Rights to Abortion in 2018: Sensing the Winds of Change? – Ailsa McKeon

It has been estimated that each year, approximately 25 million unsafe abortions take place. This number represents nearly half of all abortions undertaken worldwide. Almost all unsafe abortions occur in developing countries, where around 7 million women annually are hospitalised following terminations performed without the assistance of a trained health worker and in other conditions that place women at risk. Whether abortion is legal and accessible play an enormous role in determining whether a woman will have to take this route to end an unwanted pregnancy.

It is undeniable that the right to life represents a fundamental building block to achievement of all other human rights, but where argument tends to arise is in asking in whom this right accrues. The question of when life begins, considered from scientific, legal, philosophical and religious perspectives, yields a variety of answers, none of which is definitive. Yet, while this may be an interesting philosophical debate, for women seeking to terminate unwanted pregnancies the discord becomes tangible. Throughout the world women’s bodies are the subject of government intervention in the form of how society deals with the legality and practicalities of abortion. While some regimes are highly permissive, treating abortion as an issue of women’s health, others are restrictive to the point of harm, to the extent that a woman may be convicted of a crime for having suffered a miscarriage.

This divergence of opinions is far from new. However, certain events set to take place in 2018 look to give hope to those who consider that women should be able to control their own bodies.

In February, an online movement under the hashtag #AbortoLegalYa went viral in Argentina, with thousands marching on Congress to press for legalisation of and access to free pregnancy terminations. A larger demonstration is being planned for 8 March 2018, International Women’s Day, to press the Argentinian government to legalise and enable access to free pregnancy terminations. The movement cites as a primary motivator the shocking statistic that the primary cause of death among women in the country is medical complications arising from clandestine abortions. Argentina’s Congress feels the opposing pressure of the Catholic Church’s disapprobation, but has previously shown itself resistant to this by becoming one of the first Latin American countries to legalise same-sex marriage.

Ireland is another historically conservative nation in which a drive for change is being felt. Article 40 of Ireland’s Constitution sets out a list of ‘Personal Rights’, which was amended in 1983 to include the following text:

“3° The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”

This provision was itself amended in 1992, to add that it is not to be interpreted as limiting freedom to travel between Ireland and another state, or obtaining or making available information relating to services lawfully available in another state.

Despite these caveats, the basic position is that abortion is illegal in Ireland. On 29 January 2018, however, it was announced that a referendum would be held by the end of May asking the population whether the eighth amendment to the Constitution (which inserted article 40.3.3’s original text) should be amended. On making the announcement, Irish Taoiseach Leo Varadkar cited risks to women’s lives and health, and the need to hear from young people today as reasons behind the vote. The government is also drafting legislation to effectuate access to legal abortions within the first 12 weeks of pregnancy, should a ‘Yes’ vote prevail.

Closer to home, in December 2017 the newly re-elected Palaszczuk government announced that the Queensland Law Reform Commission (‘QLRC’) would be charged with updating the State’s laws on abortion. Termination of unwanted pregnancies is currently criminalised in Queensland, unless it is done to protect the life or health of the mother (QLRC, Review of Termination of Pregnancy Laws Consultation Paper, Working Paper No. 76 (2017) [15]-[40] (‘QLRC Review’)). In Queensland, unlike in other jurisdictions, this exception is narrowly construed and does not extend to considering the woman’s social or economic circumstances, nor necessarily her mental health (QLRC Review [162]-[163]).

The review was commissioned following the introduction and subsequent withdrawal of two private member’s bills in 2016 seeking the decriminalisation of abortion in Queensland (QLRC Review [2]-[6]). Interestingly, the Terms of Reference adopted ask not whether but how the situation should change (QLRC Review [8]; Appendix A). Specifically, the QLRC has been tasked with recommending:

how Queensland should amend its laws relating to the termination of pregnancy to:

  1. Remove terminations of pregnancy that are performed by a duly registered medical practitioner(s) from the Criminal Code…
  2. Provide clarity in the law in relation to terminations of pregnancy in Queensland.”

Submissions to this review have now closed and the QLRC is due to report back by 30th June 2018 (QLRC Review Appendix A). Given that the Palaszczuk government now has a clear Parliamentary majority (rather than a minority government at the mercy of cross-benchers), as well as an equal gender split in cabinet, the time seems ripe for change. Of course, Queensland is historically a conservative State, so the shape that any change may take will not necessarily be radical. Nonetheless, it seems likely that another small step in favour of women’s rights will be taken during the current Parliamentary term.

