Cuba,7 have prohibited abortion only when it is performed for profit, by an ... economic grounds to women over age 45. In addition, in 1978, .... 1981 Offenses against the Person ..... constitutionally excessive to demand by penal sanctions that.
International Developments in Abortion Laws: 1977-88 REBECCA J. COOK, JD, LLM, AND BERNARD M. DICKENS,
PND, LLD
f
Abstract: During the period between 1977 and the first quarter of 1988, 35 countries liberalized their abortion laws and four countries limited grounds for the procedure. Most legislation has extended abortion eligibility through traditional indications such as danger to maternal health or fetal handicap, but a number of other indications have been created such as adolescence, advanced maternal age, family circumstances, and AIDS or HIV infection. A number of countries have redesigned their abortion laws as part of a compre-
hensive package to facilitate access to and delivery of contraception, voluntary sterilization, and abortion services. Abortion litigation has increased and stimulated the liberalization of abortion provisions and the support of women's autonomous choice within the law. In Canada, the entire criminal prohibition of abortion was held unconstitutional for violating women's integrity and security. In contrast, Latin American and other constitutional developments may limit legal abortion to instances of danger to women's lives. (Am J Public Health 1988; 78:1305-1311.)
Introduction This review of international developments in abortion laws covers national legislation, constitutional amendments, litigation, and ministerial interpretations of the laws. The review explains how legal developments have either extended or limited indications for abortion (see Table 1). It also considers provisions for conscientious objection, committee, spousal or parental authorization requirements, and provisions to improve access to contraception and voluntary sterilization in order to reduce the need for therapeutic abortion. The review surveys constitutional reforms that affect access to abortion and litigation in national courts and in international human rights tribunals. This review, and its accompanying table, is limited to developments in abortion laws that have occurred between 1977 and the first quarter of 1988. Abortion laws, covering the spectrum from restrictive to permissive laws, exist in most countries of the world' but are discussed here only if they have changed during this period. The article is limited in scope to a review of legal developments and does not attempt to assess the impact of these developments on maternal mortality2 or morbidity or on the availablity of services.3
of the woman and in cases of rape and fetal deformity because they were thought to violate the 1982 Honduran Constitutional provision stating that "the right to life is inviolable"9 and considering the unborn as born for purposes of the law'0 (discussed later in Constitutional Reform section, including the woman's right to life). Israel changed its law in 1977 to allow abortion on extended grounds including socioeconomic indications, but this law was amended late in 1979 to remove such indications. Romania sought to limit abortion by enacting restrictive provisions, for example limiting abortion on socioeconomic grounds to women over age 45. In addition, in 1978, Finland reduced the general gestational limit for performing abortions from 16 to 12 weeks, unless there is a case of disease or physical defect in the woman." This law was further changed in 1985 to permit abortion before 25 weeks of gestation in case of serious disease or physical disability of the fetus.'2 In addition to recognizing traditional health indications for abortion, a number of countries have recognized other indications (see footnotes in table). Cyprus, Italy, and Taiwan express a family welfare indication. Hong Kong has recognized adolescence itself as an indication and France and The Netherlands permit abortion on an indication of the woman's distress concerning pregnancy. Hungary permits abortion where the pregnant woman is single or has been separated for six months, where appropriate housing is lacking, or where a woman is aged 35 and above or has had three deliveries. French Polynesia permits abortion where the pregnant woman is found to have acquired immunodeficiency syndrome (AIDS) or to be seropositive for the human immunodeficiency virus (HIV). Without a specific provision, AIDS or HIV positivity may fall under a general indication for abortion based on the risk to health of the women or of risk of disease to the fetus. Abortion is easier to obtain during the first trimester of pregnancy in many countries because they permit abortion either on request or on broader indications than apply later in gestation. After the first trimester, an authorization for abortion or a second medical opinion on its appropriateness may be required, as for example in Barbados and Luxembourg. In some laws, such as those of Belize, Cyprus, Liberia, Portugal, Rwanda, and Spain, a second medical opinion is required no matter what the length of gestation and for all permitted indications. France requires a second medical opinion only for the indications of risk to the woman's health and risk of fetal disease. However, in most of these countries the second opinion can be waived in cases of emergency. National health services or insurance schemes vary in whether they will cover the cost of abortion, the degree of
Legislative Reform Table 1 shows how enactments since 1977 accommodate abortion in 39 countries. It does not include countries such as China,4 Togo,5 and Vietnam6 that, in re-enacting their criminal codes, have decriminalized the procedure by purposely omitting reference to abortion and that, as in the case of Cuba,7 have prohibited abortion only when it is performed for profit, by an unqualified person, in an unofficial place, or without the woman's consent. In China, Togo, and Vietnam abortion is accordingly legal when undertaken according to the general laws governing medical procedures. The general thrust of specific legislative reforms in 33 countries and two subnational jurisdictions is to recognize new grounds ofjustification for abortion. In contrast, four additional countries have restricted grounds for abortion. In Honduras, a Decree8 withdrew earlier proposed Penal Code provisions which would have permitted abortion to save the life and health From the Faculty of Law and Faculty of Medicine, University of Toronto, Canada. Address reprint requests to Rebecca J. Cook, JD, LLM, Assistant Professor, Faculty of Law, University of Toronto, 78 Queen's Park, Toronto, Canada M5S 2C5. This paper, submitted to the Journal February 11, 1988, was revised and accepted for publication May 6, 1988.
