International Developments in Abortion Laws: 1977-88REBECCA J. COOK, JD, LLM, AND BERNARD M. DICKENS, PND, LLD

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Abstract: During the period between 1977 and the first quarter of1988, 35 countries liberalized their abortion laws and four countrieslimited grounds for the procedure. Most legislation has extendedabortion eligibility through traditional indications such as danger tomaternal health or fetal handicap, but a number of other indicationshave been created such as adolescence, advanced maternal age,family circumstances, and AIDS or HIV infection. A number ofcountries have redesigned their abortion laws as part of a compre-

Introduction

This review of international developments in abortionlaws covers national legislation, constitutional amendments,litigation, and ministerial interpretations of the laws. Thereview explains how legal developments have either extend-ed or limited indications for abortion (see Table 1). It alsoconsiders provisions for conscientious objection, committee,spousal or parental authorization requirements, and provi-sions to improve access to contraception and voluntarysterilization in order to reduce the need for therapeuticabortion. The review surveys constitutional reforms thataffect access to abortion and litigation in national courts andin international human rights tribunals.

This review, and its accompanying table, is limited todevelopments in abortion laws that have occurred between1977 and the first quarter of 1988. Abortion laws, covering thespectrum from restrictive to permissive laws, exist in mostcountries of the world' but are discussed here only if theyhave changed during this period. The article is limited inscope to a review of legal developments and does not attemptto assess the impact of these developments on maternalmortality2 or morbidity or on the availablity of services.3

Legislative Reform

Table 1 shows how enactments since 1977 accommodateabortion in 39 countries. It does not include countries such asChina,4 Togo,5 and Vietnam6 that, in re-enacting their crim-inal codes, have decriminalized the procedure by purposelyomitting reference to abortion and that, as in the case ofCuba,7 have prohibited abortion only when it is performed forprofit, by an unqualified person, in an unofficial place, orwithout the woman's consent. In China, Togo, and Vietnamabortion is accordingly legal when undertaken according tothe general laws governing medical procedures.

The general thrust of specific legislative reforms in 33countries and two subnational jurisdictions is to recognize newgrounds ofjustification for abortion. In contrast, four additionalcountries have restricted grounds for abortion. In Honduras, aDecree8 withdrew earlier proposed Penal Code provisionswhich would have permitted abortion to save the life and health

From the Faculty ofLaw and Faculty ofMedicine, University ofToronto,Canada. Address reprint requests to Rebecca J. Cook, JD, LLM, AssistantProfessor, Faculty of Law, University of Toronto, 78 Queen's Park, Toronto,Canada M5S 2C5. This paper, submitted to the Journal February 11, 1988, wasrevised and accepted for publication May 6, 1988.

© 1988 American Journal of Public Health 0090-0036/88$1.50

hensive package to facilitate access to and delivery of contraception,voluntary sterilization, and abortion services. Abortion litigation hasincreased and stimulated the liberalization ofabortion provisions andthe support of women's autonomous choice within the law. InCanada, the entire criminal prohibition of abortion was held uncon-stitutional for violating women's integrity and security. In contrast,Latin American and other constitutional developments may limitlegal abortion to instances of danger to women's lives. (Am J PublicHealth 1988; 78:1305-1311.)

of the woman and in cases of rape and fetal deformity becausethey were thought to violate the 1982 Honduran Constitutionalprovision stating that "the right to life is inviolable"9 andconsidering the unborn as born for purposes of the law'0(discussed later in Constitutional Reform section, including thewoman's right to life). Israel changed its law in 1977 to allowabortion on extended grounds including socioeconomic indica-tions, but this law was amended late in 1979 to remove suchindications. Romania sought to limit abortion by enactingrestrictive provisions, for example limiting abortion on socio-economic grounds to women over age 45.

In addition, in 1978, Finland reduced the general gesta-tional limit for performing abortions from 16 to 12 weeks,unless there is a case of disease or physical defect in thewoman." This law was further changed in 1985 to permitabortion before 25 weeks of gestation in case of seriousdisease or physical disability of the fetus.'2

In addition to recognizing traditional health indications forabortion, a number of countries have recognized other indica-tions (see footnotes in table). Cyprus, Italy, and Taiwan expressa family welfare indication. Hong Kong has recognized adoles-cence itself as an indication and France and The Netherlandspermit abortion on an indication of the woman's distressconcerning pregnancy. Hungary permits abortion where thepregnant woman is single or has been separated for six months,where appropriate housing is lacking, or where awoman is aged35 and above or has had three deliveries. French Polynesiapermits abortion where the pregnant woman is found to haveacquired immunodeficiency syndrome (AIDS) or to be seropo-sitive for the human immunodeficiency virus (HIV). Without aspecific provision, AIDS or HIV positivity may fall under ageneral indication for abortion based on the risk to health ofthewomen or of risk of disease to the fetus.

