

142 s 23 OAPA prohibits ‘maliciously administering poison, & c. so as to endanger life or inflict grievous bodily harm’ and carries a maximum ten-year prison sentence; s 24 prohibits the lesser offence of ‘maliciously administering poison, & c. with intent to injure, aggrieve or annoy any other person’. In Smeaton (n 1) [271] , Munby J implicitly accepts that abortifacients might fall within the ambit of these offences.

143 There were 51 lawful abortions performed within NI Health and Social Care Services in 2012/13, see McClelland and Kennedy (n 44); a further unknown but almost certainly very small number were carried out by the Marie Stopes clinic in Belfast; and 837 women giving addresses in Northern Ireland terminated pregnancies in England and Wales in 2014, see Department of Health, ‘Abortion Statistics’ (n 47).

144 Polling data suggests a consistent majority in favour of permitting abortion in cases of rape, incest or fetal anomaly: Family Planning Association of Northern Ireland, ‘NI Women’s European Platform and Alliance for Choice’, Submission of Evidence to the CDEAW Committee: Optional Protocol Inquiry Procedure (FPANI 2010) 59–61.

145 The NI Department of Justice recently held a consultation on whether abortion should be permitted in Northern Ireland in the case of fatal fetal abnormality and where a pregnancy results from a sexual offence, Department of Justice, ‘Consultation on Abortion’ (2014) < www.dojni.gov.uk/consultation-on-abortion-2014 > accessed 11 August 2015.

146 For an excellent overview of political developments, see Whitaker and Horgan (n 105).

147 CEDAW (n 78).

148 A YouGov poll for the Sunday Times canvassed views from 1761 British adults in January 2012. When asked ‘Currently, the legal time limit for abortion is 24 weeks. Leaving aside medical emergencies, which of these options do you favour?’, only 5 per cent favoured increasing the time limit, as compared to 34 per cent who favoured retaining a 24 week limit, 37 per cent who favoured reducing the time limit, 6 per cent who favoured banning abortion altogether, and 17 per cent who did not know. YouGov (n 100).

149 s 5 Abortion Law Reform Act (Vic) 2008.

150 Anecdotal evidence suggests that there have, if anything, been fewer post-viability terminations since the reform was introduced, with the one provider that had previously offered later abortions subsequently discontinuing that part of the service (for reasons unconnected with the change in law) and no privately practising doctor in Victoria currently offering terminations beyond 24 weeks. Personal communications: Professor Angela Taft, Professor and Director Judith Lumley Centre (formerly Mother and Child Health Research), La Trobe University; Jenny Ejlak, Co-President, Reproductive Choice, Australia.

151 s 17 OAPA.

152 s 26 OAPA.

153 s 39 OAPA.

154 The Law Commission notes that the OAPA ‘is widely recognised as being outdated’. < www.lawcom.gov.uk/project/offences-against-the-person > accessed 11 August 2015.

155 Catt (n 122) [15].

156 Keown (n 21) 137.

157 Smith (n 33) 381 Scarman LJ.

158 This is how the purpose of the legislation was summarised by the House of Lords in RCN (n 83) 575.

159 See eg, Smeaton (n 1), and RCN ibid.

160 See Munby J’s recognition of this difficulty, Smeaton ibid [334].

161 See eg RCN (n 83); and BPAS v Secretary of State for Health [2011] EWHC 235 (Admin), [2012] 1 WLR 580.

162 See < http://lawcommission.justice.gov.uk/ > accessed 11 August 2015.

163 The Medical Termination of Pregnancy Bill (1966), which was to become the AA, was introduced by the Liberal MP, David Steel.

164 M Simms, ‘Legal Abortion in Great Britain’ in H Homans (ed), The Sexual Politics of Reproduction (Gower 1985) 94.

165 The Abortion Act came into effect on 27 April 1968. For the relevant electoral reform laws, see n 2.

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Thesis: The Dynamic Landscape of Abortion Law in the United States

Editor's note:

Victoria Higginbotham defended her thesis titled “The Dynamic Landscape of Abortion Law in the United States” in May 2018 in front of committee members Jane Maienschein, Carolina Abboud, and Alexis Abboud, earning her a Bachelor’s degree from Barrett, the Honors College. https://repository.asu.edu/items/48020

The Dynamic Landscape of Abortion Law in the United States explores the ways abortion laws have changed in the United States over the course of US history. Abortion laws in the US have historically been fluid, changing in ways both big and small. Those changes can occur after advances in science, changes in understanding, or changes in public opinion. And there have been various periods in the history of the US where tolerance abortion waxed or waned, and common law reflected those attitudes.

Roe v. Wade was a pivotal moment in the history of abortion law that accomplished much in the way of broadening women's access to abortions. But Roe v. Wade was not the beginning or the end of the fight for abortion rights in the US. There were legal abortions prior to Roe v. Wade and illegal abortions after. Roe v. Wade granted that women had a constitutional right to have an abortion but the ruling left the boundaries of that right somewhat undefined and most courtroom battles over abortion laws are fought over where a woman's right to an abortion ends and a States right to regulate and protect fetal life begin.

Much change has occurred in abortion laws over the past 50 years, this thesis tracks those changes principally through Supreme Court Cases, such as United States v. Milan Vuitch, Roe v. Wade, and Gonzales v. Planned Parenthood among others. The landscape of abortion law in the US continues to shift today, as recently as 2017 with Plowman v. FMCH cases were being heard in courts that wrought subtle yet important changes in abortion law.

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• Published: 28 June 2021

Impact of abortion law reforms on women’s health services and outcomes: a systematic review protocol

• Foluso Ishola   ORCID: orcid.org/0000-0002-8644-0570 1 ,
• U. Vivian Ukah 1 &
• Arijit Nandi 1  

Systematic Reviews volume  10 , Article number:  192 ( 2021 ) Cite this article

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A country’s abortion law is a key component in determining the enabling environment for safe abortion. While restrictive abortion laws still prevail in most low- and middle-income countries (LMICs), many countries have reformed their abortion laws, with the majority of them moving away from an absolute ban. However, the implications of these reforms on women’s access to and use of health services, as well as their health outcomes, is uncertain. First, there are methodological challenges to the evaluation of abortion laws, since these changes are not exogenous. Second, extant evaluations may be limited in terms of their generalizability, given variation in reforms across the abortion legality spectrum and differences in levels of implementation and enforcement cross-nationally. This systematic review aims to address this gap. Our aim is to systematically collect, evaluate, and synthesize empirical research evidence concerning the impact of abortion law reforms on women’s health services and outcomes in LMICs.

We will conduct a systematic review of the peer-reviewed literature on changes in abortion laws and women’s health services and outcomes in LMICs. We will search Medline, Embase, CINAHL, and Web of Science databases, as well as grey literature and reference lists of included studies for further relevant literature. As our goal is to draw inference on the impact of abortion law reforms, we will include quasi-experimental studies examining the impact of change in abortion laws on at least one of our outcomes of interest. We will assess the methodological quality of studies using the quasi-experimental study designs series checklist. Due to anticipated heterogeneity in policy changes, outcomes, and study designs, we will synthesize results through a narrative description.

This review will systematically appraise and synthesize the research evidence on the impact of abortion law reforms on women’s health services and outcomes in LMICs. We will examine the effect of legislative reforms and investigate the conditions that might contribute to heterogeneous effects, including whether specific groups of women are differentially affected by abortion law reforms. We will discuss gaps and future directions for research. Findings from this review could provide evidence on emerging strategies to influence policy reforms, implement abortion services and scale up accessibility.

Systematic review registration

PROSPERO CRD42019126927

Peer Review reports

An estimated 25·1 million unsafe abortions occur each year, with 97% of these in developing countries [ 1 , 2 , 3 ]. Despite its frequency, unsafe abortion remains a major global public health challenge [ 4 , 5 ]. According to the World health Organization (WHO), nearly 8% of maternal deaths were attributed to unsafe abortion, with the majority of these occurring in developing countries [ 5 , 6 ]. Approximately 7 million women are admitted to hospitals every year due to complications from unsafe abortion such as hemorrhage, infections, septic shock, uterine and intestinal perforation, and peritonitis [ 7 , 8 , 9 ]. These often result in long-term effects such as infertility and chronic reproductive tract infections. The annual cost of treating major complications from unsafe abortion is estimated at US$ 232 million each year in developing countries [ 10 , 11 ]. The negative consequences on children’s health, well-being, and development have also been documented. Unsafe abortion increases risk of poor birth outcomes, neonatal and infant mortality [ 12 , 13 ]. Additionally, women who lack access to safe and legal abortion are often forced to continue with unwanted pregnancies, and may not seek prenatal care [ 14 ], which might increase risks of child morbidity and mortality.

Access to safe abortion services is often limited due to a wide range of barriers. Collectively, these barriers contribute to the staggering number of deaths and disabilities seen annually as a result of unsafe abortion, which are disproportionately felt in developing countries [ 15 , 16 , 17 ]. A recent systematic review on the barriers to abortion access in low- and middle-income countries (LMICs) implicated the following factors: restrictive abortion laws, lack of knowledge about abortion law or locations that provide abortion, high cost of services, judgmental provider attitudes, scarcity of facilities and medical equipment, poor training and shortage of staff, stigma on social and religious grounds, and lack of decision making power [ 17 ].

An important factor regulating access to abortion is abortion law [ 17 , 18 , 19 ]. Although abortion is a medical procedure, its legal status in many countries has been incorporated in penal codes which specify grounds in which abortion is permitted. These include prohibition in all circumstances, to save the woman’s life, to preserve the woman’s health, in cases of rape, incest, fetal impairment, for economic or social reasons, and on request with no requirement for justification [ 18 , 19 , 20 ].

Although abortion laws in different countries are usually compared based on the grounds under which legal abortions are allowed, these comparisons rarely take into account components of the legal framework that may have strongly restrictive implications, such as regulation of facilities that are authorized to provide abortions, mandatory waiting periods, reporting requirements in cases of rape, limited choice in terms of the method of abortion, and requirements for third-party authorizations [ 19 , 21 , 22 ]. For example, the Zambian Termination of Pregnancy Act permits abortion on socio-economic grounds. It is considered liberal, as it permits legal abortions for more indications than most countries in Sub-Saharan Africa; however, abortions must only be provided in registered hospitals, and three medical doctors—one of whom must be a specialist—must provide signatures to allow the procedure to take place [ 22 ]. Given the critical shortage of doctors in Zambia [ 23 ], this is in fact a major restriction that is only captured by a thorough analysis of the conditions under which abortion services are provided.

Additionally, abortion laws may exist outside the penal codes in some countries, where they are supplemented by health legislation and regulations such as public health statutes, reproductive health acts, court decisions, medical ethic codes, practice guidelines, and general health acts [ 18 , 19 , 24 ]. The diversity of regulatory documents may lead to conflicting directives about the grounds under which abortion is lawful [ 19 ]. For example, in Kenya and Uganda, standards and guidelines on the reduction of morbidity and mortality due to unsafe abortion supported by the constitution was contradictory to the penal code, leaving room for an ambiguous interpretation of the legal environment [ 25 ].

Regulations restricting the range of abortion methods from which women can choose, including medication abortion in particular, may also affect abortion access [ 26 , 27 ]. A literature review contextualizing medication abortion in seven African countries reported that incidence of medication abortion is low despite being a safe, effective, and low-cost abortion method, likely due to legal restrictions on access to the medications [ 27 ].

Over the past two decades, many LMICs have reformed their abortion laws [ 3 , 28 ]. Most have expanded the grounds on which abortion may be performed legally, while very few have restricted access. Countries like Uruguay, South Africa, and Portugal have amended their laws to allow abortion on request in the first trimester of pregnancy [ 29 , 30 ]. Conversely, in Nicaragua, a law to ban all abortion without any exception was introduced in 2006 [ 31 ].

Progressive reforms are expected to lead to improvements in women’s access to safe abortion and health outcomes, including reductions in the death and disabilities that accompany unsafe abortion, and reductions in stigma over the longer term [ 17 , 29 , 32 ]. However, abortion law reforms may yield different outcomes even in countries that experience similar reforms, as the legislative processes that are associated with changing abortion laws take place in highly distinct political, economic, religious, and social contexts [ 28 , 33 ]. This variation may contribute to abortion law reforms having different effects with respect to the health services and outcomes that they are hypothesized to influence [ 17 , 29 ].

Extant empirical literature has examined changes in abortion-related morbidity and mortality, contraceptive usage, fertility, and other health-related outcomes following reforms to abortion laws [ 34 , 35 , 36 , 37 ]. For example, a study in Mexico reported that a policy that decriminalized and subsidized early-term elective abortion led to substantial reductions in maternal morbidity and that this was particularly strong among vulnerable populations such as young and socioeconomically disadvantaged women [ 38 ].

To the best of our knowledge, however, the growing literature on the impact of abortion law reforms on women’s health services and outcomes has not been systematically reviewed. A study by Benson et al. evaluated evidence on the impact of abortion policy reforms on maternal death in three countries, Romania, South Africa, and Bangladesh, where reforms were immediately followed by strategies to implement abortion services, scale up accessibility, and establish complementary reproductive and maternal health services [ 39 ]. The three countries highlighted in this paper provided unique insights into implementation and practical application following law reforms, in spite of limited resources. However, the review focused only on a selection of countries that have enacted similar reforms and it is unclear if its conclusions are more widely generalizable.

Accordingly, the primary objective of this review is to summarize studies that have estimated the causal effect of a change in abortion law on women’s health services and outcomes. Additionally, we aim to examine heterogeneity in the impacts of abortion reforms, including variation across specific population sub-groups and contexts (e.g., due to variations in the intensity of enforcement and service delivery). Through this review, we aim to offer a higher-level view of the impact of abortion law reforms in LMICs, beyond what can be gained from any individual study, and to thereby highlight patterns in the evidence across studies, gaps in current research, and to identify promising programs and strategies that could be adapted and applied more broadly to increase access to safe abortion services.

The review protocol has been reported using Preferred Reporting Items for Systematic review and Meta-Analysis Protocols (PRISMA-P) guidelines [ 40 ] (Additional file 1 ). It was registered in the International Prospective Register of Systematic Reviews (PROSPERO) database CRD42019126927.

Eligibility criteria

Types of studies.

This review will consider quasi-experimental studies which aim to estimate the causal effect of a change in a specific law or reform and an outcome, but in which participants (in this case jurisdictions, whether countries, states/provinces, or smaller units) are not randomly assigned to treatment conditions [ 41 ]. Eligible designs include the following:

Pretest-posttest designs where the outcome is compared before and after the reform, as well as nonequivalent groups designs, such as pretest-posttest design that includes a comparison group, also known as a controlled before and after (CBA) designs.

Interrupted time series (ITS) designs where the trend of an outcome after an abortion law reform is compared to a counterfactual (i.e., trends in the outcome in the post-intervention period had the jurisdiction not enacted the reform) based on the pre-intervention trends and/or a control group [ 42 , 43 ].

Differences-in-differences (DD) designs, which compare the before vs. after change in an outcome in jurisdictions that experienced an abortion law reform to the corresponding change in the places that did not experience such a change, under the assumption of parallel trends [ 44 , 45 ].

Synthetic controls (SC) approaches, which use a weighted combination of control units that did not experience the intervention, selected to match the treated unit in its pre-intervention outcome trend, to proxy the counterfactual scenario [ 46 , 47 ].

Regression discontinuity (RD) designs, which in the case of eligibility for abortion services being determined by the value of a continuous random variable, such as age or income, would compare the distributions of post-intervention outcomes for those just above and below the threshold [ 48 ].

There is heterogeneity in the terminology and definitions used to describe quasi-experimental designs, but we will do our best to categorize studies into the above groups based on their designs, identification strategies, and assumptions.

Our focus is on quasi-experimental research because we are interested in studies evaluating the effect of population-level interventions (i.e., abortion law reform) with a design that permits inference regarding the causal effect of abortion legislation, which is not possible from other types of observational designs such as cross-sectional studies, cohort studies or case-control studies that lack an identification strategy for addressing sources of unmeasured confounding (e.g., secular trends in outcomes). We are not excluding randomized studies such as randomized controlled trials, cluster randomized trials, or stepped-wedge cluster-randomized trials; however, we do not expect to identify any relevant randomized studies given that abortion policy is unlikely to be randomly assigned. Since our objective is to provide a summary of empirical studies reporting primary research, reviews/meta-analyses, qualitative studies, editorials, letters, book reviews, correspondence, and case reports/studies will also be excluded.

Our population of interest includes women of reproductive age (15–49 years) residing in LMICs, as the policy exposure of interest applies primarily to women who have a demand for sexual and reproductive health services including abortion.

Intervention

The intervention in this study refers to a change in abortion law or policy, either from a restrictive policy to a non-restrictive or less restrictive one, or vice versa. This can, for example, include a change from abortion prohibition in all circumstances to abortion permissible in other circumstances, such as to save the woman’s life, to preserve the woman’s health, in cases of rape, incest, fetal impairment, for economic or social reasons, or on request with no requirement for justification. It can also include the abolition of existing abortion policies or the introduction of new policies including those occurring outside the penal code, which also have legal standing, such as:

National constitutions;

Supreme court decisions, as well as higher court decisions;

Customary or religious law, such as interpretations of Muslim law;

Medical ethical codes; and

Regulatory standards and guidelines governing the provision of abortion.

We will also consider national and sub-national reforms, although we anticipate that most reforms will operate at the national level.

The comparison group represents the counterfactual scenario, specifically the level and/or trend of a particular post-intervention outcome in the treated jurisdiction that experienced an abortion law reform had it, counter to the fact, not experienced this specific intervention. Comparison groups will vary depending on the type of quasi-experimental design. These may include outcome trends after abortion reform in the same country, as in the case of an interrupted time series design without a control group, or corresponding trends in countries that did not experience a change in abortion law, as in the case of the difference-in-differences design.

Outcome measures

Primary outcomes.

Access to abortion services: There is no consensus on how to measure access but we will use the following indicators, based on the relevant literature [ 49 ]: [ 1 ] the availability of trained staff to provide care, [ 2 ] facilities are geographically accessible such as distance to providers, [ 3 ] essential equipment, supplies and medications, [ 4 ] services provided regardless of woman’s ability to pay, [ 5 ] all aspects of abortion care are explained to women, [ 6 ] whether staff offer respectful care, [ 7 ] if staff work to ensure privacy, [ 8 ] if high-quality, supportive counseling is provided, [ 9 ] if services are offered in a timely manner, and [ 10 ] if women have the opportunity to express concerns, ask questions, and receive answers.

Use of abortion services refers to induced pregnancy termination, including medication abortion and number of women treated for abortion-related complications.

Secondary outcomes

Current use of any method of contraception refers to women of reproductive age currently using any method contraceptive method.

Future use of contraception refers to women of reproductive age who are not currently using contraception but intend to do so in the future.

Demand for family planning refers to women of reproductive age who are currently using, or whose sexual partner is currently using, at least one contraceptive method.

Unmet need for family planning refers to women of reproductive age who want to stop or delay childbearing but are not using any method of contraception.

Fertility rate refers to the average number of children born to women of childbearing age.

Neonatal morbidity and mortality refer to disability or death of newborn babies within the first 28 days of life.

Maternal morbidity and mortality refer to disability or death due to complications from pregnancy or childbirth.

There will be no language, date, or year restrictions on studies included in this systematic review.

Studies have to be conducted in a low- and middle-income country. We will use the country classification specified in the World Bank Data Catalogue to identify LMICs (Additional file 2 ).

Search methods

We will perform searches for eligible peer-reviewed studies in the following electronic databases.

Ovid MEDLINE(R) (from 1946 to present)

Embase Classic+Embase on OvidSP (from 1947 to present)

CINAHL (1973 to present); and

Web of Science (1900 to present)

The reference list of included studies will be hand searched for additional potentially relevant citations. Additionally, a grey literature search for reports or working papers will be done with the help of Google and Social Science Research Network (SSRN).

Search strategy

A search strategy, based on the eligibility criteria and combining subject indexing terms (i.e., MeSH) and free-text search terms in the title and abstract fields, will be developed for each electronic database. The search strategy will combine terms related to the interventions of interest (i.e., abortion law/policy), etiology (i.e., impact/effect), and context (i.e., LMICs) and will be developed with the help of a subject matter librarian. We opted not to specify outcomes in the search strategy in order to maximize the sensitivity of our search. See Additional file 3 for a draft of our search strategy.

Data collection and analysis

Data management.

Search results from all databases will be imported into Endnote reference manager software (Version X9, Clarivate Analytics) where duplicate records will be identified and excluded using a systematic, rigorous, and reproducible method that utilizes a sequential combination of fields including author, year, title, journal, and pages. Rayyan systematic review software will be used to manage records throughout the review [ 50 ].

Selection process

Two review authors will screen titles and abstracts and apply the eligibility criteria to select studies for full-text review. Reference lists of any relevant articles identified will be screened to ensure no primary research studies are missed. Studies in a language different from English will be translated by collaborators who are fluent in the particular language. If no such expertise is identified, we will use Google Translate [ 51 ]. Full text versions of potentially relevant articles will be retrieved and assessed for inclusion based on study eligibility criteria. Discrepancies will be resolved by consensus or will involve a third reviewer as an arbitrator. The selection of studies, as well as reasons for exclusions of potentially eligible studies, will be described using a PRISMA flow chart.

Data extraction

Data extraction will be independently undertaken by two authors. At the conclusion of data extraction, these two authors will meet with the third author to resolve any discrepancies. A piloted standardized extraction form will be used to extract the following information: authors, date of publication, country of study, aim of study, policy reform year, type of policy reform, data source (surveys, medical records), years compared (before and after the reform), comparators (over time or between groups), participant characteristics (age, socioeconomic status), primary and secondary outcomes, evaluation design, methods used for statistical analysis (regression), estimates reported (means, rates, proportion), information to assess risk of bias (sensitivity analyses), sources of funding, and any potential conflicts of interest.

Risk of bias and quality assessment

Two independent reviewers with content and methodological expertise in methods for policy evaluation will assess the methodological quality of included studies using the quasi-experimental study designs series risk of bias checklist [ 52 ]. This checklist provides a list of criteria for grading the quality of quasi-experimental studies that relate directly to the intrinsic strength of the studies in inferring causality. These include [ 1 ] relevant comparison, [ 2 ] number of times outcome assessments were available, [ 3 ] intervention effect estimated by changes over time for the same or different groups, [ 4 ] control of confounding, [ 5 ] how groups of individuals or clusters were formed (time or location differences), and [ 6 ] assessment of outcome variables. Each of the following domains will be assigned a “yes,” “no,” or “possibly” bias classification. Any discrepancies will be resolved by consensus or a third reviewer with expertise in review methodology if required.

Confidence in cumulative evidence

The strength of the body of evidence will be assessed using the Grades of Recommendation, Assessment, Development and Evaluation (GRADE) system [ 53 ].

Data synthesis

We anticipate that risk of bias and heterogeneity in the studies included may preclude the use of meta-analyses to describe pooled effects. This may necessitate the presentation of our main findings through a narrative description. We will synthesize the findings from the included articles according to the following key headings:

Information on the differential aspects of the abortion policy reforms.

Information on the types of study design used to assess the impact of policy reforms.

Information on main effects of abortion law reforms on primary and secondary outcomes of interest.

Information on heterogeneity in the results that might be due to differences in study designs, individual-level characteristics, and contextual factors.

Potential meta-analysis

If outcomes are reported consistently across studies, we will construct forest plots and synthesize effect estimates using meta-analysis. Statistical heterogeneity will be assessed using the I 2 test where I 2 values over 50% indicate moderate to high heterogeneity [ 54 ]. If studies are sufficiently homogenous, we will use fixed effects. However, if there is evidence of heterogeneity, a random effects model will be adopted. Summary measures, including risk ratios or differences or prevalence ratios or differences will be calculated, along with 95% confidence intervals (CI).

