A Question of Life Panelists Respond to Dobbs v. Jackson Women's Health Organization

Introduction

In December 2021, the Global Observatory held an online workshop titled A Question of Life: Human Dignity, Reproductive Rights, and Abortion Politics. This event explored political struggles over the limits of life by focusing on abortion politics across different national contexts, with a special focus on the recent liberalization of abortion rights across Latin American countries. This convening was a response to the then-recent decriminalization of abortion in Mexico, but throughout, the United States served as an implicit counterpoint, as another liberal democracy that was moving in the opposite direction. Indeed, the event anticipated the overturn of decades of precedent set by the Roe v. Wade decision, which came six months after A Question of Life with the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. In the wake of this decision, we asked several of the panelists from A Question of Life to respond to a series of prompts designed to shed light on Dobbs by comparing the framings of abortion politics and constellations of rights and responsibilities across their respective countries of focus. The result helps us understand how different cultural and historical contexts have shaped the abortion debate across different countries and produced different settlements between state obligations to protect life and the right to receive an abortion.

1. The court’s opinion in Dobbs v. Jackson Women’s Health Organization (US 2022) has been criticized as taking away a constitutional right to abortions. Is abortion framed as a question of rights in other countries, and if so, how are the relevant rights defined? If not rights, then what alternative framings have been invoked? 

Barbara Sutton (🇦🇷 Argentina): The framing of abortion in Argentina varies depending on the social and political actors involved, but the “question of rights” figures prominently. Within the women’s and feminist movements, a multiplicity of frames have been advanced, including bodily rights and human rights, social justice, and public health. The National Campaign for the Right to Legal, Safe, and Free Abortion (Campaña Nacional por el Derecho al Aborto Legal, Seguro y Gratuito)—a major coalition launched in 2005 that led successful efforts to legalize abortion—emphasized abortion as a matter of human rights in addition to other arguments. Ni Una Menos (Not One Less), a powerful movement that emerged in 2015 to denounce femicide and other forms of gender violence, emphasized the risks to health and life posed by clandestine abortions in unsanitary conditions, which were framed as a form of violence against women for which the state was responsible.

After years of sustained activist efforts, Congress finally approved Law Nº 27610, “Access to the Voluntary Interruption of Pregnancy,” in December 2020 (going into effect in early 2021). This law, which applies to the whole country, codifies abortion as a right through the first 14 weeks of pregnancy, and after that period, in cases of rape or danger to the health or life of the pregnant person. It specifically frames access to abortion with the language of “Rights,” the title of the second article of the law. This legislation invokes a number of international treaties and declarations as part of the constitutional framing of the right to abortion, including the Universal Declaration of Human Rights, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention on the Rights of Persons with Disabilities, and the Convention on the Rights of the Child. 

The law gathers many of the concerns and demands emerging from the abortion rights, feminist, and LGBTQ movements. This activism put matters of gender and sexuality on the political agenda, and has framed abortion as part of a much broader constellation of human rights through coalitional politics. Ultimately, the new law grounds the right to abortion in relation to national and international standards that grant protection “to sexual and reproductive rights, dignity, life, autonomy, health, education, integrity, bodily diversity, gender identity, ethnic-cultural diversity, privacy, freedom of belief and thought, information, enjoyment of the benefits of scientific advances, real equality of opportunities, non-discrimination, and a life free of violence.”

Ingrid Metzler (🇦🇹 Austria): In Austria, debates on how the state should regulate abortions were settled with the enactment of the Fristenlösung (literally translated as “time limit solution”), a reform of the provisions on abortions in the Penal Code (Strafgesetzbuch) which entered into force in January 1975. The new provisions sought to settle the fervent debates on abortions by accommodating competing understandings of whose lives were put at stake and reframing which forms of life the state ought to protect. The social-democratic authorities involved in this settlement recognized the individual rights–such as the right to life of the unborn or women’s life to self-determination–that were present in Austrian abortion debates at the time. However, they refrained from enshrining such framings into law and instead reframed the issue of abortion from a matter defined by competing individual rights into a question of how the state ought to take care of expectant mothers and secure social justice.