The major shift in 2018, however, looks to take place via the United Nations Human Rights Committee (‘UNHRC’). At its 120th Session in July 2017, the UNHRC conducted a first reading of a new draft General Comment on the right to life as protected under Article 6 of the International Covenant on Civil and Political Rights (‘ICCPR’). The text of the new General Comment No. 36 if adopted will carry considerable weight both within the framework of the ICCPR as implemented domestically and reviewed at the international level. Moreover, it will likely also have an effect on the construal of similar rights under regional human rights treaties, such as the European Convention on Human Rights. This shift may carry all the more force in Australia, which assumed its seat on the Human Rights Council on 1 January 2018.

The last plenary General Comment on the right to life, General Comment No. 6, was adopted in 1982. This was followed in 1984 by General Comment No. 14, which deals with the right to life in the specific context of nuclear weapons. The new General Comment 36 will supersede both and is notable for dealing specifically with abortion where the current General Comment is silent.

This omission has not been unproblematic. Paragraph 5 of General Comment No. 6 states that the right to life has been too often narrowly interpreted. The expression ‘inherent right to life’ cannot properly be understood in a restrictive manner, and the protection of this right requires that States adopt positive measures”. Some argue that this means the right to life must not be limited to those who have been born, but rather that it extends to life in utero as well. Plainly this approach requires at least a balancing between the rights of mother and foetus – and, some argue, primacy of the foetus over the living woman.

The text of General Comment 36 has not yet been finalised, submissions to the UNHRC having closed only in October 2017. The text submitted for consultation is, however, remarkable as noted above: paragraph 9 explicitly states that any measures designed to regulate abortions must not result in violation of the right to life of a pregnant woman or her other rights under the Covenant, including the prohibition against cruel, inhuman and degrading treatment or punishment”. Primacy is therefore explicitly given to the life and health of the woman.

Paragraph 9 continues to emphasise the need to avoid criminalisation of abortion in particular circumstances, such as outside wedlock, where to do so increases the risk of unsafe terminations being sought. The General Comment also encourages the taking of proactive measures to increase awareness of contraceptive methods in order to reduce further danger of clandestine abortions.

Plainly the import of this wording, should it be finally adopted, requires significant trickle-down to have any impact on the daily lived experiences of women worldwide. However, it would provide an unprecedented beacon from which claims for law reform, equality of treatment, and amelioration of wrongful treatment may emanate. The UNHRC is due to consider the draft General Comment at its 122nd session later in 2018. The ensuing discussion is likely to be watched closely from all angles.

A further issue surrounding abortion rights that is currently receiving attention tends, however, against full liberalisation of women’s access to termination services. That is the abortion of foetuses showing signs of abnormality or disability. This is particularly pertinent in the context of discussions surrounding the draft General Comment on Article 5 of the Convention on the Rights of Persons with Disabilities (‘CRPD’) regarding equality and non-discrimination.

The issue has been discussed from both religious and secular perspectives. In relation to the latter, it has been observed that disability-selective antenatal screening may affect the wider disability community in that it increases stigma in society, means there are fewer people with lived experience to advocate for protections and services, and adds to the notion that disability is a negative experience rather than a facet of human diversity”. There is, therefore, an argument to be made that termination of a pregnancy should not be permitted where it is sought solely on the basis that the child, if born, will have a disability.

This approach is also supported by Article 8(a) and (b) of the CRPD, which require States Parties [t]o raise awareness… regarding persons with disabilities, […] to foster respect for the rights and dignity of persons with disabilities… [and] [t]o combat stereotypes, prejudices and harmful practices relating to persons with disabilities… in all areas of life”. To be consistent with the notion that human rights accrue only in those who have been born means that this argument is sourced in the rights of persons with disability generally not to experience discriminate on that basis, rather than the purported right to life of any particular foetus.

In summary, it seems that 2018 will at least be a year of discussion and debate regarding the right of women to access abortion services without fearing prosecution or persecution. To the chagrin of women’s rights advocates and the relief of those in favour of restricting terminations, change rarely happens overnight. Even if liberalisation does occur within some of the contexts discussed in this article, it will take time to bring about practical changes and to reduce the stigma often associated with seeking abortion services, as may be seen in countries in which abortion is already permissible. Nonetheless, for those who wish to see the right to terminate unwanted pregnancies recognised as a question of women’s health and equality rather than criminal sanction, the world seems to be moving in the right direction.


Ailsa McKeon (BA/LLB (UQ), LLM (Cantab)) is an Assistant Editor of the ILA Reporter and a paralegal at Griffiths & Partners, Turks and Caicos Islands.