Reimagining abortion regulation


Abortion is still a crime in most countries. A new legal paradigm would change the lives of millions of women

It took 30 years of activism for Ireland to legalise abortion. The 8th Amendment of its Constitution, inserted in the 1980s, stated that a foetus and mother had an equal right to life. It meant abortion could not be provided unless a woman’s life was in ’real and immediate’ danger, with punishments of up to life imprisonment for unlawful abortion’; Ireland inflicted punishments of up to 14 years in jail. But when citizens voted overwhelmingly to repeal the amendment in 2018 , they empowered the Irish parliament to legislate for legal abortion. Ireland moved from having one of the world’s most restrictive abortion laws, to one of the most liberal, with abortion available on request up to 12 weeks of pregnancy and in limited circumstances of risk to the pregnant woman thereafter.

We have the largest group of abortion lawyers in the UK, so reproductive health is one of our strengths.

Professor Fiona de Londras, Birmingham Law School

A tide of liberalisation has since swept other nations. Several American countries, including Argentina , Colombia and Mexico , have legalised or decriminalised abortion. Thailand has struck down statutes in its Criminal Code which made it illegal. It has been decriminalised in South Korea and every state of Australia.

Still, a handful of countries have recently bucked the trend by tightening abortion laws. Notably, in 2022 the United States Supreme Court struck down the Roe v. Wade ruling which had guaranteed the constitutional right to abortion for half a century. Abortion access has since been restricted or banned in 21 US states. And the procedure continues to be criminalised to some degree in most countries.

University of Birmingham legal scholar Professor Fiona de Londras’ research shows how and why to change the way nations regulate one of the most contentious healthcare issues. As a campaigner in Ireland’s referendum, she advocated for constitutional change and participated in debates on the new law. She has since led research into international law and policy paradigms for the regulation of abortion, including working with the World Health Organisation (WHO) on understanding how common legal frameworks, including the criminalisation of abortion, impact the quality of care.

"Millions of unsafe abortions take place every year - and that is a public health crisis," says Professor de Londras, the University of Birmingham Barber Chair of Jurisprudence. A huge body of evidence gathered in her research shows that criminalising abortion affects access and safety, undermines pregnant people’s human rights, and is associated with women’s reliance on poorly qualified providers. Legal reform, including the complete decriminalisation of abortion, could prevent unsafe abortions, changing the lives of millions of women globally.

An outdated regulatory paradigm

Most countries regulate abortion differently from other forms of healthcare, Professor De Londras explains. "Abortion continues to be regulated through criminal law, even though it’s a health intervention," she says. "In fact, there are very few countries that don’t have some criminal dimension to how abortion is regulated."

Although most nations allow abortion, they do so under specific circumstances, outside of which it remains a criminal offence. For instance, they prohibit abortion after a certain stage in pregnancy, or outside of specified clinical conditions. More than three-quarters of countries impose legal penalties on women and providers who breach the rules.

"The way we regulate abortion is very much embedded in a particular historical moment," says Professor de Londras. "It is not based on human rights insights, because there wasn’t an international human rights framework at the time that we began to heavily regulate abortion. And it isn’t really based in experiential insight, because there wasn’t very much qualitative evidence at that time."

Huge medical advancements have been made since most countries first created regulatory frameworks for abortion in the 19th century. Carried out under the proper conditions - at an appropriate gestational age, by someone with the necessary skills - it is safe and simple. Pills now make most abortions possible without surgical intervention; early in pregnancy women can safely and effectively self-administer these pills with no need for medical intervention.

Yet only around half of global abortions are conducted safely, according to the WHO. Unsafe procedures still result in up to 39,000 deaths annually and result in millions more women experiencing abortion-related complications. Studies show that these occur overwhelmingly in countries that restrict or ban abortion, predominantly in Africa and Asia.

"We now have a wealth of empirical, legal and rights-based evidence [on the best legal framework for safe abortion]," says Professor de Londras. "But the paradigm of regulating abortion hasn’t really shifted to reflect that evidence."

The drive to decriminalise abortion

New abortion guidelines published by the WHO in 2022 - and informed by Professor de Londras’ research-- aim to change that. The WHO made 50 recommendations to improve access and end the 25 million unsafe abortions which take place every year - including a recommendation for the full decriminalisation of abortion.

The updated guidelines build on a previous edition, putting a greater focus on human rights law and regulatory recommendations. Professor de Londras’ team won a tender to lead research on law and policy, which informed the WHO’s recommendations in these domains. "We have the largest group of abortion lawyers in the UK, so reproductive health is one of our strengths," she says.

The team developed a new methodology to weigh human rights law alongside clinical evidence in the assessment of abortion regulation. It then studied seven common features of abortion laws, including the criminalisation of abortion, gestational age limits, restrictions on which healthcare providers can offer abortions, and the exercise of conscientious objection.

"We did systematic evidence reviews for each of those areas, covering tens of thousands of studies and a full mapping of human rights law. From that, we created an evidence-base to really understand the health and non-health impacts of these approaches to regulating abortion," explains Professor de Londras.

The evidence showed that criminalisation delays access to abortion, in some cases endangering a woman’s life, while subjecting pregnant women to distress and stigma. What’s more, it suggested that criminalisation fails in its alleged aim of stopping women from having abortions, instead pushing them into illegal and unsafe procedures. Informed by these findings, the WHO recommended that nations decriminalise abortion by removing it from all penal and criminal laws.

It also advocated for removing other "medically unnecessary policy barriers to safe abortion". These include limits on when in a pregnancy abortion can take place; mandatory waiting periods imposed on women after seeking an abortion; and third-party authorisations, which require women in some countries to have approval from a spouse or parent. "Such barriers can lead to critical delays in accessing treatment and put women and girls at greater risk of unsafe abortion, stigmatisation, and health complications," the WHO concluded.

Changing global paradigms

In the next phase of this research, Professor de Londras’ team is developing materials to support countries to enact the recommendations. "The work now is to try to help national entities think about what kinds of things they’d need to do if they were going to implement these recommendations," she says.

That is a challenge: liberalisation continues to face strong resistance among some conservative and religious constituencies. "The regulation of abortion is, in most contexts, a very politically contentious matter, and it’s therefore very challenging to reach any form of consensus that can garner sufficient political support," Professor de Londras admits.

Yet her research should inform more nuanced national conversations. "What the WHO has produced is a piece of work that has incredibly robust underpinnings," she says. "It offers national policymakers a set of information that may help them to change a conversation; to move out of a conversation that is not wholly evidence-based; and to use this evidence alongside other things like values."

She adds: "The whole idea is to create universally applicable evidence-based frameworks that enable national authorities to think about how they can achieve their desired policy outcomes, fulfil their legal obligations, and maximise the health outcomes for the population."

That is the kind of world-changing research the University of Birmingham prioritises.

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