This settlement recognized that governing abortions involved the state’s mandate to take care of multiple lives but abstained from naming these lives and defining their rights. Instead, the provisions enacted in 1974 recognized that abortions involved the state’s mandate to protect unborn human life in an implicit way, while refraining from qualifying its moral and legal status. The new section 96 of the penal code defined penalties for the termination of pregnancies and also drew boundaries between early-stage interruptions of pregnancies, which were exempt from punishment if performed by a physician, and later-stage interruptions, which could only be legally performed for well-defined indications. This clarified that abortions involved the state’s mandate to protect unborn human life without the need to articulate whether the state had an obligation to protect the individual lives and rights of the unborn or the legal good (Rechtsgut) of unborn life. The Fristenlösung also implicitly recognized women’s right to self-determination and freedom of choice, refraining from predefining situations that made abortions moral and reasonable. The settlement entitled women to the freedom to choose not to carry a pregnancy to term, if they interrupt a pregnancy within the first three months and if the abortion is performed by a physician. However, as federal authorities refrained from stipulating how Austria’s nine regions ought to provide access to abortions, the Austrian abortion settlement did not entitle women to a positive right to access abortions.

Ingrid Metzler (🇩🇪 Germany): In contemporary Germany, abortions are framed as questions of rights. Specifically, they are framed as situations in which the state must act as a mediator between fetuses and pregnant women and their competing “fundamental rights” (Grundrechte), i.e., those constitutional rights of citizens whose safeguarding provides the raison d’être of post-Nazi Germany. This framing takes fetuses—referred to as “unborn life” (ungeborenes Leben)—and women as independent carriers of fundamental rights, which enter into conflict when women choose not to carry a pregnancy to term. The Federal Constitutional Court (Bundesverfassungsgericht) defined the affected fundamental rights in decisions, twice forcing German Parliament to revise the wording of the provisions on abortions in the penal code. The rulings put beyond dispute that the state has a fundamental duty to protect unborn life (grundrechtliche Schutzpflicht für das ungeborene Leben). They affirmed that as “[e]ven unborn human life is accorded human dignity,” the state must use law to grant “the unborn its independent right to life.” 

Though the Court took the rights of unborn life as a starting point, it affirmed that pregnant women were also carriers of rights, namely, a “right to life and physical inviolability” and “a right of personality.” While these rights were not strong enough to abolish a woman’s “fundamental legal obligation to carry the child to term”, the court noted that “not imposing such a legal obligation in exceptional situations is permissible, in some cases, perhaps even mandatory.” Thus, while the disentanglement of fetal subjects from expecting mothers assigns to the state the obligation to protect unborn human life from the pregnant woman, the German settlement also recognizes that the protection of unborn human life can only be enforced with the woman and not against her will. 

Since 1995, the Penal Code defines interruptions of pregnancies as criminal offenses, which are exempt from punishment if they are performed by a medical doctor no later than 12 weeks after conception and if they take place at least three days after certified counseling, or for medical reasons or in cases of rape. The “counseling regulation” (Beratungsregelung) reconciles the state’s obligation to protect unborn life with the insight that this right cannot be enforced against women. The state’s role as a mediator in an imagined conflict between two carriers of fundamental rights upholds its obligation to protect human life and its dignity. 

Lisa Smyth (🇮🇪 Ireland): Abortion is framed as a right in Ireland, although not explicitly defined as such in law. Ironically, this framing has its origins in anti-abortion campaigning during the 1980s, when a right to life for “the unborn” equal in status to that of the “mother” was added to the Fundamental Personal Rights section of the Constitution. While this was repealed in 2018, abortion continues to be framed in terms of “personal rights,” not least through feminist political activism. This has been translated into legislation which provides limited, fully funded abortion access as a matter of life, health, and liberty. The Eighth Amendment, which accorded a right to life for “the unborn” was replaced in 2018 with the Thirty-sixth Amendment, stating that “[p]rovision may be made by law for the regulation of termination of pregnancy.” This gives the state a right to establish a regulatory framework for abortion provision, and citizens a right to access abortion in Ireland, albeit within the parameters of (contested) regulations. 

Rights to life, health, and liberty underpin the 2019 regulatory framework. These are defined as positive social rights the state is obliged to uphold, for instance, through the provision of publicly funded services. This is quite different from the Roe v. Wade affirmation of abortion as a privacy right, which instead created a negative right to non-interference by the state in seeking abortion, within specified time limits. Unrestricted abortion is now available in Ireland within the first 12 weeks, on request and without charge. Abortion is also available when pregnancy poses a threat to a woman’s life, a serious risk of harm to her physical or mental health, and where a fetus is unlikely to survive beyond 28 days of birth. The liberty to leave the state to seek legal abortion elsewhere is affirmed, and profit-seeking by providers of abortion information, advice, or counseling is outlawed. Heavy criminal penalties of up to fourteen years in prison and/or a fine are attached to accessing an abortion beyond these grounds. Penalties apply not to a pregnant abortion-seeker, but to anyone assisting her in doing so.

