by Mara Malagodi, The Chinese University of Hong Kong, Faculty of Law
International Journal of Constitutional Law Blog, 10 November 2021
Recent legal changes in a number of jurisdictions that have entirely decriminalised abortion are steeped in the language of gender constitutionalism and human rights – whether these changes have taken place via constitutional litigation or statutory reform. As a result, the campaigns for complete decriminalisation in other jurisdictions have now begun to engage in a pragmatic comparative law exercise to advance their cause. Activists deploy the legal arguments and strategies marshalled in those jurisdictions that have completely removed abortion from the purview of their criminal laws alongside domestic constitutional principles and international human rights standards. As such, we are witnessing a global cross-pollination of legal ideas anchored in substantive notions of gender equality and human dignity to challenge legal restrictions to women’s bodily autonomy.
Abortion is the only medical procedure that continues to be consistently treated as a crime around the world. Even those jurisdictions that have partially liberalised their legal regimes continue to criminalise abortion outside of the terms explicitly provided by law. Only a handful of jurisdictions such as China (1979 – excluding Hong Kong and Macau), Canada (1988), Northern Ireland (2019), New Zealand (2020), and Australia (2021), have entirely removed abortion from the purview of their penal laws. Canada did so via constitutional litigation, while the other jurisdictions via statutory reform. The default legal treatment of abortion as a crime across the modern world reflects a context-specific combination of demographic policy controls, patriarchal family structures, religious norms, social taboos, and in many instances colonial transplants. Recently, medical professionals have been increasingly calling upon their respective governments to remove abortion from the purview of criminal law and subject it solely to health law and professional standards like all other medical procedures…. [blog continues…]