Abortion is easier to obtain during the first trimester ofpregnancy in many countries because they permit abortioneither on request or on broader indications than apply later ingestation. After the first trimester, an authorization for abortionor a second medical opinion on its appropriateness may berequired, as for example in Barbados and Luxembourg. In somelaws, such as those of Belize, Cyprus, Liberia, Portugal,Rwanda, and Spain, a second medical opinion is required nomatter what the length of gestation and for all permittedindications. France requires a second medical opinion only forthe indications of risk to the woman's health and risk of fetaldisease. However, in most of these countries the secondopinion can be waived in cases of emergency.

National health services or insurance schemes vary inwhether they will cover the cost of abortion, the degree of

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TABLE 1-Legislative Developments In Indications for Abortion: 1977-1988*

ndcation Risk to Risk to Risk to Unwanted\ ~~~Risk to Woman's Woman's Fetal Heafth Pregnancy by Social, On Request\Life of Physical Mental or Fetal Rape or Other Sociomedical or (First

CountrN Woman Health Heaftha Handica,o Sexual Crimes SocioeconomiCb Trimester)f Statutes, Year of Latest Enactment

Algera x x x 1985 (16 Feb) Law 85-05, Art. 72Barbados x x x x x x 1983 Medical Terminations of

Pregnancy Act, Sec. 4-14Belize x x x x x 1980 Criminal Code Ordinance 33,

Sec. 108-1 10Bermuda x x x x x 1983 Criminal Code Amendment

Act, Sec. 1-2Burundi x x x x 1981 (4 Apr) Law 1/6, Sec. 357Comoros x x 1982 (19 Nov) Law 82-03/P/AFCypruSd x x x x x x 1986 Law 186, Sec. 167-169 ACzechoslovakia x x x x L-3 1986 (23 Oct) Law 73Francec x x L-3 x 1979 (31 Dec) Law 79-1204, Art.

162-1-14; 1975 (17 Jan) Law75-17

French Polynesiacd x x L-3 x 1986 (13 Nov) Deliberation 86-80Finland x x L-3 x L-3 1978 (14 July) Law 564; 1985 (12

July) Law 572Ghana x x x x x 1985 (22 Feb) Criminal Code

(Amendment) LawGreece x x x x x L-3 1986 (28 Jun) Law 1609, Sec. 2-5Honduras x 1985 (26 Feb) Decree 13-85Hong Kongd x x x x x x 1981 Offenses against the Person

(Amendment) Ordinance, Sec.47A,47B

Hungaryd x x x x x x 1986 (23 Jul) Ordinance 3Israel x x x x x 16 Dec 1979 Amendment 1977 (31

Jan) Penal Law AmendmentItalyc,d

(Interruption of Pregnancy)Italy"" x x x x x L-3 1978 (22 May) Law 194, Sec. 1-22Kuwait x x x x 1981 Law 25, Sec. 12Liberia x x x x x 1978 (3 Apr) Penal Law, Sec. 16.3Liechtenstein" x x x x 1987 (24 Jun)Luxembourgc x x x x L-3 1978 (15 Nov) Law amending Penal

Code, Art. 353Montserrat x x x x 1983 Penal Code 12, Sec. 139Netherlands x x 1981 (1 May) Law on Termination

of PregnancyNew Zealand" x x x x x 1977 (16 Dec) Crimes Amendment

ActNorwayc x x x x x x L-3 1978 (16 Jun) Law 66, Sec. 1-14Peru x x x 1981 (12 Jun) Legislative Decree

121, Sec. 21Portugal x x x x x 1984 (11 May) Law 6, Sec. 139-141Qatarc x L-3 L-3 L-3 1983 (22 Feb) Law 3Romania x x x x x x 1985 (26 Dec) Decree 411Rwanda x x 1977 (18 Aug) Law 21-77 Sec. 327

coverage, whether coverage is for complete or partial costs,and the indications for coverage. In general, many govern-mental health schemes, such as in Australia, Canada, France,and the United Kingdom (UK), will cover most of the costsof legal abortions. However, the United States SupremeCourt held in Harris v McRae'3 that there was no constitu-tional obligation on the US federal gove'mment to fundabortions. Nevertheless, at least eight US states'4 and theDistrict of Columbia continue to fund medically necessaryabortions and at least six others have been required to fundsuch abortions by court orders to;enforce state law.'5

Recognizing antipathy of some health professionals toabortion, such countries as Belize, France, and Italy haveintroduced conscientious objection provisions that permitprofessionals to decline involvement in procedures withoutpenalty or detriment. In the Belize and French provisions,the burden of proof of conscientious objection rests on theperson relying on it, and the French law requires thatconscientious objectors announce their refusal in advance.