Analysis of subgroups

If there are sufficient numbers of included studies, we will perform sub-group analyses according to type of policy reform, geographical location and type of participant characteristics such as age groups, socioeconomic status, urban/rural status, education, or marital status to examine the evidence for heterogeneous effects of abortion laws.

Sensitivity analysis

Sensitivity analyses will be conducted if there are major differences in quality of the included articles to explore the influence of risk of bias on effect estimates.

Meta-biases

If available, studies will be compared to protocols and registers to identify potential reporting bias within studies. If appropriate and there are a sufficient number of studies included, funnel plots will be generated to determine potential publication bias.

This systematic review will synthesize current evidence on the impact of abortion law reforms on women’s health. It aims to identify which legislative reforms are effective, for which population sub-groups, and under which conditions.

Potential limitations may include the low quality of included studies as a result of suboptimal study design, invalid assumptions, lack of sensitivity analysis, imprecision of estimates, variability in results, missing data, and poor outcome measurements. Our review may also include a limited number of articles because we opted to focus on evidence from quasi-experimental study design due to the causal nature of the research question under review. Nonetheless, we will synthesize the literature, provide a critical evaluation of the quality of the evidence and discuss the potential effects of any limitations to our overall conclusions. Protocol amendments will be recorded and dated using the registration for this review on PROSPERO. We will also describe any amendments in our final manuscript.

Synthesizing available evidence on the impact of abortion law reforms represents an important step towards building our knowledge base regarding how abortion law reforms affect women’s health services and health outcomes; we will provide evidence on emerging strategies to influence policy reforms, implement abortion services, and scale up accessibility. This review will be of interest to service providers, policy makers and researchers seeking to improve women’s access to safe abortion around the world.

Abbreviations

Cumulative index to nursing and allied health literature

Excerpta medica database

Low- and middle-income countries

Preferred reporting items for systematic review and meta-analysis protocols

International prospective register of systematic reviews

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Acknowledgements

We thank Genevieve Gore, Liaison Librarian at McGill University, for her assistance with refining the research question, keywords, and Mesh terms for the preliminary search strategy.

The authors acknowledge funding from the Fonds de recherche du Quebec – Santé (FRQS) PhD doctoral awards and Canadian Institutes of Health Research (CIHR) Operating Grant, “Examining the impact of social policies on health equity” (ROH-115209).

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Additional file 1:.

PRISMA-P 2015 Checklist. This checklist has been adapted for use with systematic review protocol submissions to BioMed Central journals from Table 3 in Moher D et al: Preferred reporting items for systematic review and meta-analysis protocols (PRISMA-P) 2015 statement. Systematic Reviews 2015 4:1

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LMICs according to World Bank Data Catalogue. Country classification specified in the World Bank Data Catalogue to identify low- and middle-income countries

Additional File 3: Table 1

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Ishola, F., Ukah, U.V. & Nandi, A. Impact of abortion law reforms on women’s health services and outcomes: a systematic review protocol. Syst Rev 10 , 192 (2021). https://doi.org/10.1186/s13643-021-01739-w

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Impact of abortion law reforms on women’s health services and outcomes: a systematic review protocol

Foluso ishola.

Department of Epidemiology, Biostatistics and Occupational Health, Faculty of Medicine, McGill University, Purvis Hall 1020 Pine Avenue West, Montreal, Quebec H3A 1A2 Canada

U. Vivian Ukah

Arijit nandi, associated data.

A country’s abortion law is a key component in determining the enabling environment for safe abortion. While restrictive abortion laws still prevail in most low- and middle-income countries (LMICs), many countries have reformed their abortion laws, with the majority of them moving away from an absolute ban. However, the implications of these reforms on women’s access to and use of health services, as well as their health outcomes, is uncertain. First, there are methodological challenges to the evaluation of abortion laws, since these changes are not exogenous. Second, extant evaluations may be limited in terms of their generalizability, given variation in reforms across the abortion legality spectrum and differences in levels of implementation and enforcement cross-nationally. This systematic review aims to address this gap. Our aim is to systematically collect, evaluate, and synthesize empirical research evidence concerning the impact of abortion law reforms on women’s health services and outcomes in LMICs.

We will conduct a systematic review of the peer-reviewed literature on changes in abortion laws and women’s health services and outcomes in LMICs. We will search Medline, Embase, CINAHL, and Web of Science databases, as well as grey literature and reference lists of included studies for further relevant literature. As our goal is to draw inference on the impact of abortion law reforms, we will include quasi-experimental studies examining the impact of change in abortion laws on at least one of our outcomes of interest. We will assess the methodological quality of studies using the quasi-experimental study designs series checklist. Due to anticipated heterogeneity in policy changes, outcomes, and study designs, we will synthesize results through a narrative description.

This review will systematically appraise and synthesize the research evidence on the impact of abortion law reforms on women’s health services and outcomes in LMICs. We will examine the effect of legislative reforms and investigate the conditions that might contribute to heterogeneous effects, including whether specific groups of women are differentially affected by abortion law reforms. We will discuss gaps and future directions for research. Findings from this review could provide evidence on emerging strategies to influence policy reforms, implement abortion services and scale up accessibility.

Systematic review registration

PROSPERO CRD42019126927

Supplementary Information

The online version contains supplementary material available at 10.1186/s13643-021-01739-w.

An estimated 25·1 million unsafe abortions occur each year, with 97% of these in developing countries [ 1 – 3 ]. Despite its frequency, unsafe abortion remains a major global public health challenge [ 4 , 5 ]. According to the World health Organization (WHO), nearly 8% of maternal deaths were attributed to unsafe abortion, with the majority of these occurring in developing countries [ 5 , 6 ]. Approximately 7 million women are admitted to hospitals every year due to complications from unsafe abortion such as hemorrhage, infections, septic shock, uterine and intestinal perforation, and peritonitis [ 7 – 9 ]. These often result in long-term effects such as infertility and chronic reproductive tract infections. The annual cost of treating major complications from unsafe abortion is estimated at US$ 232 million each year in developing countries [ 10 , 11 ]. The negative consequences on children’s health, well-being, and development have also been documented. Unsafe abortion increases risk of poor birth outcomes, neonatal and infant mortality [ 12 , 13 ]. Additionally, women who lack access to safe and legal abortion are often forced to continue with unwanted pregnancies, and may not seek prenatal care [ 14 ], which might increase risks of child morbidity and mortality.

Access to safe abortion services is often limited due to a wide range of barriers. Collectively, these barriers contribute to the staggering number of deaths and disabilities seen annually as a result of unsafe abortion, which are disproportionately felt in developing countries [ 15 – 17 ]. A recent systematic review on the barriers to abortion access in low- and middle-income countries (LMICs) implicated the following factors: restrictive abortion laws, lack of knowledge about abortion law or locations that provide abortion, high cost of services, judgmental provider attitudes, scarcity of facilities and medical equipment, poor training and shortage of staff, stigma on social and religious grounds, and lack of decision making power [ 17 ].

An important factor regulating access to abortion is abortion law [ 17 – 19 ]. Although abortion is a medical procedure, its legal status in many countries has been incorporated in penal codes which specify grounds in which abortion is permitted. These include prohibition in all circumstances, to save the woman’s life, to preserve the woman’s health, in cases of rape, incest, fetal impairment, for economic or social reasons, and on request with no requirement for justification [ 18 – 20 ].

Although abortion laws in different countries are usually compared based on the grounds under which legal abortions are allowed, these comparisons rarely take into account components of the legal framework that may have strongly restrictive implications, such as regulation of facilities that are authorized to provide abortions, mandatory waiting periods, reporting requirements in cases of rape, limited choice in terms of the method of abortion, and requirements for third-party authorizations [ 19 , 21 , 22 ]. For example, the Zambian Termination of Pregnancy Act permits abortion on socio-economic grounds. It is considered liberal, as it permits legal abortions for more indications than most countries in Sub-Saharan Africa; however, abortions must only be provided in registered hospitals, and three medical doctors—one of whom must be a specialist—must provide signatures to allow the procedure to take place [ 22 ]. Given the critical shortage of doctors in Zambia [ 23 ], this is in fact a major restriction that is only captured by a thorough analysis of the conditions under which abortion services are provided.

Additionally, abortion laws may exist outside the penal codes in some countries, where they are supplemented by health legislation and regulations such as public health statutes, reproductive health acts, court decisions, medical ethic codes, practice guidelines, and general health acts [ 18 , 19 , 24 ]. The diversity of regulatory documents may lead to conflicting directives about the grounds under which abortion is lawful [ 19 ]. For example, in Kenya and Uganda, standards and guidelines on the reduction of morbidity and mortality due to unsafe abortion supported by the constitution was contradictory to the penal code, leaving room for an ambiguous interpretation of the legal environment [ 25 ].

Regulations restricting the range of abortion methods from which women can choose, including medication abortion in particular, may also affect abortion access [ 26 , 27 ]. A literature review contextualizing medication abortion in seven African countries reported that incidence of medication abortion is low despite being a safe, effective, and low-cost abortion method, likely due to legal restrictions on access to the medications [ 27 ].

Over the past two decades, many LMICs have reformed their abortion laws [ 3 , 28 ]. Most have expanded the grounds on which abortion may be performed legally, while very few have restricted access. Countries like Uruguay, South Africa, and Portugal have amended their laws to allow abortion on request in the first trimester of pregnancy [ 29 , 30 ]. Conversely, in Nicaragua, a law to ban all abortion without any exception was introduced in 2006 [ 31 ].

Progressive reforms are expected to lead to improvements in women’s access to safe abortion and health outcomes, including reductions in the death and disabilities that accompany unsafe abortion, and reductions in stigma over the longer term [ 17 , 29 , 32 ]. However, abortion law reforms may yield different outcomes even in countries that experience similar reforms, as the legislative processes that are associated with changing abortion laws take place in highly distinct political, economic, religious, and social contexts [ 28 , 33 ]. This variation may contribute to abortion law reforms having different effects with respect to the health services and outcomes that they are hypothesized to influence [ 17 , 29 ].

Extant empirical literature has examined changes in abortion-related morbidity and mortality, contraceptive usage, fertility, and other health-related outcomes following reforms to abortion laws [ 34 – 37 ]. For example, a study in Mexico reported that a policy that decriminalized and subsidized early-term elective abortion led to substantial reductions in maternal morbidity and that this was particularly strong among vulnerable populations such as young and socioeconomically disadvantaged women [ 38 ].

To the best of our knowledge, however, the growing literature on the impact of abortion law reforms on women’s health services and outcomes has not been systematically reviewed. A study by Benson et al. evaluated evidence on the impact of abortion policy reforms on maternal death in three countries, Romania, South Africa, and Bangladesh, where reforms were immediately followed by strategies to implement abortion services, scale up accessibility, and establish complementary reproductive and maternal health services [ 39 ]. The three countries highlighted in this paper provided unique insights into implementation and practical application following law reforms, in spite of limited resources. However, the review focused only on a selection of countries that have enacted similar reforms and it is unclear if its conclusions are more widely generalizable.

Accordingly, the primary objective of this review is to summarize studies that have estimated the causal effect of a change in abortion law on women’s health services and outcomes. Additionally, we aim to examine heterogeneity in the impacts of abortion reforms, including variation across specific population sub-groups and contexts (e.g., due to variations in the intensity of enforcement and service delivery). Through this review, we aim to offer a higher-level view of the impact of abortion law reforms in LMICs, beyond what can be gained from any individual study, and to thereby highlight patterns in the evidence across studies, gaps in current research, and to identify promising programs and strategies that could be adapted and applied more broadly to increase access to safe abortion services.

The review protocol has been reported using Preferred Reporting Items for Systematic review and Meta-Analysis Protocols (PRISMA-P) guidelines [ 40 ] (Additional file 1 ). It was registered in the International Prospective Register of Systematic Reviews (PROSPERO) database CRD42019126927.

Eligibility criteria

Types of studies.

This review will consider quasi-experimental studies which aim to estimate the causal effect of a change in a specific law or reform and an outcome, but in which participants (in this case jurisdictions, whether countries, states/provinces, or smaller units) are not randomly assigned to treatment conditions [ 41 ]. Eligible designs include the following:

• Pretest-posttest designs where the outcome is compared before and after the reform, as well as nonequivalent groups designs, such as pretest-posttest design that includes a comparison group, also known as a controlled before and after (CBA) designs.
• Interrupted time series (ITS) designs where the trend of an outcome after an abortion law reform is compared to a counterfactual (i.e., trends in the outcome in the post-intervention period had the jurisdiction not enacted the reform) based on the pre-intervention trends and/or a control group [ 42 , 43 ].
• Differences-in-differences (DD) designs, which compare the before vs. after change in an outcome in jurisdictions that experienced an abortion law reform to the corresponding change in the places that did not experience such a change, under the assumption of parallel trends [ 44 , 45 ].
• Synthetic controls (SC) approaches, which use a weighted combination of control units that did not experience the intervention, selected to match the treated unit in its pre-intervention outcome trend, to proxy the counterfactual scenario [ 46 , 47 ].
• Regression discontinuity (RD) designs, which in the case of eligibility for abortion services being determined by the value of a continuous random variable, such as age or income, would compare the distributions of post-intervention outcomes for those just above and below the threshold [ 48 ].

There is heterogeneity in the terminology and definitions used to describe quasi-experimental designs, but we will do our best to categorize studies into the above groups based on their designs, identification strategies, and assumptions.

Our focus is on quasi-experimental research because we are interested in studies evaluating the effect of population-level interventions (i.e., abortion law reform) with a design that permits inference regarding the causal effect of abortion legislation, which is not possible from other types of observational designs such as cross-sectional studies, cohort studies or case-control studies that lack an identification strategy for addressing sources of unmeasured confounding (e.g., secular trends in outcomes). We are not excluding randomized studies such as randomized controlled trials, cluster randomized trials, or stepped-wedge cluster-randomized trials; however, we do not expect to identify any relevant randomized studies given that abortion policy is unlikely to be randomly assigned. Since our objective is to provide a summary of empirical studies reporting primary research, reviews/meta-analyses, qualitative studies, editorials, letters, book reviews, correspondence, and case reports/studies will also be excluded.

Our population of interest includes women of reproductive age (15–49 years) residing in LMICs, as the policy exposure of interest applies primarily to women who have a demand for sexual and reproductive health services including abortion.

Intervention

The intervention in this study refers to a change in abortion law or policy, either from a restrictive policy to a non-restrictive or less restrictive one, or vice versa. This can, for example, include a change from abortion prohibition in all circumstances to abortion permissible in other circumstances, such as to save the woman’s life, to preserve the woman’s health, in cases of rape, incest, fetal impairment, for economic or social reasons, or on request with no requirement for justification. It can also include the abolition of existing abortion policies or the introduction of new policies including those occurring outside the penal code, which also have legal standing, such as:

• National constitutions;
• Supreme court decisions, as well as higher court decisions;
• Customary or religious law, such as interpretations of Muslim law;
• Medical ethical codes; and
• Regulatory standards and guidelines governing the provision of abortion.

We will also consider national and sub-national reforms, although we anticipate that most reforms will operate at the national level.

The comparison group represents the counterfactual scenario, specifically the level and/or trend of a particular post-intervention outcome in the treated jurisdiction that experienced an abortion law reform had it, counter to the fact, not experienced this specific intervention. Comparison groups will vary depending on the type of quasi-experimental design. These may include outcome trends after abortion reform in the same country, as in the case of an interrupted time series design without a control group, or corresponding trends in countries that did not experience a change in abortion law, as in the case of the difference-in-differences design.

Outcome measures

Primary outcomes.

• Access to abortion services: There is no consensus on how to measure access but we will use the following indicators, based on the relevant literature [ 49 ]: [ 1 ] the availability of trained staff to provide care, [ 2 ] facilities are geographically accessible such as distance to providers, [ 3 ] essential equipment, supplies and medications, [ 4 ] services provided regardless of woman’s ability to pay, [ 5 ] all aspects of abortion care are explained to women, [ 6 ] whether staff offer respectful care, [ 7 ] if staff work to ensure privacy, [ 8 ] if high-quality, supportive counseling is provided, [ 9 ] if services are offered in a timely manner, and [ 10 ] if women have the opportunity to express concerns, ask questions, and receive answers.
• Use of abortion services refers to induced pregnancy termination, including medication abortion and number of women treated for abortion-related complications.

Secondary outcomes

• Current use of any method of contraception refers to women of reproductive age currently using any method contraceptive method.
• Future use of contraception refers to women of reproductive age who are not currently using contraception but intend to do so in the future.
• Demand for family planning refers to women of reproductive age who are currently using, or whose sexual partner is currently using, at least one contraceptive method.
• Unmet need for family planning refers to women of reproductive age who want to stop or delay childbearing but are not using any method of contraception.
• Fertility rate refers to the average number of children born to women of childbearing age.
• Neonatal morbidity and mortality refer to disability or death of newborn babies within the first 28 days of life.
• Maternal morbidity and mortality refer to disability or death due to complications from pregnancy or childbirth.

There will be no language, date, or year restrictions on studies included in this systematic review.

Studies have to be conducted in a low- and middle-income country. We will use the country classification specified in the World Bank Data Catalogue to identify LMICs (Additional file 2 ).

Search methods

We will perform searches for eligible peer-reviewed studies in the following electronic databases.

• Ovid MEDLINE(R) (from 1946 to present)
• Embase Classic+Embase on OvidSP (from 1947 to present)
• CINAHL (1973 to present); and
• Web of Science (1900 to present)

The reference list of included studies will be hand searched for additional potentially relevant citations. Additionally, a grey literature search for reports or working papers will be done with the help of Google and Social Science Research Network (SSRN).

Search strategy

A search strategy, based on the eligibility criteria and combining subject indexing terms (i.e., MeSH) and free-text search terms in the title and abstract fields, will be developed for each electronic database. The search strategy will combine terms related to the interventions of interest (i.e., abortion law/policy), etiology (i.e., impact/effect), and context (i.e., LMICs) and will be developed with the help of a subject matter librarian. We opted not to specify outcomes in the search strategy in order to maximize the sensitivity of our search. See Additional file 3 for a draft of our search strategy.

Data collection and analysis

Data management.

Search results from all databases will be imported into Endnote reference manager software (Version X9, Clarivate Analytics) where duplicate records will be identified and excluded using a systematic, rigorous, and reproducible method that utilizes a sequential combination of fields including author, year, title, journal, and pages. Rayyan systematic review software will be used to manage records throughout the review [ 50 ].

Selection process

Two review authors will screen titles and abstracts and apply the eligibility criteria to select studies for full-text review. Reference lists of any relevant articles identified will be screened to ensure no primary research studies are missed. Studies in a language different from English will be translated by collaborators who are fluent in the particular language. If no such expertise is identified, we will use Google Translate [ 51 ]. Full text versions of potentially relevant articles will be retrieved and assessed for inclusion based on study eligibility criteria. Discrepancies will be resolved by consensus or will involve a third reviewer as an arbitrator. The selection of studies, as well as reasons for exclusions of potentially eligible studies, will be described using a PRISMA flow chart.

Data extraction

Data extraction will be independently undertaken by two authors. At the conclusion of data extraction, these two authors will meet with the third author to resolve any discrepancies. A piloted standardized extraction form will be used to extract the following information: authors, date of publication, country of study, aim of study, policy reform year, type of policy reform, data source (surveys, medical records), years compared (before and after the reform), comparators (over time or between groups), participant characteristics (age, socioeconomic status), primary and secondary outcomes, evaluation design, methods used for statistical analysis (regression), estimates reported (means, rates, proportion), information to assess risk of bias (sensitivity analyses), sources of funding, and any potential conflicts of interest.

Risk of bias and quality assessment

Two independent reviewers with content and methodological expertise in methods for policy evaluation will assess the methodological quality of included studies using the quasi-experimental study designs series risk of bias checklist [ 52 ]. This checklist provides a list of criteria for grading the quality of quasi-experimental studies that relate directly to the intrinsic strength of the studies in inferring causality. These include [ 1 ] relevant comparison, [ 2 ] number of times outcome assessments were available, [ 3 ] intervention effect estimated by changes over time for the same or different groups, [ 4 ] control of confounding, [ 5 ] how groups of individuals or clusters were formed (time or location differences), and [ 6 ] assessment of outcome variables. Each of the following domains will be assigned a “yes,” “no,” or “possibly” bias classification. Any discrepancies will be resolved by consensus or a third reviewer with expertise in review methodology if required.

Confidence in cumulative evidence

The strength of the body of evidence will be assessed using the Grades of Recommendation, Assessment, Development and Evaluation (GRADE) system [ 53 ].

Data synthesis

We anticipate that risk of bias and heterogeneity in the studies included may preclude the use of meta-analyses to describe pooled effects. This may necessitate the presentation of our main findings through a narrative description. We will synthesize the findings from the included articles according to the following key headings:

• Information on the differential aspects of the abortion policy reforms.
• Information on the types of study design used to assess the impact of policy reforms.
• Information on main effects of abortion law reforms on primary and secondary outcomes of interest.
• Information on heterogeneity in the results that might be due to differences in study designs, individual-level characteristics, and contextual factors.

Potential meta-analysis

If outcomes are reported consistently across studies, we will construct forest plots and synthesize effect estimates using meta-analysis. Statistical heterogeneity will be assessed using the I 2 test where I 2 values over 50% indicate moderate to high heterogeneity [ 54 ]. If studies are sufficiently homogenous, we will use fixed effects. However, if there is evidence of heterogeneity, a random effects model will be adopted. Summary measures, including risk ratios or differences or prevalence ratios or differences will be calculated, along with 95% confidence intervals (CI).

Analysis of subgroups

If there are sufficient numbers of included studies, we will perform sub-group analyses according to type of policy reform, geographical location and type of participant characteristics such as age groups, socioeconomic status, urban/rural status, education, or marital status to examine the evidence for heterogeneous effects of abortion laws.

Sensitivity analysis

Sensitivity analyses will be conducted if there are major differences in quality of the included articles to explore the influence of risk of bias on effect estimates.

Meta-biases

If available, studies will be compared to protocols and registers to identify potential reporting bias within studies. If appropriate and there are a sufficient number of studies included, funnel plots will be generated to determine potential publication bias.

This systematic review will synthesize current evidence on the impact of abortion law reforms on women’s health. It aims to identify which legislative reforms are effective, for which population sub-groups, and under which conditions.

Potential limitations may include the low quality of included studies as a result of suboptimal study design, invalid assumptions, lack of sensitivity analysis, imprecision of estimates, variability in results, missing data, and poor outcome measurements. Our review may also include a limited number of articles because we opted to focus on evidence from quasi-experimental study design due to the causal nature of the research question under review. Nonetheless, we will synthesize the literature, provide a critical evaluation of the quality of the evidence and discuss the potential effects of any limitations to our overall conclusions. Protocol amendments will be recorded and dated using the registration for this review on PROSPERO. We will also describe any amendments in our final manuscript.

Synthesizing available evidence on the impact of abortion law reforms represents an important step towards building our knowledge base regarding how abortion law reforms affect women’s health services and health outcomes; we will provide evidence on emerging strategies to influence policy reforms, implement abortion services, and scale up accessibility. This review will be of interest to service providers, policy makers and researchers seeking to improve women’s access to safe abortion around the world.

Acknowledgements

We thank Genevieve Gore, Liaison Librarian at McGill University, for her assistance with refining the research question, keywords, and Mesh terms for the preliminary search strategy.

Abbreviations

Authors’ contributions

FI and AN conceived and designed the protocol. FI drafted the manuscript. FI, UVU, and AN revised the manuscript and approved its final version.

