2.2.1 Criminalization of abortion

Unlike other health services, abortion is commonly regulated to varying degrees through the criminal law (i.e. criminalized), in addition to regulation under health-care law.

Abortion remains a criminal offence in most countries, with penalties against those who have abortions and/or those who provide abortion services or assist with accessing or managing abortion, sometimes including those who provide information about abortion. In some countries, all of these actions are criminal offences.

Decriminalization is a necessary step for the legalization of abortion, but ensuring that abortion is available, accessible and of high quality may require further legal or regulatory changes beyond decriminalization, including, as applicable, implementing the other recommendations contained in this guideline.

Rationale

Numerous human rights bodies and mandate holders, including the CEDAW Committee (38), the CESCR (3), the United Nations Human Rights Committee (36), and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (37), support the full decriminalization of abortion. They have clarified that States should not criminalize medical procedures needed only by women, including abortion nor criminalize those who have undergone an abortion, or punish or apply criminal sanctions against those who assist women in having abortions. Under international human rights law, States must not require health workers to report cases of women or girls who have had abortions, or whom they suspect of having had abortions, and States must provide post-abortion care in all circumstances and without the risk of criminal sanction. In addition, States must take steps, including revising laws, to reduce maternal morbidity and mortality (including abortion-related morbidity and mortality), and to effectively protect women and girls from the physical and mental risks associated with resorting to unsafe abortion due to the criminalization of abortion (see also Chapter 1, section 1.3.1 on human rights, and Web annex A: Key international human rights standards on abortion, which provides further information as well as references for the above assertions).

In order to identify the impacts of criminalization of abortion on abortion seekers and health workers, a systematic review of studies published between 2010 and 2019 was undertaken, identifying 22 studies conducted in Australia, Brazil, Chile, El Salvador, Ethiopia, Ireland, Mexico, Northern Ireland (United Kingdom), the Philippines, Rwanda, Senegal, the United Republic of Tanzania, Uruguay and Zambia. A summary of the evidence from these studies is presented in Supplementary material 1, EtD framework for Criminalization. The evidence from these studies demonstrated that criminalization delayed access to abortion, including in some cases causing providers to wait until a woman’s life was in danger so that abortion could be provided within the legal exceptions to criminal prohibitions. Furthermore, criminalization imposes a range of burdens on women including unnecessary travel and cost, delayed or no access to post-abortion care, distress and stigma. The evidence indicated that criminalization did not impact the decision to have an abortion, prevent women having abortions, or prevent women from seeking information on and referral to services abroad where they can access abortion. Instead, criminalization limits access to safe and legal abortion, and increases recourse to unlawful and unsafe abortion. When prosecutions take place they may be disproportionately pursued against young, unmarried women and those facing financial hardship and with less access to education. Some countries require health workers to report women and girls when they seek abortion or post-abortion care.

Criminalization can cause health workers to act cautiously, fearing criminal prosecution. As a result, they may be hesitant to provide abortion care even in cases of rape, incest and fatal fetal impairment, when denial of abortion could constitute torture, cruel and inhuman treatment or punishment. Criminalization contributes to the lower availability of trained abortion providers and a loss of relevant skills in the health workforce. This can have negative effects on health workers who do provide abortion, and can increase bureaucracy within health systems.