© 1988 American Journal of Public Health 0090-0036/88$1.50
AJPH October 1988, Vol. 78, No. 10
1 305
COOK AND DICKENS TABLE 1-Legislative Developments In Indications for Abortion: 1977-1988* Risk to Risk to Risk to ndcation Unwanted \ ~~~Risk to Woman's Woman's Fetal Heafth Pregnancy by On Request Social, \Life of Physical or Fetal Mental (First Rape or Other Sociomedical or Heaftha CountrN Woman Health Handica,o Sexual Crimes SocioeconomiCb Trimester)f Algera Barbados
x x
x
x
x
x
x
Belize
x
x
x
x
Bermuda
x
x
x
x
Burundi Comoros CypruSd Czechoslovakia Francec
x x x x x
x x x x x
x
L-3
x x x
French Polynesiacd Finland
x x
x x
L-3 L-3
x x
L-3
Ghana
x
x
x
x
x
Greece Honduras Hong Kongd
x x x
x
x
x
x
x
x
x
x
x
Hungaryd
x x
x x
x x
x x
x x
x
x x x x x
x x x x x
x x x
x
L-3
Luxembourgc
x x x x x
x
L-3
Montserrat Netherlands
x x
x
x
x
New Zealand"
x
x
x
x
x
Norwayc Peru
x x
x x
x
x
x
Portugal Qatarc Romania Rwanda
x x x x
x
x
x
x
L-3
L-3
x x
x
L-3 x
x
Israel
Italy""Italyc,d Kuwait Liberia
Liechtenstein"
x x
x
x
x x x
x
L-3
L-3
x
x
x
x
x
coverage, whether coverage is for complete or partial costs, and the indications for coverage. In general, many governmental health schemes, such as in Australia, Canada, France, and the United Kingdom (UK), will cover most of the costs of legal abortions. However, the United States Supreme Court held in Harris v McRae'3 that there was no constitutional obligation on the US federal gove'mment to fund abortions. Nevertheless, at least eight US states'4 and the District of Columbia continue to fund medically necessary abortions and at least six others have been required to fund such abortions by court orders to;enforce state law.'5 Recognizing antipathy of some health professionals to abortion, such countries as Belize, France, and Italy have introduced conscientious objection provisions that permit professionals to decline involvement in procedures without penalty or detriment. In the Belize and French provisions, the burden of proof of conscientious objection rests on the person relying on it, and the French law requires that conscientious objectors announce their refusal in advance. 1306
x
x
L-3
Statutes, Year of Latest Enactment 1985 (16 Feb) Law 85-05, Art. 72 1983 Medical Terminations of Pregnancy Act, Sec. 4-14 1980 Criminal Code Ordinance 33, Sec. 108-1 10 1983 Criminal Code Amendment Act, Sec. 1-2 1981 (4 Apr) Law 1/6, Sec. 357 1982 (19 Nov) Law 82-03/P/AF 1986 Law 186, Sec. 167-169 A 1986 (23 Oct) Law 73 1979 (31 Dec) Law 79-1204, Art. 162-1-14; 1975 (17 Jan) Law 75-17 1986 (13 Nov) Deliberation 86-80 1978 (14 July) Law 564; 1985 (12 July) Law 572 1985 (22 Feb) Criminal Code (Amendment) Law 1986 (28 Jun) Law 1609, Sec. 2-5 1985 (26 Feb) Decree 13-85 1981 Offenses against the Person (Amendment) Ordinance, Sec. 47A,47B 1986 (23 Jul) Ordinance 3 16 Dec 1979 Amendment 1977 (31 Jan) Penal Law Amendment (Interruption of Pregnancy) 1978 (22 May) Law 194, Sec. 1-22 1981 Law 25, Sec. 12 1978 (3 Apr) Penal Law, Sec. 16.3 1987 (24 Jun) 1978 (15 Nov) Law amending Penal Code, Art. 353 1983 Penal Code 12, Sec. 139 1981 (1 May) Law on Termination of Pregnancy 1977 (16 Dec) Crimes Amendment Act 1978 (16 Jun) Law 66, Sec. 1-14 1981 (12 Jun) Legislative Decree 121, Sec. 21 1984 (11 May) Law 6, Sec. 139-141 1983 (22 Feb) Law 3 1985 (26 Dec) Decree 411 1977 (18 Aug) Law 21-77 Sec. 327
Such clauses are usually inapplicable in instances of immediate danger to a pregnant woman. Further, conscientious objection can be raised only to medical performance of the procedure and perhaps to attending it or disposing of its results, but not to general nursing care and auxiliary services such as serving meals to abortion patients.
