ABORTION IN THE CRIMINAL LAW: exposing the role of health professionals,

the police, the courts and imprisonment internationally

Marge BererEditor, Reproductive Health Matters

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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, international NGOs.

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

restrictions.

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 (Amnesty International).

Report

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.

At: www.safeabortionwomensright.org

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

Argentina Bolivia Brazil El Salvador Mexico Nicaragua Peru

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Jamaica Dominican Republic

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USA Canada Australia

Kenya Malawi Nigeria Rwanda Senegal Algeria Morocco

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Nepal***

Poland Moldova Great Britain Spain

Overall findings

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 prosecuting them.

Anti-abortion activists and officials, including people in high positions, are often involved in motivating or supporting these actions.

Entrapment

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 to:

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 ‘guilt’.

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 providing abortions.

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 4-6 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.

RHM 2013;21(41):49–56.

Anibal Faúndes et al. Brazilians have different views on when abortion should be legal, but most do not agree with imprisoning women for abortion.

RHM 2013;21(42):165-173.

Peru, Bolivia, Ecuador: http://ipas.org/en/What-We-Do/Advocacy/Abortion-Is-Not-a-Crime.aspx

ARBEF Rwanda Youth Action Group

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 abortion

See the report at:

RHM booth at this conference

www.safeabortionwomensright.org