As outlined in Chapter 1, section 1.3, one element of an enabling environment is that law and policy promote and protect sexual and reproductive health and rights (SRHR). A number of common approaches to law and policy on abortion mentioned in Chapter 1 (section 1.3.1) pose barriers to access to abortion, are inconsistent with international human rights legal instruments, and can have negative effects on the exercise of human rights. This chapter reflects evidence on the impacts of these law and policy approaches, considers their human rights implications, and presents evidence-based recommendations to improve law and policy relating to abortion as part of an enabling environment for universal access to quality abortion care. Box 2.1 summarizes the principles of abortion law and policy that would be consistent with key principles of human rights law.
BOX 2.1Abortion law and policy that are consistent with key principles of human rights law
States must respect, protect and fulfil abortion seekers’ rights, including their sexual and reproductive health and rights (SRHR).
States should take positive steps to secure an enabling regulatory and policy environment that will ensure the universal availability, accessibility, acceptability and quality (AAAQ) of abortion and post-abortion care.
Abortion should be fully decriminalized. Regulatory, policy and programmatic barriers – as well as barriers in practice – that hinder access to and timely provision of quality abortion care should be removed. These include grounds-based approaches, gestational age limits, mandatory waiting periods, third-party authorization requirements and provider restrictions. States should also protect access to and continuity of abortion care against barriers created by conscientious objection (refer to Recommendations 1,2,3,6,7,21 and 22 in this guidance).
The regulation of abortion should have the objective of respecting, protecting and fulfilling the SRHR of women; achieving positive health outcomes for women; providing good-quality contraceptive information and services; and meeting the particular needs of marginalized persons, including women facing financial hardship, adolescents, women with disabilities, survivors of sexual and gender-based violence, transgender and non-binary persons, women from ethnic, religious and racial minorities, migrant and displaced women, and women living with HIV, among others. The regulation of abortion should be grounded on and should promote equality and non-discrimination.
Source: Refer to Box 1.2 for references.
2.1. Common approaches to abortion regulation
Almost all countries where abortion is lawfully available regulate abortion differently to other forms of health care (116). Unlike other essential health services, abortion is commonly regulated to varying degrees through the criminal law in addition to regulation under health-care law. Even where abortion is available on certain grounds or until specified gestational ages (often linked to particular grounds), it is usually designated in those cases as a criminal offence if it occurs outside of those specific permitted situations. As a result, people can experience significant barriers in accessing abortion and post-abortion care in such contexts. These barriers persist even though abortion is a safe, effective and non-complex part of sexual and reproductive health (SRH) care, in spite of significant advancements in international human rights law, and notwithstanding the growing frequency with which self-management of abortion occurs safely with little or no contact with the formal health system.
Typical barriers to access to quality abortion care, which may or may not be codified in law, include lack of access to accurate information, the provision of biased information or counselling, the imposition of mandatory waiting periods, third-party authorization requirements, restrictions on the type of facilities or settings where abortion services can lawfully be provided, restrictions on the type of health workers that can lawfully provide services, lack of affordable services, breaches of confidentiality and privacy, failure to safeguard access to and continuity of care where health workers refuse care on the basis of conscientious objection, failure to license or make available essential medicines, and failure to recognize women as individuals who can manage their own abortions.
Restrictive laws, policies and practices often have the effect of making health workers, health-care facilities, committees, ethics boards, police, courts or others the “gatekeepers” for access to quality abortion care by requiring them to determine whether someone “qualifies” for legal abortion. In many cases, this introduces delay in accessing abortion. Such gatekeepers are not always sufficiently informed about the law or willing to interpret and apply law and policy in a way that respects, protects and fulfils abortion seekers’ rights. Criminalization of abortion can also have a “chilling effect” more broadly, as it can result in narrow interpretation of applicable law by health workers, including to avoid possible criminal liability (i.e. suppression of actions due to fear of reprisals or penalties). As a consequence, in many settings women’s experiences of seeking, accessing and managing abortion are highly variable, with much depending not only on the law but also on the approach of the gatekeeper with whom they interact. Thus, including information on relevant rights, laws and policies in the training and education of health workers is a crucial part of ensuring an enabling environment for quality abortion care (see also Chapter 1, section 1.4.3).
As described above, clear, accessible and rights-based laws and policies are part of an enabling environment for abortion care (see section 1.3). However, in some countries the law on abortion is incoherent, with seemingly conflicting provisions articulated in constitutions, penal codes, health legislation or policy guidance (117). Furthermore, in some cases domestic laws are inconsistent with international human rights standards and incompatible with current public health evidence. Additionally, in certain cases there is a lack of guidance from government to assist providers in identifying when abortion is lawful. Such incoherence can create uncertainty about the law for both those seeking and providing abortion care. The recommendations in this guideline build on human rights law and public health evidence to outline an approach under which abortion is regulated similarly to other health-care interventions, that is, by general health-care law and policy, best practice, training and evidence-based guidelines.
