Progressive Legal Development on Abortion

With the Supreme Court of Mexico decriminalising abortion nationwide on 6 September 2023, Latin America continues to spearhead the movement for liberalising abortion laws. Each country in Latin America has different enforcement mechanisms for abortion laws. Some countries have allowed abortion only under certain circumstances e.g., in case of rape or when there is a health risk to the mother while some allow abortion up until a certain term of pregnancy; with a few banning it under all circumstances.

The path of enacting progressive abortion legislation in Latin America was led by Cuba, when it first decriminalised abortion in 1965.  After almost half a century, in October 2012, Uruguay became the second country in Latin America to legalise abortion. Later it was followed by Argentina in 2020 where they not only legalised abortion but also made it free to access.

If we now look at our country, abortion is a stigmatised concept, accompanied by shame, agony, and drastic legal consequences. Our Penal Code criminalises "voluntary miscarriage" under section 312 unless it is done solely for saving the life of a woman in good faith.

Colombia is another country that has fought a long battle to legalise abortion. In 1994, the constitutional court of Colombia found that the general prohibition on abortion was constitutional. Eventually, in 2005, the constitutionality of key provisions in penalising abortion were challenged on the ground that they run contrary to women's rights to life, health, and physical integrity. In a landmark decision for the region, in May 2006, Colombia's constitutional court decided on the case, partially legalising abortion. Later, Colombia's constitutional court decriminalised abortion for up to the first 24 weeks of pregnancy in February 2022. Mexico has taken a similar path and last year the Mexican Supreme Court decriminalised abortion nationwide.

While lauding the legislative development in these countries, it is also important to remember that countries like El Salvador, Nicaragua, and many others in Latin America still have some of the strictest abortion laws in the world— banning this procedure under all circumstances. In contrast, countries like Chile fall somewhere in the middle of this spectrum as they continue their fight for abortion rights.

If we try to analyse the progress of these countries, we find that countries decriminalising abortion put abortion rights as a matter of reproductive justice and associated it with democratic governance. Another key factor is that social decriminalisation happened much earlier in these countries compared to legal decriminalisation. All these factors played crucial roles in the fight for abortion rights.

If we now look at our country, abortion is a stigmatised concept, accompanied by shame, agony, and drastic legal consequences. Our Penal Code criminalises "voluntary miscarriage" under section 312 unless it is done solely for saving the life of a woman in good faith.  In 2020, a writ petition was filed challenging the constitutionality of the penal provisions with regard to abortion, which is yet to be decided.

Despite the penal consequences, abortion is carried out in Bangladesh, at times in the form of menstrual regulation (MR). However, the MR procedures and other clandestine abortion procedures are not always safe as they may lead to complications including hemorrhage, infertility, etc. Some out-of-clinic procedures can even prove to be fatal. Unfortunately, no significant policy-legal measure is currently in place to deal with the risks of unsafe procedures. Perhaps, following in the footsteps of the Latin American countries of approaching legal decriminalisation through social decriminalisation could be key for us. However, this path will certainly be a long and arduous one.

The writer is student of law, University of Dhaka.