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Such clauses are usually inapplicable in instances of imme-diate danger to a pregnant woman. Further, conscientiousobjection can be raised only to medical performance of theprocedure and perhaps to attending it or disposing of itsresults, but not to general nursing care and auxiliary servicessuch as serving meals to abortion patients.

Authorization RequirementsRecognizing the increased risk of complications of abor-

tions as pregnancy progresses,'6 several countries haveremoved or not included institutional or third party authori-zation requirements, which are known to cause delays. Forexample, hospital therapeutic abortion committees that Ca-nada's Criminal Code had alone allowed to certify clinicalgrounds for abortion were declared unconstitutional late inJanuary 1988 under the Canadian Charter of Rights andFreedoms,17 in large part because they caused delays thatharmed women's physical and psychological well-being'8(discussed later in Litigation section). Czechoslovakia also

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TABLE 1-Continued

Indication Risk to Risk to Risk to UnwantedRisk to Woman's Woman's Fetal Health Pregnancy by Social, On RequestLife of Physical Mental or Fetal Rape or Other Sociomedical or (First

CountK Woman Health Healtha Handicap Sexual Crmes Socioeconomicb Trimester)c Statutes, Year of Latest Enactment

Seychelles x x x x x x 1981 Termination of Pregnancy ActSpainc x x x x L-3 1985 (5 Jul) Organic Law 9South Africa Ciskei x x x x x 1985 Abortion and Sterilization Act

16Taiwand x x x x x x 1985 (1 Jan) Eugenic Protection

Law, Art. 9Turkey x x L-3 1983 (24 May) Population Planning

Law, Sec. 5-6Vanuatu x x 1981 (7 Aug) Penal Code

Amendment Act, Law 17, Sec.117(3)

Yugoslavia x x x x x L-3 All eight jurisdictions: Croatia,Bosnia-Herzegovina, Kosovo,Macedonia, Montenegro, Serbia,Slovenia, Vojvodina reformedtheir abortion laws pursuant to Art191 of the 1977 FederalConstitution. Indications shownhere are based on the Croatian1978 (21 Apr) Law 18, Sec.15-24.

Zimbabwe x x x x 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 comprehensiveand 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 Digestof 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 HarvardLaw 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, apprehensionof 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 pregnancyon 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 dayof 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 pregnanciesmeet 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 require-ments of a committee authorization in 1980. The new legis-lation of Bermuda, Kuwait, Seychelles, and Qatar, however,include a hospital committee authorization requirement.

Countries that require spousal authorization for a mar-ried woman to obtain an abortion include Kuwait, Taiwan,Turkey, and Qatar. Taiwan requires spousal authorizationonly when the abortion is indicated for socioeconomicreasons but waives this requirement if the husband is es-tranged. Turkey and Qatar uniformly require spousal autho-rization, and do not provide specific grounds to waive it. It isunlikely that a spousal veto would be invited or respected,however, when the abortion is necessary to preserve thewoman's life or permanent health, because the law in generaldoes not allow anyone to obstruct another's access tonecessary health care.

Spousal authorization requirements are inconsistent with atleast sixjudicial interpretations oflaws given in cases brought byhusbands seeking roles in their wives' abortion decisions.19Courts in Canada,20 England,21 France,22 Israel,23 US,24 andYugoslavia25 have denied husbands a veto ofthat decision, evenwhen their paternity is not denied. The English decision was

upheld by the European Commission on Human Rights.27 In noknown case has a husband's claim ofveto beenjudicially upheld.

Several new enactments (e.g., Barbados, France, Greece,Italy, Kuwait, Porugal, Taiwan, and Turkey) condition abortionfor adolescents on parental authorization. The Italian law pro-vides a waiver of parental authorization where the attendingphysician finds grounds rendering it inadvisable to consult theparents (orthose acting on their authority) or to respect their vetoif the girl's wishes and her parents' views conflict. In such a casethe physician must submit a request to a magistrate (except incases of emergency). Where countries' laws express no specificwaiver in the abortion legislation it is unlikely that a parental vetowould be respected in cases of danger to a daughter's life orhealth, because parents have legal duties to ensure that theirchildren have access to necessary and reasonable health care.