2.2. Recommendations relating to regulation of abortion
Three recommendations relating specifically to the regulation of abortion are presented in this section (Recommendations 1–3) and four additional recommendations, also relating to law and policy and abortion, are presented in Chapter 3, section 3.3: Pre-abortion (Recommendations 6,7,21 and 22). These seven recommendations were formulated by the expert panels formed for the development of this guideline, including expert human rights advisers (all contributors are listed in Annex 1 and the roles of the contributing groups are described in Annex 4).1 The evidence was first systematically reviewed for each prioritized topic and question, and the level of certainty of that evidence was assessed (i.e. based on the quality of the evidence, including the types and sizes of studies conducted and their various limitations).
The direction (in favour or against) and strength of each recommendation was determined by the panel of experts based on the six substantive criteria of the WHO-INTEGRATE framework as applied to each intervention for the specified population – balance of health benefits and harms; human rights and sociocultural acceptability; health equity, non-discrimination and equality; societal implications; financial and economic considerations; feasibility and health system considerations – while also taking into account the meta-criterion: quality of evidence (118).
Recommendations in favour of an intervention are qualified as either strong or weak (with the conditions of use specified for the latter), with the third alternative being a recommendation against the intervention. To clearly indicate the strength and direction of each recommendation, the following wording is used:
Recommend – a strong recommendation in favour of the intervention
Suggest – a weak recommendation in favour of the intervention (requiring additional wording to qualify the recommendation, specifying the conditions of use)
Recommend against – a strong recommendation against the intervention/in favour of the comparison.
For each topic covered, both in this chapter and also in Chapter 3, first brief background information is presented, then the recommendation itself, followed next by a list of remarks (if any) from the expert panel that reviewed the evidence in detail, explaining the conditions and context relevant to the recommendation, and then the rationale, or summary of the evidence base and decision-making process for the recommendation, and finally a box listing any key human rights considerations relevant to the recommendation or broader topic. It should be noted that the 2012 Safe abortion guidance provided a composite recommendation related to law and policy; in this guideline, this has been developed into seven separate recommendations using GRADE methodology, but they are not considered to be “new” (i.e. Recommendations 1,2,3,6,7,21,22). The methods are described in full in Annex 4, including the differences in the methods applied for the seven recommendations relating to law and policy issues compared with the other types of recommendations. A summary table linking the topics covered, the research questions, the systematic reviews conducted and the recommendation numbers is provided in Annex 7. The full Evidence-to-Decision (EtD) frameworks are provided online as supplementary material and hyperlinked cross-references to these are supplied with the rationale for new and updated recommendation presented.2
2.2.1. Criminalization of abortion
Unlike other health services, abortion is commonly regulated to varying degrees through the criminal law (i.e. criminalized), in addition to regulation under health-care law.
Abortion remains a criminal offence in most countries, with penalties against those who have abortions and/or those who provide abortion services or assist with accessing or managing abortion, sometimes including those who provide information about abortion. In some countries, all of these actions are criminal offences.
Decriminalization is a necessary step for the legalization of abortion, but ensuring that abortion is available, accessible and of high quality may require further legal or regulatory changes beyond decriminalization, including, as applicable, implementing the other recommendations contained in this guideline.
LAW & POLICY Recommendation 1Criminalization
Recommend the full decriminalization of abortion.
Remarks:
Decriminalization means removing abortion from all penal/criminal laws, not applying other criminal offences (e.g. murder, manslaughter) to abortion, and ensuring there are no criminal penalties for having, assisting with, providing information about, or providing abortion, for all relevant actors.
Decriminalization would ensure that anyone who has experienced pregnancy loss does not come under suspicion of illegal abortion when they seek care.
Decriminalization of abortion does not make women, girls or other pregnant persons vulnerable to forced or coerced abortion. Forced or coerced abortion would constitute serious assault as these are non-consensual interventions.
Note on updating of the recommendation: This and other law and policy recommendations are not new recommendations. WHO’s 2012 Safe abortion guidance provided a composite recommendation related to law and policy (19); in this guideline, this has been developed into seven separate recommendations using GRADE methodology.
