OVERVIEW ON CONTENTIOUS NATURE OF SUBJECTAlthough abortion is commonly practised throughout most of the world and has been practised since long before the beginning of recorded history, it is a subject that arouses passion and controversy.
ABORTION RAISES FUNDAMENTAL QUESTIONS:When does life begin?Does a woman have control over their bodies?What is the State’s duty to protect the unborn?Where should the divide be drawn between secular and religious views?Also central to the subject of abortion is one of the most highly controversial social issues of all, sexuality.
Module 36 THE BATTLE OVER ABORTION FROM A U.S. STANDPOINT █ Understanding the Issue – In 1973, the U.S. Supreme Court granted women the right to terminate pregnancies – Pro-choice groups believe women have the right to make decisions about their bodies – Pro-life believe life begins at the moment of conception, so abortion is an act of murder
Module 36 THE BATTLE OVER ABORTION FROM A U.S. STANDPOINT █ Understanding the Issue – Debate following Roe v. Wade revolves around prohibiting abortion – Parental notification and consent especially sensitive issues – In U.S., people appear to support right to legal abortion, but with reservations
Module 36 THE BATTLE OVER ABORTION FROM A GLOBAL PERSPECTIVE █ Initiating Policy – Supreme Court continues to hear cases – Most European nations liberalized abortion laws beginning in the 1970s – Throughout 1980s and 1990s, Congress often blocked aid to countries that might use funds to encourage abortion • 40% of abortions worldwide are performed illegally
Module 36 FIGURE 35-4: RESTRICTIONS ON PUBLIC FUNDING FOR ABORTION
Module 35 FIGURE 35-5: THE GLOBAL DIVIDE ON ABORTION
MAJOR DIMENSIONS OF ABORTION POLICY: PRACTICAL CHALLENGESThe major organizations that compile international abortion statistics:the Guttmacher Institute, an organization that supports a womans right to choose abortion,The World Health Organization (WHO) of the United Nations (UN).
POLITICAL CHALLENGES CONT.In countries where abortion is illegal or severely restricted, it is impossible to know how many women get private abortions or how many miscarriages were actually induced abortions through a home method.Also, many countries where abortion is legal do not keep complete medical records.The abortion and health data that is available for other countries is often not as current at that for the United States. (“Abortion Around the World”)
CHALLENGES – LEGAL SYSTEMSAbortion law, like most law in the countries of the world, is governed by widely differing legal systems.These systems are based on varying sets of principles which can be generally divided into three separate systems:Civil law, including what was once denominated “socialist law,”Common lawIslamic law.
CIVIL LAWCivil law, originally from Roman lawMore recently from the Napoleonic Code enacted by the Government of France at the beginning of the nineteenth centurySystem based primarily on codified laws, such as civil codes, penal codes, family codes and commercial codes, each devoted to a specific topic.
BRANCH OF CIVIL LAW: SOCIALIST LAWEnacted in the twentieth century, after the First and Second World Wars, by the newly created Marxist States in Eastern Europe and parts of Asia.Like civil law, socialist law is based on codification, but largely of Marxist and socialist principles, and allows judges little room for interpretation of laws, except to conform to those principles.Emphasizes primarily the good of society as a whole, not the rights of individuals, and establishes a sort of guide for conduct.Differs from the civil law model in that it was initially imposed as a means of radically transforming the economic and social bases of society, as well as the behaviour and attitudes of its people.
COMMON LAWHas its origins not in codes, but in court determinations made by judges within the lands governed by the English crown.Law was viewed not primarily as a guide for conduct, but as a means of resolving disputes by individuals.Emphasized principles of self-reliance and individual rights such as property rights and freedom of contract more than the order and welfare of society.Law changes and progresses not primarily by means of enactment by the Government, but through the development of a body of court decisions containing the changing interpretations of judges as social conditions change.
COMMON LAW CONT.Thus, judges are given much greater leeway than under the civil law system to interpret these statutes in novel ways.Also, law is more fluid and less static than under the civil law system
ISLAMIC LAWIslamic law, known as Shariah, can be viewed as an example of a larger category of religious law, differs in important ways from both civil law and common law.Primary difference: its conception of law as inseparable from religion, so that no distinctions exist between the secular and the religious, as there are under the civil and common law systems.Law under Islam is based primarily on the text of the Quran, the holy book of Islam and the sunnah, the collection of acts and statements made by the prophet Mohammed
ISLAMIC LAW CONT.Thus, Islamic law is for the most part fixed and viewed as unchangingIn cases where situation is not specifically mentioned, Islamic jurists engage in interpretation and employ deductive or analogical reasoning leading to consensus.
CULTURAL & RELIGIOUS TRADITIONSReligions play or have played an important role in shaping legislation in a number of countries, particularly law relating to personal relationships, such as marriage, family interactions, children, and inheritance.For example, although not accepted as official law, canon law as developed by the Roman Catholic Church has been a significant force in countries with large Catholic populations such as Portugal, Spain and the countries of Latin America, as have Shintoism and Buddhism in Japan.