The highly influential Gillick decision ofthe highest courtof England27 confirmed that parents possess legal powersover children's health only for the purpose of permittingparents to discharge their legal duties, which include theprovision of medically indicated care. It held that matureminors capable of exercising informed choice may givelegally effective autonomous consent to contraceptive and

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abortifacient treatments. The Gillick decision dispels themyth that there is an "age of consent" for medical treatmentcomparable to that rendering consensual intercourse with anunderaged girl as statutory rape. Instead, the court found thatthere is only a condition of consent, namely capacity toexercise free and informed choice over medical treatment.

Regulations on parental authorization ofminors' medicalcare must be read as being subject to this "mature minor"exception. Parents retain decision-making power over im-mature minors, and may exercise such power to protectchildren's moral welfare. It is unlikely, however, that courtswould permit parents to pursue moral goals by risking theirchildren's lives or physical or mental health. A parental vetoof abortion indicated on physical or mental health groundswould probably be considered a violation of a parent's dutyto provide or permit provision of due care.

The US Supreme Court has attempted to determine thelawful scope of state laws containing provisions for parentalauthorization or at least parental notification of minors'abortions. It held that mature minors are not subject to aparental veto28 and that immature minors who are subject toveto must be afforded an alternative means of gainingapproval for abortion, such as by a means of resort to thecourts.29 Parental notification provisions have been upheld inprinciple but the Supreme Court has indicated that they mustbe subject to a means ofjudicial petition to waive notificationfor mature minors and for immature minors whose bestinterests are shown liable to be injured by notice.30

A provision expressly mandating a period of delay forreflection is found in the legislation of France, Italy, Lux-embourg, and The Netherlands. In order to be eligible for anabortion, a woman has first to request it and then return aftera minimum period for reflection, usually a week, to obtain it.Such reflection delays have been prohibited by the USSupreme Court31 as an undue interference in the women'sprivacy right. In any event, from a clinical view point they arefeasible only when timely access to abortion services isotherwise unimpaired. Reflection delay provisions contain anexpress or implied exception when abortion is immediatelynecessary to prevent grave danger to maternal life or per-manent health. When the reflection delay takes a woman intoan 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 num-ber of countries encourage practices that would reduce theincidence of unwanted pregnancy, and have redesigned theirabortion laws as part of a comprehensive package aimed tofacilitate access to contraception and voluntary sterilization.The Italian law, for example, requires local and regionalhealth authorities to promote contraceptive services andother measures to reduce the demand for abortion. TheCzechoslovakian law aims to prevent abortion through, forexample, sex education in schools and health facilities andprovides for free contraceptive and associated care. TheLuxembourg law provides for contraceptive services tominors free of charge. The Turkish law facilitates access tovoluntary sterilization as well as to abortion.

Increasingly, legislation requires that abortion servicesbe accompanied by post-abortion contraceptive counselingand education, which some laws extend to counseling ofmen.The Yugoslav jurisdictions, giving effect to a 1974 federalconstitutional amendment, commonly require that abortions

be performed in medical establishments that inform womenabout contraception. The Italian law requires the physicianperforming the abortion to inform the woman on preventivebirth control methods, and the French law requires theestablishment where the abortion is performed to providebirth control information.

Some countries, such as Liberia, The Netherlands, andNew Zealand, have followed the 1974 Austrian32 and the 1976West German33 laws and expressly decriminalized medicalinterventions for the period between fertilization and com-pletion of implantation ofthe fertilized ovum. This is a periodof up to 21 days since fertilization or, where fertilization isdifficult to pinpoint, up to 35 days since the last menstrualperiod (LMP). In such countries, the use of contraceptivemethods during this time period does not need to meet therequirements of the abortion law. Accordingly, contracep-tion is encouraged in order to prevent occurrence of preg-nancy, which is generally accepted to begin at completion ofimplantation.34

The potential development of antiprogestin drugs offersthe prospect not only of safe and effective contraception butalso of medical treatment during the six weeks since the lastmenstrual period.35 It is a matter of definition whether thistreatment is called contraception, luteal interception, con-tragestion, or abortion, but clinical trials indicate that suchantiprogestins will provide means of non-invasive earlytreatment to prevent or frustrate gestation.36