The authors acknowledge funding from the Fonds de recherche du Quebec – Santé (FRQS) PhD doctoral awards and Canadian Institutes of Health Research (CIHR) Operating Grant, “Examining the impact of social policies on health equity” (ROH-115209).

Declarations

Not applicable

The authors declare that they have no competing interests.

Publisher’s Note

Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

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Foluso Ishola, Email: [email protected] .

U. Vivian Ukah, Email: [email protected] .

Arijit Nandi, Email: [email protected] .

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• > Journals
• > Cambridge Quarterly of Healthcare Ethics
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• > Abortion Access and the Benefits and Limitations of...

Article contents

Introduction, abortion is essential, abortion law in the united kingdom, access to abortion, abortion access versus abortion rights, problems with abortion- permissive regulation, conflict of interest, abortion access and the benefits and limitations of abortion- permissive legal frameworks: lessons from the united kingdom.

Published online by Cambridge University Press:  23 January 2023

• Problems with Abortion-Permissive Regulation

This paper argues that abortion access is an important subject for bioethics scholarship and reflects on the relationship between legal frameworks and access to care. The author uses the example of the United Kingdom to examine the benefits and limitations of abortion- permissive legal frameworks in terms of access. These are legal frameworks that enable the provision of abortion but subject to restrictions. An abortion-permissive regime—first in Great Britain and then in Northern Ireland—has gone some way to improving access to care over time. However, aspects of the regime (that lead to its description as permissive rather than supportive of abortion) have the potential to endanger abortion access in the future and so legal reform is necessary.

The enactment of the Abortion Act 1967 (AA 1967) meant abortion became legally accessible in a wider range of circumstances in Great Britain (England, Wales, and Scotland). Footnote 1 The AA 1967 remains the basis of abortion provision in Great Britain today, and there have been few attempts to modernize it. Amendments have only been made twice in 1990 Footnote 2 and 2022 Footnote 3 (and only one of these can be described as a progressive change). Interpretation of the AA 1967, however, has liberalized increasingly since its inception, meaning that abortion has become increasingly accessible to British people. Footnote 4 In Northern Ireland, in contrast, abortion was only lawful where necessary to save a pregnant person’s life/to avoid very serious harm Footnote 5 until 2019 when abortion was partially decriminalized. Footnote 6 Even since decriminalization, and the introduction of new abortion regulations, Footnote 7 abortion has remained inaccessible for many abortion-seekers in Northern Ireland, many of whom are still having to travel to England for care. Footnote 8 There are no rights to abortion in the United Kingdom (UK). Although abortion remains a criminal offense across Great Britain, and in limited circumstances in Northern Ireland, conditions of abortion access have continued to improve over the last decade.

In this paper, I explore the relationship between abortion rights and abortion access, using the UK as a case study. First, I set out the importance of access to abortion. I suggest that bioethics has a role to play in advocating for abortion access. Abortion is clearly necessary and important, and bioethics should be working through how people can have the best abortion possible—with minimal legal risk. Second, I outline the law in the constituent parts of the UK to illustrate the differences. Third, I make some observations about how access has been facilitated (or not) across the UK. I argue that, although legal rights to abortion are important, access without legal risk is more important. I do not mean to suggest that legal rights are unimportant, but that rights without access achieves less good than access without rights. Finally, I reflect on some of the problems with legal frameworks for abortion without legal rights to abortion, using the UK as an example. I argue that the UK can only be described as an “abortion- permissive ” legal framework, as opposed to “abortion- supportive. ” Legal reform is necessary to secure access for the future. Access matters and good legal frameworks can better guarantee access for the long term.

Abortion is the most common gynecological procedure, and is one of the most common procedures in all of healthcare, performed worldwide. Footnote 9 Approximately 73 million pregnancies end in abortion every year. Footnote 10 In England and Wales, 214,869 abortions were performed (18.6 per 1,000 women) Footnote 11 in 2021. Footnote 12 It is widely reported that one in three women in the UK will have an abortion within their lifetime. Footnote 13 People have abortions for a variety of reasons, but fundamentally it is because they want their pregnancy to end. Footnote 14 All reasons for wanting an abortion are important to the person experiencing an unwanted pregnancy. For some, it is a matter of preserving their life and health. For others, the reasons relate to not becoming a biological parent. Abortion-seekers often explain that their abortion, for whatever reason—including those that are sometimes described as “social reasons”—was not a choice for them, but a necessity. Footnote 15 The reasons for abortion will always be there. People have abortions regardless of its legal status. Footnote 16 However, abortion is much safer in jurisdictions where it is lawful because people are much more likely to have access to quality care. Footnote 17 Although abortion medications have significantly improved the safety of self-managed abortion, Footnote 18 the associated legal risks can make it much more unsafe because people feel unable to access emergency medical care in the rare event that there are complications. Footnote 19 Restrictions on abortion kill people in a variety of ways, whether because they were unable to access medical support or because healthcare professions are precluded from performing (or feel too scared to perform) abortions when they are necessary to save people’s lives. Footnote 20

Against this context, the World Health Organization (WHO) has consistently reiterated the importance of safe access to abortion and, in 2022, recommended against the use of legal and procedural barriers—including the use of the criminal law—to regulate abortion. Footnote 21 The United Nations (UN) has also come close to recognizing abortion as a human right. Although there is no reference to a right to abortion in any of its treaties, there are provisions that can be interpreted as such. As Zoe Tongue has observed, international bodies continuously develop human rights standards to recognize the importance of access to abortion in a growing number of circumstances. Footnote 22 The UN Convention on the Elimination of All Forms of Discrimination Against Women is explicit that people have the right to control their reproduction (“the same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education, and means to enable them to exercise these rights”). Footnote 23 This could be, and has been, interpreted to be inclusive of abortion.

Despite growing recognition from the international community and the WHO of the need for abortion access, the bioethics literature has remained focused on debating the “wrongs” and “rights” of abortion: “about the idea of abortion more than the experience of abortion.” Footnote 24 These debates are completely acontextual and inherently of little use, particularly for those people who experience unwanted pregnancy. The reality is that abortion happens, and it happens often; abortion is both necessary and common. There would be much more utility in a bioethics literature that is more attentive to the issues surrounding abortion and redirects its focus to the ethical, social, and legal issues that surround a pressing problem: access to abortion. Even in countries where legal frameworks are abortion- permissive , there are often considerable barriers to access. These can be legal barriers, for example, procedural requirements that can delay care, or extra-legal barriers that can equally delay care or make it impossible to access through formal channels at all, for example, the cost of care (pertinent in countries without free-at-the-point-of-access healthcare) and/or associated with care (such as travel, time off work, or childcare). Footnote 25 These access barriers often have the greatest impact on people who are marginalized within society, for example, people who are socioeconomically disadvantaged or people with disabilities. Footnote 26 Nathan Emmerich notes that thinking about abortion as basic healthcare, and thus I argue issues of access

[does] not deny that abortion is seen as having a moral dimension. Rather, it is to make clear that any moral concerns should be seen as secondary to ensuring the proper provision of services… Almost all medical interventions raise ethical concerns in at least some cases. Nevertheless, no one supposes that these call provision itself into question. Termination of pregnancy should be treated in the same way. Footnote 27

Katie Watson has explicitly made the case for bioethics interrogating the barriers abortion-seekers face in accessing abortion. She argues that “framing the need for abortion care as an issue of health disparities shifts us from the ethics of the act of abortion to the ethics of access to abortion care.” Footnote 28 A bioethics literature that is attentive to the healthcare needs of individuals would pay greater attention to context, and the problems of access and disparate access to abortion, rather than conceptualizing abortion itself as a problem.

Although feminist bioethical literature that chooses to take this approach is sometimes criticized as political, it is also a political stance to frame abortion as a problem and ignore contemporary issues in provision and access. As I have argued elsewhere with Horn, it is a considerable problem in the bioethics literature that

[A]uthors who take the position that abortion is in need of some greater justification beyond that of respecting the importance of a private choice of termination are less frequently subject to challenge for their starting position than those who approach ethico-legal issues from the starting point of abortion as healthcare. Footnote 29

For this reason, it can be very difficult to publish bioethics scholarship that looks at ethical issues in the provision of care (as Emmerich suggested should be a primary focus) and disparities of care (as Watson suggests is a priority). The conventions of bioethics as a field of scholarship, in promoting conversation that moralizes abortion as a choice rather than those that seek to examine ethical issues in barriers to care and disparities in access, must shift. In this paper, I will continue to examine the relationship between the ethical problem of disparity in access to abortion and the relationship between legal rights and abortion access.

Abortion remains a criminal offense in Great Britain. In England and Wales, this is by virtue of the Offences Against the Person Act 1861, Footnote 30 which criminalizes the procurement of miscarriage (this also applied in Northern Ireland until 2019), and the Infant Life (Preservation) Act 1929, which criminalizes child destruction. Footnote 31 In Scotland, abortion remains a crime under the common law. Footnote 32 Across Great Britain, the AA 1967 is in effect and renders abortion lawful when abortion is performed in compliance with conditions set out in section one of the AA 1967 Footnote 33 relating to the why, when, where, and how of abortion. Footnote 34 Conversely, any ending of pregnancy done with the intent to procure miscarriage outside the conditions of the AA 1967 is unlawful and the pregnant person, and any health professional/other person who assists, risks life imprisonment. Per the Offences Against the Person Act 1861, a person who was seeking abortion will only have committed the actus reus of criminal miscarriage if they were actually pregnant at the time of the attempted abortion. A doctor or other assisting person commits the actus reus if they act with intent to procure miscarriage even if the person is not pregnant at the time of the attempt. Abortion is lawful where two doctors, forming their opinion in good faith, determine that the abortion-seeker meets one of the following conditions:

1) s.1(1)(a) pregnancy has not exceeded 24 weeks and continuing the pregnancy would present greater risk than if the pregnancy were terminated to the pregnant person’s physical or mental health or any existing children of their family. (The Act specifies that in determining whether pregnancy poses a risk to a person’s health “account must be taken of the pregnant woman’s actual or reasonably foreseeable environment.”) Footnote 35

2) s.1(1)(b) abortion is necessary to prevent grave, permanent injury to the physical or mental health of the pregnant person.

3) s.1(1)(c) continuing the pregnancy would be a greater risk to the life of the pregnant person than termination.

4) s.1(1)(d) there is a substantial risk that the fetus suffers from a physical or mental abnormality that means that, if it were born alive, it would be “seriously handicapped.”

In addition to meeting one of the above conditions, abortions must be prescribed by a doctor (rather than any other health professional who is qualified to prescribe other medications) and performed in a hospital, clinic, or other approved place. Footnote 36 Since changes to the law made temporarily in 2020 during the COVID-19 pandemic Footnote 37 that have since become permanent, before 10 weeks’ gestation, a person can be provided with both abortion medications, mifepristone and misoprostol, to be administered at their “usual place of residence” in England and Wales. Footnote 38 In Scotland, approval orders issued during the pandemic to enable abortion medications to be administered at home remain in effect on a rolling basis. Abortion medications can be provided to a person for use in their home in Scotland until 11 weeks, 6 days’ gestation. Footnote 39

The framing of the AA 1967, and the conditions it places on the reason for abortion and under what circumstances, is highly medicalized. Essentially, who can have an abortion is entirely subject to medical control, Footnote 40 and this is by design. Although the campaign for legal change had been led by the Abortion Law Reform Association since the late 1930s, the medical profession had considerable influence in shaping the AA 1967. Footnote 41 The AA 1967 was introduced as a public health measure Footnote 42 : to address the high incidence of mortality and morbidity resulting from clandestine abortion. However, there were also other relevant motivations that shaped the framing of abortion provision. Sally Sheldon argues that the AA 1967 was also intended to curb the ongoing “de facto female resistance to the law” evident in the routine seeking and performance of clandestine abortion. Footnote 43 Politicians wanted to control who was having abortions and under what circumstances and this was much easier to do with regulation permitting abortion in situations they see as justifiable, monitored by the medical profession, than in completely prohibiting the practice (except where necessary to save a pregnant person’s life) Footnote 44 as had been the status quo. The AA 1967 was written for medical professionals, not only to assist them by reducing the number of people needing treatment following clandestine abortion or in controlling who had abortions, but also to offer them some certainty about the legality of the abortions they were already readily performing for (usually) wealthier people. Footnote 45 The Royal Medico-Psychological Association was explicitly in favor of the AA 1967 because “many medical men were inhibited from advising or performing abortion through fear of the law.” Footnote 46 Although the AA 1967 might be described by some as some sort of compromise—allowing access to abortion while affording some respect to the fetus—it does no such thing; it only protects doctors. Footnote 47 The medicalization of abortion was a mechanism that enabled the practice to be somewhat depoliticized and more palatable to politicians, making room for legislation that enabled access.

Although the AA 1967 was passed in Great Britain, and with it access to legal abortion for more people, no such changes were introduced in Northern Ireland where the political climate was even more complex. Consequently, the criminal provisions in the Offences Against the Person Act 1861 remained those that governed the provision of abortion. People in Northern Ireland thus had no access to terminations unless necessary to save their lives/serious risk to health (where doctors were willing to help them) or they were able to travel to England and shoulder the costs themselves (even though their taxes would contribute to NHS-funded access for women in Great Britain). Footnote 48 Since 2017, abortions in Great Britain have been NHS-funded for people who traveled from Northern Ireland. Footnote 49 This did not, however, eliminate other associated costs, however, such as taking time off work, travel, and potentially childcare. Abortion was partially decriminalized in 2019 with the relevant criminal offenses in the Offences Against the Person Act 1861 ceasing to apply in Northern Ireland. New regulations were introduced to govern abortion provision. These regulations can be described as somewhat more progressive than the AA 1967 Footnote 50 ; the criminal offense they establish of providing abortion care outside of the terms of the regulations cannot be used to prosecute pregnant persons themselves, Footnote 51 the regulations enable abortion on demand until 12 weeks, Footnote 52 and they permit nurse prescription of abortion medications. Footnote 53 Despite these improvements, the regulations “continue to embody an approach [to care] that enables non-medically indicated interference” in people’s abortion decisions. Footnote 54 For example, the regulations do not enable home use of the first abortion medication, mifepristone. Mifepristone must still be administered in a clinic and then misoprostol can be provided for home use. Footnote 55 People in Northern Ireland, therefore, must (unlike people in Great Britain) attend a clinic in-person to have an early medical abortion. The framing of abortion in these regulations remains steeped in medicalization and exceptionalism.

Abortion-seekers from Northern Ireland have been traveling to England since the enactment of the AA 1967. Footnote 56 It was hoped that partial decriminalization and the new regulations would enable care closer to home. Although the number of people traveling to England has declined since the regulations have passed (371 in 2020; 161 in 2021), Footnote 57 this has not been wholly attributable to the availability of care locally. The Department of Health and Social Care in England noted that “[t]he large decrease in the number of abortions for residents outside of England and Wales may be explained by travel restrictions in place throughout 2021 due to the COVID-19 pandemic” as well as changes to the law. Footnote 58 Although abortion is more available in Northern Ireland than it was pre-2019, Northern Ireland’s Department of Health did not immediately commission a service rollout of funded abortion care. This meant people carried on traveling to England or turning to local activist groups that help individuals obtain abortion medications for home use. Footnote 59 In December 2022, the Westminster Northern Ireland Secretary commissioned local services, Footnote 60 and some information is available on how to access care locally. Footnote 61

In Great Britain, the wording of the AA 1967 provisions leaves considerable discretion for healthcare professionals. Footnote 62 The first ground for abortion (before 24 weeks and on the basis that risk of pregnancy is greater than termination) is often called the “social ground” for abortion. Footnote 63 Parliament was clear, during the debates surrounding the AA 1967, that none of its provisions were intended to enable “abortion on demand.” Footnote 64 However, healthcare professionals’ interpretation of the “social ground” for abortion became gradually more liberal in the few decades after 1968, Footnote 65 especially with the advent of medication abortion. Footnote 66 The ground is interpreted, in practice and in legal scholarship alike, as meaning that abortion is always legal early in a pregnancy because abortion is very safe and, especially early in a pregnancy, safer than birthing. Footnote 67 The British Medical Association endorses this interpretation. Footnote 68 Consequently, the consensus is that every pregnancy can be legally terminated under 24 weeks. Footnote 69 Where people are able to make contact with abortion provider early in a pregnancy, abortion can thus be provided under the AA 1967 conditions.

One notable point about the operation of the AA 1967 and abortion provision in the UK is the “dominant role” that is played by abortion charities (Sheldon et al. describe this as “highly distinctive and significant aspect of the Abortion Act’s biography”). Footnote 70 The leading providers of abortion care are the British Pregnancy Advisory Service (BPAS) and MSI (formerly Marie Stopes International—now just MSI). Seventy-seven percent of abortions in England and Wales are performed by these clinics that have contracts with the NHS. Footnote 71 These services were established to ensure access in areas of the country where abortion provision was made difficult by medical gatekeeping Footnote 72 (BPAS began as the “Birmingham Pregnancy Advisory Service” Footnote 73 ) and have become an embedded feature of provision over time. Footnote 74 Abortions provided by these independent clinics are free at the point of access for people entitled to NHS treatment. In 2021, 99% of abortions performed in England and Wales were funded by the NHS. Footnote 75

Emmerich criticizes the fact that abortions are outsourced to independent providers as a feature of abortion exceptionalism. He argues that service provision by “third parties contributes to the idea that such services are unusual, different, or in some way out of the norm… such services should simply be brought ‘in house.’” Footnote 76 There is more nuance to the story than this, however. It is the case that abortion being predominantly delivered by third-party providers makes for a “structural weakness” in regulation (these independent providers can be more easily targeted with hostile measures Footnote 77 —at present, these providers are facing considerably more scrutiny that other healthcare providers surrounding their safeguarding obligations to patients, for example). Footnote 78 However, it is important to acknowledge that there are ways in which the independent providers have been integral to improving access. Sheldon et al. note that the role abortion charities have occupied, enabled by the AA 1967, has entrenched “the long-term sustainability of a permissive model of service provision” and equally it has enabled dedicated providers to become “a powerful voice for further liberalizing reform.” Footnote 79

At the level of the experience of the service user, people accessing abortion can directly contact an independent provider who specializes in providing this care (there is no need for a referral). This means that abortion-seekers need only interact with healthcare providers and support staff who have chosen to work in abortion services, which likely improves their experience. There is considerable stigma in the law, for example, in the labeling of abortion as a “crime” Footnote 80 (this will be reflected on later in more detail); however, this is not a stigma that many abortion-seekers experience since many are not aware that it is a crime. Footnote 81 I think it reasonable to suggest that this is because dedicated providers work to ensure that abortion-seekers are shielded from the stigmatizing elements of the regulation.

Independent providers have also been pivotal in campaigns for law reform. For example, they have successfully campaigned for several changes over the last 5 years that have made a considerable difference in improving the accessibility of abortion in Great Britain. First, independent providers were instrumental in the campaign for home use of misoprostol (the second abortion medication in the drug regimen recommended by the WHO), which eventually culminated in legal changes in 2017/2018. Footnote 82 Home use of misoprostol greatly improved the accessibility of abortion because it meant that people did not have to travel to a clinic twice for services, as well as enhanced the comfort and experience of abortion-seekers because they could miscarry in their own homes. Footnote 83 Second, the providers were also instrumental in the shift to and delivery of telemedical abortion—which became temporarily lawful in 2020 in Great Britain during the COVID-19 pandemic. Footnote 84 This greatly improved the accessibility of abortion because it meant people did not have to leave their homes during a public emergency, risking their safety, to access care. Footnote 85 There were people who (even before the pandemic) would have struggled to access care in a clinic for a variety of reasons: living in a rural area, no access to public transport, limited financial resources, disability, inability to find suitable childcare, or fear of a domestic abuser. Footnote 86 Abortion providers, with the data they had collected during the pandemic period showing the clear benefits, Footnote 87 led the campaign to make telemedicine permanent. Amendments were made to the AA 1967 by the Health and Social Care Act 2022, which became law in April 2022. Finally, BPAS’s “Back Off” campaign—which sought to introduce “buffer zones” around abortion clinics to prevent abortion-seekers from being harassed by anti-choice protestors Footnote 88 —culminated in a legal victory in October 2022. MPs passed an amendment to the Public Order Bill (expected to become law in early 2023) that creates buffer zones and criminalizes the violation of the zones in England and Wales. Footnote 89 This is also important for abortion access because it can ensure that in-person care, for people who want to attend a clinic, remains a possibility where people may otherwise have felt too intimidated to attend.

These examples all illustrate that abortion access in Great Britain is improving, but not without considerable effort by campaigning groups, including abortion providers, for legal reform.

“Framing matters, but access matters more.” Footnote 90

Given the time sensitive nature of abortion care, Footnote 91 ensuring adequate and timely access to services is the most important aspect of service provision. The health and legal risks of later term abortions outside of formal healthcare channels mean that ensuring people have the abortions they need as soon as possible is the best way to guarantee quality and safe care. I have argued elsewhere that “[it] seems less important to have a formally declared constitutional right to services than it does to have access to them.” Footnote 92 This comment was made about the United States in its Roe era—at the time, precedent that understood the right to privacy as encompassing a right to abortion before viability Footnote 93 was still standing. Despite this, however, the foundations of the right to abortion had been so eroded that there were vast expanses of the country where people had practically no access to abortion at all. Footnote 94 Goodwin termed the abortion right a “mish-mash” because what it meant in practice was still governed by laws at the state level. Footnote 95 The legal framework established by Roe and subsequent case law (notably, Planned Parenthood v. Casey Footnote 96 ) enabled state regulation of abortion that was able to target both abortion providers and abortion-seekers to make abortion more difficult. Furthermore, federal law prohibiting the use of federal funds for abortion prohibited support for the poorest people. Footnote 97 Access to abortion in the United States was never “reflective of its widely acclaimed status as a constitutional right.” Footnote 98 This illustrates that declarations of abortion rights are meaningless if they are not made in terms that also ensure access (I will come back to this in the last section of this paper). The reproductive justice movement in the United States, led by Black and women of color feminists in organizations such as SisterSong, Footnote 99 has long criticized the emphasis placed on rights and choice in reproduction as a fundamental problem. Roberts emphasizes how “[t]he language of choice has proved useless for claiming public resources that most women need in order to maintain control over their bodies and their lives.” Footnote 100 Roe v. Wade was an empty promise for people living in anti-abortion states (who could choose termination but would struggle to get one). That is not to say that things are not likely worse now post- Roe , but just that having a right to abortion did not mean a person in Louisiana or Texas or Mississippi could get one.

In contrast, people in the UK have no right to abortion at all. However, access to abortion has consistently improved over time. Although there is no law in the UK that is actively abortion-supportive (like declaring a right to abortion—or more meaningfully, to access abortion), people in Great Britain will have had a better experience of abortion than many of their counterparts in much of the United States. In many ways, the reason access continued to improve in Great Britain was a direct result of the medicalization of abortion that depoliticized provision Footnote 101 that enabled charitable providers, and the committed healthcare providers that work for them, to make changes within the existing framework. This is why looking at how legal provisions come to operate in practice matters so much—on paper, one might have been forgiven for thinking that a Roe v. Wade United States was more abortion-supportive than the UK; however, that was far from the reality. The story from the UK is a much less tragic one than that of the United States; but, it is far from ideal. The story of improving access in the UK is not perfect, and there are important lessons to be learned. First, although medicalization may have had benefits in improving access, it also means that there is some fragility to abortion access. Second, abortion exceptionalism means that even within a system that enables access to abortion, limits are still placed on the quality of care. Footnote 102 These two themes are explored in the next section.