CULTURAL & RELIGIOUS TRADITIONS CONT.Local customary law, as practised by indigenous populations before the advent of European colonialism, has played a similar role in many developing countries of Africa. Family law, especially is based on the traditions of various ethnic groups.
INTEGRATION OF LEGAL SYSTEMS WITH TRADITIONSCountries have tried different strategies to solve the complex problem of legal systems and cultural/religious tradition.Some have preserved religious and customary law within the sphere of personal relationships while relying on colonial- based law in other areas of life.Some, such as Indonesia, have tried to blend the two to form a unique national system.Some, including Turkey and Japan, have almost entirely adopted Western models similar to those of France, Germany and Switzerland.Most recently, some countries, such as Afghanistan, Iran, Sudan and, increasingly, Pakistan, have moved to Islamic models.
ABORTION LAWS WITHIN LEGAL SYSTEMS Most common law countries, other than the United States, have abortion laws that are based on various English laws and court decisions. Some take as their model the Offences Against the Person Act of 1861. Under this Act it was prohibited “unlawfully” to use any means to procure an abortion. Other countries follow the English court decision, Rex v. Bourne, in which it was held that abortions performed for serious physical or mental health reasons would not be considered “unlawful” under the 1861 Act.
ABORTION LAWS CONT.Still other countries have looked to the British Abortion Act of 1967, which sets forth broad health, fetal impairment, and socio-economic indications for abortions, in general until the twenty-fourth week of pregnancy.Many civil law countries are based on the abortion provisions of the French Napoleonic Code of 1810, the 1939 French version of that Code or the 1979 abortion law of France.Any person who by any means procured the abortion of a pregnant woman was punished with imprisonment, although it was understood that an abortion could be performed when necessary to save the life of the pregnant woman.
ABORTION LAWS CONT.To the provisions of the 1810 Code, the 1939 French Penal Code added language specifically allowing an abortion to be performed to save the life of the pregnant woman.The 1979 Law allows a woman who is in a state of distress to have an abortion performed on request during the first ten weeks of pregnancy after she undergoes counselling and waits a week, and later in pregnancy on other serious grounds.In contrast to the common law system, court interpretations of these laws play a minor role.
ABORTION LAWS UNDER ISLAMIC LAWNo single abortion text or court case serves as a modelThe Quran and the sunnah, do not deal specifically with abortion. Moreover, until recently, Islamic criminal laws were not always codified.Consequently, Islamic law adopts a number of approaches towards abortion.In general, the attitude towards abortion is dependent upon whether the abortion is performed before ensoulment, the time at which a fetus gains a soul.Most often viewed as occurring 120 days into a pregnancy, but is also interpreted as occurring at 40 days.
ABORTION LAWS UNDER ISLAMIC LAW CONT.Some schools permit abortion for justifiable reasons before ensoulment, while others generally prohibit it at all points of pregnancy.All schools, however, allow abortion at any time during pregnancy in order to save the life of the pregnant woman.The punishment for abortion under classic Islamic law is payment of a sum of money to the relatives of the fetus
ABORTION LAW STATISTICSThe Center for Reproductive Rights, which supports a womans right to choose, reports in "The Worlds Abortion Laws" :61% of people live in countries where abortion is permitted for a wide range of reasons or without restriction.About one-fourth (26%) of the worlds population, however, live in countries that generally forbid abortion. May 2007, http://www.reproductiverights.org/pub_fac_abortion_laws.html
ABORTION STATISTIC PERMISSIVENESS69 countries (25.9% of the worlds population): Prohibited altogether or permitted only to save the womans life34 countries (9.4% of the worlds population): To preserve the womans physical health (and to save her life).Sometimes require that the potential injury be either serious or permanent.23 countries (4.2%): To preserve the womans mental health (and to preserve her physical health and save her life)
ABORTION STATISTIC PERMISSIVENESS14 countries (21.3%): Socioeconomic grounds (also to save the womans life and physical and mental healthBut consider a womans economic resources, her age, whether she is married, and the number of children she already has. These laws are usually interpreted liberally.56 countries (39.3% of the worlds women): Without restriction as to reason
UNSAFE ABORTION STATISTICSThe WHO reports in Unsafe Abortion: Global and Regional Estimates of the Incidence of Unsafe Abortion and Associated Mortality in 2000 :An estimated nineteen million unsafe abortions were performed around the worldNearly sixty-eight thousand women died because of these unsafe abortions. 2004, http://www.who.int/reproductive- health/publications/unsafe_abortion_estimates_04/estimates.pdf
LIMITATIONS EVEN IN LIBERAL COUNTRIESThe laws usually mandate certain conditions for allowing the abortion.The Center for Reproductive Rights indicates in Crafting an Abortion Law That Respects Womens Rights: Issues to Consider that these countries may impose:Gestational limitsConsent, counseling, and waiting-period requirementsFetal-age restrictionsLimitations on advertising abortion services; and limitations on the place of abortion and the person performing the procedure. *Get citation
EXAMPLES OF LIMITATIONSA woman in Turkey needs her husbands permissionIn Germany a woman is required to receive counseling that is intended to discourage her from having the abortionIn Belgium the waiting period is six days.Most countries set fetal age limits of seeking an abortion with the least restrictions at an upper limit of twelve to fourteen weeks.