Authorization Requirements Recognizing the increased risk of complications of abortions as pregnancy progresses,'6 several countries have removed or not included institutional or third party authorization requirements, which are known to cause delays. For example, hospital therapeutic abortion committees that Canada's Criminal Code had alone allowed to certify clinical grounds for abortion were declared unconstitutional late in January 1988 under the Canadian Charter of Rights and Freedoms,17 in large part because they caused delays that harmed women's physical and psychological well-being'8 (discussed later in Litigation section). Czechoslovakia also AJPH October 1988, Vol. 78, No. 10
INTERNATIONAL DEVELOPMENTS IN ABORTION LAWS, 1977-88 TABLE 1-Continued Risk to Woman's Physical Health
Risk to
Risk to
Unwanted
Risk to Life of Woman
Woman's Mental Healtha
Fetal Health or Fetal Handicap
Pregnancy by Rape or Other Sexual Crmes
Social, Sociomedical or Socioeconomicb
x x x
x x x
x x x
x
x
x
Spainc South Africa Ciskei
x
L-3
x
x
Taiwand
x
x
x
x
x
Turkey
x
Vanuatu
x
x
Yugoslavia
x
x
Zimbabwe
x
x
Indication CountK
Seychelles
Trimester)c
x
L-3
x
x
On Request (First
x
x
x
x
L-3
Statutes, Year of Latest Enactment 1981 Termination of Pregnancy Act 1985 (5 Jul) Organic Law 9 1985 Abortion and Sterilization Act 16 1985 (1 Jan) Eugenic Protection Law, Art. 9 1983 (24 May) Population Planning Law, Sec. 5-6 1981 (7 Aug) Penal Code Amendment Act, Law 17, Sec. 117(3) All eight jurisdictions: Croatia, Bosnia-Herzegovina, Kosovo, Macedonia, Montenegro, Serbia, Slovenia, Vojvodina reformed their abortion laws pursuant to Art 191 of the 1977 Federal Constitution. Indications shown here are based on the Croatian 1978 (21 Apr) Law 18, Sec. 15-24. 1977 Termination of Pregnancy Act
*This chart covers legislative changes in abortion law from the beginning of 1977 to the end of the first quarter of 1988. It is hoped that information given in this chart is comprehensive and exact but, in view of problems of documentation and interpretation of new laws, the authors would welcome any corrections. The English translations can be found in the Intemational Digest of Health Legislation, World Health Organization, 1211 Geneva 27 or the Annual Review of Population Law, United Nations Fund For Population Activities, New York, NY 10017 and Harvard Law School, Cambndge, MA 02138. a) It is presumed that where legislation provides a heaith indicafion for abortion it includes grounds of both physical and mental health in accordance with generally prevailing medical usage. Mental health is excluded, however, where legislation qualifies "heaith" by "physical" or like expression. A mental heaith indication may accommodate rape and, for instance, apprehension of severe fetal abnormality where such indications are not accommodated in their own right. b) Where the law explains that account can be taken of the woman's social or economic circumstances or environment in deciding to prosecute or in determining the impact of a pregnancy on the health of the woman, this column is marked. c) L-3 means the indication is limited to abortions done during the first three months of pregnancy, known as the first trimester. Countries generally measure pregnancy from the first day of last menstrual period, in accordance with standard medical practice. d) Additional indications for abortion exist: Adolescent indication-the social indication covers adolscent status as in Hong Kong and Uechtenstein. Distress indication-the mental health inidication covers the situation of distess of the pregnant woman, as in France and The Netherlands. Family indication-the social indication covers jeopardy to the social position of the woman and her family as in Cyprus, Italy and Taiwan. Housing indication-the social indication covers lack of housing as in Hungary. Matemal age or parity indication-the social indication covers maternal age, or number of previous pregnancies (parlty); in Hungary a woman 35 and over or has "at least three children or has undergone at least three deliveries; or has two living children and has undergone at least one obstetral event" or in Romania a women 45 and over or has five or more pregnancies meet the requirements for this indication in those respective countries. AIDS or seropositivity for HIV indication-the matemal or fetal health indication covers acquired immunodeficiency syndrome (AIDS) or seropositivity for human immunodeficiency virus (HIV) as in French Polynesia. Single status inducation-the social indication covers single or separated status as in Hungary and Uchtenstein.
