Abortion Bans: Are they effective in achieving legislators’ aims?

‘Myślę, czuję, decyduję’ (translation: ‘I think, I feel, I decide’) – in the midst of the second wave of the Covid-19 pandemic, Poland has been taken over by protests against the recent constitutional ruling on the legality of abortion. Whilst only in 2018 did we observe the long-awaited repeal of the Irish abortion ban, Poland seems to be heading in the opposite direction. What’s more, it might not be on its own. With the recent Supreme Court changes in the US, there seems to be a widespread concern as to how long Roe v Wade, a Supreme Court decision that legalized abortion in the US, will last. In light of these worldwide trends on abortion bans, this article will explore the potential social effects resulting from the criminalization of abortion.

On 21st October 2020, the Constitutional Tribunal in Poland ruled and narrowed the legitimate grounds for abortion. Since 1993 and until recently, Poland had adopted a compromise between an outright legalization and a total ban for abortion. Specifically, women were legally entitled to undergo the procedure in three situations: where the pregnancy was a result of rape or incest; where the pregnancy posed a threat to the life of the mother; and where the pregnancy will result in serious or fatal foetal abnormalities (The Family Planning, Human Embryo Protection and Conditions of Permissibility of Abortion Act of 7 January 1993, Article 149(a)(3)). It is the last scenario that has now been declared unconstitutional and outlawed, unsurprisingly provoking outrage amongst the Polish citizens. According to the Ministry of Health, 1,074 out of 1,110 legal abortions in 2019 concerned cases with a high probability of serious or fatal foetal defect (Zakolska, 2020). The ruling, therefore, constitutes a total ban in practice. The question remains as to where the ban will leave us. Will it really achieve the government’s aim to limit the number of abortions?

History suggests the answer is no. Let’s take Ireland as a case study. Before 2018, the state had gone to great lengths to restrict the number of abortions within its borders by imposing far-reaching criminalization and granting equal rights to the foetus and the pregnant woman (Amnesty International, 2015). Ironically, the courts had also repeatedly recognised women’s right to travel abroad for an abortion. The courts, legislature and general public all thereby recognized that women who need abortions will procure them, if not in Ireland, then somewhere else (AI, 2015). Data shows that approximately 4,000 women and girls have travelled yearly from Ireland to England precisely for abortions (Department of Health and Social Care, 2013). The phenomenon of procuring abortion overseas is present in Poland as well. Statistics show that while there may have only been 1,110 abortion cases in Poland in 2019, around 80,000 to 120,000 women had sought the procedure abroad (Easton, 2020). Thus, if the aim of criminalization is to reduce the amount of abortions, the government’s attempt has failed. The abortions are simply ‘exported’ outside of its borders.

However, not everyone can afford travel and the potential costs of the abortion procedure. Therefore, criminalization encourages a divide, with the ‘export’ of abortion elevating it into an inaccessible luxury. This seems to fit into the narrative of pro-life supporters, who view abortions as something done on a whim. Yet such a view misinterprets the context entirely. For most women, abortion is a means to cope with situations that range from unplanned and undesired to terrible traumas (Stark, 2019). Thus, a strict ban will force those who cannot afford to undergo abortion procedures to turn to unsafe methods in their home countries instead. This effect has been recognised by the United Nations Human Rights Committee, which previously expressed concern over Ireland’s Protection of Life During Pregnancy Act 2013 ‘discriminatory impact on women who are unable to travel abroad to seek abortions’ as the options left to them are severely limited to unsafe abortions (AI, 2015). It is defined by the World Health Organisation (‘WHO’) as a ‘termination of an unwanted pregnancy either by persons lacking the necessary skills or in an environment lacking the minimal medical standards or both’ (WHO, 2020). Whilst a common method to illegally abort is to ingest harmful substances (e.g. excessive drinking, over-medication), women often turn to self-harm. Amnesty International revealed that it is not uncommon for them to repeatedly hit their stomach, take scalding hot baths or throw themselves down the stairs. The desperation of women with unwanted pregnancies is evident by the story of AF, who contemplated throwing herself into traffic or down the bridge. She admitted that if it were not for her sister’s financial aid, she would not have been able to travel to England for an abortion and would likely have committed suicide (AI, 2015). As seen from the symbol of Poland’s abortion protests – a coat hanger, an everyday item which has frequently been used as an at-home tool for ‘scraping out’ the foetus, it is clear therefore that the ‘export’ of abortions would only deepen the social divide between those wealthy enough to travel and those who are not.

On the other hand, such practices of unsafe abortions carry high risks of serious medical complications, ranging from infection, haemorrhage, and uterine perforation to potential death. In fact, it is revealed by WHO that 4.7% - 13.2% of maternal deaths each year are attributed to unsafe abortion practices (WHO, 2020). Worse still, the damaging health impacts extends from the procedure to women’s post-abortion, as they may have limited access to medical attention. Criminalization of abortion has the potential of a‘chilling effect’ among medical professionals and healthcare providers, who in fear of overstepping the stringent laws and committing a crime, may refuse help (Amnesty International, 2020). This has fatal consequences as women could also feel deterred from seeking any post-abortion help. Although the fear of prosecution plays a role here, it is the additional stigma that criminalization of abortion propagates within the society that forces women to face their struggles alone. Although the stigma is enough to discourage women from seeking external help, it should be noted that women nevertheless make the choice of having an abortion (be it unsafe or not). It’s clear, therefore, that criminalizing abortion does not in practice reduce the number of procedures; it only makes them less safe.