Although ensuring access is imperative, the fact that access is improving across the UK—due to the work of dedicated providers and activists against a hostile legal and regulatory environment—does not mean that there is not the need for fundamental legal reform. In fact, the current conditions exemplify the need for sweeping reform. The legal regime across the UK can be described as “abortion -permissive ”—in that it has enabled access to abortion and even enabled some evolution in access over time (although many of the biggest changes required legal change). However, permissive regulation is not the same as supportive regulation, which we might consider to be a framework that solidifies the importance of access over time. The framing of the AA 1967 provisions, procedural requirements in the AA 1967 and the Northern Irish regulations, prevent more radical service evolution. They also embody the fundamental fragility of abortion access, given that it is rooted in medicalization. These two factors thus make it impossible to describe the UK framework as abortion-supportive. This potentially has implications for abortion access in the future.

The current legal framework has come under considerable scrutiny from legal scholars. First, in that the use of the criminal law, which still underpins provision in Great Britain, perpetuates abortion stigma Footnote 103 and abortion exceptionalism. Footnote 104 Although there are few prosecutions of healthcare professionals for procuring miscarriage where they have not complied with the terms of the AA 1967, there have been prosecutions against abortion-seekers, usually when they have used abortion medications later in pregnancy. Footnote 105 In these cases, the people who have done so are often in very vulnerable circumstances and the use of the criminal law to respond has been strongly criticized. Footnote 106 In 2021, a new mother was charged with procuring miscarriage when doctors found what they believed to be misoprostol in her body while she was in hospital for delivery. She explained that she had been previously prescribed them and had accidentally taken them believing them to be thrush medications. Although the case was dismissed in 2022, with the judge noting that he was “flabbergasted” that the charges were pursued, Footnote 107 it illustrates both the expansiveness of the criminal provisions, and the willingness of prosecution services to pursue people for use of abortion medications. The criminal law thus remains a very real threat to abortion-seekers. This has been especially true since the introduction of telemedical abortion. There is concern that in all the benefits that telemedicine has, it also increases the likelihood of abortion-seekers, even acting in careful, safe, and responsible ways, inadvertently falling foul of the provisions that make the abortion lawful (strict conditions about the when, where, how, etc., of abortion).

Although the AA 1967 does provide circumstances for lawful abortion, it is heavily medicalized. Between the criminalization and medicalized exceptions, Maxine Lattimer explains that legally “[a]bortion is constructed as an unusual or abnormal act, undertaken for primarily medical reasons,” Footnote 108 which does not reflect abortion-seekers’ reality and reinforces stigma. As we have explored, the medicalization of abortion through law has had substantial benefits in securing and improving people’s access to abortion services; however, as Sheldon has warned, “it also poses substantial problems for that access, and these have been inadequately addressed.” Footnote 109 Fundamentally, the law provides no guarantee of abortion to abortion-seekers: within the law, “there is no basis for recognizing a woman’s right to choose at any stage in pregnancy.” Footnote 110 Abortions are contingent on doctors determining that abortion is appropriate in the person’s circumstances. Footnote 111 In being dependent on healthcare professionals’ opinions, rather than individuals own rights and decisions about their reproduction, access to abortion is innately fragile. It is highly unlikely, given the existence of dedicated providers, that there would be change within the profession that means that health providers are no longer willing to provide care, though conscientious objection in other healthcare environments, for example, GP clinics and hospitals, should not be discounted. Willing providers being vulnerable to hostile regulation, and people having no recourse if they are unable to access abortion, are significant weaknesses in the regime that leave abortion-seekers without any guarantee of care.

As has been evidenced, access has improved considerably in the UK. We have seen the introduction of measures that have enabled local care in Northern Ireland, and home use of abortion medications in Great Britain. On both counts, the privacy, autonomy, and comfort of abortion-seekers have been enhanced by reducing the need for travel in having an abortion. However, these success stories still exemplify issues. The legal framework across the UK remains deeply flawed, perpetuates stigma, and changes are difficult to make. Legal changes are necessary for structural changes in provision and have only occurred in the system usually after some involvement of external forces. In Northern Ireland, change resulted from internal pressure from activists but also strong criticism from the UN Committee on the Elimination of Discrimination against Women. Footnote 112 In Great Britain, telemedicine and home use of both abortion medications resulted from the pressures of a pandemic—despite the evidence about the benefits and safety of telemedicine having existed long before. Footnote 113 Thus, reform is needed. Many scholars have argued that decriminalization is a necessary reform in the UK. Footnote 114 This would go some way toward the construction of an abortion-supportive legal framework. Decriminalization can begin the demystification and normalization of, and dismantling the stigma around, abortion. Footnote 115 Furthermore, if there were no criminal regulation of abortion, it would be much easier for providers to evolve their service provision in line with evidence about best practice Footnote 116 from organizations like the WHO, without having to first campaign for legal change.

This leaves us with the question of what a better abortion-supportive legal framework looks like? Decriminalization is a start, but it also does not go far enough. For example, in Canada, which has had a complete decriminalization of abortion since the law was “struck down” by the Supreme Court in 1988, Footnote 117 there remain multiple structural barriers to accessing care. Footnote 118 Though, arguably, decriminalization would better secure structural changes that enable access, and better access, for abortion-seekers in the UK since there are established independent providers. Footnote 119 What exactly a comprehensive abortion-supportive regime might look like in the UK is a question that requires and deserves further reflection from bioethicists, in addition to the work being done by legal scholars, activists, and dedicated politicians.

Abortion access matters. Bioethics needs to redirect its focus from problematizing abortion to thinking about the experience of abortion and how this can be improved for abortion-seekers. Since abortion is common, how abortion is talked about should begin to reflect its normalcy. Abortion access remains a challenge because of the intersection of complex barriers that ought to be recognized as “structural violence.” Footnote 120 These barriers manifest for all abortion-seekers, but their effect is much greater among marginalized people. The story from the UK is one of the increasing liberalization of abortion regulation and improving access. However, the experience of abortion-seekers is made better, against what is fundamentally a hostile legal environment to abortion in hyper-regulation, by the work of charitable providers and their committed staff. Moreover, improvements to care at the individual level are often despite the legal framework, rather than because of it. Moreover, changes to service provision have always required legal change that takes time and resources and means that abortion-seekers do not get the best possible care while that process takes place. Although I have argued that access to abortion is the most important matter at hand, the UK example illustrates that legal frameworks must be better than abortion-permissive (they must be abortion-supportive) to secure abortion access in the long term.

The author declares none.

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• Volume 32, Issue 3
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• DOI: https://doi.org/10.1017/S096318012200086X

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( PDF ) (DOC) (JPG) September 17, 2020

Christina San Filippo [1]

As a woman in today’s society, a woman who has had life-altering decisions about her body made for her throughout her entire life, I want to call attention to other women who are just trying to make their own decisions about their own bodies.

With this work, I recognize that within society there is a split between those who support a woman’s choice to have an abortion, and those who do not. I argue that both the decisions, to have an abortion, as well as to carry a pregnancy to term, have consequences. These consequences can be physical, sociological, and/or psychological. Therefore, the decision should be left to individual women to decide which consequences they are able to bear. For this reason, access to safe, medical care regarding reproduction and abortion should be available to all women, across all states.

Initially, I will establish the foundational background on the legalization of abortion. It will begin in the early 1800s, a time where abortion before “quickening” was legal for women in the United States. However, as women began to die from abortion inducing drugs, and Dr. Horatio Storer teamed with the American Medical Association to begin the “crusade on abortion,” disdain for the procedure grew. Throughout the mid-to-late 1800s, states began passing legislation to ban the drugs used for abortions and, eventually, the procedure itself. Contraception was also federally outlawed with the Comstock Law of 1873. Almost 100 years later both became legalized again with the major Supreme Court cases Griswold v. Connecticut, Eisenstadt v. Baird, and Roe v. Wade.

This legalization has not come without obstacles, however. The second section of this work delves into the state barriers put on abortion. Although legal federally, state constitutions still allow for each state to put laws in place that restrict access to abortion, including zoning laws, mandatory counseling, mandatory waiting periods, and minor consent or notification. All of these barriers within states were upheld by the Supreme Court in the case of Planned Parenthood v. Casey. In addition to these ongoing issues in states, the current President proposed a domestic gag rule, and reinstated a global gag rule, that limits funding to abortion providers. This section will further discuss the specific details of the state laws regarding access to abortion, and the status of the issue of abortion within the current federal administration.

Thereafter, the physical, sociological, and/or psychological effects of access, or lack thereof, to abortion may have one women is considered. Reasons for having an abortion vary from financial instability to unstable relationships. Upon receiving one, there is mixed research on whether women suffer future physical, sociological, and/or psychological effects. A sad reality is that even if a woman wants an abortion and feels she is capable of handling these possible consequences, she may be unable to get one. Whether the reason be barriers related to geographic location or financial situation, being forced to carry an unwanted child may also bear physical, sociological, and/or psychological effects.

Finally, the analysis concludes that both having an abortion and not being able to have an abortion can have negative effects on a woman. These effects can be either physical, psychological, and/or sociological. Women are capable of making their own decisions, and this should include access to abortion.  

I. History of Abortion and Contraception Legalization

Today, it is easy to take certain things for granted. As people living in America, the land of the free, we do not take a second glance at some of the things we are able to do. Two of these things are the ability to receive educated medical advice on reproductive health from physicians, and the ability to get a safe and legal abortion. However, this was not always the case. At certain points in history, all things regarding contraception and abortion were outlawed in the US. Though we usually think of women’s reproductive health as happening chronologically – first contraception and then abortion – the attention to women’s bodies happened in the opposite order. Historically, abortion began to be regulated before contraception.

Legal Abortion Before “Quickening”

Before and during most of the 1800s, certain abortions were legal, and not uncommon. A woman was only allowed to seek an abortion before “quickening,” which was when she could feel the fetus moving. Before this, it was believed that human life did not exist. Surprisingly, even the Catholic Church shared this view, believing that abortions before quickening were “prior to ensoulment” (Ravitz, 2016). In society, early pregnancies that ended were not even considered abortions, but were rather seen as pregnancies that “slipped away” (Reagan, 2008, p. 8). At this time, conception was seen as something that created an imbalance within the body, due to the fact that it interrupted a woman’s menstruation cycle (Reagan, 2008, p. 8). The way abortions usually worked was that women would take certain drugs to induce abortions. If these drugs failed, a woman could then visit a medical practitioner for an actual procedure to be rid of the fetus (Ravitz, 2016). Abortions before quickening were seen as a way to “bring the body back into balance by restoring the flow,” which meant the returning of the menstrual cycle (Reagan, 2008, p. 8). It was a practice done openly and honestly for pregnant women at this time.  

Abortion Outlawed: The Beginning of the End

Although abortions done before quickening were legal, they were not entirely a safe practice. The drugs that women took to induce the abortions often ended in the death of the woman, rather than just the termination of the fetus. Due to this, states began passing statutes that controlled the sale of “abortifacient drugs” as a “poison control measures designed to protect pregnant women” (Reagan, 2008, p. 10). Each of these laws sought to punish whoever administered the drug, rather than the woman who received it (Mohr, 1979, p. 43). In 1821, Connecticut passed a statute outlawing the use of abortion inducing drugs, believing they were a threat to life by causing death by poisoning. However, the law was only applicable if the woman had already experienced quickening. It is important to note that the law was not focused on the actual act of abortion and did not even mention surgical abortions; the focus was on the drugs used for abortions. After this statute was passed in Connecticut, more states began to follow. Missouri in 1825, and then Illinois in 1827, also passed legislation outlawing the use of abortion inducing drugs in an attempt to avoid deaths by poisoning. However, both of these states did not mention quickening, and made the use of these drugs illegal at any point during a woman’s pregnancy (Mohr, 1979, pp. 22–26).

Within the next few years, several states also began passing legislation regarding abortion. However, these statutes focused more on the act of abortion, rather than the drugs that caused them. Similar to the anti-drug laws, these statutes also sought to punish the person who performed the abortion, not the woman who received it (Mohr, 1979, p. 43). In 1834, Ohio passed a law stating that “the death of either the mother or the fetus after quickening” is a felony (Mohr, 1979, p. 39). Missouri soon followed by revising their previous abortion law and making “the use of instruments to induce an abortion after quickening a crime equal to the use of poisonous substances after quickening” (Mohr, 1979, p. 40). In 1840, Maine made “attempted abortion of any woman ‘pregnant with child’ an offense, ‘whether such child be quick or not’ and regardless of what method was used” (Mohr, 1979, p. 41). This Maine offense was punishable by jailtime or a large fine. As states continued to pass anti-abortion legislation, certain groups rallied behind this new-found fight against abortion.  

American Medical Association (AMA) and Horatio Storer

Despite certain states passing laws prohibiting the sale of abortion inducing drugs, the nationwide business for them continued to grow. The drugs were openly discussed, even advertised in newspapers, and were readily available (Ravitz, 2016). A woman was able to purchase the drugs from physicians, pharmacists, or order them and have them delivered by mail (Reagan, 2008, p. 10). Along with the growth in popularity of these drugs came criticism.

In 1847, the American Medical Association was founded. The establishment of this Association was the beginning of the politicization of abortion. At this time period, when a woman and a man got married, “the husband assumed virtually all legal rights for the couple” (Primrose, 2012, p. 170). This was both a law, and a patriarchal viewpoint that was accepted within society. It was seen as the duty of women to bear children to their husbands. The American Medical Association asserted that abortions not only posed health risks to women, but also prevented wives from fulfilling this role in their marriage contract. At this time women were also seeking entry into Harvard Medical School, where many sought to pursue careers in gynecology and obstetrics. These career goals threatened the role of women as subjects of their husbands, and so created a kind of push-back by the American Medical Association (Ravitz, 2016).

American Medical Association Role in Outlawing Abortion

In 1857, the American Medical Association began focusing mainly on getting abortion to be outlawed, with Dr. Horatio Storer at the head of this crusade. On top of the previously mentioned patriarchal reasons pushing for this criminalization, a couple of other factors contributed. One was the fear of immigrants in the United States. Storer was one of many Americans who shared this fear, worrying that the nation would soon become out-populated by people of other ethnicities, leaving white people outnumbered. Another was the threat that licensed physicians felt from midwives and homeopaths, who they saw as their competition in the medical field. By outlawing abortion, this threat would be neutralized, and physicians would have power and control over practicing medicine. For these reasons, physicians supported Storer and the American Medical Association in the fight to outlaw abortion (Ravitz, 2016). Overall, Storer, backed by physicians around the nation, helped influence abortion laws by appealing to “a set of fears of white, native-born, male elites losing political power to immigrants and to women” (Reagan, 2008, p. 13). However, their anti-abortion campaign also had to try to reach women in America as well.

Dr. Horatio Storer was the son of David Humphreys Storer, a professor at Harvard Medical School in the field of Obstetrics and Medical Jurisprudence. David Storer argued that the only time an abortion was acceptable was if it was to save the life of the mother, and that a fetus becomes a human being as soon as the embryo enters the uterus. David’s son, Horatio, adopted this mentality and used it in his crusade against abortion. In 1866, he wrote a book entitled, Why Not? A Book for Every Woman , followed by Why Not? A Book for Every Man , which were widely distributed to female patients by their physicians. The books were an attempt to make women feel guilty for having abortions and convince men that they were equally guilty as the father of the unborn. Storer was smart enough to recognize that not all women may give in to arguments based on morals and guilt. For this reason, he “recommended that their physician readers appeal to women’s concerns about their own health as a way to persuade them to have their children” (Dyer, 2003). This ensured that the American Medical Association was fighting against abortion from all possible angles and viewpoints.

Anti-Abortion Laws Continue

With much help from the American Medical Association, the anti-abortion movement gained traction in the nation. This social shift towards the nonacceptance of abortion was reflected in laws passed by states at the time. Within the time period of 1860-1880, “the United States produced the most important burst of anti-abortion legislation in the nation’s history” (Mohr, 1979, p. 200). During these years, states passed “at least 40 anti-abortion [laws],” and “13 jurisdictions formally outlawed abortion for the first time” (Mohr, 1979, p. 200).

The first state to start this wave of legislation was Connecticut in 1860. The law contained four separate sections laying out all things that were now illegal regarding abortion. The first section discussed abortion in general, stating that the act was considered “a felony punishable by up to $1000 fine and up to five years in prison” (Mohr, 1979, p. 201). The second section stated that any accomplices of the person who performs the abortion is guilty of the crime as well. The third section said that the woman who receives the abortion is also guilty of the felony, even if she attempts one on herself. The fourth section discussed abortifacient information and materials, stating that the distribution of either was punishable by fines between $300 and $500 (Mohr, 1979, pp. 201–202). The contents within the third and fourth sections of this statute were things that had never been mentioned before in anti-abortion laws, and signified the “evolution of abortion policy” that was about to sweep the nation (Mohr, 1979, p. 201). This Connecticut law set the stage for other states, which began passing their own more intense abortion laws. Examples include “Colorado Territory and Nevada Territory in 1861, and Arizona Territory, Idaho Territory, and Montana Territory in 1864,” which each made abortion a punishable offense (Mohr, 1979, p. 202).

Contraception Outlawed: Comstock Law of 1873

In 1873, The American Medical Association gained a victory when the Comstock Law was passed. This statute, passed on March 2, 1873, banned both the importation and distribution of any information or drug that aimed towards the prevention of conception (Tone, 2000, p. 439). The law made it illegal to “mail contraceptives, any information about contraceptives, or any information about how to find contraceptives” (Primrose, 2012, p. 173). Congress was able to do this by “enacting the antiobscenity statute to end the ‘nefarious and diabolical traffic’ in ‘vile and immoral goods’ that purity reformers believed promoted sexual licentiousness” (Tone, 2000, p. 439). Simply put, the government banned birth control and any information related to birth control under the guise that both its availability and use would contribute to sexual promiscuity, making it obscene, and allowing it to fall under the purity laws. The penalty for anyone who was caught violating the Comstock Law was “one to ten years of hard labor, potentially in combination with a fine” (Primrose, 2012, pp. 173–174). After Congress enacted this law, twenty-four states passed their own state versions to affirm the federal law (Tone, 2000, p. 441). On top of these federal and state laws, the government also gave “the United States Postal Service authority to decide what was ‘lewd, lascivious, indecent, or obscene’” (Primrose, 2012, p. 174). This was based on the fact that the business of birth control relied heavily on interstate commerce (Tone, 2000, p. 441).

Despite the fact that birth control and all information regarding it was outlawed people did not stop having sexual intercourse. As expected, this resulted in unwanted pregnancies. Women in this position who still sought an abortion despite its illegality were forced to look elsewhere to receive the procedure, which many times consisted of unsafe and unsanitary conditions (Primrose, 2012, p. 175).

Contraception Legalized: Contribution of a “First Wave Feminist” Movement in the United States

Around 1915, coinciding with advocates for the right of women to vote, a large feminist movement began growing, headed by Margaret Sanger, which focused on the importance of birth control. Sanger was a nurse who visited homes and was often asked questions by women on how to prevent having more children. One of Sanger’s patients died from a self-induced abortion, which led her to become more vocal about the unjustness that comes from restricting information on birth control. Sanger believed that the only way to achieve equal rights among men and women was for society to release women from the expected role of being a childbearing wife. In 1916, she attempted to open a contraceptive clinic in Brooklyn, New York, but was shut down after ten days. Despite being open for a short amount of time, the clinic had visits from 464 women. This staggering number displays the desperate need for contraception at the time.

Sanger continued her efforts to fight for contraception, and with support growing, she created the American Birth Control League (Galvin). In 1932, after Sanger was arrested for mailing birth control products, a judge from the Second Circuit Court of Appeals “ordered a relaxation of the Comstock laws at the federal level” (Primrose, 2012, p. 182). The opinion, written by Judge Augustus Hand, stated that contraception could no longer be described as “obscene,” and that there was a great amount of damage caused by this ban. He “ruled that doctors could prescribe birth control not only to prevent disease, but for the ‘general well-being’ of their patients” (Galvin, 1998). This was a great win for Sanger and those who also fought for the legalization of birth control.

In 1942, the American Birth Control League decided to switch their approach and portray birth control as a means of family planning rather than a way to “liberate women” (Primrose, 2012, p. 183). With this change in approach also came a name change: Planned Parenthood. Although Sanger did not approve of this shift in philosophy or name change, both helped the organization present itself as much friendlier towards both men and women, and to become socially accepted (Primrose, 2012, pp. 183–184).

As time went on, the feminist movement towards legalized contraception and abortion continued. In the 1960s, the women’s liberation movement gained much more support after many were being “inspired by the civil rights and anti-war movements” (Ravitz, 2016). This traction in the women’s movement could be seen in the years to come within court decisions.

First Comes Marriage

After the ruling by Augustus Hand in the Second Circuit Court of Appeals, there was a large move towards the social acceptance of birth control. However, a Second Circuit decision is only binding in one jurisdiction. While this was a win for those within this area, and certainly did reflect a growing social acceptance, it was not sufficient to repeal laws nationwide. At this point, disagreement among the states on the issue of abortion was rising. For this reason, the issue rose all the way to the US Supreme Court.  

Griswold v. Connecticut , 381 U.S. 479 (1965)

In 1965, the Supreme Court helped strike down any laws within the states that mimicked the Comstock Law in Griswold v. Connecticut. In this case, Estelle Griswold was the executive director of Planned Parenthood in Connecticut. Griswold was arrested for giving out information about contraception under a Connecticut law which banned this. The Supreme Court brought up the idea of privacy within homes and ruled that although the “right to privacy” is not overtly written in the Bill of Rights, it still is a fundamental right protected under the Constitution. They discussed the idea that the Bill of Rights throws “penumbras” under which certain fundamental rights lie. In this case specifically, the First, Third, Fourth, Fifth, and Ninth Amendments all cast grey areas in which the “right to privacy” stands, which is then applied against the states using the Fourteenth Amendment. The court held that the Connecticut statute was overly broad and caused more harm than needed to be done. The statute encroached on a certain area in life where privacy is essential – inside a marriage. This ruling declared that a state is unable to ban the use of contraceptives within a marriage due to the right to privacy.

Then Comes All Persons

Eisenstadt v. Baird , 405 U.S. 438 (1972)

While this was a great win for birth control advocates, it only made the distribution of contraception legal for married couples. In 1972 came Eisenstadt v. Baird , the Supreme Court case which extended this ruling to single peoples as well. In this case, Bill Baird was arrested for selling birth control in the form of vaginal foam to multiple women at Boston University. He was charged under a Massachusetts statute that mimicked the previous federal Comstock Law. After the ruling of Griswold v. Connecticut , this statute had been amended, but it was only to legalize the distribution of birth control to married couples. In the opinion of Eisenstadt v. Baird , Supreme Court Justice William Brennan “declared that ‘whatever the right of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike’” (Garrow, 2001, p. 65). The foundation of this argument stemmed from the fact that “the law violated ‘the rights of single persons under the Equal Protection Clause’ of the Fourteenth Amendment” (Garrow, 2001, p. 64). This ruling helped establish legal contraception for all individuals.  

Abortion Legalized Federally

Roe v. Wade , 410 U.S. 113 (1973)

In 1973, the contraception movement came to a peak when the Supreme Court ruled in the case of Roe v. Wade , federally legalizing abortion. In this case, a single pregnant woman in the state of Texas challenged a “criminal abortion statute which only allowed abortions ‘for the purpose of saving the life of the mother’” (Zagel, 1973). The plaintiff, named anonymously as Jane Roe to protect her identity, who was later revealed to be Norma McCorvey, asserted in the legal briefs that the statute was unconstitutional and a violation of the right to privacy, therefore the law was null and void. Texas argued that it has compelling state interests in the life of the mother, the protection of prenatal life, and in the discouragement of illicit sexual activity, making this statute constitutional. The court understood the state’s concern for the mother and unborn child but did not accept the argument regarding sexual activity. After weighing the valid points brought forward by both Roe and Texas, the Court ruled accordingly. In the first trimester, the state has no say, and all decisions are to be made between a woman and her doctor. In the second trimester, a woman is still able to receive an abortion, but the state is able to make some regulations in order to protect the mother’s life. In the third trimester, abortions are contingent upon demonstrated threats to the mother’s health, due to the fact that the life of the fetus is considered viable.