eased access to abortion services by removing the requirements of a committee authorization in 1980. The new legislation of Bermuda, Kuwait, Seychelles, and Qatar, however, include a hospital committee authorization requirement. Countries that require spousal authorization for a married woman to obtain an abortion include Kuwait, Taiwan, Turkey, and Qatar. Taiwan requires spousal authorization only when the abortion is indicated for socioeconomic reasons but waives this requirement if the husband is estranged. Turkey and Qatar uniformly require spousal authorization, and do not provide specific grounds to waive it. It is unlikely that a spousal veto would be invited or respected, however, when the abortion is necessary to preserve the woman's life or permanent health, because the law in general does not allow anyone to obstruct another's access to necessary health care. Spousal authorization requirements are inconsistent with at least sixjudicial interpretations of laws given in cases brought by husbands seeking roles in their wives' abortion decisions.19 Courts in Canada,20 England,21 France,22 Israel,23 US,24 and Yugoslavia25 have denied husbands a veto of that decision, even when their paternity is not denied. The English decision was AJPH October 1988, Vol. 78, No. 10
upheld by the European Commission on Human Rights.27 In no known case has a husband's claim of veto beenjudicially upheld. Several new enactments (e.g., Barbados, France, Greece, Italy, Kuwait, Porugal, Taiwan, and Turkey) condition abortion for adolescents on parental authorization. The Italian law provides a waiver of parental authorization where the attending physician finds grounds rendering it inadvisable to consult the parents (or those acting on their authority) or to respect their veto if the girl's wishes and her parents' views conflict. In such a case the physician must submit a request to a magistrate (except in cases of emergency). Where countries' laws express no specific waiver in the abortion legislation it is unlikely that a parental veto would be respected in cases of danger to a daughter's life or health, because parents have legal duties to ensure that their children have access to necessary and reasonable health care. The highly influential Gillick decision of the highest court of England27 confirmed that parents possess legal powers over children's health only for the purpose of permitting parents to discharge their legal duties, which include the provision of medically indicated care. It held that mature minors capable of exercising informed choice may give legally effective autonomous consent to contraceptive and 1307
COOK AND DICKENS
abortifacient treatments. The Gillick decision dispels the myth that there is an "age of consent" for medical treatment comparable to that rendering consensual intercourse with an underaged girl as statutory rape. Instead, the court found that there is only a condition of consent, namely capacity to exercise free and informed choice over medical treatment. Regulations on parental authorization of minors' medical care must be read as being subject to this "mature minor" exception. Parents retain decision-making power over immature minors, and may exercise such power to protect children's moral welfare. It is unlikely, however, that courts would permit parents to pursue moral goals by risking their children's lives or physical or mental health. A parental veto of abortion indicated on physical or mental health grounds would probably be considered a violation of a parent's duty to provide or permit provision of due care. The US Supreme Court has attempted to determine the lawful scope of state laws containing provisions for parental authorization or at least parental notification of minors' abortions. It held that mature minors are not subject to a parental veto28 and that immature minors who are subject to veto must be afforded an alternative means of gaining approval for abortion, such as by a means of resort to the courts.29 Parental notification provisions have been upheld in principle but the Supreme Court has indicated that they must be subject to a means ofjudicial petition to waive notification for mature minors and for immature minors whose best interests are shown liable to be injured by notice.30 A provision expressly mandating a period of delay for reflection is found in the legislation of France, Italy, Luxembourg, and The Netherlands. In order to be eligible for an abortion, a woman has first to request it and then return after a minimum period for reflection, usually a week, to obtain it. Such reflection delays have been prohibited by the US Supreme Court31 as an undue interference in the women's privacy right. In any event, from a clinical view point they are feasible only when timely access to abortion services is otherwise unimpaired. Reflection delay provisions contain an express or implied exception when abortion is immediately necessary to prevent grave danger to maternal life or permanent health. When the reflection delay takes a woman into an advanced stage of gestation such as the second trimester, additional criteria that usually have to be satisfied for abor-
tion at that advanced stage tend to be waived. Contracepdve Provisions Recognizing that prevention is better than cure, a number of countries encourage practices that would reduce the incidence of unwanted pregnancy, and have redesigned their abortion laws as part of a comprehensive package aimed to facilitate access to contraception and voluntary sterilization. The Italian law, for example, requires local and regional health authorities to promote contraceptive services and other measures to reduce the demand for abortion. The Czechoslovakian law aims to prevent abortion through, for example, sex education in schools and health facilities and provides for free contraceptive and associated care. The Luxembourg law provides for contraceptive services to minors free of charge. The Turkish law facilitates access to voluntary sterilization as well as to abortion. Increasingly, legislation requires that abortion services be accompanied by post-abortion contraceptive counseling and education, which some laws extend to counseling of men. The Yugoslav jurisdictions, giving effect to a 1974 federal constitutional amendment, commonly require that abortions 1308
be performed in medical establishments that inform women about contraception. The Italian law requires the physician performing the abortion to inform the woman on preventive birth control methods, and the French law requires the establishment where the abortion is performed to provide birth control information. Some countries, such as Liberia, The Netherlands, and New Zealand, have followed the 1974 Austrian32 and the 1976 West German33 laws and expressly decriminalized medical interventions for the period between fertilization and completion of implantation ofthe fertilized ovum. This is a period of up to 21 days since fertilization or, where fertilization is difficult to pinpoint, up to 35 days since the last menstrual period (LMP). In such countries, the use of contraceptive methods during this time period does not need to meet the requirements of the abortion law. Accordingly, contraception is encouraged in order to prevent occurrence of pregnancy, which is generally accepted to begin at completion of implantation.34 The potential development of antiprogestin drugs offers the prospect not only of safe and effective contraception but also of medical treatment during the six weeks since the last menstrual period.35 It is a matter of definition whether this treatment is called contraception, luteal interception, contragestion, or abortion, but clinical trials indicate that such antiprogestins will provide means of non-invasive early treatment to prevent or frustrate gestation.36 Limited regard is paid in legislation to unimplanted embryos, increasingly called pre-implantation embryos (preembryos). The Ethics Committee of the American Fertility Society defines a preembryo as: "a product of gametic union from fertilization to the appearance of the embryonic axis. The preembryonic stage is considered to last until 14 days after fertilization."37
The reduced status of preembryos was confirmed in 1981 in England when the Minister of Health, on legal advice, concluded that if intrauterine devices prevent implantation of preembryos their use is nevertheless not restricted by the 1967 abortion law.38 In 1983 the Attorney General of England similarly observed that post-coital contraception, even if operative after fertilization of an ovum, is not governed by the abortion law.39 In vitro fertilization practices are on a continuum from late contraception to early abortion and most countries tolerate the planned wastage of preembryos.' Constitutional Reform
A number of countries have changed their national constitutions in ways that bear upon women's access to abortion services. Most specific was the constitutional change in the Republic of Ireland, whose previous criminal law had in any event proscribed abortion except to save the woman's life. Apparently in fear that future legislation could decriminalize abortion in whole or in part by a mere revision of the criminal law, the government amended the Constitution in 1983 to acknowledge "the right to life of the unborn ... with due regard to the equal right to life of the mother ".41
A number of countries have incorporated in their constitutions the provision of the American Convention on Human Rights that accords the right to life legal protection ". . . in general, from the moment of conception."42 In 1978 the Constitution of Ecuador introduced such general protection,43 as did the new 1986 Philippine Constitution."
