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In many countries, abortion is protected by law, not court decision

A flag reading “Don't Tread on My Uterus” is displayed outside the U.S. Supreme Court on June 4. (Daniel Slim/AFP/Getty Images)
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The Supreme Court’s decision Friday to overturn Roe v. Wade and scrap the constitutional right to an abortion has placed the United States among a select few countries that have severely curtailed access to the procedure in the 21st century.

In 1973, the landmark ruling found that the constitution protected the decision to terminate a pregnancy as a fundamental matter of privacy. It set nearly five decades of legal precedent in the United States — but was never codified into federal law.

Court strikes down Roe v. Wade, ending constitutional protection for abortion

Since then, “monumental gains” have been made to secure abortion rights worldwide, with more than 50 countries liberalizing their laws over the last several decades, according to the Center for Reproductive Rights, a global advocacy group opposed to abortion restrictions.

In some countries, watershed court rulings similar to Roe opened the door to legalization. But in many places, including much of Europe, lawmakers passed legislation expanding access to the procedure.

The process through which abortion is legalized affects how it is regulated — and how it can be challenged. For years, abortion rights advocates in the United States pushed for a separate law to fortify Roe, fearing that, despite the precedent, another court ruling could override the original judgment.

But even where abortions are protected by law, new political majorities can repeal those measures or dispute them in the courts. Ultimately, the international record shows that there is no foolproof way to safeguard abortion rights: they are regularly subject to challenge in both the legal and political realms.

Here are some of the countries where abortion has been legalized since Roe — and how those policies have fared against the challenges that followed.

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Court decisions

Two major court rulings in Colombia and Mexico in the last year alone at least partially decriminalized abortions, in what advocates say marks the beginning of a new era of reproductive rights in those countries.

In Colombia in February, the Constitutional Court voted to legalize abortion before 24 weeks of pregnancy — the point at which doctors generally agree that the fetus begins to be viable.

The case was brought before the court by the Causa Justa movement made up of human rights and civil society groups. The movement sought to decriminalize abortion in Colombia, where before the ruling, it was permitted only in cases of rape, nonviable pregnancy or when the life or health of the mother was at risk.

The court’s justices asked Colombia’s legislature to draw up regulations to apply the decision. But rights advocates say more action is needed to formally remove the crime of abortion from the Colombian penal code.

How abortion laws in the U.S. compare with those in other countries

In Mexico, the Supreme Court last year voted to dismiss a state law that punished women with jail time for having an abortion, even in cases of rape.

The court found the law in Mexico’s Coahuila state unconstitutional, paving the way for abortion rights advocates to challenge more restrictive laws in other Mexican states.

Mexico decriminalizes abortion, a dramatic step in world’s second-biggest Catholic country

Last month, the Mexican state of Guerrero became the ninth of the country’s 32 federal entities to begin allowing abortions. While Mexico’s Supreme Court set a federal precedent, it remains unclear if the country’s congress will enact a law affirming the right to obtain an abortion without criminal punishment.

In Canada, there is also no law granting the right to an abortion, but it has been legal at all stages of pregnancy, regardless of the reason, for 34 years.

That’s because, in 1988, Canada’s Supreme Court issued its own landmark ruling striking down a long-standing federal law banning abortions. The court ruled that the law’s procedural requirements — including the approval of a committee of doctors — violated a woman’s right to “life, liberty and security of the person” under Canada’s Charter of Rights and Freedoms.

The result was the complete decriminalization of abortion in Canada, where it is publicly funded like any other medical procedure and regulated at the provincial level.

But the 1988 ruling, unlike Roe v. Wade, did not consider whether the right to choose an abortion was protected by Canada’s constitution. As a result, access to the procedure is not actually enshrined in Canadian law.

According to legal experts, Canadian authorities would need to amend the Charter of Rights and Freedoms to include the explicit right to an abortion, with one constitutional law professor last month calling it an “unlikely scenario.”

But lawmakers in Canada have made just two attempts to pass bills restricting the procedure since 1988, both of which failed in parliament in the immediate years after the court ruling came down.

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Legislation

Still, in most countries where abortion is legal, it is regulated through legislation, including specific laws or as part of a larger health act.

The laws permitting abortion — from South Africa to Russia to Ireland to Vietnam — vary widely in what they allow and at what stages of pregnancy.

Across Europe, abortion is generally legal on request or on broad social grounds, at least in the first trimester, according to the Center for Reproductive Rights. It is also widely permitted throughout pregnancy when necessary to protect a pregnant person’s health or life.

Perhaps the most recent seismic shift toward greater abortion rights in Europe happened in Ireland, where the public voted in 2018 to overturn a longtime constitutional ban on abortion, scrapping the amendment that gave the life of an unborn fetus the same value as the life of its mother.

The original amendment was passed in 1983 in part over concerns that the country’s restrictive abortion laws would be declared unconstitutional. In its place is a new clause granting parliament the authority to legislate pregnancy terminations.

Now, the Health (Regulation of Termination of Pregnancy) Act 2018 permits abortion up to 12 weeks of pregnancy or where there is a serious risk to the life or health of the mother or fetus. But the law still criminalizes those who help a pregnant person obtain an abortion outside of its provisions, with a maximum sentence of 14 years in prison.

Lessons from Poland, the other developed country curtailing abortion rights

In Germany, abortion has technically been illegal for years and punishable by up to three years in prison under Section 218 of the criminal code, first adopted in 1872.

In 1993, the Federal Court of Justice struck down a parliamentary measure to fully liberalize the country’s abortion law, citing paragraph 218. But the court held that women could not be punished for terminating a pregnancy within the first 12 weeks, provided that they receive state-mandated counseling.

The law followed, after much legal wrangling in parliament, and now exceptions are made within the first trimester if the patient attends a counseling session and then waits three days before getting the procedure.

But in March, the federal cabinet approved a draft law to repeal Section 219a of the penal code, a Nazi-era measure that prohibits doctors from “advertising” abortion services, or providing even basic information about the procedures, with a maximum sentence of two years in prison.

The bill, which would allow abortion providers “to inform the general public that they perform abortions and provide details of the method they use,” was passed by a majority in parliament on Friday.

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