by Sanhita Ambast, Hazal Atay, Antonella Lavelanet
BMJ Global Health 2023;8(3) (Open access)
Abstract
Public health research and human rights bodies have demonstrated the risks involved with criminalising abortion services and noted a need for full decriminalisation. Despite this, abortions are criminalised in some circumstances in almost all countries in the world today. This paper uses data from the Global Abortion Policies Database (GAPD) to analyse what criminal penalties exist for those who are seeking, providing and assisting in abortions in 182 countries.
This paper uses data on abortion-related penalties available on the GAPD as of October 2022. It includes which actors are penalised, whether specific penalties exist for negligence, non-consensual abortions, whether any secondary additional considerations/judicial discretion exist in sentencing and the legal sources for these penalties.
134 countries penalise abortion-seekers, 181 countries penalise abortion-providers and 159 countries penalise persons assisting in abortions. The maximum penalty is between 0 and 5 years of imprisonment in a majority of countries; however, it can be much higher in other countries. Some countries further prescribe fines, and professional sanctions for providers and those who assist. 34 countries restrict the dissemination of information about abortion.
The range of possible penalties across countries and associated aggravating and mitigating factors for imposing these penalties support arguments for the decriminalisation of abortion on the grounds of arbitrariness. Abortions are also predominantly regulated through the criminal law, which may compound the stigma associated with seeking, assisting with and/or providing abortions when it is criminalised.
There has been no comprehensive study of penalties for abortion at a global level. This article describes what specific penalties abortion seekers and providers face, what factors may increase or decrease these penalties, and the legal sources for these penalties. The findings provide additional evidence of the arbitrariness and potential for stigma associated with the criminalisation of abortion and strengthen the case for decriminalisation.
Data availability statement
Data are available in a public, open access repository. The data analysed during this study can be accessed in the publicly available Global Abortion Policies Database (http://abortion-policies.srhr.org).
Summary
- While public health research and human rights bodies have demonstrated the risks involved with criminalizing abortion services and noted a need for their full decriminalization, there has been no comprehensive study of penalties for abortion at a global level.
- This article describes what specific penalties abortion seekers and providers face, what factors may increase or decrease these penalties, and the legal sources for these penalties.
- The findings provide additional evidence of the arbitrariness and potential for stigma associated with the criminalization of abortion and strengthen the case for decriminalization.
Introduction (excerpts)
Public health research and human rights bodies have demonstrated the risks involved with criminalising abortion services and noted a need for their full decriminalisation. Evidence indicates that criminalisation does not impact the decision to have an abortion, prevent women from having abortions or prevent women from seeking information regarding where they can access abortions. Rather, criminalisation limits or delays access to safe abortion and increases the possibility of women and girls resorting to unsafe and unregulated abortion services. It imposes a range of burdens on women including unnecessary travel and cost, delayed or no access to postabortion care, distress and stigma. It can also discourage people from seeking postabortion care and accessing safe abortion services when they are available.
Criminalisation of abortion may also lead to people being punished in other circumstances, such as miscarriages. Often, these burdens fall more heavily on women and girls who experience other forms of marginalisation, including poverty. Criminalisation can cause health workers to act cautiously, even where abortion is legal, and can also contribute to mis-documentation or refusal to provide care. It also contributes to the lower availability of trained abortion providers and a loss of relevant skills in the health workforce. Recognising a range of human rights violations, including gender-based discrimination and violence; torture and/or ill treatment; as well as violations of the rights to life, health and privacy, United Nation (UN) treaty bodies and special procedures have called for the decriminalisation of abortion.
Appreciating the impacts on health and human rights protection and enjoyment, the WHO recommends the full decriminalisation of abortion. Decriminalisation means ‘removing abortion from all penal/criminal laws, not applying other criminal offences (e.g. murder, manslaughter) to abortion and ensuring there are no criminal penalties for having, assisting with, providing information about, or providing abortion, for all relevant actors’. The Abortion Care Guideline makes clear that while decriminalisation is a necessary step for the legalisation of abortion, ensuring that quality abortion is available and accessible may require further legal or regulatory changes beyond decriminalisation.
Despite the concerns associated with criminalisation, abortions are criminalised in some circumstances in almost all countries in the world today. In 11 countries, abortion is completely criminalised. In one country, Canada, abortions carry no criminal penalties for any circumstances. Abortion is usually available on certain grounds or until a specified gestational age (linked to particular grounds). Outside of these circumstances, it is considered a criminal offence. Where abortion is lawfully available, it is commonly regulated through both the criminal law and healthcare law, unlike other health services. Further compounding this issue is that federal countries also regulate abortion in varied ways across subnational jurisdictions. For example, in Mexico, while several states have decriminalised abortion before 13 weeks, others have not. Similarly, regulation of abortion now happens at the state level in the USA after a recent Supreme Court decision, and many states have restricted access and increased penalties.