AJPH October 1988, Vol. 78, No. 10
INTERNATIONAL DEVELOPMENTS IN ABORTION LAWS, 1977-88
Such protection does not necessarily prevail over women's rights, since women also enjoy legal protection of their rights to life and health.45 Moreover, the protection of the right to life "in general" allows for specific exceptions. In Chile the 1980 Constitution protects not only the right to life and to physical and psychic integrity of the individual, but also the life of those "about to be born."" Since the Constitution also provides the right to protection of health, a conflict may
appear between the interests of unborn life and a woman's interests in abortion to preserve her life or health. This conflict may be limited, however, to late gestation, since at an earlier stage the unborn may not be "about to be born." Amendments made in 1977 to the Constitution of Paraguay provide for the protection of every child from conception,47 but also provide for protection of the family"8 and of health.49 Conflicts may arise where epidemiological evidence shows that sound child spacing assisted by availability of abortion contributes positively to reduction of maternal50 and infant mortality,5 and accordingly to protection of the family. In contrast to Paraguay, Panama amended its Constitution in 1979 to require the state to establish a family protection agency "to foster responsible parenthood through family education"52 and to protect "health" as understood by the World Health Organization; that is, as a state of "complete physical, mental and social well being. "53 The Peruvian Constitution of 1979 protects the right to life of one "about to be born,"54 but also provides that the State respects responsible parenthood.55 No less ambivalent is the 1982 Constitution of Honduras, which provides that "the unborn shall be considered as born for all rights within limits established by law."56 This Constitution also provides for promotion and preservation of individual and community health,57 which may give legal significance to epidemiological data on maternal and infant health benefits due to family planning programs that include abortion. Family planning rights have been introduced in several countries' constitutions, although invariably without specifications of whether rights to abortion are included. Yugoslavia recognized the individual's right to decide on family planning in its 1974 federal constitution58 and, in the last decade, all of its several constituent jurisdictions have given effect to this right by allowing abortion in the early stages of pregnancy (see table). The 1982 Constitution of the People's Republic of China imposes upon both husband and wife the duty to practice family planning,59 and the 1980 Constitution of Vietnam requires the State itself to campaign for famil. planning.60 The Vietnamese6" and the 1986 Constitutions recognize the right to privacy, but it is unclear whether they import the extent of privacy the US Supreme Court found protected under the US Constitution in Roe v.
NicaraguanV2
Wade.63
Litigation The last decade has seen an intensification of resort to
litigation by opposing activists on the issue of abortion seeking to advance their respective agendas. The Supreme Court of Canada in January 1988 set aside the restrictive provisions of the Criminal Code that had made abortion available only on medical grounds certified through therapeutic abortion committees." The Court held in the Morgentaler case that this law unjustly violated a pregnant woman's right to security of her person and thus infringed the AJPH October 1988, Vol. 78, No. 10
right to life, liberty, and security of the person protected by the Canadian Charter of Rights and Freedoms. Chief Justice Brian Dickson explained, "Forcing a woman, by threat of criminal sanction, to carry a fetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman's body and thus an infringement of security of the person."