Throughout history, the idea of access to “family planning” – whether that be birth control or abortion – has been controversial. Abortion drugs were initially very common but were then banned under the Comstock Law after much lobbying by the American Medical Association. After this, feminist movements began picking up the fight for contraception. The pleas of the movements were not answered until much later, when the Supreme Court made their rulings in Griswold v. Connecticut, Eisenstadt v. Baird, and Roe v. Wade.

Figure 1: Legal Historical Timeline of Abortion and Reproductive Rights

II. Current Legal Obstacles Preventing Abortion

After several federal court decisions legalized abortion and the distribution of contraception, and any information regarding it, it seemed as though the fight for reproductive rights was over. Significantly, an “undue burden” on a woman was ruled as unconstitutional. Additionally, the American Medical Association, a previously large motivator in the anti-abortion movement, moved towards a more pro-choice viewpoint and backed up from being vocal against abortion. In 1990, the AMA stated that “the issue of support or opposition to abortion is a matter for members of the AMA to decide individually, based on personal values or beliefs.” In 2013, the Association as a whole shifted further towards pro-choice, stating that “the Principles of Medical Ethics of the AMA do not prohibit a physician from performing an abortion,” as long as it is done in “good medical practice” and does not violate the law (Hart, 2014, p. 292).

However, the federal court rulings only set a legislative basis for states, which were then responsible for the abortion statutes within their own borders. Despite the fact that abortion was made legal on the federal level, states were, and still are, able to enact statutes that could create certain barriers making it hard for women to obtain an abortion. These barriers include zoning laws, mandatory counseling, waiting periods, and minor consent or notification. Besides being inconvenient hurdles to overcome, these barriers also insinuate an assumption that women seeking abortions have not thoroughly contemplated their decision, and/or are not able to properly educate themselves before doing so.

Hyde Amendment of 1976

In 1976, the United States Congress passed an “amendment to a federal appropriations bill specific to [the Departments of Labor and Health and Human Services].” This amendment, titled the Hyde Amendment, “prohibits using U.S. federal funds to pay for abortions in programs administered through” the two aforementioned federal departments. One of the programs that is affected by this amendment is Medicaid, which is “a joint state-federal program for low-income people.” Under the Hyde Amendment, Medicaid programs in states are unable to access and use federal funds to help low-income people get abortions. Since its installment, the Amendment has “been altered to include exceptions for pregnancies that are the result of rape and incest” (Boston Women’s Health Book Collective, 2011, pp. 341–342, 774). This Amendment is a possible barrier for women who are unable to afford an abortion on their own, which is discussed further below.  

Planned Parenthood of Southeastern Pennsylvania v. Casey , 505 U.S. 833 (1992)

In 1989, Pennsylvania passed the Pennsylvania Abortion Control Act, which sought to intensely restrict a woman’s ability to get an abortion. Under this law:

A woman seeking an abortion must (i) be given certain state-approved information about the abortion procedure and give her informed consent; (ii) wait 24 [hours] before the abortion procedure [after receiving this information]; (iii) if the woman was a minor she had to obtain parental consent; and (iv) if the woman was married she had to notify her husband, in writing of her intended abortion (Medoff, 2009).

Following the passing of this law, the Planned Parenthood of Southeastern Pennsylvania filed a lawsuit, claiming that the law was unconstitutional. The suit made its way to the United States Supreme Court, which ruled that “states could regulate abortions before viability as long as the regulation did not place an ‘undue burden’ on a woman’s access to an abortion” (Medoff, 2009). However, the Court did not give an explicit definition of what an “undue burden” entails, giving states leeway to enact restrictions on the access to abortion. The Court also upheld the first three parts of Pennsylvania’s statute, but struck down the fourth, requiring husband notification. By upholding the first three, the Supreme Court allowed Pennsylvania to set the stage for other states across the nation which sought to limit the access to abortion (Medoff, 2009).

Types of Abortion Barriers

Zoning Laws

One possible barrier to abortion access that states are able to implement is zoning laws. Under the Constitution, each state has a certain amount of police powers that allow for the enactment of laws and regulations that aim to protect, preserve, and promote the public safety, health, morals, and general welfare of the people (Legal Information Institute). Local governments within states are able to pass zoning laws in the community under these police powers. “Zoning laws determine what types of land uses and densities can occur on each property lot in a municipality.” In some areas throughout the nation, local governments use zoning ordinances to limit the areas where abortion providers can reside (Maantay, 2002, pp. 572–575). This topic is further discussed below.

Mandatory Counseling

According to the Guttmacher Institute, as of March 1, 2019, “34 states require that women receive counseling before an abortion is performed” (Guttmacher Institute, 2019a). The legal basis of mandatory counseling laws lies upon the principle of informed consent. This principle is the idea that patients “have the right to receive accurate and unbiased medical information from their health care provider so that they can make an informed decision about their treatment” (Medoff, 2009). Mandatory counseling laws in states make it a requirement for physicians to read a “’script’ to any patient seeking an abortion” (Rose, 2006, p. 105). These scripts are specific to each state, which are left to approve of the information they wish to include. While the counseling information may vary state-to-state in terms of what exactly must be included, each have the same general idea: to warn women who are seeking an abortion of the possible complications, side effects, and other options.

To stay in accordance with the idea of providing unbiased and objective information, states must also counsel women about options other than abortion, and the possible effects associated with them. For example, North Carolina’s “Woman’s Right to Know Act” states that physicians must inform the woman that she “has other alternatives to abortion, including keeping the baby or placing the baby for adoption.” The act also requires abortion providers to provide patients with printed materials that detail the possible complications and effects of abortion, “as well as the medical risks associated with carrying an unborn child to term” (Stam, 2012, pp. 18–20).

The issue with this counseling is that not all the information distributed is necessarily accurate and may “dissuade women from having an abortion by giving them biased medical information … that is deliberately inaccurate and false” (Medoff, 2009).

One piece of information included in the counseling materials of several states is the idea that “abortion is detrimental to a woman’s mental health” (Medoff, 2009). While this may be the case for some women who receive abortions, it is not true for all. This topic is considered further below.

Other information that is commonplace in counseling materials is that abortions are linked to future medical issues within women. In 6 out of the 34 states that include mention of medical issues, the emphasis is on the correlation between abortion and breast cancer, and 22 out of 34 include information about infertility (Guttmacher Institute, 2019a). However, research has shown that the claims being made are not necessarily accurate. Among the 6 states that discuss breast cancer, 5 “inaccurately assert a link between abortion and an increased risk of breast cancer” (Guttmacher Institute, 2019a). Furthermore, in 1996, The National Cancer Institute stated that after doing research, they found “no evidence of a direct relationship between breast cancer and either induced or spontaneous abortion” (Medoff, 2009). Regarding infertility, there is research showing that “vacuum” abortions, which are “the most common method used in over 90% of all abortions – poses no long-term risk of infertility” (Medoff, 2009). In 4 of the 22 states that discuss infertility, the risk is inaccurately portrayed (Guttmacher Institute, 2019a). The distribution of this inaccurate information may scare women away from having an abortion, fearing they will have serious health complications in the future.

In 13 out of the 34 states, the mandatory counseling information tells women that the fetus is able to feel pain during the procedure of the abortion (Guttmacher Institute, 2019a). However, not every state provides the same facts. In South Dakota, women are told that the fetus feels pain no matter how far along the pregnancy may be. In Texas, women are told the fetus can feel pain as early as 12 weeks, while women in Arkansas and Georgia are told it is 20 weeks (Medoff, 2009). However, research has shown “that the necessary physical structures to perceive pain develop between 23 and 30 weeks’ gestation” (Gold & Nash, 2007). This disagreement between states clearly shows how inaccurate the information being distributed to women may be.

Aside from possibly dissuading women from getting an abortion by providing potential complications and side effects, the counseling information can also be laced with bias language meant to do the same. For example, in 2003, Texas passed a law entitled “Woman’s Right to Know Act,” which required abortion patients be given a twenty-three-pages long booklet discussing all of the possible risks listed above. However, the booklet refers to the fetus as an “unborn child,” using word choice to place personhood on the fetus (Rose, 2006, p. 106). It also “speaks at length about the euphoria of giving birth,” while barely touching on the possible issue of post-partum depression if the woman chooses to have the child (Rose, 2006, p. 106). The subtle use of language and emphasis on happy childbirth shows that the state favors the idea of carrying the fetus to term rather than letting the woman have an abortion.

Waiting Periods

Following the mandatory counseling, as of March 1, 2019, 27 out of these 34 states require that there be a waiting period of at least 24 hours until the woman can receive the abortion (Guttmacher Institute, 2019a). In these cases, women are required to visit the physician twice: once to be counseled, and second to undergo the procedure after the waiting period is complete. While this may be a minor inconvenience for some women, it can be quite major for others. For example, if a woman has traveled a far distance to receive the abortion, there are extra costs involved, whether that be money for gasoline, public transportation fees, and/or paying to stay in a hotel. By forcing these women to visit the physician twice, the money they are spending increases, whether that be by a few dollars for a couple of more gallons of gasoline in their car or by a few hundred dollars for an extra night in a hotel room. While the waiting period may be a helpful time for some women to read and further inform themselves on the procedure they are about to receive, it may be a burden for others who have already confirmed their decision and cannot afford these extra costs (Rose, 2006, p. 106).  

Minor Consent or Notification

As of March 1 2019, 37 states in the nation require the involvement of a minor’s parent when deciding to have an abortion. In 11 of these 37 only require parental notification, while 21 require parental consent (Guttmacher Institute, 2019b). Among the many barriers put on access to abortion, “parental involvement laws have some of the highest public support” (Rose, 2006, p. 107). A large portion of this support comes from the idea that minor’s may be too immature to make this life-altering decision on their own and require the potentially important input of their parents (Rose, 2006, p. 107).

In an attempt to avoid the laws requiring them to involve their parent, some young girls travel across state lines to receive the procedure in a state that does not have these laws. If that is not a possibility, other girls turn to unsafe illegal procedures to terminate their pregnancy (Rose, 2006, p. 107). One specific example of this is Becky Bell, a seventeen-year-old girl from Indianapolis. In 1988, afraid to inform her parents that she was pregnant, Becky sought out an illegal abortion (Lewin, 1991). During the procedure, unsanitary instruments were used, which resulted in the young girl contracting a bodily infection. Within one week, Becky’s veins collapsed, her heart stopped, and she died (Rose, 2006, p. 107). This case became an example of the potential issues with the forced involvement of parents.

While parental involvement laws may seem rational, they pay no attention to the possible circumstances within each minor’s situation. For a young girl who has an open and close relationship with her parents, these laws may not pose an issue. Oppositely, for a young girl who has a distant, unhealthy, and/or violent relationship with her parents, such as Becky Bell, these laws may be extremely problematic. In a 1991 study that looked at reasons why minors seeking abortions did not want to inform their parents, the most common reasons listed “were wanting to preserve their relationship with their parents and wanting to protect the parents from stress and conflict” (Henshaw & Kost, 1992). These reasons may be especially true in a household where the pregnancy is the result of a friend/family rape, which would put much stress on the family relationships. Due to these possible issues, 36 out of the 37 states with parental involvement laws “include a judicial bypass procedure, which allows a minor to obtain approval from a court” (Guttmacher Institute, 2019b). This procedure, if approved, grants a minor the ability to receive an abortion without involving a parent.

Current Federal Administration

Election of Donald Trump

Although states have been able to place these barriers limiting the access to abortion within their borders, the rights granted in Roe v. Wade have continued to hold steady in federal law. However, more recently, there has been fear of a perceived threat to these rights. This fear began with the election of President Donald Trump in November 2016. When elected, Trump vowed “to nominate socially conservative Supreme Court Justices, withhold federal funding from Planned Parenthood, and sign legislation banning abortion after 20 weeks of pregnancy” (Reinhard, 2016). Although Trump has not signed any legislation doing so, he has indeed followed through on the first two promises.

Nomination of Socially Conservative Supreme Court Justice Brett Kavanaugh

In 2018, President Donald Trump nominated Judge Brett Kavanaugh to become a Justice on the United States Supreme Court. Since this nomination, Kavanaugh has been elected to the Supreme Court, replacing Justice Anthony Kennedy, who “protected [ Roe v. Wade ] as the court’s swing vote on abortion” (Bassett, 2018). By replacing Kennedy, Kavanaugh creates “a solid conservative majority on the court,” which could potentially threaten Roe , given his standpoint on the issue of abortion (Gershman, 2018). Although Kavanaugh has not spoken directly about his views on the Supreme Court decision of Roe v. Wade , he has spoken about “the government’s ‘permissible interests’ in ‘favoring fetal life’ and ‘refraining from facilitating abortion,’” indicating his opinions on the subject lean toward a pro-life viewpoint (Bassett, 2018). However, despite the possible personal opinions of Kavanaugh, he has stated that he believes Roe v. Wade is a “settled law” (Gershman, 2018). While there was no further explanation on what exactly Kavanaugh meant by those words, a logical interpretation would mean that “he believes the precedent is too deeply embedded in the fabric of the law to be re-examined” (Gershman, 2018). This would mean that Kavanaugh himself is not even confident in the fact that the Supreme Court could overturn the landmark decision.  

Trigger Laws

Although the possibility of Roe v. Wade being overturned is questionable, some states have “trigger laws” set up in the event that it does happen. These laws are blatant state bans put on abortion, but are presently unconstitutional, therefore, unenforceable. The point of these laws is to have statutes set in place, ready to “become enforceable without further legislative action” the moment Roe v. Wade gets overturned, if ever (Rose, 2006, p. 102). The states that have put these laws in place are Mississippi, Louisiana, North Dakota, and South Dakota (Gershman, 2018).  

Gag Rules Withholding Federal Funding from Planned Parenthood

  When getting elected, President Trump also promised to withhold federal funding from Planned Parenthood. In February 2019, the Trump administration announced, “that it will bar organizations that provide abortion referrals from receiving federal family planning money” (Belluck, 2019). This new legislation is a form of a “gag rule,” which “prohibit those working in state-run health care facilities from even speaking of abortions as an option with patients” (Rose, 2006, p. 109). In this specific federal rule, “clinics will be able to talk to patients about abortion, but not where they can get one” (Belluck, 2019). This means that organizations meant to help women, such as Planned Parenthood, could potentially lose millions of dollars in funding (Belluck, 2019). As of this writing a federal court in Washington state issued a nationwide injunction that stops the rule from taking effect while various lawsuits are pending (Barbash, 2019).

Trump Reinstatement of Global Gag Rule

Aside from being present within the United States, every recent Republican Administration has enforced such gag rules internationally. “The United States is the largest donor of international family planning money, which is dispersed through the United States Agency for International Development.” This agency “funds international non-governmental organizations (NGOs) in contraceptives, training, technical assistance, and other family planning needs.” However, in 1984, the Reagan Administration instituted a global gag rule, which mandated that any NGO “that performed or promoted abortion services” were no longer “eligible for USAID funding,” even if abortion was legal in their jurisdiction. When the Clinton Administration came into power, this global gag rule was overturned. This back-and-forth has continued ever since, with the Bush Administration reinstating the global gag rule, and then the Obama Administration overturning it (Gezinski, 2012, pp. 839–840). Predictably, President Trump reinstated it – on his first day in office. This global gag rule is a large setback for many countries in the developing world, where NGOs are a primary source for women’s health care. For example, in some parts of Africa, these clinics “offer HIV/AIDS prevention and treatment, maternal health, and counseling on sexual violence like genital mutilation.” This rule also cuts funding for the International sector of Planned Parenthood (Quackenbush, 2018). By cutting funding to NGOs around the world, the global gag rule can have serious effects on a woman’s ability to get proper health care.

III. Possible Effects After Having an Abortion or Being Denied an Abortion

Before being able to fully understand the potential effects of an abortion, one should know exactly what the abortion process consists of. There are multiple different kinds of abortion procedures a woman can receive that vary in methods and depend on how far along the pregnancy is. By being fully educated on the details of the actual procedure, individuals are able to understand the issues surrounding abortion on a more comprehensive level. The following paragraphs will go through the vital specifics of each procedure.

Receiving an Abortion: How is it Done?  

First Trimester Abortions

“In the United States, most abortions (88 percent) are performed during the first trimester,” which includes the first twelve weeks of pregnancy. Currently, there are two different forms of first-trimester abortions: a medication abortion or an aspiration abortion. A woman is able to choose which one she wishes to receive. As of 2011, aspiration abortion is more commonly used than medication abortion, but the interest for the latter continues to rise. If a medication abortion fails, an aspiration abortion is necessary to abort the fetus (Boston Women’s Health Book Collective, 2011, pp. 324–328).

“In a medication abortion, the pregnancy is interrupted and expelled over the course of a few days using medicines.” While in the presence of the doctor, a woman swallows a pill containing a drug called mifepristone. Later, when at home, the woman takes another drug, misoprostol, either by inserting it vaginally or letting is dissolve inside her mouth. The abortion begins a few hours later, consisting of heavy bleeding and cramping. To ensure the abortion worked, the woman must go back to the doctor one week later for a follow-up appointment. In 95 to 98 percent of cases, this method is effective. However, if it fails, the woman must then undergo an aspiration abortion (Boston Women’s Health Book Collective, 2011, pp. 324–326).

In an aspiration abortion, also known as surgical or vacuum abortion, “suction is used to remove the pregnancy.” A thin tube, called a cannula, is “inserted into the uterus and connected to a source of suction, either an electric pump or a handheld syringe,” which then removes the fetus from the woman. Unlike medical abortions, aspiration abortions only take 5-10 minutes to complete and do not require a follow-up appointment with the doctor unless the woman is experiencing problems (Boston Women’s Health Book Collective, 2011, pp. 324–328).

Second and Third Trimester Abortions

When Do They Happen?

“In the United States, about 12 percent of all abortions take place after the first trimester” (Boston Women’s Health Book Collective, 2011, p. 332). Women enter the second trimester of pregnancy at week 12, and the third trimester at week 28 (Boston Women’s Health Book Collective, 2011, p. 332; Cha, 2015). The Centers for Disease Control and Prevention reported that in 2015, only “about 1.3 percent of abortions were performed at or greater than 21 weeks of gestation.” This means that within the aforementioned 12 percent, almost all of these abortions are done during the beginning and middle of the second trimester. In the rare cases where women seek abortions in their third trimesters, the reasons are serious and based on “an absence of fetal viability,” and/or risks to the mother’s health or life (Cha, 2015).

Procedure Details

For second and third trimester abortions, the procedures differ from those in the first trimester. Currently, there are two different methods used to abort a fetus after the first trimester: dilation and evacuation (D&E), and induction abortion (Boston Women’s Health Book Collective, 2011, p. 332).

In a D&E procedure, the fetal and placental tissues are removed by using a combination of instruments and suction. This method is more commonly used, and quite similar to the aspiration abortions performed during the first trimester. However, due to the fact that the pregnancy is further along, the woman’s cervix must “be opened wider to allow the larger pregnancy tissue to pass, which requires the clinician to soften and dilate the cervix ahead of time.” This can take anywhere from a few hours to two days and can be done either by the use of instruments (osmotic dilators), or drugs (misprostol). The earlier a woman is in her pregnancy, the less time this portion of the abortion takes. After the cervix is prepared, “the clinician removes the pregnancy (fetal and placental tissue) with vacuum aspiration, forceps, and a curette (a small, spoonlike instrument)” (Boston Women’s Health Book Collective, 2011, pp. 332–333).

“After a certain point in pregnancy (usually around twenty-four weeks), a D&E can no longer be performed and the only option is an induction abortion.” In an induced abortion, a woman is given drugs that induce labor. The drugs that are used can vary depending on the circumstances of the situation, and can either be inserted into the vagina, be given through an intravenous line, or injected into the woman’s abdomen. These drugs cause contractions of the uterus, thus sending the woman into labor. The fetus and placenta are then ‘delivered,’ expelling the pregnancy. This method “usually takes place in specialized facilities or hospitals,” and takes more time than D&E’s. Due to this, and the fact that it forces women to endure the mental and physical stress of labor, induction abortion is less commonly chosen than D&E. However, in a case where the pregnancy being ended is wanted, this method allows the woman to deliver and hold the fetus, and say good-bye (Boston Women’s Health Book Collective, 2011, pp. 332–334).  

Reasons Why Women May Get an Abortion

Despite the possible attempts by state law to limit a woman’s ability to get an abortion, the medical procedure is still performed across the nation. While the specific reasoning behind every abortion is different in each individual situation, in many cases, there are common themes of reasoning.

In 2004, a study was done by the Guttmacher Institute to explore the reasons why a woman may seek an abortion. In the study, over 1200 abortion patients at 11 providers completed a survey that asked questions regarding their reasoning. The first portion of the survey was open ended, asking the woman to briefly explain why she was choosing to get an abortion at that time. If there were multiple reasons, she was asked to give them in order from most to least important. After that, there were specific reasons listed that the woman had to confirm whether or not were applicable to her. There were three large reasons listed that then provided even more specific sub-reasons underneath. These three included: “having a baby would dramatically change my life,” “can’t afford a baby now,” and “don’t want to be a single mother or having relationship problems” (Finer et al., 2005, p. 113). Under “having a baby would dramatically change my life,” the sub-reasons for why it would do so were because it would interfere with the patient’s education and/or career, and/or because she already had other dependents in her life (Finer et al., 2005, p. 113). Under “can’t afford a baby now,” a few sub-reasons for lack of funds were because the woman was unemployed, could not leave her job to care for the child, and/or could not even afford the basic necessities of life (Finer et al., 2005, p. 113). Under “don’t want to be a single mother or having relationship problems,” a couple sub-reasons were because the woman was unsure about her current relationship, or because she was not in a relationship at the moment (Finer et al., 2005, p. 113). After the breakdown of these three large reasons, there were various others listed, including: “have completed my childbearing,” “don’t want people to know I had sex,” “don’t feel mature enough to raise a child,” “victim of rape,” and “result of incest” (Finer et al., 2005, p. 113). Finally, the questionnaire provided a space where the woman could write in her own reasons that were not listed or did not qualify within the given categories. The results showed that most women identified with reasons that fell within the three large ones, with 74% of respondents feeling that “having a baby would dramatically change [their] life,” 73% saying they “[could not] afford a baby [at the moment],” and 48% “[citing] relationship problems or a desire to avoid single motherhood” (Finer et al., 2005, p. 113). This study provided many possible reasons as to why a woman may seek an abortion.

In 2013, a similar study was published by BioMed Central Women’s Health that examined the reasons why women get abortions. This study looked at the data collected during the Turnaway Study , which was done to evaluate “the health and socioeconomic consequences of receiving or being denied an abortion in the US” (Biggs et al., 2013, p. 1). Although the premise of the Turnaway Study was not to focus on the reasons why women wanted an abortion, those who participated were required to give their reasoning. This 2013 study took those women’s answers and analyzed them. The sample for this study was “954 women from 30 abortion facilities across the US,” who were questioned between 2008 and 2010 (Biggs et al., 2013, p. 1). Many of the reason’s women mentioned in this study overlapped with those given during the 2004 study, falling under the general concepts of financial instability, partner-related issues, and inconvenient timing. However, some women delved into other reasons motivating their decision. Out of all the respondents, 12% had health-related reasons regarding either herself, the fetus, or both. One woman explained that the medication she had been taking for her bipolar disorder was known to cause birth defects and felt it would be considered child abuse to bring a baby into the world knowing that it may have life-altering defects. Five percent of respondents mentioned reasons that included family members. One woman was scared her family would not accept that she would be having a biracial child, while another stated that her dad wanted her to finish school before having a child (Biggs et al., 2013, pp. 7–8). The 2013 study differed from the 2004 study in the fact that the women were only given open ended questions to answer, rather than checking off possible reasons from a provided list. This emphasis on personal words helped yield answers that reflected how each woman’s reasoning is specific to her own life and situation.

