Chapter 2. Abortion regulation including relevant recommendations

Common approaches to abortion regulation (2.1)

Almost all countries where abortion is lawfully available regulate abortion differently to other forms of health care (116). Unlike other essential health services, abortion is commonly regulated to varying degrees through the criminal law in addition to regulation under health-care law. Even where abortion is available on certain grounds or until specified gestational ages (often linked to particular grounds), it is usually designated in those cases as a criminal offence if it occurs outside of those specific permitted situations. As a result, people can experience significant barriers in accessing abortion and post-abortion care in such contexts. These barriers persist even though abortion is a safe, effective and non-complex part of sexual and reproductive health (SRH) care, in spite of significant advancements in international human rights law, and notwithstanding the growing frequency with which self-management of abortion occurs safely with little or no contact with the formal health system.

Typical barriers to access to quality abortion care, which may or may not be codified in law, include lack of access to accurate information, the provision of biased information or counselling, the imposition of mandatory waiting periods, third-party authorization requirements, restrictions on the type of facilities or settings where abortion services can lawfully be provided, restrictions on the type of health workers that can lawfully provide services, lack of affordable services, breaches of confidentiality and privacy, failure to safeguard access to and continuity of care where health workers refuse care on the basis of conscientious objection, failure to license or make available essential medicines, and failure to recognize women as individuals who can manage their own abortions.

Restrictive laws, policies and practices often have the effect of making health workers, health-care facilities, committees, ethics boards, police, courts or others the “gatekeepers” for access to quality abortion care by requiring them to determine whether someone “qualifies” for legal abortion. In many cases, this introduces delay in accessing abortion. Such gatekeepers are not always sufficiently informed about the law or willing to interpret and apply law and policy in a way that respects, protects and fulfils abortion seekers’ rights. Criminalization of abortion can also have a “chilling effect” more broadly, as it can result in narrow interpretation of applicable law by health workers, including to avoid possible criminal liability (i.e. suppression of actions due to fear of reprisals or penalties). As a consequence, in many settings women’s experiences of seeking, accessing and managing abortion are highly variable, with much depending not only on the law but also on the approach of the gatekeeper with whom they interact. Thus, including information on relevant rights, laws and policies in the training and education of health workers is a crucial part of ensuring an enabling environment for quality abortion care (see also Chapter 1, section 1.4.3).

As described above, clear, accessible and rights-based laws and policies are part of an enabling environment for abortion care (see section 1.3). However, in some countries the law on abortion is incoherent, with seemingly conflicting provisions articulated in constitutions, penal codes, health legislation or policy guidance (117). Furthermore, in some cases domestic laws are inconsistent with international human rights standards and incompatible with current public health evidence. Additionally, in certain cases there is a lack of guidance from government to assist providers in identifying when abortion is lawful. Such incoherence can create uncertainty about the law for both those seeking and providing abortion care. The recommendations in this guideline build on human rights law and public health evidence to outline an approach under which abortion is regulated similarly to other health-care interventions, that is, by general health-care law and policy, best practice, training and evidence-based guidelines.