The case ended almost 20 years of Dr. Henry Morgentaler's resistance to legislation that had been shown to operate inequitably and to cause delays that endangered women's health and denied them physical and psychological well-being and dignity. A 1977 report had shown the system to operate unfairly, since no duty existed to create a committee that alone could approve an abortion, and over 40 per cent of Canadian women resided in areas whose hospitals were ineligible to create committees.65 In striking down the abortion provisions, the federal Supreme Court was divided on whether some future regulation of abortion might be legitimate under the Charter of Rights and Freedoms. The Court left open the extent of fetal interests under the Charter, but has granted leave to hear an appeal on this issue from the Saskatchewan Court of Appeal. In 1977, the European Commission of Human Rights decided a case on the West German Abortion Law67 that influenced a 1985 decision of the Spanish Constitutional Court on Spain's abortion legislation." The 1977 and 1985 cases have generated reflection on how the United States has approached the abortion issue.69 In contrast to the North American rights-based approach that contrasts women's and fetal rights, the European decisions invoke communitarian values. They attempt to identify the grounds on which their respective communities find abortion tolerable without punishment and the grounds on which they would tolerate protection offetal interests over those ofwomen's autonomy. The European Commission of Human Rights found that the right to respect for private life guaranteed under Article 8 of the European Convention on Human Rights is not absolute, but that it was not violated by the 1976 West German abortion law.70 This law conformed to guidelines for legislation on abortion laid down by the Constitutional Court of the Federal Republic of Germany in 1975,7' which addressed a 1974 liberalization of the national abortion law permitting elective abortions in the first trimester.72 The 1975 decision found the 1974 reform unconstitutional, and established limits within which permission of abortion would be constitutional in West Germany. The 1976 legislation giving effect to these conditions of constitutionality was upheld by the European Commission when challenged on the ground that they violated individual privacy. The European jurisprudence emphasizing neither the rights of fetuses nor of pregnant women but the value of unborn human life to the community into which it may be born is reflected in the 1985 decision of the Spanish Constitutional Court. The Court expressly declined to hold that a fetus in itself possesses legal rights, but found that unborn life is a public good or asset that the constitution protects, and that the state may make that protection effective, if necessary through criminal law. The Court held that there is nothing unconstitutional in permitting abortion where the woman's life is at stake and where there is serious danger to her health. Further, since rape violates personal dignity to the highest degree, the law cannot constitutionally require that the victim bear its consequences. The Court also found that it would be 1309
COOK AND DICKENS
constitutionally excessive to demand by penal sanctions that a woman continue a pregnancy she wishes to terminate because of serious physical or mental fetal defects or abnormalities.7 The Inter-American Commission on Human Rights was asked to deal with abortion in the 1981 Baby Boy case.74 This case challenged the 1976 decision of the Supreme Judicial Court of Massachusetts,75 which held that an abortion performed consistently with the US Supreme Court decision Roe v Wade is not punishable under that state's homicide law. The American Convention on Human Rights uses language protecting human life "in general" from the moment of conception, but in the Baby Boy case the Commission considered that this general protection of unborn life does not impair the right of privacy identified in Roe v Wade, nor the Massachusetts decision on the scope of the homicide law. Abortion is not considered to be an extraterritorial crime, meaning one for which a national is punishable before the courts of his or her own country for action taken in another country. Nevertheless the High Court of Ireland has held that to advertise in Ireland the availability of abortion services in England can constitute the crime of conspiracy to corrupt public morals.76 It is proposed to appeal this decision to the European Commission on Human Rights. In Belgium, 50 people who were directly or indirectly involved with performing abortions were recently acquitted by the Constitutional Court of Ghent.77 The Court held that abortions executed by doctors in medically justifiable circumstances and without profit are not punishable. The acquittal of the defendants, which is being appealed, took account of the distress of the patients as well as the evolution of public opinion on abortion and the availability of lawful abortion in neighboring countries. Australia has experienced cases in Queensland" and Victoria79 in which medical practitioners have been acquitted when charged with criminal abortion, on the grounds that their procedures were conscientious and medically indicated. Discussion
International developments in abortion laws have been diverse and some are diametrically opposed to others, but the overall movement has been toward liberalization of laws through legislation and judicial interpretations that have reduced legal barriers to access to therapeutic abortion services. Governments that characterize abortion primarily as a criminal activity may achieve apparently high levels ofpublic regulation of the practice but risk diverting it into risk-laden avenues associated with high rates of maternal mortality.80 Where abortion is so restricted by penalties, the incidence of injury through unqualified intervention in pregnancy tends to be high, although the effectiveness of traditional techniques of pregnancy termination should not be underrated.81 Nevertheless women may suffer severe pain and injury even through effective techniques, such as massage abortion which has long been undertaken in, for example, Thailand.82 The latest changes in the US foreign assistance program, expressed in the Mexico City policy,83 have precluded the funding of family planning programs of foreign nongovernmental organizations that use separate resources, including private funds, for therapeutic abortion. The Mexico City policy is coming under increasingly active challenge in the US courts.04 The effect and perhaps the purpose of the policy is to deny dependent third world women access to family 1310
planning services that include abortion as an option or fail safe assurance in the case of contraceptive failure that US women are constitutionally guaranteed.85 The prevailing US initiative runs counter to the evolving trend of worldwide abortion law reform. Where governments classify abortion as a problem of health and family planning they are more likely to introduce counseling and medical services to reduce the incidence of abortion, such as by developing their services regarding contraception and voluntary sterilization. In Ontario, for example, the Provincial Health Ministry is implementing recommendations to establish regional women's health care centers that will include contraception and abortion services and related counseling." Development of accessible "wellwomen health centers" may increasingly absorb abortion services into general reproductive health care in countries where a provision of such health care services is considered a legitimate function of government. ACKNOWLEDGMENTS
We are indebted to Reed Boland (editor of Annual Review of Population Law), Henry David (editor, Abortion Research Notes), Sev Fluss (editor, International Digest Health Legislation), Bartha Knoppers (University of Montreal), Judge Mustafa Abd El Fatah Labana (Cairo, Egypt), Eve Paul (Planned Parenthood of America), Maria Isabel Plata (Bogota, Colombia), Ruth Roemer (University of California at Los Angeles), and Jan Stepan (Swiss Institute Comparative Law) for information or comments on earlier drafts of this paper, and to Ilene Shiller (University of Toronto Law Faculty) for research assistance. This research was initially undertaken when R. Cook was Assistant Professor, School of Public Health, Columbia University, and B. Dickens was Julius Silver Fellow, Columbia School of Law. Any mistakes are the sole responsibility of the authors.
