2.2.2 Grounds-based approaches to controlling access to abortion

National laws in most countries permit some abortions, even in settings where abortion is criminalized. Usually abortions will still be permitted under prescribed “grounds”, or specific circumstances. The circumstances under which abortion is permitted vary widely across different countries. Some of these circumstances reflect clinical indications (e.g. risk to the health of the pregnant woman or fetal impairment), some relate to the circumstances of conception (e.g. rape), and some relate to socioeconomic circumstances (e.g. economic hardship). Grounds-based approaches are commonly accompanied by gestational age limits, often varying depending on the specific condition under which abortion is permitted. In some countries, abortion is available on request up to a specified gestational age and then limited to specific grounds thereafter.

Rationale

International human rights law requires that abortion be available where carrying a pregnancy to term would cause a woman substantial pain or suffering, or where her life or health is at risk. States may not regulate abortion in a manner that forces women to resort to unsafe abortion and must take steps, including revising laws, to reduce maternal morbidity and mortality, and to effectively protect women and girls from the physical and mental risks associated with unsafe abortion (for further information, please refer to Chapter 1, section 1.3.1[i] and Web annex A: Key international human rights standards on abortion). Grounds-based approaches are often (i) too narrowly defined or (ii) too conservatively applied to ensure abortion is available in these circumstances. The aim to reduce maternal morbidity and mortality, and protect women and girls from the risks associated with unsafe abortion, can be effectively achieved by making abortion available on the request of the pregnant woman or girl.

In order to identify the impacts of grounds-based approaches on abortion seekers and health workers, a systematic review of studies published between 2010 and 2021 was undertaken, identifying 21 studies conducted in Argentina, Australia, Brazil, Chile, Colombia, Ethiopia, Ghana, the United Kingdom of Great Britain and Northern Ireland, Islamic Republic of Iran, Ireland, Israel, Mexico, Rwanda, Thailand, the United Republic of Tanzania, the United Kingdom of Great Britain and Northern Ireland, Uruguay and Zambia. A summary of the evidence from these studies is presented in Supplementary material 1, EtD framework for Grounds-based approaches. The reviewed evidence showed that grounds-based laws contributed to delayed abortion, with delays occurring because of inconsistencies in interpretation or application of health grounds, women waiting for determination of their eligibility for abortion or having their claim that pregnancy resulted from rape questioned or disbelieved, overly restrictive interpretation of grounds, or disagreement within a medical team about whether a woman satisfies a legal ground. Misinterpretation of the law can also result in denial of abortion. In some cases, health workers waited for a health condition to deteriorate sufficiently to ensure that a woman satisfied a “risk to life” ground, clearly endangering the right to life and potentially violating the right to be free from torture, cruel, inhuman and degrading treatment.

Interpretation of grounds, and thus eligibility for lawful abortion, varies between providers, and providers are not always certain about the law or how it should be applied; interpretation is often narrow and incompatible with human rights law and/or with WHO’s definitions of health and mental health, leading to denial of abortion. Women reported significant challenges in accessing care in circumstances where they could not obtain legal support and advice on the permitted grounds. Grounds-based approaches were found to have a particularly negative impact on women facing financial hardship and women with lower educational attainment.

The evidence reviewed for this guidance showed that grounds-based approaches have a disproportionate negative impact on women who seek abortion following rape. These women were often subjected to questioning, protracted delay and bureaucratic processes due to requirements such as reporting the crime to the police or need for a court order, even though it is not human rights compliant to make such reporting or processes a prerequisite for accessing abortion. Even where the law provides that a woman’s claim of rape is sufficient to satisfy the legal requirement, providers may require a document or authorization (e.g. court order or police report). In reality this means that obtaining an abortion following rape is laborious and time-consuming. In some cases, delays are so long that women give birth before legal eligibility is determined; in others, women choose instead to resort to unsafe abortion. Thus, “rape grounds” do not satisfy the requirement from international human rights law that abortion be available and accessible in situations of rape. These restrictions also subject the individual to unnecessary trauma, may put them at increased risk from the perpetrator, and may cause women to resort to unsafe abortion.

The evidence also showed that grounds-based approaches that require fetal impairments to be fatal for abortion to be lawful frustrate providers who wish to support patients and leave women no choice but to continue with pregnancy. Being required to continue with a pregnancy that causes significant distress violates numerous human rights. States are obligated to revise these laws to make them compatible with international human rights law. Under international human rights law, States are required to ensure that women do not have to resort to unsafe abortion. The evidence from the studies described above suggests that grounds-based laws may contribute to an increase in the incidence of unsafe abortion, with people who do not satisfy a ground resorting to unlawful abortion, including unlawful self-management of abortion, some of which may be unsafe. The evidence from the studies also indirectly suggests that grounds-based laws contribute to maternal mortality, because when States shift from a grounds-based approach to permitting abortion on request in the first trimester there is a reduction in maternal mortality (especially for adolescents) as well as a reduction in fertility (birth rates). This suggests a connection between the international obligation to take steps to reduce maternal mortality and morbidity and a shift away from grounds-based approaches.