It is important to note that every woman and situation is different. While these studies show a plethora of reasons why women decide to get abortions, the circumstances surrounding every single abortion are personal to the individual(s) involved. The range of reasons can include physical and mental health issues, economic needs, and/or fear of social stigma.  

Potential Physical, Sociological, and Psychological Effects of Abortions

A hypothetical woman who wanted an abortion did it. She jumped through all the hoops: she was granted the fundamental right to receive one by the federal government, came to the educated and reasonable decision that she wanted one, overcame any legal barriers her state instituted on the matter, and was able to get the abortion she sought out to get. Now what? Does the life-altering procedure she just underwent truly alter her life? Or does she return to her regular weekly schedule, viewing the abortion as a minor inconvenience in her life?

The general consensus on this matter is contradicting. When speaking about physical, sociological, and psychological health, some research states that there are no effects on women who receive an abortion, while other research state that they are indeed affected. That is because “both opponents and advocates could easily prove their case by picking and choosing from a wide range of contradictory evidence” (Arthur, 1997, p. 7).  

Physical Effects

After receiving an abortion, there is research concluding that women may suffer from possible physical health effects in the future. The effects that will be discussed below are increased risk of breast cancer and future reproductive health issues.

Breast Cancer

One health risk that has been linked to abortion is an increased risk to breast cancer. According to biologist and endocrinologist Joel Brind, Ph.D., as stated in an article published in Human Life Review :

Breast lobules, which are the lactational apparatus of the breast, remain in their immature Type 1 and 2 states unless they are stimulated by a pregnancy. The pregnancy signals the mother’s body to send estrogen (a potential carcinogen) to her breasts, and the lobules begin to multiply. This multiplication continues until the thirty-second week of pregnancy, when the milk cells are fully mature. If a woman has an abortion or delivers prematurely before the thirty-second week, cancer is more likely to develop in the immature cells. Mature milk cells are much less prone to becoming cancerous (Adamek, 2017, p. 28).

Many other health professionals agree upon this statement and have offered further medical information. One comprehensive review that looked at the link between breast cancer and induced abortion stated that “it is only after 32 weeks’ gestation that elevated levels of pregnancy hormones allow sufficient maturation of cancer-resistant breast tissue to occur” (Lanfranchi & Fagan, 2014, p. 5).  After carrying a pregnancy to full-term, “only about 10 to 30 percent of a mother’s breast tissue remains susceptible to forming cancer,” and this risk decreases another 10 percent with each subsequent pregnancy (Lanfranchi & Fagan, 2014, p. 6).

Future Reproductive Health

Another physical health risk that has been linked to abortion is the risk of future reproductive health issues. Although occurring in less than 1% of cases, after an abortion, there is a possibility that a woman can develop an upper genital tract infection. The upper genital tract involves the pelvis and fallopian tubes, which are important parts of a woman’s reproductive system. Serious infections can cause major issues to these, including chronic pelvic pain and damage to the fallopian tubes. This damage can consequentially lead to future issues, such as infertility and ectopic pregnancy (Boston Women’s Health Book Collective, 2011, p. 318; Lohr et al., 2014, p. 4).

Physical Health: Opposing Views

Despite these statements, there have been dissenting opinions on the idea that induced abortions and breast cancer are linked. “In February 2003, the National Cancer Institute (NCI) convened a workshop of over 100 of the world’s leading experts who study pregnancy and breast cancer risk” (National Cancer Institute, 2003). The conclusion of this workshop was that having an abortion “does not increase a woman’s subsequent risk of developing breast cancer” (National Cancer Institute, 2003). The NCI is a part of the National Institutes of Health under the United States Department of Health and Human Services, and states on the website homepage that it is “the nation’s leader in cancer research.” Due to the fact that it is an organization under the federal government, one can assume that the research they publish is trustworthy. This disagreement upon health professionals makes it hard for women to know the true risk. The scientific facts of the development of breasts points to a clear correlation between abortion and breast cancer, but the highly respected National Cancer Institute dissents from that idea. Similarly, in regard to the possible development of an upper genital tract infection, it is difficult for women to measure the possible risk. The fact that it happens in only 1% of cases is promising, but women are left unsure of whether or not they will end up falling into that small percentage until they actually undergo the abortion procedure.

Sociological Effects

Social Norms and Stigmas

Within every society, there are certain human behaviors that become normalized over time. These behaviors, also known as “social norms,” can include essentially anything about a person, such as how they speak or dress, their mannerisms, or traits of their personality. A stigma can be described as “an attribute that is deeply discrediting that negatively changes the identity of an individual to a tainted, discounted one” (Kumar et al., 2009, p. 626). Stigmas are created and reproduced through a social process. In a 2001 Annual Review of Sociology , Link and Phelan describe this process:

In the first component, people distinguish and label human differences. In the second, dominant cultural beliefs link labelled persons to undesirable characteristics – to negative stereotypes. In the third, labelled persons are placed in distinct categories so as to accomplish some degree of separation of ‘us’ from ‘them’. In the fourth, labelled persons experience status loss and discrimination that lead to unequal outcomes (2001, p. 367).

Throughout history, worldwide, societies have constructed and enforced stereotypical social norms on women as a whole. Some of the most widely held stereotypes are based around the fact that women bear children. Female sexuality can be seen “solely for procreation,” and becoming a mother viewed as being natural and inevitable (Kumar et al., 2009, p. 628). Due to this, societal norms may expect women to be instinctually warm, kind, caring, and nurturing. Therefore, when a woman wishes to end a pregnancy by receiving an abortion, she is challenging these “assumptions about the ‘essential nature’ of women” by using “her agency to deem a potential life unwanted and then [acting] to end that potential life” (Kumar et al., 2009, p. 628). By terminating a fetus, which would eventually develop into a baby, a woman getting an abortion deviates from the assumption that she should be naturally maternal. Instead, she may be labelled with opposite stereotypes, seen as being heartless, promiscuous, and/or selfish. Consequentially, for those who accept these social norms about women, abortion can be seen as a stigmatized act (Kumar et al., 2009, pp. 628–629).

Stigma Causes Underreporting, Which Perpetuates Further Stigma

Over the past several decades, surveys have been an essential way for researchers to gather data on topics they are studying. However, “the usefulness of surveys in studying highly personal or sensitive individual characteristics” has been questioned (Jagannathan, 2001, p. 1825). This may include topics that involve things that are typically regarded as private matters, such as mental health, income, and/or sexual behavior. Personal topics like these can easily have some type of stigma attached to them if a person deviates from any type of social norm within the matter. Survey data involving these topics may be inaccurate if people refuse to participate, even if they are affected by the topic, in fear of being a social deviant. As previously mentioned, abortion is a controversial issue in society that has been stigmatized. Therefore, women who have gotten abortions may feel a social pressure to stay silent, making “it challenging to know the true prevalence of abortion in a given community” (Kumar et al., 2009, p. 629). Studies that have specifically looked at the underreporting of abortions have stated that “only 35% to 60% of abortions are reported in surveys” (Jagannathan, 2001, p. 1825). The social construction of deviance in regard to abortion creates an ongoing cycle of silence about the topic. This cycle is demonstrated in the following chart, provided by Kumar (2009, p. 629):

Figure 2: Cycle of Stigmatization in Society

This chart shows how “silence and fear of social exclusion keeps women” from speaking openly about abortion, “thus sustaining the negative stereotype” (Kumar et al., 2009, p. 630). Underreporting of the issue makes it seem uncommon, which makes it a deviant from social norms. Those who do not behave in accordance with social norms are typically outcasted or discriminated against, making women who get abortions fear stigmatization and not report it, consequentially creating inaccurate data due to underreporting. This then brings the issue back to the beginning of the cycle (Kumar et al., 2009, pp. 629–630).

Psychological Effects

Similar to the physical health effects linked with abortion, the idea that there are mental health consequences after receiving the procedure is a topic of controversy. However, the issue with psychological compared to physical is the fact that every individual is different, and every mind works in unique ways. Physical effects are a matter of science and fact, while psychological effects rely on the unpredictability of the human brain. There is research concluding that after receiving an abortion, women may suffer from possible mental health effects. The effects that will be discussed below are “post-abortion syndrome,” anxiety/panic disorders, and depression.

Post-Abortion Syndrome

The largest source of controversy within the discussion of abortion and possible mental health effects stems from the concept of “post-abortion syndrome.” The idea behind this syndrome is that abortion can cause women “severe and long-lasting guilt, depression, rage, and social and sexual dysfunction,” and can be categorized under post-traumatic-stress-disorder (Arthur, 1997, p. 7). However, this so-called syndrome is “not recognized in the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association” (Robinson et al., 2009, p. 269).  

Anxiety/Panic Disorders and Depression

Over the years, studies have been done that concur with the idea that abortion is linked to post-abortion syndrome and further mental health problems. Research has stated that most panic disorders in adults form in the six months following a major stressful life event. Therefore, if women view the abortion they received as a traumatic life event, it “may trigger a psychological .. process that culminates in an anxiety disorder” (Coleman et al., 2009, p. 775). Aside from anxiety disorders, a 2009 study found:

Women who have aborted are at a higher risk for a variety of mental health problems including anxiety (panic attacks, panic disorder, agoraphobia, PTSD), mood (bipolar disorder, major depression with and without hierarchy), and substance abuse disorders when compared to women without a history of abortion (Coleman et al., 2009, p. 775).

When looking specifically at anxiety and depression, the study found that among women who had abortions, the risk for panic disorders increased by 111%, and the risk for depression increased by 45% (Coleman et al., 2009, p. 773).

Furthermore, in 2011, “a comprehensive review and analysis of 22 of the world’s best large studies of abortion’s impact on women’s mental health” concluded that “women who had undergone an abortion experienced an 81 percent greater risk of mental health problems” (Adamek, 2017, p. 32).

Psychological Effects: Opposing Views

Despite the studies claiming that women who get abortions are at a higher risk for mental health issues, there is also research that opposes this view.

One study examined 442 women over a two-year period to assess their mental health after receiving an abortion. Those who participated were evaluated one hour before the abortion, and then one hour, one month, and two years after. The study assessed the women for “preabortion and postabortion depression and self-esteem, postabortion emotions, decision satisfaction, perceived harm and benefit, and posttraumatic stress disorder.” The results concluded that two years after receiving their abortion, 72% of the women were satisfied with the decision they made, and 69% would make the same decision again. From pre-abortion to post-abortion, depression decreased, self-esteem increased, and some women reported feeling a sense of relief more than any negative emotions (Major et al., 2000). Further research has agreed with this, stating that “although there may be sensations of regret, sadness, or guilt,” more frequently, women “report feeling relief and happiness” following their abortion (Adler et al., 1990, p. 41). It is important to note that “feelings” do not translate into true psychological issues. For example, a woman may feel a sense of sadness following the procedure, but that does not imply she is clinically depressed.

Link Between Socio- and Psycho-

When looking at whether abortion has a psychological effect on women, it is important to note the intersectionality between sociology and psychology. As discussed above, culturally developed societal norms and stigmas influence individuals to behave and think certain ways. Therefore, the way abortion is socially accepted within a certain group may have an impact on the psychological effects a woman experiences after getting the procedure. If a woman belongs to a community where there are stereotypes put on women, and stigma surrounding abortion, she may have a poor view of herself afterwards. “Women may feel that they are selfish or immoral because they perceive themselves to be defying familial expectations, cultural norms or ideas of motherhood” (Kumar et al., 2009, p. 633). In comparison, if women are part of a community that shows support for their personal decision, they “may experience less grief and anxiety than those who were unsupported by their communities or the larger environment” (Kumar et al., 2009, p. 632). This interrelationship shows how important it is to be socially accepted within society, and how being outcasted may cause real psychological issues within human beings.

Trauma from Unwanted Pregnancy

When looking at the possible realness of “post-abortion syndrome,” it is essential to look more deeply at the root of the issue. This syndrome claims that abortion is an event so traumatic that it may lead to serious psychological effects for women. However, this poses the question: is the abortion the traumatic life event triggering psychological issues, or is it the unwanted pregnancy?

In 2008, the American Psychological Association’s Task Force on Mental Health and Abortion published a report that “concluded ‘that among women who have a single, legal, first-trimester abortion of an unplanned pregnancy … the relative risks of mental health problems are no greater than risks among women who deliver an unplanned pregnancy” (Kaplan, 2009). Furthermore, one study concluded that abortion patients who “had no intention to become pregnant” were significantly less depressed than women whose pregnancy was wanted and “viewed as personally meaningful by the woman” (Adler et al., 1990, p. 42). These research findings indicate the possibility that it is the unplanned/unwanted pregnancy that raises the risk of psychological issues, rather than the actual abortion.  

Abortion is Not Always an Option

Making the choice to get an abortion is a huge decision. Women are forced to decide whether they want to alter their lives by going through pregnancy and bringing a child into the world, or if they want to terminate the fetus and risk the possible side effects. However, for some women, the burden of this choice is not the only difficult part about the situation. Depending on circumstances, even if a woman wants to get an abortion, the likelihood of getting one may be close to impossible. As discussed above, states have been able to pass statutes within their borders that make it difficult for a woman to get an abortion. These legislative barriers include zoning laws, mandatory counseling, waiting periods, and minor consent or notification. On top of these legal obstacles put in place by the state, there may be additional conditions that cause prevention of the procedure. Two large circumstances that may play into a woman’s decision are her geographical location and her financial situation.

Reasons Why Women May Not Be Able to Get an Abortion

Zoning laws and access to abortion providers  .

One large obstacle for women who wish to receive an abortion is the ability to access a provider. As discussed above, some local governments attempt to block abortion providers from residing in an area by using zoning laws, applicable under the police powers given to each state. The use of these zoning ordinances to limit providers can make it extremely difficult for women who want to get an abortion to be able to find a place to receive the procedure within a reasonable geographical range.

A couple current examples of the use of these zoning laws to limit access to abortion providers can be seen in Manassas, Virginia, and San Antonio, Texas. In 2015, both the city’s made amendments to their zoning codes that consequentially affected the access to abortion providers.

In Manassas, Virginia, the amendment “[requires] medical care facilities, including abortion clinics, to obtain a special use permit that would be granted only after a period of public comment and City Council approval.” This means that any new clinics trying to open in Manassas would need to obtain the permit, as well as any current clinics that want to relocate or make expanding renovations. Due to the fact that the city’s council is predominantly Republican, the need for their approval may cause a possible barrier for abortion providers (Stein, 2015).

In San Antonio, Texas, a bill was passed in 2013 that required “all facilities that provide abortion services [to] meet the standards of an [ambulatory surgical center] in order to remain in operation.” Then, in 2015, a zoning code amendment was passed that put restrictions on where these centers can be built. Under the new amendment, ASC’s cannot be built in C-1 areas – a level of classified area for commercial use – “without permission from the Zoning Committee and the City Council, both of which will then have to vote on each individual case.” Similar to the amendment made in Manassas, Virginia, these San Antonio zoning laws “effectively [target] any future abortion providers in the city (Cato, 2015).

Access to Abortion Providers

“Most abortions are provided by freestanding clinics,” and “fewer than 5 percent of abortions are performed in hospitals” (Boston Women’s Health Book Collective, 2011, p. 317). As of 2008, only 610 hospitals in the US perform abortions, and 87% of counties do not have an abortion provider. This means that for the women who want an abortion but do not live in that small thirteen-percent that have providers, they must travel outside of their local community to get one. Large organizations such as Planned Parenthood and The National Abortion Federation provide resources for women to help find the closest abortion providers (Boston Women’s Health Book Collective, 2011, pp. 317–318).

Financial Situation and Cost of Abortion

Just like anything in life, the abortion procedure has a cost. According to Planned Parenthood, an abortion can cost anywhere between zero and almost a thousand dollars. Whether it is performed in a clinic or hospital, and is paid for by the patient, insurance, or government funding, someone is paying for it in the end. However, the price tag of the procedure is not one-size-fits-all. The cost of an abortion varies on many factors, including where the procedure is taking place or how far along a woman’s pregnancy is.

Another factor is the type of abortion a woman decides to get, as discussed above. Due to the fact that these abortions include various differences: where they take place (home vs. doctor’s office), what is used (medication vs. instruments), and follow-up care, the cost of the type a woman gets may vary. Further, if a woman has to get an aspiration abortion after the failure of a medication abortion, she is forced to pay for both.

A few final factors that involve the cost of an abortion are whether or not a woman has health insurance and her overall financial situation, which will be further discussed below (Emily @ Planned Parenthood, 2014).

Cost of Abortion: Health Insurance, Income, and Funding

A large factor that plays into the cost of the procedure is whether or not the patient has health insurance. This factor is different from the rest because it does not determine the actual cost of the procedure, but rather how the procedure will be paid for. If she does have health insurance, it may cover some or all of the costs of the abortion. The patient must call her insurance provider to find out about her coverage. If she does not have health insurance, or chooses not to use it to maintain privacy, the patient must pay out of pocket (Emily @ Planned Parenthood, 2014). Depending on her income and/or financial situation, this factor may be debilitating to the woman seeking the abortion and completely prevent her ability to get one. Simply put, if you cannot pay for a service, you cannot receive a service.

One source, The National Network of Abortion Funds, provides a website where women can search their location and find different organizations that may help them with the costs of their abortion (Boston Women’s Health Book Collective, 2011, p. 320). On the “About” page of their website, the NNAF states that some of their member organizations “work with clinics to help pay for [women’s] abortions[s].” Other member organizations offer to help with different factors that may cost the woman, such as childcare, transportation, and/or a place to stay if they had to travel for the abortion ( About: What are Abortion Funds , n.d.).

In some states, the government may offer financial assistance to women through “Medicaid programs [that] use state funds to provide abortion coverage.” However, “twenty state Medicaid programs do not fund abortion under any circumstances.” As mentioned above, the Hyde Amendment prohibits state Medicaid programs to use federal funds to help pay for abortions. This barrier contributes to a lack of funding, which in turn hurts poor women who are desperately searching for a way to pay for the procedure (Boston Women’s Health Book Collective, 2011, pp. 341–342).

Furthermore, if the domestic gag rule takes effect, this will affect the range of choices for women without other health insurance. As discussed above, the Trump Administration announced in February 2019 “that it will bar organizations that provide abortion referrals from receiving federal family planning money” (Belluck, 2019). This gag rule affects places such as Planned Parenthood, which provides many reproductive health services to women who cannot afford health insurance.

Relation Between Geographical Location and Financial Situation

Individually, the possible geographical and financial obstacles of receiving an abortion are difficult to deal with. However, for some women, the issues may intersect. Take for example a woman who is financially struggling and must travel over 30 miles to reach the nearest clinic that performs abortions. Not only must this woman travel a far distance to undergo the procedure, but she is also forced to worry about all the costs associated with it. First, there is the cost of the actual abortion. Then, there are the travel costs to get to the clinic and back home, whether it be gas money or public transportation fees. If she has children and does not want to bring them with her, there is the possible cost of childcare while absent. If her state has a mandatory waiting period, she is forced to pay these transportation and childcare fees a second time when going back to the clinic to get the procedure. If she gets a medication abortion and requires a follow-up appointment a week later, she has to pay them a third time. On top of all of this, there is the cost of her time. The time it takes for her to travel the far distance, possibly multiple times, is time she could have spent at her job making the money she desperately needs.  

Physical, Sociological, and Psychological Effects on Women Denied Abortions

For women who seek an abortion but cannot receive one due to factors mentioned above, there may be certain physical, sociological, and/or psychological effects.

For women who are unable to get an abortion, the physical effect is obvious: pregnancy. If cannot abort the fetus inside of her, she is forced to continue the pregnancy, and carry the child inside of her until it is delivered. According to a website powered by the American Academy of Family Physicians, being pregnant comes with many physical effects. These effects include, but are not limited to, tiredness, nausea, frequent urination, lightheadedness, heartburn, and vaginal discharge and bleeding ( Changes in Your Body During Pregnancy , 2009). Two of the largest, and most obvious, physical changes with pregnancy are belly and breast growth. As the fetus develops into a fully functioning baby, it grows, causing a woman’s uterus and belly to grow in size as well. Breasts also physically change during pregnancy to allow a woman to breastfeed her child once born, as discussed earlier.

Episiotomies

In addition to pregnancy, the actual delivery of a child may bear its own physical effects on a woman’s body. One of the most common of these effects is the use of an episiotomy during childbirth. “An episiotomy is a surgical enlargement of the vagina by means of an incision in the perineum, the skin and muscles between the rectum and vagina.” This is done “as the baby’s head is crowning,” in order to “enlarge the vagina so that forceps [can] be inserted high into the pelvis, thereby assisting in the birth of the baby.” Aside from the physical incision made to the body, episiotomies may lead to further physical effects, such as postpartum pain, infection at the site of the incision, problems with having intercourse, and vaginal swelling. One article published in 1995 stated that “The American College of Obstetricians and Gynecologists (ACOG) estimates that as many as 90 percent of women giving birth to their first child in a hospital will have an episiotomy.” Although this number may have changed throughout the years, this statistic shows how significant episiotomies have been within the last twenty years (Griffin, 1995).  

Financial Instability

One factor that may motivate a woman to seek an abortion is her current financial situation. In a 2004 study discussed above, 73% of participants listed “can’t afford a baby now” as their reason for abortion, with sub-reasons including that the woman was unemployed, could not leave her job to care for the child, and/or could not even afford the basic necessities of life (Finer et al., 2005, p. 113). While many women identify with these reasons, not all are able to receive the abortion they want. In these cases, the intense burden of financial instability becomes a possible reality, with the newly added cost of raising a child. While there is the option of giving the child up for adoption, that is not the right choice for every woman.

One study published in 2018 looked at the socioeconomic outcomes of women who were denied wanted abortions compared to women who were able to get them. Similar to the study discussed earlier, done by BioMed Central Women’s Health, this study looked at data collected during the Turnaway Study . After analyzing the collected data, it was determined that women who were unable to get the abortion they sought were more likely to “experience economic hardship and insecurity lasting years” (Foster et al., 2018, p. 407). More specifically, compared to women who were able to receive a wanted abortion, women who were unable were “more likely to be in poverty for 4 years after denial,” and “less likely to be employed full time” six months after denial (Foster et al., 2018, p. 407). These results are an example of how following through with an unintended pregnancy as a result of being unable to receive an abortion can have a negative sociological impact a woman, pushing them into severe financial struggle.

Welfare Stigma

As discussed earlier, when something deviates from the widely accepted social norms and stereotypes within society, it is stigmatized, creating further stereotypes. One of the generally accepted ideas about America is that it is a land full of equal opportunity for everyone. “Most Americans believe that anyone can succeed [through] hard work, and that those at the bottom of the social heap have not tried enough to make it.” Due to this, being impoverished and receiving help from public assistance programs has become a stigmatized act. This is especially true in the case of women who face financial struggles as a result of unintended pregnancy. People who are impoverished due to a physical or mental disability are less stigmatized than those whose financial dependency on the government results from something that is perceived as a “personal failure, such as [being an] unwed mother.” These stigmas further perpetuate stereotypes on poor people and women as whole groups (Goodban, 1985, pp. 403–404).