REFERENCES
1. For developments before 1977, see Cook RJ, Dickens BM: A decade of international change in abortion law: 1967-1977. Am J Public Health 1978;
68:637-644. 2. Mahler H: The safe motherhood initiative: A call to action! Lancet 1987;
1:668-670.
3. Tietze C, Henshaw SK: Induced Abortion: A World Review 1986. New York: Alan Guttmacher Institute, 1986. 4. Criminal Code of China I July 1979: Annual Review of Population Law (1979) 21. 5. Criminal Code of Togo law No. 80-1 of 13 August 1981, Journal Official de la Republique Togolaise Numero Special, No 20 of 13 August 1981. 6. The 1986 Criminal Code of the Socialist Republic of Vietnam. Review of Socialist Law 1987; 13:121-198. 7. Criminal Code of Cuba 15 Feb 1979 Chap 6:Art 320-324. Gaceta Oficial de la Republica de Cuba 77 (3) 1 Mar 1979 47. 8. Decree No. 13-85, 26 Feb 1985. 9. Article 65. 10. Article 67. 11. Law No. 564 of 14 July 1978. 12. Law No. 572 of 12 July, 1985. 13. 448 U.S. 297 (1980). 14. Alaska, Hawaii, Maryland, New York, North Carolina, Oregon, Washington, West Virginia. 15. California, Connecticut, Massachusetts, Michigan, New Jersey, Vermont. 16. Cates W, Grimes DA: Deaths from second trimester abortion by dilation and evacuation: causes, prevention, facilities. Obstet Gynecol 1981; 58: 401-408. 17. Morgentaler v The Queen (1988), 37 CCC (3d) 449 (S.C.C.). 18. Powell M: Report on Therapeutic Abortion Services in Ontario. Toronto: Ontario Ministry of Health, 1987. 19. Cook RJ, Maine D: Spousal veto over family planning services. Am J Public Health 1987; 77:339-334. 20. Re Medhurst and Medhurst (1984), 45 O.R. 2d 575 (Ont. S.C.); Medhurst v Medhurst (1984), 46 O.R. (2d) 263; Cook RJ, Dickens BM: Issues in Reproductive Health Law in the Commonwealth. London: Commonwealth Secretariat, 1986. 21. Paton v Trustees of British Pregnancy Advisory Service [1978] 2 All E.R. 987. 22. Conseil d'Etat (C.E.), October 31, 1980, S.J. 1982, 19732 (Note Semaine Juridique, Francoise Dekeuwer Defossez) (France); Knoppers B, Brault I: L'Avortement et la Loi Dans les Pays Francophones (Abortion and the
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23. 24. 25. 26. 27. 28. 29. 30.
31. 32. 33. 34.
35.
36.
37.
38. 39.
40.
41. 42. 43. 44. 45.
Law in Francophones Countries). Montreal: Edition Themis, 1988 forthcoming. A v B (1981) 35 (iii) P.D. 57. Planned Parenthood of Central Missouri v. Danforth 428 U.S. 52 (1976). Constitutional Court Yugoslav Law No. 3 1979: Annual Review of Population Law 1979:32. Paton v U.K. 3 EHRR 408 (1980). Gillick v West Norfolk and Wisbech Area Health Authority (1985) 3 All E.R. 402 (UK House of Lords for England). Supra note 24. Bellotti v Baird 443 U.S. 622 (1979). H.L. v Matheson 450 U.S. 398 (1980); City of Akron v Akron Center for Reproductive Health, Inc. 462 U.S. 416 (1983). Akron, id.; Zbaraz v Hartigan 50 U.S. Law Week 4053 (Dec 14, 1987). Austrian Penal Code Sec 96-98. Annual Review of Population Law 1974; 47-49. The Fifteenth Criminal Law Reform Act was adopted on 12 February 1976, promulgated on 21 May 1976 and entered into force on 21 June 1976; International Digest of Health Legislation 1976; 27:562. Committee on Terminology of the American College of Obstetricians and Gynecologists: Obstetric-Gynecological Terminology 1972; 327. Protection of Human Subjects: U.S. Code of Federal Regulations 1983; 46:12. Baulieu EE, Ulmann A, Philibert D: Contragestion by Antiprogestin RU 486: A Novel Approach to Human Fertility Control. In: Diczfalusy E, Bygdeman M (eds) Fertility Regulation Today and Tomorrow. New York: Raven Press, 1987. Rodger MW, Baird DT: Induction of therapeutic abortion in early pregnancy with mifepristone in combination with prostaglandin pessary. Lancet 1987; ii:1415-1418; Couzinet B, Le Strat N, Ulmann A, Baulieu EE, Schaison G.: Termination of early pregnancy by the progesterone antagonist RU 486 (mifepristone). N Engl J Med 1986; 315:1565-1570. Ethical Considerations of New Reproductive Technologies. Fertil and Steril 46 (3) Supp 1: vii (1986); McLaren A: Where to Draw the Line? Proc. R. Inst. GB 1984 56:101-121; McLaren A, Letters to the Editor, Nature 1986; 320:570 and Nature 1987; 328:10. Vaughan G: Sunday Times [London] 1981: 27 Sept. Havers M: Hansard 1983: 42 (112), Columns 238-9, discussed in Cook RJ: Legal abortion: Limits and contributions to human life. In: Ciba Foundation Symposia (ed): Abortion: Medical Progress and Social Implications. London: Pitman, 1985. Warnock M (Chair) Report of the Committee of Inquiry into Human Fertilisation and Embryology, London: HMSO Cmnd. 9314, 1984; Guidelines for both Chemical and Research Applications of Human In Vitro Fertilisation First Report of the Voluntary Licensing Authority For Human In Vitro Fertilisation and Embryology (jointly sponsored by Medical Research Council and Royal College of Obstetricians and Gynecologists) 30-2 (1986); Waller L (Chair) Victoria Australia Committee to Consider the Social, Ethical and Legal Issues Arising from In Vitro Fertilization. Report on the Disposition of Embryos Produced by In Vitro Fertilization, 1984; Ontario Law Reform Commission, Report on Human Artificial Reproduction and related matters 217 (1985); Bernard J (Chair) Comite Consultatif National d'Ethique pour les Sciences de la Vie et de la Sante. Avis relatif aux Recherches sur les Embryons Humains In Vitro et a Leur Utilisation a des Fins Medicales et Scientifiques 9, 10. Paris: Le Comite, December 15, 1986. Article 40.3.3. Article 4(1). Article 23. Article II sec 12. See, for example 1986 Philippine Constitution Article II sec 14 on sexual equality, Article XIII sec 11 on health.