Rationale
Numerous human rights bodies and mandate holders, including the CEDAW Committee (38), the CESCR (3), the United Nations Human Rights Committee (36), and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (37), support the full decriminalization of abortion. They have clarified that States should not criminalize medical procedures needed only by women, including abortion nor criminalize those who have undergone an abortion, or punish or apply criminal sanctions against those who assist women in having abortions. Under international human rights law, States must not require health workers to report cases of women or girls who have had abortions, or whom they suspect of having had abortions, and States must provide post-abortion care in all circumstances and without the risk of criminal sanction. In addition, States must take steps, including revising laws, to reduce maternal morbidity and mortality (including abortion-related morbidity and mortality), and to effectively protect women and girls from the physical and mental risks associated with resorting to unsafe abortion due to the criminalization of abortion (see also Chapter 1, section 1.3.1 on human rights, and Web annex A: Key international human rights standards on abortion, which provides further information as well as references for the above assertions).
In order to identify the impacts of criminalization of abortion on abortion seekers and health workers, a systematic review of studies published between 2010 and 2019 was undertaken, identifying 22 studies conducted in Australia, Brazil, Chile, El Salvador, Ethiopia, Ireland, Mexico, Northern Ireland (United Kingdom), the Philippines, Rwanda, Senegal, the United Republic of Tanzania, Uruguay and Zambia. A summary of the evidence from these studies is presented in Supplementary material 1, EtD framework for Criminalization. The evidence from these studies demonstrated that criminalization delayed access to abortion, including in some cases causing providers to wait until a woman’s life was in danger so that abortion could be provided within the legal exceptions to criminal prohibitions. Furthermore, criminalization imposes a range of burdens on women including unnecessary travel and cost, delayed or no access to post-abortion care, distress and stigma. The evidence indicated that criminalization did not impact the decision to have an abortion, prevent women having abortions, or prevent women from seeking information on and referral to services abroad where they can access abortion. Instead, criminalization limits access to safe and legal abortion, and increases recourse to unlawful and unsafe abortion. When prosecutions take place they may be disproportionately pursued against young, unmarried women and those facing financial hardship and with less access to education. Some countries require health workers to report women and girls when they seek abortion or post-abortion care.
Criminalization can cause health workers to act cautiously, fearing criminal prosecution. As a result, they may be hesitant to provide abortion care even in cases of rape, incest and fatal fetal impairment, when denial of abortion could constitute torture, cruel and inhuman treatment or punishment.
Criminalization contributes to the lower availability of trained abortion providers and a loss of relevant skills in the health workforce. This can have negative effects on health workers who do provide abortion, and can increase bureaucracy within health systems.
KEY HUMAN RIGHTS CONSIDERATIONS RELEVANT TO CRIMINALIZATION OF ABORTION
Availability, accessibility, acceptability and quality must be central to the regulation of sexual and reproductive health (SRH) services.
Seeking, having, assisting with, or providing abortion to which the pregnant person has provided free and informed consent should never be criminalized.
States must not require health workers to report cases of women or girls who have had abortions, or whom they suspect of having had abortions.
Post-abortion care must always be available without the risk of criminal sanction.
Seeking or providing accurate, evidence-based and non-biased information on abortion must never be criminalized.
States must take steps, including revising laws, to reduce maternal morbidity and mortality, and to effectively protect women and girls from the physical and mental risks associated with resorting to unsafe abortion.
Everyone has a right to non-discrimination and equality in accessing SRH services.
SRH services must be provided in a way that ensures privacy and confidentiality.
For further information and sources, please refer to Box 1.2 and Web annex A: Key international human rights standards on abortion.
2.2.2. Grounds-based approaches to controlling access to abortion
National laws in most countries permit some abortions, even in settings where abortion is criminalized. Usually abortions will still be permitted under prescribed “grounds”, or specific circumstances. The circumstances under which abortion is permitted vary widely across different countries. Some of these circumstances reflect clinical indications (e.g. risk to the health of the pregnant woman or fetal impairment), some relate to the circumstances of conception (e.g. rape), and some relate to socioeconomic circumstances (e.g. economic hardship). Grounds-based approaches are commonly accompanied by gestational age limits, often varying depending on the specific condition under which abortion is permitted. In some countries, abortion is available on request up to a specified gestational age and then limited to specific grounds thereafter.
LAW & POLICY Recommendation 2Grounds-based approaches
Recommend against laws and other regulations that restrict abortion by grounds.
Recommend that abortion be available on the request of the woman, girl or other pregnant person.
Remarks:
Note on updating of the recommendation: This and other law and policy recommendations are not new recommendations. WHO’s 2012 Safe abortion guidance provided a composite recommendation related to law and policy (19); in this guideline, this has been developed into seven separate recommendations using GRADE methodology.
