Joanna Erdman, International Reproductive and Sexual Health Law Programme, Faculty of Law,
University of Toronto, Canada
Despite the liberalization of criminal laws, safe abortion services remain inaccessible in many countries. Lack of information is a significant access barrier. Women and health providers do not know what the law allows, deterring women from seeking and providers from delivering services within the health sector. Third-party authorization, dignity-denying in service provision and health system administration all further contribute to unsafe abortion by restricting access to lawful services. This presentation explores recent developments in transnational law on access barriers to safe abortion, focusing attention on the legal reasoning or rationale that proved persuasive in the reform of laws, policies and practices restricting access to safe abortion.
This presentation interrogates the idea of ‘need’ in abortion law and explores how we assess claims of necessity under international human rights law. Using examples from the Global Abortion Policies Database, the presentation highlights the arbitrariness, overbreadth and dysfunction that characterize much abortion law worldwide, including many liberal regimes. These laws do not achieve the ends they purport to serve, and often undermine ends of public health, safety, and morality. The presentation focuses on the harms of unnecessary abortion law including: public health impacts of dysfunctional laws, access inequalities of overbroad laws and abuses of arbitrary laws. Particular attention is given to the harms by which abortion law becomes normative or even prescriptive of our lives. How law comes to shape the very ways we understand, experience and practice abortion. For example, how law and its institutional controls were traditionally used to define abortion safety, and the impact today on how we regulate self-managed abortion. We have given law much imaginative power over our field. For too long, we built norms of abortion practice in the image of the law, rather than having law serve aims of health and human rights. Today still, we carry over many falsehoods of abortion law into research, practice and policy, such as when health regulations carry on the gatekeeping and punitive work of criminal law. The presentation thus concludes with the idea of ‘freedom from law,’ an open and imaginative outlook that steers us away from the classic terms, binaries, and frames of abortion law that have patterned our field (e.g. risk and harm, time boundaries, set indications, protections and limits). The presentation extends an invitation to think ourselves away from the routines of abortion law and to ask: What do we need or want from law?