Limited regard is paid in legislation to unimplantedembryos, increasingly called pre-implantation embryos(preembryos). The Ethics Committee of the American Fer-tility Society defines a preembryo as:

"a product of gametic union from fertilization to the appear-ance of the embryonic axis. The preembryonic stage isconsidered to last until 14 days after fertilization."37

The reduced status ofpreembryos was confirmed in 1981in England when the Minister of Health, on legal advice,concluded that if intrauterine devices prevent implantation ofpreembryos their use is nevertheless not restricted by the1967 abortion law.38In 1983 the Attorney General ofEnglandsimilarly observed that post-coital contraception, even ifoperative after fertilization of an ovum, is not governed bythe abortion law.39 In vitro fertilization practices are on acontinuum from late contraception to early abortion and mostcountries tolerate the planned wastage of preembryos.'

Constitutional Reform

A number of countries have changed their nationalconstitutions in ways that bear upon women's access toabortion services. Most specific was the constitutionalchange in the Republic of Ireland, whose previous criminallaw had in any event proscribed abortion except to save thewoman's life. Apparently in fear that future legislation coulddecriminalize abortion in whole or in part by a mere revisionof the criminal law, the government amended the Constitu-tion 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 con-stitutions the provision of the American Convention onHuman Rights that accords the right to life legal protection". . . in general, from the moment of conception."42 In 1978the Constitution of Ecuador introduced such generalprotection,43 as did the new 1986 Philippine Constitution."

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Such protection does not necessarily prevail over women'srights, since women also enjoy legal protection of their rightsto life and health.45 Moreover, the protection of the right tolife "in general" allows for specific exceptions. In Chile the1980 Constitution protects not only the right to life and tophysical and psychic integrity of the individual, but also thelife ofthose "about to be born."" Since the Constitution alsoprovides the right to protection of health, a conflict mayappear between the interests of unborn life and a woman'sinterests in abortion to preserve her life or health. Thisconflict may be limited, however, to late gestation, since atan earlier stage the unborn may not be "about to be born."

Amendments made in 1977 to the Constitution of Para-guay provide for the protection of every child fromconception,47 but also provide for protection of the family"8and of health.49 Conflicts may arise where epidemiologicalevidence shows that sound child spacing assisted by avail-ability of abortion contributes positively to reduction ofmaternal50 and infant mortality,5 and accordingly to protec-tion of the family. In contrast to Paraguay, Panama amendedits Constitution in 1979 to require the state to establish afamily protection agency "to foster responsible parenthoodthrough family education"52 and to protect "health" asunderstood by the World Health Organization; that is, as astate of "complete physical, mental and social well being."53The Peruvian Constitution of 1979 protects the right to life ofone "about to be born,"54 but also provides that the Staterespects responsible parenthood.55 No less ambivalent is the1982 Constitution of Honduras, which provides that "theunborn shall be considered as born for all rights within limitsestablished by law."56 This Constitution also provides forpromotion and preservation of individual and communityhealth,57 which may give legal significance to epidemiologicaldata on maternal and infant health benefits due to familyplanning programs that include abortion.

Family planning rights have been introduced in severalcountries' constitutions, although invariably without speci-fications of whether rights to abortion are included. Yugo-slavia recognized the individual's right to decide on familyplanning in its 1974 federal constitution58 and, in the lastdecade, all of its several constituent jurisdictions have giveneffect to this right by allowing abortion in the early stages ofpregnancy (see table). The 1982 Constitution of the People'sRepublic of China imposes upon both husband and wife theduty to practice family planning,59 and the 1980 Constitutionof Vietnam requires the State itself to campaign for famil.planning.60 The Vietnamese6" and the 1986 NicaraguanV2Constitutions recognize the right to privacy, but it is unclearwhether they import the extent of privacy the US SupremeCourt found protected under the US Constitution in Roe v.Wade.63

Litigation

The last decade has seen an intensification of resort tolitigation by opposing activists on the issue of abortionseeking to advance their respective agendas. The SupremeCourt of Canada in January 1988 set aside the restrictiveprovisions of the Criminal Code that had made abortionavailable only on medical grounds certified through thera-peutic abortion committees." The Court held in the Mor-gentaler case that this law unjustly violated a pregnantwoman's right to security ofher person and thus infringed the

right to life, liberty, and security of the person protected bythe Canadian Charter of Rights and Freedoms. Chief JusticeBrian Dickson explained,

"Forcing a woman, by threat of criminal sanction, to carry afetus to term unless she meets certain criteria unrelated to herown priorities and aspirations, is a profound interference witha woman's body and thus an infringement of security of theperson."

