This post is part of the Dialogue series, “When Abortion is Illegal”
Having grown up in Ireland when abortion was almost completely prohibited, I have some sense of the challenges that pregnant people in the United States will soon face in seeking to bring their pregnancies safely to an end. In 1983, a “right to life of the unborn” was inserted in the Constitution, prompting hundreds of thousands of women in Ireland to travel abroad to access abortion. In later years, many thousands sourced abortion medication through reputable providers and ended their pregnancies, illegally, at home. Nobody knows how many women who could not afford to buy pills or travel, or who were prevented from doing so by abusive partners, found themselves with no choice but to continue with pregnancies against their will.
In Ireland we learned that when abortion is criminalized, feminists must simultaneously attempt to minimize harm through formal legal activism and engage in extra-legal activism to ensure access to abortion.
Anti-Abortion Legal Activism
The 8th Amendment to the Irish Constitution (1983) sought to prevent any attempts at abortion liberalization. Like most restrictive laws, however, it contained within it some space for the provision of legal abortion. The text “acknowledged” the “right to life of the unborn…with due regard to the equal right to life of the mother.” On the face of it, this left open the possibility that legal abortion could be provided where there was a risk to a pregnant person’s life. However, before the contours of that constitutional space could properly be mapped, anti-abortion activists proactively created and exploited opportunities to establish restrictive interpretation of the law. On behalf of the “unborn,” they secured injunctions to prevent women’s health centers and students’ unions from distributing non-directive information about where abortion could be accessed abroad. The Irish courts eventually banned anything that could be interpreted as endangering fetal life. Very quickly, the constitutional text was interpreted to mean that abortion was lawful only where there was a “real and substantial risk” of death for the pregnant person. Irish politicians, anxious not to get embroiled in the politics of abortion, refused to pass legislation establishing a process for accessing abortion in that limited circumstance until 2013 when it was forced to do because of a decision of the European Court of Human Rights.
It was anti-abortion legal activism that set the tone and shaped the “real life” meaning of the Constitution through these early interventions. They foreclosed attempts to interpret the constitutional protection of the pregnant person’s life in an expansive manner. Instead, the “exception” for the life of the mother had limited meaning and application. This resulted in medics being hesitant to provide treatment before death was “imminent,” with sometimes fatal outcomes.
Feminist Legal Activism
This restrictive interpretation of the law was not inevitable. Even in criminalized settings, “exceptions” can be interpreted in a way that seeks to maximize, rather than limit, access to abortion. Where abortion is available in cases of risk to life, activists can strive to ensure that the law is not interpreted or applied in a way that means a woman must be on the verge of death before any intervention will be allowed. If law allows for abortion in cases to protect the life and health of the woman, activists can work with health professionals to articulate an expansive understanding of health in line with the WHO definition of health as a state of complete physical, mental, and social well-being.
The Irish experience illustrates the importance of pro-choice legal activists proactively seeking to maximize access within restrictive laws. Such activism requires engagement with and working within the law. Indeed, this activism is about a willingness to own the law; to be a “first actor” in seeking to establish its meaning and not to allow anti-abortion activists to determine its practical application. Advocates can work with health ministries, professional associations, and providers to develop rights-based, access-maximizing interpretations of the law. Where necessary, they can initiate litigation to establish the lawfulness of broad interpretations, a technique that has proven fruitful in settings like Colombia.
Strategic engagement with the law sits uneasily with feminist wariness of law. However, as we saw in Ireland, anti-choice lawfare can ensure the law operates in as restrictive a way as possible and can shrink the legal space for progressive (re)interpretation.
In the face of anti-choice legal activism, pragmatic feminist engagement in the process of translating law into practice is one way we can ensure some access to abortion even in restrictive regimes.
“Extra-Legal” Feminist Activism
Even expansive, rights-based interpretations of restrictive laws will not be enough to ensure access for everyone who needs abortion. All over the world, activists share information, pay for abortions, provide accommodation and accompaniment, and empower women to self-manage abortion, even when doing so is illegal. Such activism is a vital counter-weight to anti-abortion attempts to ensure that accurate information about abortion is difficult to access. Anti-abortion activists use legal and political strategies to distort the information landscape with biased information. Anti-choice activists have wielded the law to mandate provision of unscientific claims about the risks of abortion, conservative sex education curricula, and to prohibit the distribution of accurate abortion information. Indeed, the censorship of abortion information was a notable part of Irish anti-abortion efforts: abortion information was banned until 1995 and heavily restricted until 2018.
Legal or not, pro-choice grassroots activists share information about the safety, management, and procurement of safe medication abortion. Across restrictive settings, knowledge about safe self-management of medication abortion is widely available at the community level.
Pro-choice activists are already offering to support information distribution and community training for abortion doulas, knowing that unlawful self-management will be critical for people who seek to end their pregnancies safely. Such activism works alongside formal legal activism to support women accessing abortion outside of the law, breaking and bending the law in an invaluable form of “feminist law work.”
Limits of the Law
Feminist law work is a vital accompaniment to the formal legal activism of litigation, interpretation, and argumentation in judicial, legislative, and professional spheres. Such activity, “refuse[s] law’s respectability,” by rejecting law’s capacity to restrict what pregnant people may do and instead recognizing the agency of those who wish to terminate. By establishing clearly that banning abortion does not prevent people from accessing it safely it exposes the state’s limited capacity to control our reproductive lives.
Such activism carries risks, including the risk of prosecution or investigation. As it did in Ireland, though, self-managed abortion exposes the mantra that abortion bans prevent abortion as little more than a myth. As people across the United States adapt to secure and provide abortion in the coming years, activism will take many forms. There may be longer term political and legal activism to seek to re-establish a right to abortion at federal and state level and to put in place person-centred, rights-based frameworks to secure access in practice. Until then activist engagement with—and defiance of—the law can work to make restrictive laws more bearable.
Fiona de Londras is Professor of Global Legal Studies at Birmingham law School, University of Birmingham, UK.
Photo credit: iStock.com/ekazansk
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