Abortion as a Contested Right in Occupied Palestine

Whether by law, social order, or culture, limitations on abortion continue to have support in many parts of the world, including within health care systems and among health care providers. Women seeking abortions in Occupied Palestine similarly face legal, social and procedural barriers that deprive them of dignity and force them into keeping unwanted pregnancies. Most Palestinians understand abortion as killing and associate it with a colonialist rather than a nationalist agenda. In this reading, Palestinians should oppose abortion as part of steadfast support for the national cause. Criminalization of abortion in Palestine and other violations of women's health rights are forms of gender-based violence legitimized by society and the Palestinian Authority and reinforced by Israeli colonial aggression. This violence includes coercion of women seeking abortions, denial of resources and services, and infliction of harm. Even information about and access to prepregnancy emergency contraceptives are withheld. A reproductive justice approach considers reproductive rights to be part of social justice.

This essay is based on my analysis of five focus groups as well as fifteen individual interviews I conducted with health care providers, social workers, policy makers, and legal service providers between June and August 2016. The study included seventy-eight participants.

Abortion laws and policies in Occupied Palestine are restrictive. A country assessment on sexual and reproductive health and rights identified six priority issues for the Palestinian government to invest in at the levels of policy and strategy, including access to safe abortion services, postabortion care, and contraceptive information and services (Abu Duhou, Al Botmeh, and Alawneh 2015, 19). However, Article 8 of the Public Health Law passed in 2004 considers abortion medically acceptable only if a pregnancy threatens a woman's life, a condition that two physicians must certify. The Palestinian Penal Code criminalizes abortion without a medical reason. According to Articles 321–25 of the Jordanian Penal Code of 1960, which applies in Occupied Palestine, such penalties apply to the woman seeking the abortion and all individuals and health care professionals who assist her in terminating the pregnancy. The Palestine Criminal Code of 1936, promulgated by the British Mandatory Government, was the first to make abortion illegal in Palestine, in Articles 175–77, and is the basis of the Jordanian Penal Code. However, Article 324 of this code allows exceptions for the woman and her family members if the reason for the abortion is "honor" related. In cases of extramarital pregnancies, the Jordanian Penal Code provides for a more lenient punishment if the motive is to protect the woman and her family from "dishonorable" conduct. These laws apply to all Palestinian institutions, including in Occupied East Jerusalem, as well as the Qalqilya Hospital, run by the United Nations Relief and Works Agency. Palestinian women born in Occupied East Jerusalem and living there as "residents" of Israel have access to abortion services in Israeli health institutions, although we do not have the data on how many use them.

Even when women seeking an abortion manage to overcome legislative hurdles, health care providers stigmatize them and subject them to pseudoreligious shaming. As a result, many turn to unsafe clandestine abortions in peripheral clinics.

More generally, the health care system and providers in Occupied Palestine do not disseminate information about available emergency contraception (EC) or abortion services and thus Palestinian women rarely use them. Even though EC medications are legal, they are not widely available as part of reproductive control services. An unmarried woman cannot acquire EC medications. While the Palestinian Family Planning Association provides such medications at no cost to married women at its service points, Palestinian government hospitals do not offer them and discourage their availability in pharmacies. Some physicians instead prescribe intensive dose administration of available contraceptives within the first seventy-two hours after unprotected sexual intercourse.

Some informants noted that because of these restrictions and the lack of information on reproductive control services, women believe that spontaneous abortions do not require health care. No national studies are available on the number of women who receive an abortion in Palestine formally or informally. However, two studies shed light on the subject. The first was a survey conducted in eleven refugee camps in the West Bank that included 333 married women of reproductive age (15–49 years), 40 percent of whom reported having an abortion and 21 percent reported having more than one abortion; 54 percent reported knowing a friend or relative who had had an abortion (Sayej 2007). The study did not differentiate between induced and spontaneous abortion. In a more recent study in the Hebron governorate in which 541 married women participated, 11 percent reported having had an induced abortion and about 60 percent had experienced a spontaneous abortion. In addition, about 50 percent of the study participants reported that another woman had confided in them about having had an abortion (AlRifai 2015, 60, 77).

A key procedural barrier to abortion access is institutional, and legal restrictions limit which institutions and health personnel may perform the procedure. As a senior midwife who works in a government hospital expressed: "If a married [woman] comes seeking abortion without having any justifiable health situation, we cannot abort her because we do not offer the service and we are not legally protected if we do so. … However, if she comes with an incomplete abortion, we are covered institutionally and legally." The penalties and restrictions are even more difficult when a pregnant woman is unmarried.

Beyond the legal restrictions, many health care providers object to abortion based on their religious and moral convictions. As a nurse in her forties from the government sector explained: "It is impossible that I can kill a human being. I would only do so if the pregnancy endangers the woman's life. Even here, she would have to provide me with the fatwa indicating permissibility. I can give her health education on the risks associated with abortion. If she is not convinced against it, I am not her only option"—meaning that the patient can turn to other health care providers who might have a different attitude toward abortion. The nurse did not recognize the client's right to reproductive choice, and participants in the focus group did not offer an alternative position. Most focus group participants strongly considered abortion a normative and religious taboo. Some even argued for its absolute prohibition in Islam, even when the gestational age is less than 120 days, which is contrary to most analyses in Islamic jurisprudence. A few claimed that abortion is permissible in Islam until 40 days of pregnancy, others that it was allowed until 120 days of pregnancy, depending on the school of Islamic jurisprudence. Given actually coexisting competing interpretations in Islamic jurisprudence about the point of gestational ensoulment and confusion among the health professionals, participants typically "use religion as the entry point" when they advise the client seeking an abortion but simplistically argue that Islam "prohibits" abortion and ask her to reconsider. They do not rely on a professional code of practice whereby they are duty-bound to respect, protect, and fulfill a woman's rights, including to an abortion. Interestingly, most of these professionals do not consider abortion within the domain of reproductive health. As a senior nurse explained: "In service delivery and health education we focus on reproductive health and not abortion. Reproductive health includes pregnancy, childbirth, postnatal care and family planning." Focus group participants were against promoting abortion in an uncontrolled manner because they thought that to do so would encourage sex and extramarital pregnancy, in contradiction to Islamic instructions and principles, customs, and Palestinian societal norms.