The case ended almost 20 years of Dr. Henry Morgen-taler's resistance to legislation that had been shown tooperate inequitably and to cause delays that endangeredwomen's health and denied them physical and psychologicalwell-being and dignity. A 1977 report had shown the systemto operate unfairly, since no duty existed to create a com-mittee that alone could approve an abortion, and over 40 percent of Canadian women resided in areas whose hospitalswere ineligible to create committees.65 In striking down theabortion provisions, the federal Supreme Court was dividedon whether some future regulation of abortion might belegitimate under the Charter of Rights and Freedoms. TheCourt left open the extent offetal interests under the Charter,but has granted leave to hear an appeal on this issue from theSaskatchewan Court of Appeal.

In 1977, the European Commission of Human Rightsdecided a case on the West German Abortion Law67 thatinfluenced a 1985 decision of the Spanish ConstitutionalCourt on Spain's abortion legislation." The 1977 and 1985cases have generated reflection on how the United States hasapproached the abortion issue.69 In contrast to the NorthAmerican rights-based approach that contrasts women's andfetal rights, the European decisions invoke communitarianvalues. They attempt to identify the grounds on which theirrespective communities find abortion tolerable without pun-ishment and the grounds on which they would tolerateprotection offetal interests over those ofwomen's autonomy.

The European Commission of Human Rights found thatthe right to respect for private life guaranteed under Article8 of the European Convention on Human Rights is notabsolute, but that it was not violated by the 1976 WestGerman abortion law.70 This law conformed to guidelines forlegislation on abortion laid down by the Constitutional Courtof the Federal Republic of Germany in 1975,7' which ad-dressed a 1974 liberalization of the national abortion lawpermitting elective abortions in the first trimester.72The 1975decision found the 1974 reform unconstitutional, and estab-lished limits within which permission of abortion would beconstitutional in West Germany. The 1976 legislation givingeffect to these conditions of constitutionality was upheld bythe European Commission when challenged on the groundthat they violated individual privacy.

The European jurisprudence emphasizing neither therights of fetuses nor of pregnant women but the value ofunborn human life to the community into which it may beborn is reflected in the 1985 decision of the Spanish Consti-tutional Court. The Court expressly declined to hold that afetus in itselfpossesses legal rights, but found that unbornlifeis a public good or asset that the constitution protects, andthat the state may make that protection effective, ifnecessarythrough criminal law. The Court held that there is nothingunconstitutional in permitting abortion where the woman'slife is at stake and where there is serious danger to her health.Further, since rape violates personal dignity to the highestdegree, the law cannot constitutionally require that the victimbear its consequences. The Court also found that it would be

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constitutionally excessive to demand by penal sanctions thata woman continue a pregnancy she wishes to terminatebecause of serious physical or mental fetal defects orabnormalities.7

The Inter-American Commission on Human Rights wasasked to deal with abortion in the 1981 Baby Boy case.74 Thiscase challenged the 1976 decision of the Supreme JudicialCourt of Massachusetts,75 which held that an abortionperformed consistently with the US Supreme Court decisionRoe v Wade is not punishable under that state's homicidelaw. The American Convention on Human Rights useslanguage protecting human life "in general" from the mo-ment ofconception, but in theBaby Boy case the Commissionconsidered that this general protection ofunborn life does notimpair the right of privacy identified in Roe v Wade, nor theMassachusetts decision on the scope of the homicide law.

Abortion is not considered to be an extraterritorialcrime, meaning one for which a national is punishable beforethe courts of his or her own country for action taken inanother country. Nevertheless the High Court of Ireland hasheld that to advertise in Ireland the availability of abortionservices in England can constitute the crime of conspiracy tocorrupt public morals.76 It is proposed to appeal this decisionto the European Commission on Human Rights.

In Belgium, 50 people who were directly or indirectlyinvolved with performing abortions were recently acquittedby the Constitutional Court of Ghent.77 The Court held thatabortions executed by doctors in medically justifiable cir-cumstances and without profit are not punishable. Theacquittal of the defendants, which is being appealed, tookaccount of the distress of the patients as well as the evolutionof public opinion on abortion and the availability of lawfulabortion in neighboring countries. Australia has experiencedcases in Queensland" and Victoria79 in which medicalpractitioners have been acquitted when charged with criminalabortion, on the grounds that their procedures were consci-entious and medically indicated.