AMBIGUITIESOwing to the different treatments of abortion in these three legal systems, a number of ambiguities arise:For example the health indication for abortion.A number of countries use the term “health” in their abortion laws without specifying what it encompasses.Thus it is unclear whether they intend abortions to be allowed in cases of threat to mental and physical health or only physical health.If one follows the definition of health accepted by the World Health Organization, health is a very broad term—“a state of complete physical, mental, and social well-being and not merely the absence of disease or infirmity,” then abortion for health reasons would be very common (WHO, 1994b).
COUNTRIES IN FOCUS: IRELANDThe only west European country that still bans abortion except in cases where the mothers life is threatened.In 1983 the Irish constitution was amended to ban abortion.In 1992 the Irish Supreme Court ruled that a woman could legally obtain an abortion in another country if there was a threat to her life, including the threat of suicide. In 1992 and 1995 other laws and measures were passed to allow women information but only on foreign abortion clinics.A 1997 poll found that 77% of respondents believed abortion should be allowed.In recent years about six thousand Irish women have received legal abortions annually at clinics in England, where the practice was legalized in 1967. World abortion laws, May 2S007 "Main Parties Unwilling to Grab Nettle of Abortion" (Irish Times, May 10, 2007),
COUNTRIES IN FOCUS: INDIA Despite efforts to control population growth, mainly family planning services India has seen its population more than double between 1960 Thus, in 1971 India legalized abortion with the enactment of the Medical Termination of Pregnancy Act to help control its population growth. Abortion is permitted for a wide range of reasons and no spousal consent is required. However, abortions must be performed within the first twenty weeks of pregnancy and must be performed by a medical practitioner who has been trained at a government-approved training facility to perform abortions. There are other technical constraints as well, including the types of facilities at which abortions may be legally performed. Therefore, abortions are legal in India, but safe legal abortions are difficult to obtain.
COUNTRIES IN FOCUS: INDIA CONT.Up to 90 percent of the six million induced abortions estimated to occur annually in India areWhile some of these illegal abortions are safe, many are unsafe and result in morbidity or mortality.Approximately twenty thousand Indian women die each year from unsafe abortions. Batya Elul et al. note in Unwanted Pregnancy and Induced Abortion in Rajasthan, India: A Qualitative Exploration (2004, http://www.popcouncil.org/pdfs/SAReport.pdf) Suneeta Mittal of the Consortium on National Consensus for Medical Abortion in India (February 10, 2005, http://www.aiims.edu/aiims/events/Gynaewebsite/ma_finalsite/introduction.html)
COUNTRIES IN FOCUS: INDIA Strong preference for sons in India, as in China. This preference is strongly influenced by the custom of providing a suitable dowry, which puts a great financial burden on the brides parents. In addition, sons customarily live with their parents after marriage, providing both financial and emotional support to them. Medical advances have made sex-selective abortions easier. Prenatal testing has become routine among educated middle- and upper-class women, who often terminate their pregnancies if they are carrying a daughter. Thus, Indian parents are increasingly using new genetic techniques available to choose either the X or the Y chromosome in a potential fathers sperm to determine the sex of their child before conception. Modern technology has even reached some rural areas, where vans with ultrasound machines enable expectant mothers to determine the sex of their fetuses. Maxwell Pereira reports in "New Technology to Fan Female Foeticide" (August 31, 2006, http://www.indiaenews.com/pdf/20516.pdf)
COUNTRIES IN FOCUS: INDIA“An estimated 7,000 fewer girls are born every day"“In 80 percent of Indias districts, a higher proportion of boys are born every year than a decade ago."The enactment of laws in 1996 forbidding sex selection has not deterred selective abortion practices.After the 2001 census found that there were 927 females for every 1,000 males younger than age six, the Indian Supreme Court ruled in September 2003 that federal and state governments must begin enforcing the ban on sex selection.In 2007 the Indian government set up a committee to develop ways to strengthen the PNDT and to eliminate loopholes in the law. "Sex-Selection Abortions Rising in India, UN Says" (International Herald Tribune, December 13, 2006), Amelia Gentleman
Slide 1 - Bakersfield College www2.bakersfieldcollege.edu/.../PowerPoint/B1/Schaefer_ppt_ ch11.... 27 Jun 2012 Abortion around the World. (2008). In S. M. Alters, Information Plus Reference Series. Abortion (2008 ed.). Detroit: Gale. 28 Jun 2012.