What is the relationship of health and abortion in law? How do the responses to this question change as one moves through various historical periods, from states to the national level in federations, or from the domestic to the international arena? Does conceiving (pun intended) of abortion as tethered to women’s health result in more authority, autonomy, equality, or safety for women — or less?When contraception and abortion were legal in England and the United States, the banner of health provided arguments for their criminalization. Once contraception and abortion were criminalized, health became one of the justifications for regimes of partial decriminalization that allowed conditional access to methods of controlling fertility. For example, doctors and midwives who could demonstrate a patient’s health-based need for a “therapeutic” abortion sometimes had defenses to criminal prosecution. “Health” similarly justified immunities for those who sold condoms to men.

Roe v. Wade reflects both these traditions: in Roe, “health” offers reasons for regulation as well as for exemption from regulation. Roe recognizes, in the second trimester of a pregnancy, the state’s interest in regulating abortion to protect maternal health, and in the third trimester, the state’s interest in regulating abortion to protect potential life — so long as government allows women access to abortions necessary to protect their lives or health.

Legal systems other than the United States take women’s health as a relevant part of the discussion of rights to abortion and its decriminalization. Abortion and health are connected in decisions from the Supreme Court of Canada, Germany, Portugal, Spain, the European Court of Human Rights, as well as in some countries’ implementation of what they understand their obligations to be under the U.N. Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Abortion sits inside the debate within the European Union about whether to have rights cross borders to medical treatment. Furthermore, many texts of constitutions of nations, of the states within the

Developments in jurisdictions where health claims have provided a pathway to liberalization might suggest that health works as a “one-way rachet,” giving women more access to abortion. But one cannot reliably assume that health provides a one-way street to abortion liberalization. In the nineteenth century, when the common law permitted contraception and abortion, advocates invoked health as a reason to criminalize birth control practices. Today, proponents of criminalization once again make arguments that abortion harms women’s health as they invoke medical and psychological characterizations of abortion as a source of injury to women, encapsulated in what they call “Post-Abortion Syndrome” — or “PAS.”

Further, every claim of health is itself a potential site of struggle. The 2007 decision in Gonzales v. Carhart illustrates this point. Seeming to depart from prior precedent, the Court upheld a federal statute restricting certain methods of performing later-term abortions despite the fact that, on its face, the law made no exceptions for abortions to protect a woman’s health and allowed only those needed to protect a woman’s life. Congress had been told by medical professionals that the procedure was sometimes medically necessary, a position also attested to in court. Appearing not to credit these claims, the Court was nonetheless careful not to foreclose them: the majority expressly recognized the possibility of an “as applied” challenge to the statute by those who needed to use the banned abortion method, but did not explain who was entitled to assert this claim, when and how they would assert it, or the standards by which their health claims were to be assessed. For our purposes here, Carhart illustrates ambiguities in law’s claims about health: is health a legal/political procedure, a medical judgment, and/or a judgment by pregnant women?  Hence, it is time to examine more closely health’s work – transnationally — in the law of abortion and its impact on women’s autonomy, authority, equality, standing, safety, and welfare.

This entry was posted on Thursday, February 4th, 2010 at 7:21 pm and is filed under health, Social Change symposium, guests, abortion, law, Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.