Discussion

International developments in abortion laws have beendiverse and some are diametrically opposed to others, but theoverall movement has been toward liberalization of lawsthrough legislation and judicial interpretations that havereduced legal barriers to access to therapeutic abortionservices.

Governments that characterize abortion primarily as acriminal activity may achieve apparently high levels ofpublicregulation of the practice but risk diverting it into risk-ladenavenues associated with high rates of maternal mortality.80Where abortion is so restricted by penalties, the incidence ofinjury through unqualified intervention in pregnancy tends tobe high, although the effectiveness of traditional techniquesof pregnancy termination should not be underrated.81 Nev-ertheless women may suffer severe pain and injury eventhrough effective techniques, such as massage abortionwhich 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 thefunding of family planning programs of foreign nongovern-mental organizations that use separate resources, includingprivate funds, for therapeutic abortion. The Mexico Citypolicy is coming under increasingly active challenge in theUS courts.04 The effect and perhaps the purpose of the policyis to deny dependent third world women access to family

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planning services that include abortion as an option or failsafe assurance in the case of contraceptive failure that USwomen are constitutionally guaranteed.85 The prevailing USinitiative runs counter to the evolving trend of worldwideabortion law reform.

Where governments classify abortion as a problem ofhealth and family planning they are more likely to introducecounseling and medical services to reduce the incidence ofabortion, such as by developing their services regardingcontraception and voluntary sterilization. In Ontario, forexample, the Provincial Health Ministry is implementingrecommendations to establish regional women's health carecenters that will include contraception and abortion servicesand related counseling." Development of accessible "well-women health centers" may increasingly absorb abortionservices into general reproductive health care in countrieswhere a provision of such health care services is considereda legitimate function of government.

ACKNOWLEDGMENTSWe are indebted to Reed Boland (editor of Annual Review ofPopulation

Law), Henry David (editor, Abortion Research Notes), Sev Fluss (editor,International Digest Health Legislation), Bartha Knoppers (University ofMontreal), 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 (SwissInstitute Comparative Law) for information or comments on earlier drafts ofthis paper, and to Ilene Shiller (University of Toronto Law Faculty) forresearch assistance. This research was initially undertaken when R. Cook wasAssistant Professor, School of Public Health, Columbia University, and B.Dickens was Julius Silver Fellow, Columbia School of Law. Any mistakes arethe sole responsibility of the authors.

REFERENCES1. 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. NewYork: Alan Guttmacher Institute, 1986.

4. Criminal Code of China I July 1979: Annual Review of Population Law(1979) 21.

5. Criminal Code ofTogo law No. 80-1 of 13 August 1981, Journal Official dela Republique Togolaise Numero Special, No 20 of 13 August 1981.

6. The 1986 Criminal Code of the Socialist Republic of Vietnam. Review ofSocialist Law 1987; 13:121-198.

7. Criminal Code ofCuba 15 Feb 1979 Chap 6:Art 320-324. Gaceta Oficial dela 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, Wash-

ington, 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 inReproductive Health Law in the Commonwealth. London: Common-wealth Secretariat, 1986.

21. Paton v Trustees ofBritish Pregnancy Advisory Service [1978] 2 All E.R.987.

22. Conseil d'Etat (C.E.), October 31, 1980, S.J. 1982, 19732 (Note SemaineJuridique, Francoise Dekeuwer Defossez) (France); Knoppers B, Brault I:L'Avortement et la Loi Dans les Pays Francophones (Abortion and the

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Law in Francophones Countries). Montreal: Edition Themis, 1988 forth-coming.

23. A v B (1981) 35 (iii) P.D. 57.24. Planned Parenthood of Central Missouri v. Danforth 428 U.S. 52 (1976).25. Constitutional Court Yugoslav Law No. 3 1979: Annual Review of

Population Law 1979:32.26. Paton v U.K. 3 EHRR 408 (1980).27. Gillick v West Norfolk and Wisbech Area Health Authority (1985) 3 All

E.R. 402 (UK House of Lords for England).28. Supra note 24.29. Bellotti v Baird 443 U.S. 622 (1979).30. H.L. v Matheson 450 U.S. 398 (1980); City ofAkron v Akron Centerfor

Reproductive Health, Inc. 462 U.S. 416 (1983).31. Akron, id.; Zbaraz v Hartigan 50 U.S. Law Week 4053 (Dec 14, 1987).32. Austrian Penal Code Sec 96-98. Annual Review of Population Law 1974;

47-49.33. 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.

