- Laws regulating abortion based on time (length of pregnancy/gestational age) are an arbitrary way to respect rights
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:
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.
- It is dehumanizing to reduce people and their subject experiences to numbers.
- Alienation makes oppression possible.
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
Arbitrary or irrational laws: where there is no connection between the law and what it seeks to achieve
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.
Abortion laws should instead embrace individual judgement on the least arbitrary and most rational terms.
- Trust the judgment of the people most directly affected.
- 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
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.
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.
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.
- Abortion regulations should reflect real differences in service delivery needs and in the experiences of abortion.
Principle Three: Proportionate
Limits of law must be proportionate to its ends. The law must have perspective.
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.
- The harms of time limits on later abortion:
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.
 Victoria Law Reform Commission, Law of Abortion: Final Report, p. 140 (Victoria: VLRC, 2008).