Theorizing time and power in abortion law and human rights


  • 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.
  • Alienation
    • 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:
      1. The wide variations of gestational age limits represented in international law point to the law’s inherent arbitrariness.
      2. 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.
      1. Trust the judgment of the people most directly affected.

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.
      1. 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
      1. Providers having to “practice abortion with an eye to the law”
      2. According to a 2008 report on abortion laws in Australia, abortion providers reported feeling rushed in order to adhere to time limits.[1]

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.


  • 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).