From Page to Practice: Abortion Liberalization: Transnational Legal Advocacy across a Procedure-Substance Divide

 

Procedure and substance are well-acknowledged to be elusive categories in law. Procedure shades off into substance, such that their divide is not discoverable by mere logic or reason. It is a divide drawn to carry out a purpose.[1] This acknowledgement does not deprive the divide of meaning. It redirects the inquiry. Rather than ask on what side a set of facts falls, we ask: why categorize as procedure or substance? What is both the purpose and effect of drawing the divide?

 

A procedure-substance divide in abortion liberalization can be traced to the 1994 U.N. International Conference on Population and Development (ICPD) and its Programme of Action.[2] The ICPD was an intergovernmental meeting under the auspices of the United Nations, where abortion was first recognized as a matter of concern for the transnational collective. To be particular, unsafe abortion was the subject of concern. Following much controversy and prolonged debate, governments and other participants agreed to address “the health impact of unsafe abortion as a major public health concern.”[3] Unsafe abortion is pregnancy termination undertaken by persons without necessary skills or in an environment that fails minimum medical standards, or both.[4] Unsafe abortion is a major cause of maternal mortality and morbidity in developing countries. Every year an estimated seventy thousand women die and millions more suffer with complications from unsafe abortion.[5] Controversy stemmed from the legality of abortion. Regardless of modifier, safe or unsafe, abortion is a criminal offence under penal code or other statute in the vast majority of the world.

 

A procedure-substance divide can be located in the relationship constructed between legal and unsafe abortion. It is recognized in the ICPD Programme of Action that nearly all countries “permit abortion … to save the life of a woman.  However, a significant proportion of the abortions carried out are self-induced or otherwise unsafe, leading to … maternal deaths.”[6] The two sentences thus joined suggest women die from causes other than legal sanction, which permits abortion to prevent maternal death. Legality is outside the transnational concern, unsafe abortion. This inference is supported by the qualification that “[a]ny measures or changes related to abortion within the health system can only be determined at the national or local level according to the national legislative process.”[7] Returning to the concern of unsafe abortion, it is agreed that “[i]n circumstances where abortion is not against the law, such abortion should be safe.”[8] In these circumstances, “health systems should train and equip health-service providers and should take other measures to ensure that such abortion is safe and accessible.”[9]

 

The compromise of the ICPD Programme of Action is widely acknowledged a product of a political process, reflecting what institutional and other conditions allowed at the time.[10] Safe rather than legal abortion could be strategically pursued as a transnational concern. The ICPD Programme of Action is not solely of historical interest. It profoundly shaped the discourse of abortion liberalization. This paper seeks to demonstrate that transnational legal advocacy not only retains a procedure-substance divide, but respects procedure as the side it legitimately occupies.[11]

 

Substance broadly refers to legality, the rights and interests implicated in pregnancy termination regulated as a wrongful act under criminal law, regulated as the offence of abortion. Substance also encompasses circumstances under which the act is lawful, the legal grounds for abortion. Procedure refers to the administration or implementation of the substantive law.

 

Part I examines the proceduralization of transnational legal advocacy in abortion liberalization. It explores the recent dominance of claims directed to quintessentially procedural matters, namely the manner in which legal grounds are applied or implemented. The claim is primarily one of under-inclusion. Women cannot access abortion services to which they are legally entitled.  The problem is a failure to translate law into practice. The consequence is unsafe abortion, the legitimate transnational concern. The problem of under-inclusion is diagnosed at a practical level as caused by many factors including discretionary decision-making without adequate standards or administrative mechanisms for review and appeal. Such claims are favoured politically because they concern safe rather than legal abortion. They are favoured legally because procedural justice falls comfortably within the expertise and authority of legal institutions. Proceduralization extends to both claim and remedy. The objective is to rationalize the administration of criminal abortion laws. One popular measure is policy guidance, a direction for government to clarify the legal grounds to guide the exercise of discretion and to establish standards for review and appeal. 

 

Part I recognizes the potential for procedural remedies to facilitate access to safe and legal abortion, but also considers their limitations. Under-inclusion, for example, is both conceptually and practically related to over-inclusion (women treated more leniently under the law than entitled). Remedies directed to one will address the other. Depending on the particularities of context, the overall effect may be to reduce rather than increase access to legal abortion, as recognized by advocates opposed to liberalization who have called for precisely the same remedial measure.

 

The outcome of decision-making undertaken within a more procedurally just system is thus relevant if remedies are to respond to the key concern that inspired advocacy, liberalization. Procedural remedies moreover may achieve little in improving access to legal abortion, but may achieve much in legitimating the substantive law on abortion, an equally problematic outcome. The design of elaborate procedural structures conveys the impression that the legality of abortion, the substance of the law, is something that can be administered through rational application of standards subject to review and appeal, whatever the case in practice. It accepts the substance of the law, the underlying system to be duly administered. Proceduralization may thus stabilize and entrench the regulation of abortion under criminal law.

