Berer manila presentation abortion in the criminal law 23 january 2014
ABORTION IN THE CRIMINAL LAW:
exposing the role of
the courts and
Editor, Reproductive Health Matters
23 January 2014
International Campaign for Women’s Right
to Safe Abortion
Aims/objectives have been endorsed by almost
400 organizations and 460 individuals in 106
countries globally since it was launched April 2012.
Circulates news, information and solidarity
requests on a listserve and the web, and
coordinates the 28 September Day of Action. In
2012 and 2013, events organised in 51 countries,
by national and local groups, regional networks,
In 2013, we published a report on the application of
criminal law on abortion, based on research and
action by many groups supporting abortion rights,
and media reports, from 24 countries.
Abortion in the criminal law
With few exceptions (e.g. Canada and China),
restrictions on abortion exist in most countries'
criminal laws or penal codes covering:
the grounds on which an abortion is legal,
up to what stage of pregnancy,
who can determine whether an abortion is
legal and authorise an abortion,
who is permitted to provide abortion services,
conscientious objection, and
the criminal punishments for violating these
How we usually address illegal abortions
Because of ICPD, we focus on abortions being
unsafe and preventing high rates of mortality and
morbidity from avoidable complications.
In calling for women‟s right to abortion, we talk about
the right to safe abortion and post-abortion care.
We also talk about reforming the law, whether to
make abortion legal or decriminalise it.
We focus much less on the active application of
existing criminal laws on abortion and whether and
how they are being applied in individual cases.
Historically, several important exceptions came to
light: e.g. women in prison in Nepal before the
abortion law was reformed (RHM) and cases in Nigeria
The 28-page report exposes the role that the
police, the courts, imprisonment and some health
care professionals play in prosecuting women
and abortion providers, in order to limit women's
access safe abortion services and health
professionals' ability to provide such services.
There are of course many crucial ways in which the
law and the justice system, including human rights
bodies and human rights law, are supportive of
women‟s rights in relation to abortion. This report is
limited to the negative consequences of the use of
the criminal law against abortion.
Countries in the report
Women who have had unsafe abortions have
been subjected to degrading and humiliating
treatment and have had their civil, political and
legal rights grossly violated in multiple ways.
Many abortion providers are risking their
professional careers and their lives to help
women get safe abortions, while other health
professionals, including among those treating
complications of unsafe abortion, are deeply
implicated in reporting women to the justice
system for punishment.
Being reported and investigated…
Hospital-based health professionals who treat
complications from unsafe abortion are reporting
women to the police, including doctors, nurses
and midwives, and/or demand that women
„confess‟ to the police as a condition of treatment.
The police are actively investigating, detaining
and pressing charges against women, abortion
providers and abortion clinics, and the courts are
Anti-abortion activists and officials, including
people in high positions, are often involved in
motivating or supporting these actions.
Anti-abortion journalists and newspapers are
conducting „investigations‟ under false pretences
(e.g. pretending to need an abortion) with the aim
of entrapment of abortion providers. This has led
raids on clinics;
records of women patients being seized and
used as evidence;
abortion providers being investigated, fined,
suspended and prosecuted; and
closure of clinics – sometimes prior to
investigation, prosecution or ascertainment of
Humiliation, violation of rights, detention
Women recovering in hospital, often with serious
morbidity, are sometimes being handcuffed to
their hospital bed for up to ten days, while they
recover from complications of unsafe abortion.
Women may be held in detention while waiting for
their cases to be heard, and some have had to
wait (in jail) for up to two to six years to face
criminal charges pertaining to illegal abortion.
Some women have been detained and then
forgotten in prison for up to several years.
Almost all the women are from poor backgrounds,
often young, and rarely get legal advice/support.
Charged, tried and imprisoned
Women who have had not only illegal abortions,
but also spontaneous miscarriages and
stillbirths and who have attended a hospital for
bleeding/haemorrhage are treated as if they had
had an illegal abortion, and have also been
detained, fined and imprisoned.
Prosecutions and sentences have been not only
for illegal abortion but instead for homicide,
which carries much longer sentences.
Sentences reported have been from two years
to up to 10‒30+ years in prison. One woman in
Mexico had spent most of her adult life in prison.
Denial of legal abortions
Women who have a right to legal abortions are
also being denied them systematically, in part as
a result of providers‟ refusal of care on moral or
religious grounds, but also in part due to
providers' fears of being prosecuted for providing
even legal abortions, including abortions
necessary to save the woman‟s life.
Threats and corruption
Threats of investigation of abortion providers are
being made so as to frighten them into no longer
There is widespread corruption surrounding
enforcement of criminal penalties for illegal
abortion, e.g. police and others demand paybacks
not to press charges, or to drop charges, and to
allow illegal abortion services to continue.
Cases specific to medical abortion pills
Customs officers are reported to be seizing
packages of medical abortion pills sent by
Women on Web or purchased on the web by
women with no access to safe clinical services.
Interestingly, we thought that no prosecutions
have as yet taken place.
However, Gynuity Health Projects reported last
week that women accused of illegal abortion have
been told misoprostol has been found in their
blood, presumably to get them to “confess”.
Because traces of misoprostol disappear within 46 hours and a very complicated test is needed to
detect it, this is likely to be a form of entrapment
and lawyers must demand proof.
Two recent RHM papers/ Ipas video
Chantal Umuhoza et al. Advocating for safe
abortion in Rwanda: how young people and the
personal stories of young women in prison
brought about change.
Anibal Faúndes et al. Brazilians have different
views on when abortion should be legal, but
most do not agree with imprisoning women for
Peru, Bolivia, Ecuador: http://ipas.org/en/WhatWe-Do/Advocacy/Abortion-Is-Not-a-Crime.aspx
Demands/call for action
more research to find cases (only Nepal in Asia)
legal action to free women and providers
confidentiality protected in law (no health
professional permitted to report women)
cessation of investigation, harassment and
prosecution of women and health professionals,
and closure of clinics
arguments on why it is not in the public interest
to prosecute safe abortion providers or women
national campaigns for decriminalization of
See the report at:
RHM booth at this conference