One study aimed to further examine this social stigma, interviewing one hundred black single mothers who were getting assistance from public programs. The women were asked a variety of questions about being on welfare, such as why they were on it and their feelings surrounding it. Many of the women “believed that they were on welfare for temporary, uncontrollable reasons having to do with their situation, rather than personal characteristics.” Out of the one hundred women, “sixty-one said they were sometimes ashamed of their welfare status” (Goodban, 1985, pp. 414–418). The results of this study exemplify the severity of stigma and stereotypes within society.

Psychological Effects  

Postpartum Depression

One of the most well-known psychological effects of giving birth to a child is postpartum depression. This form of depression is experienced by women in “the postpartum period, which is increasingly viewed as up to 1 year after childbirth” (O’Hara, 2009, p. 1258). Furthermore, women who give birth to a child resulting from an unintended pregnancy have a possible higher risk of developing postpartum depression compared to women who gave birth to a child that was planned and wanted. One study in North Carolina analyzed a group of 550 women who were 12 months postpartum for the possibility of depression. This group included a mixture of women whose pregnancies were intended (64%) and women whose pregnancies were unintended (36%). The results concluded that “depression was more common among women with unintended pregnancy [12%] than women with intended pregnancy [3%]” (Mercier et al., 2013, pp. 1116–1118). Although every individual is different, the possibility of developing postpartum depression is a real consequence that may affect women who give birth to a child. These results imply that this fact may be especially true for women whose pregnancies were unwanted and/or unintended, which can include women who wanted to get an abortion but were unable to. Postpartum depression has also been linked to further psychological, such as suicidal ideation and self-harm (Coker et al., 2017).

When looking at whether being unable to get an abortion has a psychological effect on women, it is important to note the intersectionality between sociology and psychology. Social norms and stereotypes within society can cause people to become outcasted if they do not act in accordance.

As discussed above, being impoverished and receiving help from government programs is stigmatized in American society. In the study that examined one hundred black single mothers on welfare, over half of the participants admitted to sometimes being ashamed of their status. This shame stemmed from the feeling that “they could not seem to succeed no matter how hard they tried, and [were] stigmatized by a society that devalues the poor.” Consequentially, this shame and guilt resulted in a handful of the participants experiencing low self-esteem (Goodban, 1985, p. 418). All of these feelings circle back to the socially normative belief in America that poor people do not work hard and accept government handouts, and that is why they are poor. Aside from guilt and low self-esteem, low socioeconomic status has also been linked as a risk factor for postpartum depression in women who gave birth (O’Hara, 2009, p. 1261).

When comparing women who receive a wanted abortion to women who do not receive a wanted abortion, it is important to note that both may suffer from physical, sociological, and psychological effects. A summary of the effects that were discussed can be found below.

Figure 3: Possible Effects of Receiving and Not Receiving a Wanted Abortion

IV. Conclusion

Abortion is an issue that has been relevant for over two hundred years. Before and during most of the 1800s, certain abortions were legal, and not uncommon. However, a woman was only allowed to seek an abortion before “quickening,” which was when she could feel the fetus moving. Before this, a fetus was not equivalated with a human life. Women who wished to abort their fetus were given certain drugs that would induce the process, and if those failed, a woman could visit a medical practitioner to remove the fetus.

Although abortions done before quickening were legal, they were not an entirely safe practice, and often ended in women dying. As a result, in the 1820s-40s, states began passing various laws in an attempt to control the procedure, which included outlawing the abortion inducing drugs (Connecticut, Missouri, and Illinois), the instruments used in the procedure (Missouri), or the actual procedure itself (Maine).

Within the late 1840s-50s, the American Medical Association was founded and began a crusade against abortion, headed by Dr. Horatio Storer. The Association, made up of licensed physicians, aimed to tarnish society’s view of abortion by painting it as a dangerous and immoral procedure. This anti-abortion movement gained traction, and the social shift towards the nonacceptance of abortion began to reflect in state laws. Beginning in the 1860s, states began passing legislation to criminalize the procedure of abortion and continued to do so throughout the early-to-mid-1900s.

In 1873, Congress went even deeper into the issue of women’s reproductive health and outlawed the importation and distribution of any information or drug that aimed to prevent conception with the passing of the Comstock Law. However, with much help from the feminist movements fighting for contraception, this was later declared unconstitutional by the Supreme Court in Griswold v. Connecticut in 1965 (married persons), and then Eisenstadt v. Baird in 1972 ( single persons).

In 1973, the Supreme Court struck down all state laws criminalizing abortion with the landmark case of Roe v. Wade , which made the procedure federally legal. Despite seeming like a victory for reproductive health, this federal ruling only set a legislative basis for states. Within their own borders, states are responsible for the abortion statutes, and can create certain barriers making it hard for women to obtain an abortion. These barriers include zoning laws to limit the areas where abortion providers can reside, mandatory counseling and/or waiting periods for women who want an abortion, and parental consent or notification requirements for minors. These state barriers are all federally legal under the 1989 ruling of Planned Parenthood of Southeastern Pennsylvania v. Casey. Some states even went as far as to implement “trigger laws” that will automatically ban abortion if Roe v. Wade ever gets overturned.

On top of these state-by-state barriers, there are also federal barriers that prevent women easy access to an abortion. In 1976, the Hyde Amendment was passed to prevent federal funds from being used by state Medicaid programs to help low-income people get abortions, and it is still in effect today. When President Trump took office, he re-implemented a global “gag rule” that prevents any international non-governmental organizations that perform or promote abortion services from receiving funding from the United States Agency for International Development. In 2019, the Trump Administration implemented a “gag rule” within the US, barring organizations that provide abortion referrals from receiving federal funds. However, despite the possible attempts by state and federal law to limit a woman’s ability to get an abortion, the medical procedure is still performed across the nation.

In the end, each individual’s story is different. Your circumstances are different, your reasoning is different, your journey is different, and your aftermath is different. All of the research in the world cannot predict how a woman is going to be affected by either receiving an abortion or being unable to receive an abortion. The most common reasons and effects of these two situations can be summarized in the tables below.

Figure 4: Common Reasons Why a Woman May Want to Receive an Abortion vs. Common Reasons Why a Woman May Not Be Able to Receive an Abortion

Cases Cites :

Eisenstadt v. Baird , 405 U.S. 438 (1972).  

Griswold v. Connecticut , 381 U.S. 479 (1965).

Roe v. Wade , 410 U.S. 113 (1973)  

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[1] Christina San Fillipo is a Law and Society graduate of Ramapo College of New Jersey

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A Review of Exceptions in State Abortion Bans: Implications for the Provision of Abortion Services

Mabel Felix , Laurie Sobel , and Alina Salganicoff Published: Jun 06, 2024

• Issue Brief

Note: Originally published in May 2023, this brief has been updated and expanded to address ongoing litigation in many states that is underway to challenge exceptions laws.

Key Takeaways

Abortion is currently banned in 14 states and many other states have attempted to ban or severely restrict access to abortion. All of these bans have an exception to prevent the death of the pregnant person and some bans include other exceptions that fall into three categories: when there is risk to the health of the pregnant person, when the pregnancy is the result of rape or incest, and when there is a lethal fetal anomaly.

• In practice, health and life exceptions to bans have often proven to be unworkable, except in the most extreme circumstances, and have sometimes prevented physicians from practicing evidence-based medicine.
• Abortion bans and restrictions have led physicians to delay providing miscarriage management care. Many states allow for the removal of a dead fetus or embryo, but pregnant people who are actively miscarrying may be denied care if there is still detectable fetal cardiac activity or until the miscarriage puts the life of the pregnant person in jeopardy.
• Mental health exceptions are rare despite the fact that 20% of pregnancy-related deaths are attributable to mental health conditions.
• Law enforcement involvement is often required to document rape and incest, which often prevents survivors from accessing abortion care. Furthermore, survivors in states where abortion care is restricted can have difficulty finding an abortion provider.
• In many states there is more than one abortion ban in the books, and in some of those states, the exception provisions in the bans are often at odds with each other. These multiple bans and varying exceptions create confusion among patients and providers.

Introduction

Since the Supreme Court’s Dobbs decision overturned Roe v. Wade , state abortion bans and the exceptions they contain – or lack – have garnered significant attention. The Supreme Court is considering a case this term about whether the Emergency Medical Treatment and Active Labor Act (EMTALA), a federal law requiring hospitals to provide stabilizing treatment to patients who present to their emergency rooms, preempts state abortion laws and requires hospitals to provide abortion care when it is necessary to stabilize a patient, even when the abortion does not qualify foris not including in an exception to the state’s abortion ban. Discussions about exceptions to state abortion bans often obscure the reality that many of these exceptions can be unworkable in practice. There are reports of people being unable to obtain abortions, despite the fact that their pregnancies fall into these broad exception categories. While there is no accurate estimate of the number of people seeking abortion care in circumstances that qualify for an exception in states than ban abortion, the number of people who have received abortion care post- Dobbs in states that have banned abortion is very low .  Many of the exceptions included in these bans use definitions that are vague, narrow, and non-clinical, and effectively remove the ability of health care providers to best manage the care of pregnant people, instead leaving that decision to the state or the clinician’s home institution. Further complicating matters, several states have multiple bans in effect, often with contradicting definitions, requirements, exceptions, and standards, creating ambiguity for clinicians and their patients. This brief analyzes the exceptions to abortion bans and discusses how their purported aims to provide life-saving care may not be achieved in practice.

What kinds of exceptions do abortion bans contain?

To prevent the death of the pregnant person.

All state abortion bans currently in effect contain exceptions to “prevent the death” or “preserve the life” of the pregnant person. As explained in further detail in the section below, these exceptions may create difficulties for physicians, as it is unclear how much risk of death or how close to death a pregnant patient may need to be for the exception to apply and the determination is not up to the physician treating the pregnant patient.

When there is risk to the health of the pregnant person

Most states with bans that contain a health exception permit abortion care when there is a serious risk of substantial and irreversible impairment of a major bodily function. These exceptions are limited by the lack of specific clinical definitions of the conditions qualifying for the exception. Only the Arizona 15-week LMP (last menstrual period) limit explicitly defines the bodily functions that may be considered “major.”  The other states that use this language in their bans do not define what constitutes a “major bodily function,” nor what constitutes a “substantial impairment” to a major bodily function. This vague language puts physicians providing care to pregnant people in a difficult situation should their patients need an abortion to treat a condition jeopardizing their health and can leave the determination of whether an abortion can be legally provided to lawyers for the institution in which the clinician practices. For instance, in South Carolina where the 6-week LMP abortion limit has a health exception, the law lists a couple of conditions that may fall under this exception, such as severe pre-eclampsia and uterine rupture, but with no further detail. Using this language as guidance, it would be difficult for physicians to know if a significant health issue would fall under the exception. The difficulties presented by the simultaneous vagueness and narrowness of the exceptions are exacerbated by the lack of deference given to clinicians’ medical judgment under these bans.

However, even if the terms in the exceptions were defined more clearly, they would still exclude many health conditions pregnant people face. In Georgia , for example, providers challenging the ban note that the exceptions do not permit abortion care when it is needed to prevent: “(1) substantial but reversible physical impairment of a major bodily function, (2) less than ‘substantial’ but irreversible physical impairment of a major bodily function, or (3) substantial and irreversible physical impairment of a bodily function that is not ‘major.’” A medical condition may still be a significant health event, yet not qualify under the exceptions, even if their limits were more clearly defined.

MENTAL HEALTH

Mental health conditions account for over 20% of pregnancy-related deaths  in the US, yet almost all states with health exceptions limit them to conditions affecting physical health, with some going further and explicitly precluding emotional or psychological health conditions. Alabama , the only state that includes mental health concerns in its health exception, requires a psychiatrist to diagnose the pregnant person with a “serious mental illness” and document it is likely the person will engage in behavior that could result in their death or the death of the fetus that due to their mental health condition. The law does not define “serious mental illness” and does not allow physicians to determine what serious mental illnesses qualify for the exception. In addition, abortion bans and restrictions in Georgia, Florida, Idaho, Iowa, Kentucky, Louisiana, Nebraska, North Carolina, North Dakota, South Carolina, Tennessee, West Virginia, and Wyoming explicitly exclude mental/emotional health. Several other states (Texas, Oklahoma, Mississippi, the remaining Kentucky ban, and one of Arkansas’ total bans) limit their life and/or health exceptions to physical conditions, without explicitly calling out mental/emotional health exceptions.

ECTOPIC PREGNANCIES AND MISCARRIAGES

Some states’ abortion laws specify that care for ectopic pregnancies and pregnancy loss is not criminalized in its statutes. Most states with these provisions in their bans allow for the removal of a dead fetus or embryo, but not for miscarriage care, generally. This means that pregnant people who are actively miscarrying may be denied care if there is still detectable fetal cardiac activity. There have already been reports of such situations in Texas and Louisiana . In Louisiana, for example, a pregnant woman went to the hospital after experiencing sharp pain and bleeding. She was informed her fetus had likely stopped growing a few weeks prior, as its size did not correspond to the length of her pregnancy, and that it had very faint cardiac activity. Despite the pain and the blood loss she was experiencing, she could not receive the regimen of mifepristone and misoprostol commonly prescribed to pregnant patients who are miscarrying to ensure that the pregnancy is safely expelled from the body completely in a timely manner, thereby decreasing the risk of sepsis and infection. Instead, she had to wait for the miscarriage to progress without medical intervention, which would have expedited the process and reduced her medical risk. In states where the abortion bans do not clarify that miscarriage care is not criminalized – even when there is still detectable cardiac activity – pregnant people may not be able to receive care to manage their pregnancy loss unless and until it becomes a medical emergency.

GREATER RISK TO THE HEALTH OF PREGNANT PEOPLE

In deciding whether or not to provide abortion care to preserve the health of a pregnant patient, physicians now face the risk of a jury or the state disagreeing with their judgment about the gravity of the health risk the pregnant person was experiencing, and as a result, face prison time, monetary fines, and loss of professional license. Before the Supreme Court’s decision in Dobbs , the decision to have an abortion pre-viability when facing a health risk was made by the pregnant person in consultation with medical professionals in consideration of the needs and overall health history of the pregnant patient. In states with abortion bans, when deciding whether or not to provide abortion care to preserve the health of a pregnant patient, physicians now face the risk of prosecution, prison time, monetary fines, and loss of professional license.

In state court challenges against the bans, providers have argued that the vagueness of the bans is unconstitutional, since it places them in a situation where it is unclear how they might follow the law. As a result, physicians may be more reluctant to provide abortion care when pregnant patients present with serious medical conditions and may deny abortion care to pregnant people with conditions that threaten their health until their condition deteriorates and the narrow exceptions inarguably apply. This delay in care, however, creates greater and avoidable risks to the health of the pregnant person. Additionally, many conditions that threaten the health of pregnant people are not included in all or most health exceptions.

The difficulties these bans and their unclear exceptions create may additionally deter physicians from practicing medicine in states that ban abortion. There have already been reports of physicians expressing reluctance or refusing to relocate to these states, as well as physicians leaving these states due to their restrictive laws and fewer medical school graduates applying for residencies in these states. A substantial portion of these states’ residents already live in maternity deserts – areas where there are no obstetric providers or birth centers – and studies have shown that maternal mortality rates are higher in states that restrict abortion. Physicians being deterred from practicing in states with restrictive abortion laws may exacerbate these disparities in access to obstetric care and health outcomes.

Zurawski v. State of Texas

Five women who were denied abortion care in Texas ­- despite facing dangerous pregnancy complications – and two OB-GYNs filed a lawsuit in Texas state court asking the court to clarify the scope of the medical emergency exceptions in the state’s three abortion bans. Plaintiffs specifically asked the court to clarify that:

• Physician judgment should be granted deference in measuring the risk the pregnant person is facing,
• Impairment of a “major bodily function” includes harm to fertility and the reproductive system,
• Acute risk does not have to be already present or imminent for the exceptions to apply, and
• Health exceptions apply in situations where treatment for a condition is unsafe during pregnancy and for fetal conditions and diagnoses that can increase the risk to a pregnant person’s health.

Plaintiffs argued the misapplication of the health exceptions violates state constitutional guarantees to fundamental and equal rights. In August 2023, a County District Court judge issued an order blocking enforcement of Texas’ ban in situations where, in a physician’s good faith judgment, an abortion is needed due to an emergent medical situation. An appeal from the state to the Texas Supreme Court automatically blocked the lower court’s order. On May 31, 2024, the Texas Supreme Court issued its decision in this case , stating that the state’s abortion ban only contains exceptions when, in a physician’s reasonable medical judgment, there is a life-threatening physical condition.

THE EMERGENCY MEDICAL TREATMENT AND ACTIVE LABOR ACT (EMTALA)

Enacted in 1986, the Emergency Medical Treatment and Active Labor Act (EMTALA) requires Medicare-enrolled hospitals to perform an appropriate medical screening examination to any patient who presents to their dedicated emergency department. If a patient is identified as having an emergency medical condition, the hospital must provide stabilizing treatment within the hospital’s capability or transfer the patient to another medical facility.

As states were starting to implement abortion bans after the Dobbs decision, in July 2022, the Department of Health and Human Services (HHS) issued guidance regarding the enforcement of EMTALA that clarifies hospitals and physicians have obligations to provide stabilizing care, including abortion in medically appropriate circumstances, when a patient presenting at an emergency department is experiencing an emergency medical condition.

After HHS issued this guidance, two lawsuits were filed. HHS sued the State of Idaho to block enforcement of Idaho’s abortion ban to the extent it conflicts with EMTALA, and the State of Texas sued to block enforcement of the HHS guidance in Texas. The Supreme Court is considering the case from Idaho and a decision is pending.

At stake in this case is whether EMTALA preempts state abortion laws and requires hospitals to provide abortion care when it is necessary to stabilize a patient’s condition, even when this abortion care violates state law. While all state abortion bans have an exception for pregnancies that jeopardize the life of a pregnant person, some do not have an exception that would allow an abortion to preserve the health of the pregnant person. Even in states with health exceptions, the exception might be very narrow and not well defined, leaving significant gaps in emergency medical care for pregnant people. EMTALA, however, requires hospitals to provide stabilizing care to patients with emergency medical conditions, including conditions that may harm their health. According to the HHS guidance issued in the wake of the Dobbs decision, EMTALA requires hospitals to provide abortion care to pregnant patients with emergency medical conditions when abortion is necessary to stabilize the patient’s condition. However, Idaho contends that EMTALA does not require hospitals to provide treatment that violates state law. The Court’s decision in this case could impact access to abortion in emergency situations across the country and potentially lay the foundation for future challenges involving state laws granting fetal personhood.

Exception vs. Affirmative Defense

Some state abortion bans lack exceptions but identify situations that may be used as an affirmative defense in court – among these are Tennessee’s 6-week LMP ban, Kentucky’s 15-week ban (but not the state’s earlier gestational bans), Texas’ total bans, and all of Missouri’s bans.  An “affirmative defense” allows someone charged with a crime to show in court that their conduct was permissible even though the action itself is illegal. An affirmative defense does not make it legal to provide abortion care in the situations delineated in the law and means that a clinician who provided abortion care is open to prosecution – regardless of the reason they provided an abortion – and would bear the burden of proof to demonstrate that they provided care according to the conditions delineated as possible affirmative defenses in the abortion ban. Bans that rely on an affirmative defense leave physicians more vulnerable to criminal prosecution and they make it even riskier for physicians to provide abortion care in situations where the life or health of the pregnant person is at risk.

Sexual Assault Exceptions

A few of the state abortion bans contain exceptions for pregnancies resulting from rape or incest, generally requiring that the sexual assault be reported to law enforcement. Some states allow for a Child Protective Services (CPS) report in lieu of a law enforcement report for minors who are survivors of sexual assault or incest.

It is well documented that survivors are often afraid to report sexual violence to the police due to fear of retaliation and the belief that law enforcement would not or could not do anything to help. It is estimated that only 21% of sexual assaults are reported to law enforcement. Even for survivors who do report to law enforcement, state abortion bans do not make clear exactly what information needs to be given to a provider to make it clear that the abortion would be legal in that state. Reporting requirements place barriers in the way of survivors seeking abortion care in these states.

Among the few sexual assault exceptions, some have specific gestational limits. For instance, the total ban currently in effect in West Virginia contains an exception for cases of rape or incest, but it is limited to 8 weeks from the last menstrual period (LMP) for adults and 14 weeks LMP for minors.

Although sexual assault exceptions are intended to protect survivors, experts agree that they rarely work. There is anecdotal evidence of survivors in states with rape exceptions and who have compiled the necessary documentation, but still not being able to access abortion because they couldn’t find any abortion providers in their state.

Hyde Amendment

The Hyde Amendment is a policy that restricts the use of federal funds to cover abortion, except in cases of rape or incest, or when the life of the pregnant person is endangered (Hyde Exceptions). The policy is not a permanent law, but rather has been attached as a temporary “rider” to the Congressional appropriations bill for the Department of Health and Human Services (HHS) and has been renewed annually by Congress. In the past, federal courts have interpreted the Hyde provisions to require states to pay for abortions that fall into the Hyde Exceptions and have blocked enforcement of state statutes that prohibit coverage for these cases. However, the enforceability of these requirements has been unclear since the Supreme Court’s decision in Dobbs . Although all bans currently in effect contain exceptions to safeguard the life of the pregnant person, most states with abortion bans do not have exceptions for cases of rape or incest, and therefore, would not allow for the provision or coverage of those services to Medicaid recipients, contrary to previous court orders. To date, no court or federal agency has issued orders or guidance on states’ obligation to provide coverage for Hyde Exceptions when their bans prohibit the provision of abortion in cases of rape or incest.

Lethal Fetal Anomaly Exceptions

Bans in several states contain exceptions for lethal fetal anomalies, usually limited to those anomalies that would result in the death of the baby at birth or soon after. As with health exceptions, lethal fetal anomaly exceptions are poorly defined and limited in statutes. The only state with this kind of exception that has a comprehensive list of conditions that fall under this category is Louisiana , but since the state has multiple abortion bans in effect (one of which does not include exceptions for fatal fetal anomalies), the applicability of this exception is still unclear. Other states, like Indiana , provide some general criteria, such as how long after birth the baby can be expected to live for a pregnancy to fall under the fetal anomaly. Any condition that would result in a life expectancy shorter than three months fits under the exception. The religious freedom lawsuit against the state’s ban – Anonymous Plaintiffs v. Medical Licensing Board of Indiana — specifically challenges the narrow limits of the exception, arguing that other common conditions, such as Tay-Sachs disease would result in the death very early in childhood.

What happens in states with more than one abortion ban in effect?

In many states there is more than one abortion ban in the books, and in some of those states, the exception provisions in the bans are at odds with each other. In Louisiana , two bans and a 15-week LMP limit are in effect, but only one of the total bans and the 15-week limit have the same exceptions; the remaining total ban does not. One of the total criminal bans in the state has exceptions to prevent the death or substantial risk of death, of the pregnant person and to prevent “serious, permanent impairment of a life-sustaining organ”. The state’s other total ban and the 15-week limit have exceptions for these same cases and additionally in cases of fatal fetal anomalies, and clarify that the bans’ prohibitions do not apply for ectopic pregnancies and miscarriages. The conflicting exceptions in the bans result in a situation where the only real exceptions in the state are for cases where an abortion is necessary to prevent the death of the pregnant person or to prevent serious, permanent impairment of a life-sustaining organ. Providing abortion care under any other exception in the states’ other total ban or 15-week limit would open physicians to criminal penalties and loss of license.