 

Part II reconsiders the problem of legitimation by returning to procedure and substance as a divide drawn to carry out a purpose, subject to change over time. Fidelity to the formal compromise of the ICPD Programme of Action cannot be mistaken as adherence to its purpose, to exclude legality as a transnational concern. Proceduralization may be interpreted as not abandonment of substance, but strategic pursuit of substance. Part II seeks to reveal how claims in procedure bleed into reforms of substance, while formally maintaining the divide. Two accounts are explored.

 

The first account is of process-oriented reform. Policy guidance requires consideration of abortion policy, which underlies the substance of the law. By requiring government to implement procedural measures, legal institutions can set in motion processes that require government to engage with the substance of the law. The process-substance divide in legal advocacy can be used as a means to initiate processes that better accommodate gradual, compromised substantive reform.

 

The second account more fully exploits the procedure-substance divide as a discursive tool, a mode of argument. Rather than an intention to ameliorate translation of law into practice, claims and remedies in procedure may work to demonstrate by concerted effort that the law in substance is fundamentally unworkable. Policy guidance and other procedural measures cannot rationalize administration of the abortion law, for example, because the substance of the law, the legal grounds, cannot themselves be rationalized (e.g. there being no practical distinction between life and health protection). Legal grounds, in other words, are treated not as substantive aspects of the law but as means to administer an underlying policy, that pregnancy termination is not always wrongful or does not warrant legal penalty. A matter arguably substantive is made procedural. This is a common turn evidenced in more general claims of ineffectiveness, namely that criminal laws do not prohibit women from accessing abortion, only safe abortion.

 

Part III considers what claiming in procedure rather than substance leaves outside transnational legal advocacy. What remains beyond meaningful review when preoccupied with the question how does it work, procedure, rather than what is it, substance? Why might criminal abortion laws be problematic even and especially if they work (or are perceived to work), a perfect translation of law into practice? It matters to claim in substance because human rights and other legal standards cannot be agnostic on what may be regarded as a wrongful act and regulated as a criminal offence.[12] This includes consideration of the many entrenched factors that contribute to pregnancy termination being understood as wrongful and warranting criminal regulation.

 

Part III seeks to support a revived engagement in transnational legal advocacy with substantive limits on criminalization. This engagement is reflected in nascent claims against punitive measures imposed on women who undergo abortion, and related claims about proportionality, phrased as criminal laws simply demanding too much. A concern with punitive measures raises a distinction between regulation intended to punish and degrade, and regulation intended to control behaviour. Proportionality concerns legal grounds for abortion as substantive constraints, an effort to calibrate punishment with the wrongfulness of the act.

 

Joanna N. Erdman

Co-Director

International Reproductive and Sexual Health Law Programme

University of Toronto



[1] This relationship between categories of substance and procedure in law is drawn from WW. Cook. “Substance and Procedure in the Conflict of Law” (1932-33) 42 Yale L.J.  333, with citation to Gilbert N. Lewis, The Anatomy of Science (1926) 178: “One by one we have seen how categories, which at first seem sharply defined, merge one into another, and how every classification when analyzed shows that some imaginary line has been arbitrarily taken as a boundary.” I am much indebted in my thinking throughout this article, and with particular reference to the theme of legitimation, to Carol S. Steiker and Jordan M. Steiker and their writing on substance and procedure in the constitutional regulation of capital punishment. See: C.S. Steiker and J.M. Steiker. “Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment” (1995) 109(2) Harvard Law Review 355; C.S. Steiker and J.M. Steiker. “Atkins v. Virginia: Lessons from Substance and Procedure in the Constitutional Regulation of Capital Punishment” (2007-08) 57 DePaul L. Rev. 721.

[2] United Nations (1994) Programme of Action of the International Conference on Population and Development. A/Conf.171/13.  New York: United Nations [ICPD Programme]

[3] Ibid., para 8.25.

[4] WHO. The prevention and management of unsafe abortion. Report of a Technical Working Group. 3 (Geneva: WHO, 1993).

[5] World Health Organization (WHO). Unsafe abortion: global and regional estimates of the incidence of unsafe abortion and associated mortality in 2003. 5 (Geneva: WHO, 2007); David A. Grimes et al. “Unsafe abortion: the preventable pandemic” (2006) 368 Lancet 1908-19, 1910.

[6] ICPD Programme, supra note 2 at para. 8.19.

[7] Ibid. at para. 8.25.

[8] Ibid.

[9] In 1999, the United Nations General Assembly issued this statement in a review and appraisal of the implementation of recommendations in the ICPD Programme of Action. United Nations. (1999) Key actions for the further implementation of the Programme of Action of the International Conference on Population and Development. A/S-21/5/Add.1. New York: United Nations, para. 63.iii.

[10] See e.g. S. Corrêa, A. Germain & R.P. Petchesky. “Thinking beyond ICPD+10: Where Should Our Movement Be Going?” (2005) 13(25) Reproductive Health Matters 109.

[11] “Transnational advocacy” is not limited to advocacy in the international context, but extends to national contexts where claims regarding abortion liberalization reflect an engagement with communities and institutions beyond national boundaries.

[12] M.D. Dubber. “Toward a Constitutional Law of Crime and Punishment” (2003) 55 Hastings L.J. 509 at 519, 536, with reference to H.M. Hart. “The Aims of the Criminal Law.” (1958) 23 L. & Contemp. Prob. 401 (1958).

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