In countries with a range of laws regulating abortion, there is growing evidence that people are safely self-managing their abortions outside a clinical context—sourcing and using misoprostol alone or in combination with mifepristone, on their own and with the help of family and friends, or with community-based support.
Recognizing the potential of abortion pills to expand access to safe abortion, feminist collectives across the world have mobilized to create reliable resources about self-managed abortion. Activists run telephone hotlines, email help desks, and groups to provide information about self-management. Women often obtain the medicines through online services, community distribution networks, or pharmacies.
However, these innovative nonclinical providers are criminalized under the law. In fact, concerns about legal safety are routinely referenced within these community networks.
Abortion laws around the world fail to accommodate practice. Most of the world’s abortion laws are decades-old, reflecting the science of their time and legislators’ politics to control women’s bodies. For the most part, laws criminalize abortion overall but then carve out protections for certain clinicians, deemed adequately skilled to provide abortion legally at the time the law was written. Abortion laws passed before the 1990s generally required a medical doctor to provide abortion because safety was equated with physicians’ skills to empty the uterus through dilation and curettage. Since then, simpler methods of abortion have been developed, including vacuum aspiration and abortion with pills. Abortion pills have been used since the 1980s outside health-care systems and within them since the 1990s.
These laws were created to regulate abortion within health-care systems and based on the assumption that safe services must happen under the control of trained health-care providers. In some cases, these laws are attempts to control the self-help movements that have blossomed around the world. Current laws reflect a model of care where all power and knowledge are presumed to reside with the trained health-care provider.
Criminal abortion laws are also a mechanism of exercising control over women’s bodies through medicalization. An analysis of 196 countries’ laws using the World Health Organization’s (WHO) Global Abortion Policies Database (which omits U.S. laws), reveals that all but Canada and China criminalize abortion outside of the health-care system. Through criminal law, lawmakers impose penalties of imprisonment upon all who provide abortion without the education, training, certificate, or license required by statute. Those who procure abortions on their own and the individuals that help could face criminal penalties in nearly every country in the world.
In many countries, activists and other nonclinical providers continue to link women with medical abortion information and drugs without interference with the criminal justice system. In others, they must operate in secrecy, at risk of arrest or harassment by law enforcement authorities. Legal risk in a particular country can change over time, subject to the whims of elected officials and prosecutors.
The criminal law secures power in the hands of clinicians and thereby misses opportunities to protect public health. In fact, in many countries where abortion is provided in health systems, the risk that those self-managing their abortions face is more legal than medical. In the United States, for example, where abortion is legal through the second trimester for all indications, 21 women have been arrested for self-managing their abortions. In countries including Bolivia and Rwanda, women are being arrested for ending their pregnancies with pills, even where the abortion law would have deemed the reason for the abortion legal. In Bolivia, a woman was arrested when she attempted to induce abortion with pills. While she received treatment for complications, she was chained to her hospital bed with handcuffs.
The laws that contain the fewest barriers to abortion care generally reflect standards of WHO recommendations of the time they were written. In some of these countries, government officials make decisions informed by exposure to global norms and technical experts; in others, they may explicitly incorporate specific recommendations from the World Health Organization.
However, even these more progressive laws put those self-managing their abortions at legal risk. For example, even in countries where there are no restrictions as to reason for termination, such as South Africa or Nepal, the criminal code sets out requirements for legal abortion that criminalize abortions without a health professional. Thus, community health workers and in most cases women themselves are subject to prosecution for using abortion pills outside of the formal health-care system, even when self-use can be safe, effective, and a key tool for reducing maternal injury, illness, and death from unsafe abortion.
In addition, human rights authorities have recognized that laws that criminalize abortion infringe upon women’s dignity, autonomy, and right to privacy, among other rights. When governments require a health professional to be involved with the abortion, they fail to respect the human rights to dignity, privacy, and autonomy of women who seek abortion without a health professional (though no United Nations human rights treaty monitoring body has recognized yet that women should be able to self-manage their abortions without a clinician).
Laws change slowly, and abortion laws are no exception. As medical technology continues to develop and communities make use of these technologies, many abortion laws remain rooted in the power relations and medicalized technology at their time of their inception, criminalizing abortion provided with later-developed safe methods. Abortion pills provide a perfect example of a technology that has outpaced current legal restrictions—which may have been originally intended to promote health and safety, but now impede progress.
Decriminalization of self-managed abortion is an ethical, harm reduction, and rational principle. As the evidence about the safety of self-management and the practice itself grows, the regulation of abortion should be removed from criminal law. The practice of self-managing an abortion challenges the classic legal definitions of “provider” and creates new possibilities for expanding access to safe abortion care. Current laws keeping health professionals as the only legal providers of care, thus criminalizing self-management, do not guarantee safe abortions but stand in the way of it. Lawmakers and health systems must recognize the realities of those engaging in user-initiated care practices and/or providing care outside of the traditional health system channels and find ways to support this practice.
It is time to take abortion out of the criminal codes in every country. Existing abortion laws reflect discrimination against women rather than medical safety, as made stark by the widespread criminalization of self-induced abortion. Criminal law is ill-suited to regulate evidence-based aspects of health care and is influenced by the politics of those in power. It is time to decriminalize abortion.