Abortion and the Law: From International Comparison to Legal Policy (review)

Abstract

Under what conditions is the termination of a pregnancy legal? Under what conditions is it a crime? What policies or regulations should societies that value both "unborn life" and a woman's right to self-determination adopt in order to adjudicate between these seemingly incommensurable values? These questions are at the heart of Abortion and the Law: From International Comparison to Legal Policy, an abridged version of a multi-volume report surveying abortion laws, regulations, and attitudes in 64 countries around the globe. In this unique and richly detailed picture of the global politics of abortion, readers learn what it is that countries share and how it is that they differ in their responses to the termination of pregnancy. Perhaps not surprisingly, we learn that abortion is a highly controversial political issue in many countries around the globe, that criminal law is often used to regulate termination, and that the issue is regularly framed as a conflict between fetal life and women's choice. What may be surprising for readers to learn is that regulations vary so widely that "virtually no two regulations in the area of the termination of pregnancy are exactly alike" (p. 70). It is this finding that serves as a central theme of the text.

Abortion and the Law explores this incredible diversity in two distinct ways: providing an empirical analysis that strives as much as possible to be objective and descriptive, and a more normative analysis considering the policy implications of the findings. The first portion of the book (Parts I-III), detailing the empirical data, exposes global variation in the social conditions and sociopolitical factors that influence a woman's decision to abort and shape a society's response. The authors illuminate distinctions in everything from social norms regarding motherhood to the role of religion, from cultural history to legal philosophy, and from attitudes of physicians to trends in prosecution. In an attempt to bring order to the massive amount of data collected, the authors identify three dominant models of regulation: the "prohibition" model that defines all terminations as a crime, the "indication" model that exempts termination from punishment under certain specific conditions, and the "time limit" model that bases exemptions from punishment on chronological considerations (pp. 46-57). However, as the authors candidly concede, these models are somewhat misleading and fail to do justice to the nuances of regulation disparities. These nuances are explored in the chapters examining "permissible" and "impermissible" terminations, chapters that detail the circumstances under which participants can avoid or are required to face "state intervention or criminal punishment" (p. 69). Yet here too, the authors find that despite their valiant efforts, the variations are so extensive as to defy precise categorization.

But what may seem like a short-coming of the study, the inability to categorize the data easily, turns out to be one its "most important findings." As the authors explain in the second portion of the book (Part IV), this variation has much to teach us about the abortion debate as well as about future policy responses. Pushing beyond the descriptive to the "political," the authors reflect on the data to reject the idea that "life must be guaranteed in all circumstances and at any price" (p. 260). Though clearly concerned with preventing terminations and protecting "unborn life," the authors "debunk the false premise that termination is a […] result of a modern-day deterioration in morals" and challenge the call for greater criminal regulation as a way to restore morality (p. 209). The findings reveal that the unborn have never been accorded the same protections than the living: "the taking of life before birth has not been subject to the same taboo nor has it been punished with equal severity" when compared to the taking of life after birth (p. 209). They shed light on a "far-reaching de facto tolerance or at least the lack of serious, comprehensive prosecution—of the termination of...