Background:
- Laws regulating abortion based on time (length of pregnancy/gestational age) are an arbitrary way to respect rights
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Study: Abortion Laws in Europe
- 41 out of 44 laws that allow abortion explicitly regulate the procedure based on time.
Problems with Time and Abortion Laws:
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The time of clocks and calendar days
- Time is abstract and objectified
- Creates a mindset of crisis and scarcity: “Race against the clock”
- People experience the passage of time in pregnancy in different ways; including ways that are subjective and sensory.
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Alienation
- It is dehumanizing to reduce people and their subject experiences to numbers.
- Alienation makes oppression possible.
Objective:
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Apply human rights law to abortion law, which will enable us to:
- Destabilize the notion of “clock time” in abortion laws.
- Restructure law to be more subjective and offer a fuller image of human life and experience.
Human Rights Principles:
- States may enact abortion laws that limit access to protect public morals or public health, however, they must be rational, necessary, and proportionate to their ends.
- The current, time-based abortion laws are arbitrary, unnecessary, and disproportionate.
Principle One: Rational
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Arbitrary or irrational laws: where there is no connection between the law and what it seeks to achieve
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Time limits on abortion often represent a measure to protect prenatal life and public morals, which lay the claim that these time limits mark morally significant acts. However, there are a number of factors that point to the arbitrariness of time limits as moral signifiers:
- The wide variations of gestational age limits represented in international law point to the law’s inherent arbitrariness.
- There are deep philosophical problems to using viability as a measure of moral significance because there is no universal definition of viability.
- Time limits are too unclear in their meaning, and too imprecise in their measurement, to create any defensible moral line. Abortion laws, therefore, are masking moral judgement with measurement.
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Abortion laws should instead embrace individual judgement on the least arbitrary and most rational terms.
- Trust the judgment of the people most directly affected.
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Time limits on abortion often represent a measure to protect prenatal life and public morals, which lay the claim that these time limits mark morally significant acts. However, there are a number of factors that point to the arbitrariness of time limits as moral signifiers:
Principle Two: Necessary
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Limits of law must be necessary to achieve its ends: a law cannot overreach, interfere with conduct that bears no connection to the ends it seeks.
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Abortion regulations should reflect real differences in service delivery needs and in the experiences of abortion.
- However, abortion stigma and falsehoods of inherent risk has resulted in excessive regulation.
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Unnecessary time limits outlaw safe practices and shape abortion practice in harmful ways
- Providers having to “practice abortion with an eye to the law”
- According to a 2008 report on abortion laws in Australia, abortion providers reported feeling rushed in order to adhere to time limits.[1]
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Abortion regulations should reflect real differences in service delivery needs and in the experiences of abortion.
Principle Three: Proportionate
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Limits of law must be proportionate to its ends. The law must have perspective.
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The harms of time limits on later abortion:
- Increasing stigma: Later abortion patients become vulnerable to symbolic state action, social sacrifice, and secrecy.
- Structural injustice: Time limits enable states and government systems to avoid taking responsibility for social injustices that lead people to seek later abortion.
- Cruel indifference: Time restrictions isolate and abandon those who seek abortion beyond the gestational age limits.
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The harms of time limits on later abortion:
Conclusion:
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This perspective is subject to the conservatism of legal analysis:
- Respectable discourse of rational debate, such that even in critique we fold back into the logic of the law.
- We give law too much imaginative power
- We must act apart from scripts of law and refuse to be categorized and timed by law.
[1] Victoria Law Reform Commission, Law of Abortion: Final Report, p. 140 (Victoria: VLRC, 2008).