34. Committee on Terminology of the American College of Obstetricians andGynecologists: Obstetric-Gynecological Terminology 1972; 327. Protec-tion of Human Subjects: U.S. Code of Federal Regulations 1983; 46:12.

35. Baulieu EE, Ulmann A, Philibert D: Contragestion by Antiprogestin RU486: A Novel Approach to Human Fertility Control. In: Diczfalusy E,Bygdeman M (eds) Fertility Regulation Today and Tomorrow. New York:Raven Press, 1987.

36. Rodger MW, Baird DT: Induction of therapeutic abortion in earlypregnancy with mifepristone in combination with prostaglandin pessary.Lancet 1987; ii:1415-1418; Couzinet B, Le Strat N, Ulmann A, BaulieuEE, Schaison G.: Termination of early pregnancy by the progesteroneantagonist RU 486 (mifepristone). N Engl J Med 1986; 315:1565-1570.

37. Ethical Considerations of New Reproductive Technologies. Fertil andSteril 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, Nature1986; 320:570 and Nature 1987; 328:10.

38. Vaughan G: Sunday Times [London] 1981: 27 Sept.39. Havers M: Hansard 1983: 42 (112), Columns 238-9, discussed in Cook RJ:

Legal abortion: Limits and contributions to human life. In: Ciba Founda-tion Symposia (ed): Abortion: Medical Progress and Social Implications.London: Pitman, 1985.

40. Warnock M (Chair) Report of the Committee of Inquiry into HumanFertilisation and Embryology, London: HMSO Cmnd. 9314, 1984; Guide-lines for both Chemical and Research Applications of Human In VitroFertilisation First Report of the Voluntary Licensing Authority ForHuman In Vitro Fertilisation and Embryology (jointly sponsored byMedical Research Council and Royal College of Obstetricians and Gyne-cologists) 30-2 (1986); Waller L (Chair) Victoria Australia Committee toConsider the Social, Ethical and Legal Issues Arising from In VitroFertilization. Report on the Disposition of Embryos Produced by In VitroFertilization, 1984; Ontario Law Reform Commission, Report on HumanArtificial Reproduction and related matters 217 (1985); Bernard J (Chair)Comite Consultatif National d'Ethique pour les Sciences de la Vie et de laSante. Avis relatif aux Recherches sur les Embryons Humains In Vitro eta Leur Utilisation a des Fins Medicales et Scientifiques 9, 10. Paris: LeComite, December 15, 1986.

41. Article 40.3.3.42. Article 4(1).43. Article 23.44. Article II sec 12.45. See, for example 1986 Philippine Constitution Article II sec 14 on sexual

equality, Article XIII sec 11 on health.

46. Article 19(1).47. Article 85.48. Articles 81-88.49. Article 93.50. Supra note 2.51. Maine D, McNamara R: Birth Spacing and Child Survival. New York:

Center for Population and Family Health, Columbia University, 1985.52. Article 58.1; see also 1986 Philippine Constitution Act XV sec 3(1) on

responsible parenthood.53. Article 103.54. Article 2.1.55. Article 6.56. Supra note 9.57. Articles 145-150.58. Article 191.59. Article 49.60. Article 40.61. Article 71.62. Article 26.63. 410 U.S. 179 (1973).64. Supra note 17.65. Report of the Committee on the Operation of the Abortion Law, 1977,

Robin F. Badgley, Committee Chair, Ottawa, Canada: Printing PublishingSupply Services Canada, Catalog No. J2-30/1977.

66. Borowski v Attorney-Generalfor Canada (1987), 39 D.L.R. (4th) 731.67. Bruggeman and Scheuten v Federal Republic ofGermany 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 Experi-

ences Am J Comparative Law 1986; 34:369-383.71. Judgment of 25 Feb 1975, 39 B Ver 6G 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): Abor-tion: Medical Progress and Social Imlpications. London: Pitman, 1985.

81. Liskin LS: Complications of abortion in developing countries. Popul Rep1980; F-107-155.

82. Singnomklao TN: Abortion in Thailand and Sweden: health services andshort-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 Confer-ence on Population (Second Session) Mexico, D.F. Aug 6-13, 1984 at 5;see symposium edition on the US Mexico City Policy, New YorkUniversity Journal of International Law and Politics (forthcoming) 1988.

84. Planned Parenthood Federation ofAmerica 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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