Having established that the aim is not achieved through the means currently employed, it is useful to consider whether there are less radical alternatives to limit the number of abortions. One solution would be to ensure the accessibility of contraceptives, which could lower the frequency of undesired pregnancies. This is currently adopted in the UK, where the morning after pill is available for free at any pharmacy (NHS, 2020). Interestingly, however, the countries that place a total ban on abortions are usually also characterized by a negative attitude towards contraceptives. In Poland, for example, the morning after pill is available only after obtaining a prescription from the doctor. Given that it is crucial to have access to the pill speedily, the reliance on efficiently getting a doctor’s appointment seems counterproductive to the preventative aim of the pill. Assuming in the first place, of course, that said doctor will not choose to rely on the morality clause to refuse giving such prescription. Moreover, the nation is also characterized by a lack of proper sex education, embodying the misguided belief that if sex is not talked about with teenagers, they will not engage with it. Countries should thus improve their provision of contraceptives and sex education to ensure that where pregnancies do happen, they are the result of a consensual choice between the mother and father, rather than an accident.

However, the aforementioned solution only serves as an effective alternative in cases of undesired pregnancies. Since undesired pregnancies are not the only motivation for abortion as sometimes assumed, the question remains as to what could be done in situations of serious foetal defects. Poland recently decided it is not a sufficient reason to allow for abortion – however, it has simultaneously failed to implement any sort of support for women who will now be forced to have the baby in such circumstances. It appears that any interest terminates with the birth of the child (Olender, 2020). The country has continuously failed families of disabled children, in terms of providing both financial and mental support, leaving them to fend for themselves. Similarly, no support is offered for women in the event of the death of such children during or shortly after birth (Olender, 2020). Merely criminalizing abortion in these cases will not be a sufficient deterrence in the face of the potential struggle and trauma the mothers may face were they to carry the pregnancy until the end.

Therefore, it appears that regardless of the legal consequences and stigma criminalization of abortion brings, women will continue to procure the procedures. The only difference is the level of risk they face when making the choice, both in terms of health and potential persecution. Rather than adopting abortion bans as a mechanism of deterrence, countries should focus their efforts on sex education alongside the wellbeing and safety of pregnant women. Although it might be argued that the aim of criminalization is not only to reduce abortion rates but also to signify abortion as a moral wrong, this opens up a separate debate as the aim of this article is to assess the factual effects abortion bans have on the general society. However, in response to such argument, there is no disputing the moral-signalling function of criminal law. Yet, not much can be said about the effectiveness of a ban in communicating such wrong where it is continuously (and arguably justifiably) contradicted.

Bibliography

Amnesty International (2015). She is not a criminal – the impact of Ireland’s abortion law, [online] Available at:

https://www.amnesty.org.uk/files/she_is_not_a_criminal_report_-_embargoed_09_june.pdf [Accessed 4 Nov. 2020]

Amnesty International (2020). Key facts on abortion, [online] Available at: https://www.amnesty.org/en/what-we-do/sexual-and-reproductive-rights/abortion-facts/ [accessed 5 Nov 2020]

Department of Health and Social Care. Abortion Statistics for England and Wales 2013, [online]. Available at: https://www.gov.uk/government/statistical-data-sets/abortion-statistics-england-and-wales-2013 [accessed 5 Nov. 2020]

Easton, A (2020). Poland abortion: Top court bans almost all terminations. BBC News, [online]. Available at: https://www.bbc.co.uk/news/world-europe-54642108 [accessed 4 Nov 2020]

NHS (2020). Emergency Contraception – Your Contraception Guide. [online]. https://www.nhs.uk/conditions/contraception/emergency-contraception/ [accessed 6 Nov 2020]

Olender A (2020). PiS bans abortion, but leaves children post-birth without support. Na Temat, [online] Available at: https://natemat.pl/324365,opieka-nad-niepelnosprawnym-dzieckiem-tak-wyglada-wsparcie-w-polsce [accessed 6 Nov 2020]

Stark, S.A. (2019). Abortion and Social Justice: Seeking a Common Ground Position (work in progress). [online] Available at:

https://www.bates.edu/philosophy/files/2017/09/Abortion-and-Social-Justice-Jan-2018.pdf [accessed 5 Nov 2020]

The Family Planning, Human Embryo Protection and Conditions of Permissibility of Abortion Act of 7 January 1993, Article 149(a)(3)

World Health Organisation (2020). Preventing Unsafe Abortion, [online]. Available at: https://www.who.int/news-room/fact-sheets/detail/preventing-unsafe-abortion [accessed 6 Nov 2020]

Zakolska, O (2020). Oficjalne dane o legalnej aborcji w Polsce: 1100 zabiegów przerwania ciąży w 2019r. Puls Medycyny, [online] Available at: https://pulsmedycyny.pl/oficjalne-dane-o-legalnej-aborcji-w-polsce-1110-zabiegow-przerwania-ciazy-w-2019-r-999603 [Accessed 6 Nov. 2020]