Rationale
International human rights law requires that abortion be available where carrying a pregnancy to term would cause a woman substantial pain or suffering, or where her life or health is at risk. States may not regulate abortion in a manner that forces women to resort to unsafe abortion and must take steps, including revising laws, to reduce maternal morbidity and mortality, and to effectively protect women and girls from the physical and mental risks associated with unsafe abortion (for further information, please refer to Chapter 1, section 1.3.1[i] and Web annex 1: Key international human rights standards on abortion). Grounds-based approaches are often (i) too narrowly defined or (ii) too conservatively applied to ensure abortion is available in these circumstances. The aim to reduce maternal morbidity and mortality, and protect women and girls from the risks associated with unsafe abortion, can be effectively achieved by making abortion available on the request of the pregnant woman or girl.
In order to identify the impacts of grounds-based approaches on abortion seekers and health workers, a systematic review of studies published between 2010 and 2021 was undertaken, identifying 21 studies conducted in Argentina, Australia, Brazil, Chile, Colombia, Ethiopia, Ghana, the United Kingdom of Great Britain and Northern Ireland, the Islamic Republic of Iran, Ireland, Israel, Mexico, Rwanda, Thailand, the United Republic of Tanzania, the United Kingdom of Great Britain and Northern Ireland, Uruguay and Zambia. A summary of the evidence from these studies is presented in Supplementary material 1, EtD framework for Grounds-based approaches. The reviewed evidence showed that grounds-based laws contributed to delayed abortion, with delays occurring because of inconsistencies in interpretation or application of health grounds, women waiting for determination of their eligibility for abortion or having their claim that pregnancy resulted from rape questioned or disbelieved, overly restrictive interpretation of grounds, or disagreement within a medical team about whether a woman satisfies a legal ground. Misinterpretation of the law can also result in denial of abortion. In some cases, health workers waited for a health condition to deteriorate sufficiently to ensure that a woman satisfied a “risk to life” ground, clearly endangering the right to life and potentially violating the right to be free from torture, cruel, inhuman and degrading treatment.
Interpretation of grounds, and thus eligibility for lawful abortion, varies between providers, and providers are not always certain about the law or how it should be applied; interpretation is often narrow and incompatible with human rights law and/or with WHO’s definitions of health and mental health, leading to denial of abortion. Women reported significant challenges in accessing care in circumstances where they could not obtain legal support and advice on the permitted grounds. Grounds-based approaches were found to have a particularly negative impact on women facing financial hardship and women with lower educational attainment.
The evidence reviewed for this guidance showed that grounds-based approaches have a disproportionate negative impact on women who seek abortion following rape. These women were often subjected to questioning, protracted delay and bureaucratic processes due to requirements such as reporting the crime to the police or need for a court order, even though it is not human rights compliant to make such reporting or processes a prerequisite for accessing abortion. Even where the law provides that a woman’s claim of rape is sufficient to satisfy the legal requirement, providers may require a document or authorization (e.g. court order or police report). In reality this means that obtaining an abortion following rape is laborious and time-consuming. In some cases, delays are so long that women give birth before legal eligibility is determined; in others, women choose instead to resort to unsafe abortion. Thus, “rape grounds” do not satisfy the requirement from international human rights law that abortion be available and accessible in situations of rape. These restrictions also subject the individual to unnecessary trauma, may put them at increased risk from the perpetrator, and may cause women to resort to unsafe abortion.
The evidence also showed that grounds-based approaches that require fetal impairments to be fatal for abortion to be lawful frustrate providers who wish to support patients and leave women no choice but to continue with pregnancy. Being required to continue with a pregnancy that causes significant distress violates numerous human rights. States are obligated to revise these laws to make them compatible with international human rights law.
Under international human rights law, States are required to ensure that women do not have to resort to unsafe abortion. The evidence from the studies described above suggests that grounds-based laws may contribute to an increase in the incidence of unsafe abortion, with people who do not satisfy a ground resorting to unlawful abortion, including unlawful self-management of abortion, some of which may be unsafe. The evidence from the studies also indirectly suggests that grounds-based laws contribute to maternal mortality, because when States shift from a grounds-based approach to permitting abortion on request in the first trimester there is a reduction in maternal mortality (especially for adolescents) as well as a reduction in fertility (birth rates). This suggests a connection between the international obligation to take steps to reduce maternal mortality and morbidity and a shift away from grounds-based approaches.
KEY HUMAN RIGHTS CONSIDERATIONS RELEVANT TO GROUNDS-BASED APPROACHES
Availability, accessibility, acceptability and quality must be central to the regulation of sexual and reproductive health (SRH) services.
