Written by Ylva Bugge-Nilsson.
Edited by Paisley Regester.
Abortion law has been a controversial topic at the center of heated discussions for centuries, and as a result, designing and adopting such legislation can be like navigating a minefield for lawmakers. While legislative bodies are often able to successfully create abortion laws that correlate with the common sense of justice, this is not always the case. The ongoing protests in Poland, incited by the recent tightening of their abortion law, is a recent example of this. Many times, the gap between a country’s legislation and their public opinion becomes too wide, resulting in conflict and a lack of respect for the legal system, with dismissal of the rule of law as the ultimate consequence.
Poland was the first European country outside of the Soviet Union to legalise abortion in cases of rape and threat of maternal death in 1932. This is hard to believe, as the new Polish abortion law, enacted on October 22nd, does not even allow abortion in cases where the child will be stillborn. For the majority of the Western world, legislation permitting abortion on request was not introduced until the last decades of the twentieth century. During this time, the recognition of women’s rights increased and manifested itself in these areas.
As women’s right to personal autonomy is at the very core of gender equality, the demand for legal abortions can be seen as a natural consequence of the general recognition of women’s rights. To refuse women the opportunity to decide for themselves what they are or are not to do with their own bodies is almost impossible to match with the demand of gender equality. As previously mentioned, this creates a gap between the common sense of justice and the legal system, creating pressure for legislative bodies to take action. Hence, one can see a clear connection between the societal objective for gender equality and the legalistion of abortion. With this in mind, consider how interesting, and prehaps provocative, it would be to reconstruct the history of abortion law if men, who traditionally have been in positions of power, were the ones to give birth.
Religion is a key element of the abortion law discussion. According to Professor Mary Ziegler at the Florida State University College of Law, almost every opponent of abortion in the United States identifies as Catholic or Evangelical. Religion consistently plays a very prominant role in countries with strict and prohibitive abortion laws. This demonstrates another connection between women’s rights and abortion legislation, as men historically have been in positions of power within religious institutions, creating an asymetrical gender balance. However, even the oldest religious institutions have to adapt to the current popular belief; just like the legislator, they cannot afford too big of a disparity between the people’s views and their policies. Pope Francis’ recent voicing of support for same-sex unions illustrates a willingness for adjustment to a more inclusive church. This could potentially signify a shift in perspective that will someday lead to a more equitable view on abortions as well.
The discussion on abortion law may seem like a delicate matter for legislators to handle, especially in countries where legislation or delegislation clashes with the public opinion. However, while the debate on abortion is intense and divisive, oftentimes the voices against legal abortion are more loud than numerous. Thus, a lag between the public sense of justice and the sources of law will only occur if such opinions get disproportionate representation in the legal system. This may be seen in the United States as Amy Coney Barret takes the vacant seat in the Supreme Court following the recent passing of former Justice Ruth Bader Ginsburg. It has suddenly become a real possibility that abortions will be made illegal in several states. If this should happen, one might say it is no longer possible to trace the positive correlation between women’s rights and abortion law. The contradiction between the progressive development of women’s rights and strict abortion policies seem to create a legislative crossroad.
The Polish government has selected their course. Where this will lead is not yet known, but judging by the fact that the de-facto delegalisation of abortion has resulted in the largest demonstrations the country has seen since the fall of Communism in 1989, the decision has created a monumental rift between the law and the people. The inauguration of Amy Coney Barret in the Supreme Court may have put the U.S. next in line for a similar situation.
What route to take at this crossroad ultimately comes down to a simple line of argumentation. On a personal level, it is obviously possible to be against abortion, while still remaining in support of its legalisation. It is as simple as thinking, ‘I would not do it myself and/or I do not want others to do it, yet I still believe it is important that women are given a choice’. As a citizen you are free to choose either direction. However, a legislative body who claims to protect personal autonomy and recognises women’s right to decide for themselves what they are, or are not, to do with their own bodies, does not have the same option. It has to go down the road that gives women a choice when it comes to pregnancy, if it truly supports the progressive development of women’s rights.