Mississippi is another state with multiple bans in effect that contain contradicting exceptions. The state’s total ban only has exceptions for cases when an abortion is necessary to preserve the life of the pregnant person or when the pregnancy was caused by rape (there is no exception for incest in the state). However, the state’s 15-week LMP ban contains exceptions for fatal fetal abnormalities and serious risk of substantial and irreversible impairment of a major bodily function, along with a life exception. In situations where there is more than one ban in effect, it might seem that the easiest way to follow the law would be to adhere to the abortion ban with the strictest gestational limit. This would not suffice in Mississippi, however, since the total ban contains an exception for pregnancies caused by rape, but the state’s 15-week LMP ban does not contain such an exception. Therefore, following any one of the state’s abortion bans would not remove the legal risk of providing abortion care in the state. Instead, providers must assess how the abortion bans and their exceptions work in conjunction.

Although a lot of attention has been devoted to debates about exceptions in abortion bans, many of these exceptions are not workable in practice. Outside of testimony from providers, it is difficult to assess how many people who qualify for abortion care under the exceptions are actually able to do so, since states underreport or do not report this information. However, it is apparent these bans create barriers to accessing abortion care, even in situations where the exceptions they outline should apply. Most importantly, these bans place the health and lives of pregnant people at risk by potentially preventing physicians from providing medically appropriate care. The Supreme Court’s decision in Idaho v. United States will determine whether EMTALA preempts state laws and requires hospitals to provide abortion care to stabilize pregnant patients when “necessary to assure that no material deterioration of the condition is likely to occur.” If the Court rules in favor of Idaho, the inability to provide evidence-based care may additionally make physicians reluctant to practice medicine in restrictive states, amplifying already-existing discrepancies in ability to access obstetric care and adverse maternal and fetal outcomes.

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One Week That Revealed the Struggles of the Anti-Abortion Movement

The movement looks for a path forward: “Is the goal the absolute abolition of abortion in our nation?”

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By Elizabeth Dias

Elizabeth Dias has reported on the anti-abortion movement for more than a decade and is the co-author of “The Fall of Roe: The Rise of a New America.”

The Southern Baptist Convention voted to condemn in vitro fertilization at its annual meeting in Indianapolis this week, over the objections of some members.

Conservative lawyers pushing to sharply restrict medication abortion lost a major case at the Supreme Court, after pursuing a strategy that many of their allies thought was an overreach.

Former president Donald J. Trump told Republicans in a closed-door meeting to stop talking about abortion bans limiting the procedure at certain numbers of weeks.

In one chaotic week, the anti-abortion movement showed how major players are pulling in various directions and struggling to find a clear path forward two years after their victory of overturning Roe v. Wade.

The divisions start at the most fundamental level of whether to even keep pushing to end abortion or to move on to other areas of reproductive health, like fertility treatments. A movement that once marched nearly in lock step finds itself mired in infighting and unable to settle on a basic agenda.

In some cases, hard-liners are seizing the reins, rejecting the incremental strategy that made their movement successful in overturning Roe. Other abortion opponents are backing away, sensing the political volatility of the moment.

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Princeton Legal Journal

The First Amendment and the Abortion Rights Debate

Sofia Cipriano

4 Prin.L.J.F. 12

Following Dobbs v. Jackson ’s (2022) reversal of Roe v. Wade (1973) — and the subsequent revocation of federal abortion protection — activists and scholars have begun to reconsider how to best ground abortion rights in the Constitution. In the past year, numerous Jewish rights groups have attempted to overturn state abortion bans by arguing that abortion rights are protected by various state constitutions’ free exercise clauses — and, by extension, the First Amendment of the U.S. Constitution. While reframing the abortion rights debate as a question of religious freedom is undoubtedly strategic, the Free Exercise Clause is not the only place to locate abortion rights: the Establishment Clause also warrants further investigation. 

Roe anchored abortion rights in the right to privacy — an unenumerated right with a long history of legal recognition. In various cases spanning the past two centuries, t he Supreme Court located the right to privacy in the First, Fourth, Fifth, Ninth, and Fourteenth Amendments . Roe classified abortion as a fundamental right protected by strict scrutiny, meaning that states could only regulate abortion in the face of a “compelling government interest” and must narrowly tailor legislation to that end. As such, Roe ’s trimester framework prevented states from placing burdens on abortion access in the first few months of pregnancy. After the fetus crosses the viability line — the point at which the fetus can survive outside the womb  — states could pass laws regulating abortion, as the Court found that   “the potentiality of human life”  constitutes a “compelling” interest. Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) later replaced strict scrutiny with the weaker “undue burden” standard, giving states greater leeway to restrict abortion access. Dobbs v. Jackson overturned both Roe and Casey , leaving abortion regulations up to individual states. 

While Roe constituted an essential step forward in terms of abortion rights, weaknesses in its argumentation made it more susceptible to attacks by skeptics of substantive due process. Roe argues that the unenumerated right to abortion is implied by the unenumerated right to privacy — a chain of logic which twice removes abortion rights from the Constitution’s language. Moreover, Roe’s trimester framework was unclear and flawed from the beginning, lacking substantial scientific rationale. As medicine becomes more and more advanced, the arbitrariness of the viability line has grown increasingly apparent.  

As abortion rights supporters have looked for alternative constitutional justifications for abortion rights, the First Amendment has become increasingly more visible. Certain religious groups — particularly Jewish groups — have argued that they have a right to abortion care. In Generation to Generation Inc v. Florida , a religious rights group argued that Florida’s abortion ban (HB 5) constituted a violation of the Florida State Constitution: “In Jewish law, abortion is required if necessary to protect the health, mental or physical well-being of the woman, or for many other reasons not permitted under the Act. As such, the Act prohibits Jewish women from practicing their faith free of government intrusion and thus violates their privacy rights and religious freedom.” Similar cases have arisen in Indiana and Texas. Absent constitutional protection of abortion rights, the Christian religious majorities in many states may unjustly impose their moral and ethical code on other groups, implying an unconstitutional religious hierarchy. 

Cases like Generation to Generation Inc v. Florida may also trigger heightened scrutiny status in higher courts; The Religious Freedom Restoration Act (1993) places strict scrutiny on cases which “burden any aspect of religious observance or practice.”

But framing the issue as one of Free Exercise does not interact with major objections to abortion rights. Anti-abortion advocates contend that abortion is tantamount to murder. An anti-abortion advocate may argue that just as religious rituals involving human sacrifice are illegal, so abortion ought to be illegal. Anti-abortion advocates may be able to argue that abortion bans hold up against strict scrutiny since “preserving potential life” constitutes a “compelling interest.”

The question of when life begins—which is fundamentally a moral and religious question—is both essential to the abortion debate and often ignored by left-leaning activists. For select Christian advocacy groups (as well as other anti-abortion groups) who believe that life begins at conception, abortion bans are a deeply moral issue. Abortion bans which operate under the logic that abortion is murder essentially legislate a definition of when life begins, which is problematic from a First Amendment perspective; the Establishment Clause of the First Amendment prevents the government from intervening in religious debates. While numerous legal thinkers have associated the abortion debate with the First Amendment, this argument has not been fully litigated. As an amicus brief filed in Dobbs by the Freedom From Religion Foundation, Center for Inquiry, and American Atheists  points out, anti-abortion rhetoric is explicitly religious: “There is hardly a secular veil to the religious intent and positions of individuals, churches, and state actors in their attempts to limit access to abortion.” Justice Stevens located a similar issue with anti-abortion rhetoric in his concurring opinion in Webster v. Reproductive Health Services (1989) , stating: “I am persuaded that the absence of any secular purpose for the legislative declarations that life begins at conception and that conception occurs at fertilization makes the relevant portion of the preamble invalid under the Establishment Clause of the First Amendment to the Federal Constitution.” Judges who justify their judicial decisions on abortion using similar rhetoric blur the line between church and state. 

Framing the abortion debate around religious freedom would thus address the two main categories of arguments made by anti-abortion activists: arguments centered around issues with substantive due process and moral objections to abortion. 

Conservatives may maintain, however, that legalizing abortion on the federal level is an Establishment Clause violation to begin with, since the government would essentially be imposing a federal position on abortion. Many anti-abortion advocates favor leaving abortion rights up to individual states. However, in the absence of recognized federal, constitutional protection of abortion rights, states will ban abortion. Protecting religious freedom of the individual is of the utmost importance  — the United States government must actively intervene in order to uphold the line between church and state. Protecting abortion rights would allow everyone in the United States to act in accordance with their own moral and religious perspectives on abortion. 

Reframing the abortion rights debate as a question of religious freedom is the most viable path forward. Anchoring abortion rights in the Establishment Clause would ensure Americans have the right to maintain their own personal and religious beliefs regarding the question of when life begins. In the short term, however, litigants could take advantage of Establishment Clauses in state constitutions. Yet, given the swing of the Court towards expanding religious freedom protections at the time of writing, Free Exercise arguments may prove better at securing citizens a right to an abortion. 

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• Environment

Fish, Toads, and John Eastman: Inside the Conservative Project to Undo Federal Environmental Laws

And how scotus could help it come to fruition..

Jackie Flynn Mogensen 16 hours ago

Mother Jones illustration; Randy Pench/Sacramento Bee/Getty; Rob Schumacher/The Arizona Republic/AP; Yuri Gripas/Abaca/Sipa/AP

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Among the most consequential decisions in the hands of the Supreme Court this term is a pair of lawsuits involving herring fishermen. On the surface, the nearly identical cases are simple disputes about fishing regulations. But they also have the potential to completely rejigger how federal agencies mediate everything from food and agriculture to taxes and air pollution—because they call into question one of the legal field’s most-cited legal precedents, a 40-year-old doctrine called “ Chevron deference.” Many conservatives have sought to kill the legal doctrine for over a decade. And within the chorus, one has sung with notable passion: John Eastman.

That’s the same John Eastman who, on January 6, 2021, stood at a podium in DC beside fellow Trump lawyer Rudy Giuliani and bellowed to an angry crowd that then–Vice President Mike Pence ought to halt the peaceful transfer of power. About three hours later , rioters breached the Capitol. It was also Eastman, documents show, who drafted the “ coup memos ,” which included a multistep plan for Pence to hand the election to Trump and declared the vice president the “ultimate arbiter” of elections. (Eastman is believed to be an unindicted co-conspirator in Trump’s federal indictment; he is also facing possible disbarment in California. He declined to comment on either situation.)

“Eastman has been part of a project to take down federal regulation for a long time.”

But before getting sucked into the gravitational force that is Donald Trump, Eastman, 64, was the sort of conservative legal figure whose name one might forget, a law professor with a cushy job and a chairmanship at a practice group of the conservative legal organization the Federalist Society. Like most academics, he had his obsessions. His writings, speeches, and media appearances over the last 40 years reveal a man who was constantly questioning federal authority and the administrative state. His writings suggest that he saw federal environmental laws as especially problematic. Applications of popular laws like the Clean Water Act and Endangered Species Act, he’s repeatedly argued , overstep the Constitution and the intentions of the country’s framers, who would have largely left environmental regulation to the states. As Eastman put it in a Supreme Court amicus brief last July , unchecked federal agencies pose a “threat” to the Constitution’s design of separation of powers. In that brief, he urged the court to “end the Chevron experiment.”

While Eastman’s views on the environment are extreme, legal scholars tell me, they aren’t exactly rare. He epitomizes the type of anti-regulatory, Federalist Society–bred legal mind you can expect to see elevated by Trump. “Eastman has been part of a project to take down federal regulation for a long time,” Andy Mergen, a clinical professor of environmental law at Harvard Law School, told me, “which is coming to fruition with these Chevron deference cases.” With the most conservative makeup we’ve seen in decades, the Supreme Court is poised to deliver on that project.

Oddly enough, the original 1984 case that inspired the Chevron deference, Chevron USA v. Natural Resources Defense Council , was widely seen as a victory for conservatives. At the heart of the case was a dispute over the Environmental Protection Agency’s ability to define a “stationary source” of pollution—could it be an entire coal factory? A single smokestack? The Reagan EPA interpreted the Clean Air Act in a way that favored corporations and limited curbing their power.

Upon a challenge, the Supreme Court not only agreed that the Reagan administration’s reading of the law was reasonable, but it also instructed judges in future cases to generally defer to expert agencies’ interpretations of the law when statutes, like the Clean Air Act, were vague. The ruling was meant to limit liberal judges from imposing, as Justice John Paul Stevens wrote at the time , their “personal policy preferences” in decision-making. Through the Reagan and both Bush administrations, Chevron functioned as a tool for deregulation (like weakening Clean Air Act limits), explains David Doniger, a senior attorney and strategist at NRDC who argued the original case before the Supreme Court. On the flip side, he says, under Clinton and Obama, Chevron provided more leeway to enact tougher industry oversight.

As Chevron entered the political arena, so did Eastman: In 1984, he was fresh out of college, graduating cum laude with a bachelor’s in politics and economics from the University of Dallas, and, according to his resume, served as a volunteer for Reagan’s 1980 and 1984 campaigns. He went on to get his PhD at Claremont Graduate School just outside of Los Angeles, with a focus in politics and constitutional law, before heading off to law school at the University of Chicago. His dissertation adviser, William B. Allen, described Eastman over email as “an industrious and consistent student,” who developed his interest in the American founding as an undergraduate.

In grad school, Eastman began expressing a deep-rooted suspicion of federal power. In his 1993 doctoral dissertation, he argued that free public education funded by a national government was at odds with what founders like Thomas Jefferson, who he wrote favored smaller units of government, would have wanted for the country. Sweeping national education “schemes,” he concluded, “have begun to erode the capacity of the American people to govern themselves.”

In 1989, he returned to the University of Dallas to deliver a “Constitution Day Celebration” address. During the speech, he claimed that Congress, which at the time was expected to pass the Americans With Disabilities Act, was “out of control,” according to a transcript published in the student paper shortly after. The new law, he argued, could force libraries to “close the stacks for everyone” because books would be out of reach for people in wheelchairs, or force the YMCA to provide swimming lessons to “people with handicaps,” “including, presumably, quadriplegics.” This “civil rights socialism” raised the question, Eastman told the audience, “How are we going to reclaim a Constitution that has been rendered null and void?” (When reached by email, Eastman declined to respond to a list of questions about his views and suggested I “read the Constitution before casting aspersions on those who seek to uphold it.”)

By the time Eastman started clerking for J. Michael Luttig on the US Court of Appeals for the 4th Circuit in 1995, his conservative views on the Constitution were “well-formed,” according to reporting by the Washington Post . About a year later, he landed a clerkship with Supreme Court Justice Clarence Thomas, a friend he’d reportedly known for years and whose views often aligned with his own, as he told the Post : “I thought, given his background, you know, that his career and his jurisprudence would be more in line with the original understanding of the founding than anybody else’s.”

In the ’80s, the Post reports, Thomas sought education in originalism from the Claremont Institute, a conservative think tank backed by groups like the Dick and Betsy DeVos Family Foundation and the Bradley Foundation where Eastman had served as a research associate, and would later return as a senior fellow.

But if there’s an origin to Eastman’s foray into environmental law, it’d be his work with one unlucky amphibian: the southwestern arroyo toad. In the early 2000s, representing housing developers, Eastman led a challenge to the toad’s listing under the federal Endangered Species Act. In the DC District Court, Eastman challenged not just the listing, but the law itself, arguing that the federal government has no authority under the commerce clause to regulate critters that are confined to one state. He lost the case, and the appeal. But he would get one small victory: Then-Judge John Roberts, dissenting from the DC Circuit Court of Appeals, famously referred to the amphibian as “a hapless toad that, for reasons of its own, lives its entire life in California,” suggesting that he sympathized with Eastman’s argument. Pointing to this line, Democrats questioned Roberts on his support for the ESA during his confirmation hearings a few years later. “A lot of people in the environmental community—everyone knows that line about the ‘hapless toad,’” Harvard’s Andy Mergen told me.

This wasn’t the only time Eastman saw the tyranny of the feds embodied in an animal. In 2010, he ran for California attorney general. At a campaign event, he took on the delta smelt , a tiny, endangered fish, arguing that the federal government’s efforts to regulate the creature “exceeds their constitutional authority” under the commerce clause. He’s also made a similar argument against a controversial sucker fish in Klamath Falls, Oregon, that interfered with farming activity in the region.

Eastman’s attorney general campaign shed some light on his views on science: According to an archived version of its Facebook page , in 2012, his campaign shared a YouTube video claiming “Global Warming is a FRAUD” from a now-defunct conspiracy theory account . Eastman did not respond to a request for comment about this video or his views on climate change.

Eastman lost in the primary with about a third of Republican votes. Then–San Francisco District Attorney Kamala Harris, a Democrat, would go on to win the seat. (A decade later, in 2020, Eastman would pen an infamous Newsweek op-ed questioning whether Harris was eligible to be vice president because, as the daughter of immigrants, he argued, she may not qualify to be a “natural born citizen.” The argument was widely discredited by the legal field, but nevertheless put Eastman on Trump’s radar , according to reporting by the New York Times .)

By the 2010s, Eastman had been a law professor at Chapman University for more than a decade, with a term as dean of the law school under his belt. Colleagues remember him as being generally well respected and liked by students. He pushed to raise the law school’s rankings, which broke the US News & World Report top 100 in 2010. (He also once starred in what appears to be a 2012 university theater production as founder John Adams.)

“What conservatives realized—and I think the Obama administration helped them realize it—was they were never really big fans of an activist, administrative state.”

Around that time, Chevron began to fall out of fashion among conservatives like the late Justice Antonin Scalia and  Justice Clarence Thomas , who had in previous legal writings voiced support for the doctrine. As Scott Nelson, a lawyer with Public Citizen, a consumer advocacy group, explains, this had everything to do with the Obama administration. “I think, in practice, what conservatives realized—and I think the Obama administration helped them realize it—was they were never really big fans of an activist, administrative state, or broad delegations of authority by Congress to agencies.”

In 2015, at a Federalist Society panel on judicial deference moderated by then­–DC judge Brett Kavanaugh, Eastman railed against “administrative overreach” by the Obama administration on everything from “major immigration policy changes” to “renaming Mount McKinley to Mount Denali” in Alaska. “All of these things are being done by agencies with barely a pretextual read of authority in any statute,” he argued.

Four years later, Eastman doubled down on his case against Chevron . In 2019, at a Federalist Society luncheon panel titled, “Revisiting Judicial Deference,” Eastman joined a group of academics and lawyers, including Roman Martinez, one of the Charles Koch–linked lawyers who kicked off opening arguments for a Chevron case in January. During the panel, Eastman claimed that deference to agencies allowed the Obama administration to, without Congress’ explicit approval, support abortion under the Affordable Care Act and require schools to allow transgender students to use the bathrooms of their choice. “When I say they are making law in direct violation of the separation of powers,” Eastman argued, “that’s the way it works on the ground.” (According to the Obama administration , gender identity was protected under Title IX, and the policy was meant to ensure students could learn in an environment “free from discrimination, harassment, and violence.”)

To Mergen, these sort of meetings are at the heart of the conservative project that Eastman is a part of: “It’s all about getting like-minded folks, and often having conservative judges in the room, and talking through this agenda.”

Eastman’s arguments aren’t just theoretical. In the last 20-plus years as a senior fellow at the Claremont Institute, he has filed hundreds of legal briefs . Several of these were for some of the biggest environmental cases to see the Supreme Court. He weighed in on 2023’s Sackett v. EPA , a case challenging the federal government’s authority to regulate wetlands under the Clean Water Act. In his brief, co-authored with fellow Claremont Institute attorney Anthony T. Caso, the two argued that the EPA and Army Corps of Engineers have “pulled off” a “naked power grab,” overstepping Congress, the courts, and local governments. “This was accomplished because, decades ago, this Court ‘deferred’ to the agencies’ interpretation of the Clean Water Act pursuant to the Court’s troubled Chevron deference doctrine,” they wrote.

The Supreme Court’s Sackett decision, while it didn’t overturn Chevron , effectively cut the amount of protected wetlands in the US by half, as much as an estimated 90 million acres . To scientists, this was a disaster. “It’s the worst thing that’s happened in my conservation life,” a plant biologist in North Carolina told me last year . That’s because wetlands are ecological powerhouses: According to the National Oceanic and Atmospheric Administration, they supply more than half of the country’s seafood, can soak up 1.5 million gallons of floodwater per acre, and absorb 8.1 million tons of carbon dioxide per year. Many environmental lawyers see the preservation of rivers, lakes, forests, and the air—which cross state lines—as an issue of inherently federal concern. “We can’t address clean air and clean water and the preservation of endangered and threatened and migratory species without the power of the federal government,” Mergen says.

Many environmental lawyers see the preservation of rivers, lakes, forests, and the air—which cross state lines—as an issue of inherently federal concern.

But in their concurring opinion , Justices Thomas and Neil Gorsuch point to environmental law as a quintessential example of the wide “deviation” from what the Constitution’s writers intended. The opinion directly cited Eastman and Caso’s amicus brief. To Mergen, the opinion “put a target on” statutes like the Endangered Species Act, which operate under Congress’ authority to regulate interstate commerce. Under Eastman’s view of the law, UC Berkeley environmental lawyer Dan Farber told me over email, “much of federal environmental law would be unconstitutional.”

In July 2023, hot off their Sackett victory, Eastman and Caso filed another brief attacking Chevron , this time in Loper Bright Enterprises , the first of the Chevron pair to be considered by the court. In essence, the case is a challenge to a 2020 rule issued by the National Marine Fisheries Service requiring herring fishermen to pay for observers on their boats, a measure intended to prevent overfishing, and would cost the fishers about $700 per day . But the plaintiffs didn’t just challenge one regulation; they also asked the court to reconsider the agency’s entire authority to interpret the law—and by extension, overturn Chevron .

In their brief, Eastman and Caso hit the same note they’ve been harmonizing for years: “Interpretation of legal texts,” they wrote, “is a job for the courts”—not federal agencies. It likely didn’t take long to tee up the brief: Years before, in 2021, Caso had authored a document published in the Chapman Law Review conspicuously titled “ Attacking Chevron : A Guide for Practitioners ,” laying out the very argument they put before the court. “The purpose of this article,” Caso wrote, “is to give advocates the foundation in the arguments that can be made to attack deference and ultimately overturn Chevron .”

In January, as oral augments began in the Chevron cases, Eastman was in the midst of a legal defense of his own. As a result of his coup-adjacent efforts, he is facing criminal charges in Georgia and Arizona , and in January 2021 agreed to retire from his job at Chapman University after more than 140 of his colleagues signed a letter calling for his firing. In March, a California State Bar Court judge recommended Eastman be disbarred . If the Bar agrees, he’ll lose the ability to practice law.

But not before he had a chance to weigh in on what could be one of the most far-reaching legal decisions in decades. It’s difficult to overstate just how impactful a ruling to overturn Chevron would be. In the last 40 years, as former DOJ environmental lawyer Sean H. Donahue explains, executive agencies have used their authority under Chevron to interpret all sorts of complex statutes—from the Social Security Act to the Clean Air Act or the Food, Drug, and Cosmetic Act. And if the Supreme Court overturns the doctrine, hundreds of agency regulations could be up for relitigation. It’s “potentially a recipe for massive damage to the administrative agencies’ ability to do their job,” Donahue says.

Overturning Chevron is “potentially a recipe for massive damage to the administrative agencies’ ability to do their job.”

But for conservatives like Eastman, that’s precisely the goal. “ Chevron is only one aspect of it,” NRDC’s Doniger says. “It’s all part of a broader plan of enfeebling the power of the federal government.”

Eastman’s role in it offers an indication of where the country might be headed under a second Trump term. “Eastman very much epitomizes the view of the people that Trump is going to bring into office,” Mergen says. “It’s going to be a diminished role for the federal government.” Which, he adds, is “really terrifying for the environment.”

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