Abortion must be available where carrying a pregnancy to full term would cause a woman substantial pain or suffering, where pregnancy is a result of rape or incest, or where her life or health is at risk.
States may not regulate abortion in a manner that forces women to resort to unsafe abortion.
States must take steps, including revising laws, to reduce maternal morbidity and mortality, and to effectively protect women and girls from the physical and mental risks associated with resorting to unsafe abortion.
Everyone has a right to non-discrimination and equality in accessing SRH services.
For further information and sources, please refer to Box 1.2 and Web annex A: Key international human rights standards on abortion.
2.2.3. Gestational age limits
Gestational age limits are commonly specified in both liberal and restrictive abortion laws and policies. Imposed through formal law, institutional policy or personal practice by individual health workers, these limits restrict when lawful abortion may be accessed by reference to the gestational age of a pregnancy. In many countries gestational age limits are linked to grounds-based approaches, with gestational age limits varying according to the grounds or circumstances under which abortion is permitted. While methods of abortion may vary by gestational age (see Chapter 3, section 3.4), pregnancy can safely be ended regardless of gestational age. Gestational age limits are not evidence-based; they restrict when lawful abortion may be provided by any method.
International human rights law requires that quality of care be central to the provision and regulation of SRH, and thus that regulation of abortion is evidence-based, scientifically and medically appropriate, and up to date (3, para. 21). Under international human rights law, States may not regulate pregnancy or abortion in a manner that is contrary to their duty to ensure that women and girls do not have to resort to unsafe abortion, and are required to revise their laws accordingly (see Web annex A: Key international human rights standards on abortion).
LAW & POLICY Recommendation 3Gestational age limits
Recommend against laws and other regulations that prohibit abortion based on gestational age limits.
Note on updating of the recommendation: This and other law and policy recommendations are not new recommendations. WHO’s 2012 Safe abortion guidance provided a composite recommendation related to law and policy (19); in this guideline, this has been developed into seven separate recommendations using GRADE methodology.
Rationale
In order to identify the impacts of gestational age limits on abortion seekers and health workers, a systematic review of studies published between 2010 and 2020 was undertaken, identifying 21 studies conducted in Australia, Belgium, Mexico, Nepal, South Africa, the United Kingdom and the United States of America (USA). A summary of the evidence from these studies is presented in Supplementary material 1, EtD framework for Gestational age limits. The reviewed evidence demonstrated that – alone or in combination with other regulatory requirements, including grounds-based approaches – gestational age limits delayed access to abortion, especially among women seeking abortions at later gestational ages, women close to the gestational age limit and those living in areas with limited access to clinics. Gestational age limits have been found to be associated with increased rates of maternal mortality and poor health outcomes. International human rights law requires States to reform law in order to prevent unsafe abortion and reduce maternal mortality and morbidity.
The studies also showed that where women requested an abortion and were denied care due to gestational age this could result in the unwanted continuation of pregnancy, especially among women with cognitive impairments or those who presented at 20 weeks’ gestation or later. This outcome can be viewed as incompatible with the requirement in international human rights law to make abortion available when carrying a pregnancy to term would cause the woman substantial pain or suffering, regardless of pregnancy viability.
The evidence from these studies showed that women with cognitive impairments, adolescents, younger women, women living further from clinics, women who need to travel for abortion, women with lower educational attainment, women facing financial hardship and unemployed women were disproportionately impacted by gestational age limits. This points to the disproportionate impact of gestational age limits on certain groups of women, with implications for States’ obligation to ensure non-discrimination and equality in provision of SRH services.
KEY HUMAN RIGHTS CONSIDERATIONS RELEVANT TO GESTATIONAL AGE LIMITS
Availability, accessibility, acceptability and quality must be central to the regulation of sexual and reproductive health (SRH) services.
States may not regulate abortion in a manner that forces women to resort to unsafe abortion.
States must take steps, including revising laws, to reduce maternal morbidity and mortality, and to effectively protect women and girls from the physical and mental risks associated with resorting to unsafe abortion.
Everyone has a right to non-discrimination and equality in accessing SRH services.
For further information and sources, please refer to Box 1.2 and Web annex A: Key international human rights standards on abortion.
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The expert panels included the Evidence and Recommendations Review Groups (ERRGs) for each of the three domains (Law and policy, Clinical services and Service delivery) and later the Guideline Development Group (GDG), and each phase and each meeting of these groups also involved at least one human rights adviser. For further details on the roles of these groups and the full methodology for the guideline development process, see Annex 4: Methods.
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