Focus group participants widely agreed that Palestinian Ministry of Health operational protocols, rules, and regulations do not mention abortion, which I confirmed with the director of women's health at the Ministry of Health. Participants explained that by law gynecologists may not conduct an abortion in Occupied Palestine unless a recognized Muslim physician declares with reasonable certainty in a detailed medical report that continuation of the married woman's pregnancy will endanger her life and the gynecologist has a formal certificate of approval from the Islamic mufti authorizing the abortion. The mufti may or may not accept the medical report at his discretion. He often rejects such reports, telling the woman to "trust Allah, accept His will and keep the baby." Without a health condition that is acceptable on religious grounds, a woman seeking an abortion must look for illegal and often unsafe methods to terminate an undesired pregnancy.

One senior nurse, however, believed that health practitioners impose "extra" requirements that do not exist in national laws in order to harass and discriminate against women seeking abortion services. A friend of hers sought an abortion because she was clinically depressed and on medication. The hospital physician requested a medical report from her treating psychiatrist that the medication could cause congenital malformations. When she did so, the same physician requested a letter of approval from the mufti. The mufti did not approve the abortion because the case did not meet at least one of two conditions of certainty: the fetus will be malformed or continuing the pregnancy will endanger the woman's life. The woman carried the pregnancy to term but experienced a painful sense of helplessness and injustice because childbirth was compulsory.

Physicians emphasized the need to tackle spontaneous and induced abortions together to avoid fragmentation in addressing women's reproductive health concerns because when an abortion is incomplete—induced or spontaneous—patients present to providers suffering similar symptoms requiring treatment. In addition, a consolidated approach in law, policy, and health care avoids the stigma and infidelity accusations associated with sought abortions. Participants in interviews and focus group discussions were overwhelmingly against denying abortions to girls and women made pregnant through rape or incest, because they viewed denial of abortion as perpetuating the violence to which they were initially subject. Such girls and women, explained an informant who works for a women's rights nongovernmental organization (NGO), must carry pregnancies to term by the laws in effect but will receive a reduced penalty if they seek an abortion for "honor" reasons.

Some advances occurred recently for unmarried pregnant women in light of the newly adopted National Referral System for Women Survivors of Violence endorsed by the Palestinian Ministerial Cabinet in late 2013 and applied thereafter by respective sectors. These cases are now handled jointly by the Ministry of Health and the Ministry of Social Development, which allow such women to stay at the women's shelter for protection and to receive health care until the pregnancy is full term and the woman delivers (vaginally or by cesarean section). After childbirth, the woman decides whether she wants to keep the baby. If she chooses not to keep it, she signs a form that this decision is permanent. If she chooses to keep the baby, the government conditions acceptance of her decision on the findings of in-depth social scrutiny to assess her ability to raise and protect the baby. The government supports her if she wants to declare the father's identity. Proof of fatherhood is attained with police assistance through a paternity recognition that the father signs officially, allowing the baby to be registered by the name of its father's family. If a man denies paternity, the public prosecutor's office imposes a DNA examination for verification and confirmation purposes.

Women activists and health advocates increasingly contest laws, policies, and practices restricting Palestinian women's reproductive rights. They work in collaboration and coordination with some Palestinian Authority actors and the National Coalition for the Protection of Women from the Dangers of Unsafe Abortion. This coalition was founded a few years ago by the Palestinian Family Planning and Protection Association (www.pfppa.org), affiliated with International Planned Parenthood Federation, Arab World Region. The coalition's goal is to use lobbying and pressure on policy makers and political leaders to include abortion and sexual health in development and national strategic health plans. They aim to integrate abortion-related indicators into the national maternal health database, information that becomes part of Palestine Central Bureau of Statistics health surveys and Ministry of Health annual reports. The coalition is also actively engaged in legal advocacy, changing public opinion, and changing perceptions about policies through research and information exchange. It held the first national conference on abortion in Ramallah in 2014 and conducted seminars and workshops on topics such as law and abortion, religion and abortion, the safety and health risks of abortion, and abortion and human rights in settings such as schools, universities, and mosques in cooperation with religious leaders, legislative council members, and ministries.

Community-based organizations such as Nagham Theater in Bethlehem, Radio Aʿlam in Hebron, the Bait Oula women's group, youth clubs, and volunteer peer educators affiliated with health NGOs, as well as municipalities, are working on outreach and awareness-raising campaigns. These projects include door-to-door home visits, media advocacy, and theatrical performances that spread information about unsafe abortion risks and available relevant services.

The latest fruit of this dynamism is reflected in the National Health Strategy of 2017–22, which integrates for the first time abortion access and research as part of its objectives. However, it is unclear whether this integration will materialize programmatically and operationally into dignified abortion services and what required legal amendments will be endorsed.