This paper uses data from the Global Abortion Policies Database (GAPD)… The GAPD documents the legal provisions that criminalise abortions, including the specific penalties for the person seeking an abortion, providers and people assisting with an abortion. A total of 182 countries have been included in this analysis. No data on offences and penalties for abortion could be found for four countries (Marshall Islands, Micronesia, North Korea and Eswatini); these have been excluded from this analysis….
Nine countries have been excluded because the regulation of abortion varies within subnational jurisdictions in the country (Nigeria, Bosnia, UK, Mexico, USA, Australia, China, Switzerland and Canada). While discussing the range of possible penalties for abortion-related offences, we categorise countries by the maximum prison term possible for abortions conducted with the consent of the person seeking them. Specifically, countries have been organised by those which have life imprisonment; a maximum prison term of above 10 years; between 5 and 10 years; and 5 years or less. Where additional aggravating factors lead to higher prison sentences, this is specifically mentioned. Where penalties consist of fines, we have not analysed or compared the amount of the fine applicable, given variations in currency and context. Where the number of countries in any category of analysis is under 10, we have listed them all in text or in the references….
We analyse information reflected in the GAPD and, are thus, reliant on the methodology employed by the GAPD. Countries are grouped by UN regional groups: Africa, Asia, Europe, Oceania, Latin America and North America. North America, however, contains only Canada and USA of which the USA is excluded from this paper, and Canada has no penalties for abortion. Therefore, the graphs in this paper do not have any data from North America.
This paper uses data available on the GAPD as of October 2022. The GAPD is updated at the point at which a new source becomes known or available, which means there may be reform not currently reflected. We are although limited by the fact that the GAPD provides access to country sources, but does not include information about how these laws or policies are implemented on the ground. Yet, by reflecting how abortion is regulated through criminal law, we seek to provide more specific information about how abortion is regulated across countries, and highlight any patterns in this regulation…
Review of what penalties different actors involved in an abortion face
General overview of abortion criminalisation
In 163 countries, the definition of, and penalties for, abortion-related offences are contained in the general penal code. In 12 countries, the offences and penalties for abortion are found in abortion-specific laws. In eight countries, they are found in other types of legal sources, such as health codes, reproductive health laws and laws about children (Benin, Burkina Faso, Madagascar, Mali, Mauritania, France, Saudi Arabia and Denmark). Many of the 163 countries where abortion-related offences are found in the general penal code also have abortion-specific and health care-specific laws. However, these sources do not prescribe the offences and penalties for abortion.
In most countries, abortions are criminalised in some circumstances. In 11 countries, abortion is completely criminalised and prohibited in all circumstances.
In countries where abortions are criminalised, a range of actors are commonly subject to penalties. In 134 countries, the person seeking the abortion is penalised. Providers of abortion services are subject to criminal penalties in 181 countries. A total of 159 countries penalise persons who assist in accessing or providing abortions. While some countries penalise the persons seeking an abortion with a higher penalty, in other countries, the provider is potentially subject to more stringent punishments. In almost all countries, the person assisting could receive the same, or lower penalty, than the provider.
[Editor’s note: The paper continues with information on the types of penalties, who is criminalised, and a range of other issues, such as arbitrariness in abortion penalties, patterns across countries, and more.
This is among the most important pieces of research that has been published on this topic to date – most important because of what it says about the continuing, almost universal punishment of women and girls for having abortions – in spite of claims that “abortion is legal” or “decriminalised” in a long list of the so-called more progressive countries. It is ironic, to say the least, that the language of the new criminal laws in some states in the USA is almost the same as that of the UK Offences Against the Person Act of 1861 which is still on the books and still being used to criminalise abortions in the UK today. It is also ironic, though rarely noticed, that no country penalises men for causing or contributing their sperm to the existence of millions of unwanted pregnancies, in every country in the world. Even the large number of men who rape girls and women with impunity.
The second reason why this paper is so important is that it gives us, as an international feminist, human rights and public health movement, the basis for deepening our global, regional, national and local advocacy for the right to safe abortion and universal access to the means of safe abortion as essential health care for everyone with an unwanted pregnancy. Everyone. Without punishment or restrictions. Marge Berer]