This article explains how the strategic use of public health evidence, showing that criminalisation of abortion does not result in lower abortion rates, is changing the way judges are confronting constitutional challenges to abortion regulations. The state may have a legitimate interest – and in some legal systems, a duty – to protect prenatal life. Nevertheless, courts are upholding regulations liberalising abortion and declaring criminalisation regimes unconstitutional. This is possible given that lower abortion rates are not achieved through criminalisation, but through preventive policies. In addition, courts uphold liberalisation when the infringement of women’s rights resulting from criminalisation outweighs its purported benefits. This new legal narrative has been developed during the last decades by a series of court decisions in Europe and Latin America, and may prove useful for legal advocacy in some countries in Africa. The narrative combines the use of an analytical framework called the proportionality principle with an interpretation of constitutional rights that draws from gender-sensitive international human rights standards and factual evidence about the effects of criminalisation on women’s lives and health.
According to the Algerian Association for Family Planning, there are 8,000 cases of abortion recorded each year in Algeria, of which 200-300 are clandestine. Algeria has remained one of the most restrictive countries in the region as regards abortion. The Penal Code articles 304 to 310, dated 1966 and 1982, criminalise everything from ‘inciting’ someone to have an abortion, e.g. through discourse, posters, publicity, public meetings, groups, or illustrations. Punishment is by various fines and/or … Continued
A woman in El Salvador who has an abortion, a stillbirth, or a miscarriage can face up to 50 years in prison, charged with aggravated homicide by police and a judiciary who do not seem to see any difference between these three outcomes of pregnancy. Teodora Vasquez, age 37, has served ten years out of a total 30-year prison sentence, charged with aggravated murder. Vasquez suffered a stillbirth in July 2007 during her ninth month … Continued
Twenty-one members of the right-wing Nationalist Republican Alliance (Arena) in El Salvador submitted a motion on 11 July to the parliament for debate on 14 July to reform Article 133 of the Penal Code, increasing the penalty for women who cause or consent to an abortion from up to eight years in prison to a minimum of 30 years and a maximum of 50 years. This is equivalent to the current sentence for aggravated murder with extreme cruelty.