46. 47. 48. 49. 50. 51. 52.
53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67.
Article 19(1). Article 85. Articles 81-88. Article 93. Supra note 2. Maine D, McNamara R: Birth Spacing and Child Survival. New York: Center for Population and Family Health, Columbia University, 1985. Article 58.1; see also 1986 Philippine Constitution Act XV sec 3(1) on responsible parenthood. Article 103. Article 2.1. Article 6. Supra note 9. Articles 145-150. Article 191. Article 49. Article 40. Article 71. Article 26. 410 U.S. 179 (1973). Supra note 17. Report of the Committee on the Operation of the Abortion Law, 1977, Robin F. Badgley, Committee Chair, Ottawa, Canada: Printing Publishing Supply Services Canada, Catalog No. J2-30/1977. Borowski v Attorney-Generalfor Canada (1987), 39 D.L.R. (4th) 731. Bruggeman and Scheuten v Federal Republic of Germany 3 E.H.R.R. 244
(1977).
68. 11 April 1985, Annuario De Derecho Penal y Ciencias Penales 39:1, 276 (1986). 69. Glendon MA: Abortion and Divorce in Western Law: American Failures, European Responses. Cambridge: Harvard University Press 1987. 70. Supra note 33; Eser A: Reform of German Abortion Law: First Experiences Am J Comparative Law 1986; 34:369-383. 71. Judgment of 25 Feb 1975, 39 B Ver 6 G 1-95 (1975) translated by Jonas RE, Gorby JD, John Marshall J Prac and Proc 1976; 9:605-684. 72. The Fifth Criminal Law Reform Act was adopted on 26 Apr 1974, and promulgated on 21 June 1974, but never came into force. 73. Stith R: New constitutional and penal theory in Spanish abortion law. Am J Comparative Law 1987; 35:513-558. 74. Res. No. 23/81, Case 2141, Annual Report of the IACHR 1980-81, OEA. Sec L/V/1 154 doc 9 rev 1 16 Oct 1981 25-54. 75. Commonwealth v Edelin, 359 N.E. 2d 4 Mass S.C. 1977. 76. A.G. (S.P.U.C.) v Open Door Counselling (1987) ILRM 477-503. 77. Constitutional Court of Ghent (12 Feb 1988). 78. Re Bayliss O.S. No. 326 of 1985 unreported. 79. The Age (Melbourne) 3 June 1987. 80. Wanjala S, Murugu NM, Mati JGK: Mortality due to abortion at Kenyatta National Hospital, 1974-1983. In: Ciba Foundation Symposia (ed): Abortion: Medical Progress and Social Imlpications. London: Pitman, 1985. 81. Liskin LS: Complications of abortion in developing countries. Popul Rep 1980; F-107-155. 82. Singnomklao TN: Abortion in Thailand and Sweden: health services and short-term consequences. In: Ciba Foundation Symposia (ed): Abortion: Medical Progress and Social Implications. London: Pitman, 1985. 83. The Policy Statement of the United States at the United Nations Conference on Population (Second Session) Mexico, D.F. Aug 6-13, 1984 at 5; see symposium edition on the US Mexico City Policy, New York University Journal of International Law and Politics (forthcoming) 1988. 84. Planned Parenthood Federation of America v AID 670 Fed Supp 538 S. Dist N.Y. 1987, Docket No. 87-6246 U.S. 2nd. 85. Supra note 63. 86. Supra note 18.
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Local AIDS Services: Directory Available
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Local AIDS Services: The National Directory, May 1988 has been prepared by the US Conference of Mayors and The Fund for Human Dignity, Inc. The directory is a comprehensive listing of AIDS services throughout the United States, with over 2,000 entries, including: local and state health departments, AIDS service organizations, federal agencies, Social Security AIDS coordinators, home health care agencies, hospitals, and others. Available for $12 prepaid. Contact: Phyllis Dickerson, US Conference of Mayors, 1620 Eye Street, NW, Washington, DC 20006.
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