The social rights frame, a typical feature of European welfare states, has supported ongoing democratic pressure to expand grounds for entitlement, for instance beyond the current 12-week limit, or to include cases of rape and severe fetal abnormality. There is ongoing opposition to criminal penalties; the rights of medical practitioners to conscientiously object; and the requirement for a three-day wait period. A mandated government review of the regulatory framework is ongoing, involving public consultation and research with service users and providers, and legislation to establish safe access zones at abortion provider sites is being developed. While still framed in terms of constitutional rights, the regulatory framework is open to revision by the legislature. This is a significant departure, replacing the role of the Supreme Court in Ireland as a major source of abortion law through its interpretations of the Eighth Amendment.

Amy Krauss (🇲🇽 Mexico): Abortion debates involve questions of rights in Mexico too, but through different moral vocabularies of personhood and the state than in the US. To think comparatively, it’s helpful to look at how abortion governance hinges together public health and criminal legal systems in each country and the different forms of racialized, gendered, and class-stratified citizenship this entails.  

In comparison with the trajectory of abortion law in the US, Mexican debates have not been framed by the negative conception of liberty undergirding Roe v. Wade: the liberal fiction of individual freedom defined as the absence of governmental intervention. Instead, arguments for abortion access have evolved in tandem with demands for state action to protect and promote reproductive lives at a collective and population level. The first wave of movements to legalize abortion in Mexico—criminalized since the Colonial imposition of Spanish law—were led by socialist doctors in the early 20th century. They argued that under exceptional circumstances, such as rape and fetal malformation, abortion should be governed as a matter of public health rather than punishable as a crime. For decades, abortion access advocates focused on incrementally expanding the range of exceptions in state penal codes. Unlike the private-propertied individual subject of rights idealized by Roe v. Wade, the legal exception framework addresses a vulnerable subject who especially deserves state care.

Debates began to shift in 2007 when Mexico City decriminalized the “Legal Interruption of Pregnancy” within the first 12 weeks of pregnancy. Lawmakers cited maternal mortality rates and the government’s responsibility to provide equitable access to health as implied by the social right to health in the national constitution, a line of argument that has gained force in several contexts across Latin America. This poses a generative counterpoint to the liberal assumptions at the heart of abortion rights framings in the US, very much in line with black feminist critiques of “the right to choose” with the alternate framework of reproductive justice. At the same time, another kind of difficulty emerges around the subject of rights premised on exceptional vulnerability: who, in becoming the special object of state care, is made vulnerable to new forms of institutional harm, control, and surveillance. In response, Mexican feminist movements have struggled to articulate a demand for reproductive autonomy that is neither reducible to a concept of individual freedom nor conditioned by a special moral appeal to state benevolence. 

2. The Dobbs decision centers almost exclusively on the state's interest in protecting the "potential life" of the fetus. What other forms of life (e.g., maternal, familial, social) are at issue in abortion politics in other countries, and in what ways is the state obliged to recognize and protect these additional forms of life?

Barbara Sutton (🇦🇷 Argentina): The new abortion law in Argentina recognizes pregnant individuals as more than the carriers of “‘potential life’ of the fetus,” as already existing persons with rights of their own. According to the law, the procedure is to be covered by the public, private, and social insurance systems free of charge for the person requesting the abortion. This aspect of the law implicitly incorporates the social justice arguments that the abortion rights movement advanced, recognizing that the right to abortion could become just empty words if the pregnant person cannot access it due to lack of economic means. This is particularly relevant in the context of rampant inequalities in Argentina and elsewhere. Activists pointed out that the ones most likely to die or harm their health in the context of clandestine unsanitary abortions were socially and economically marginalized individuals. In contrast, those with greater financial resources were still able to access abortions under better conditions, even if such procedures still carried the stigma associated with illegality. The requirement to provide abortion gratuito (cost-free) helps to address such disparities, though not erasing them more broadly.

Concerns about morbidity and mortality also animate Law Nº 27610, recognizing abortion as a matter of public health. In addition to references to the need to guarantee human rights commitments, the law alludes to the Argentine state’s obligations in relation to public health (see Article 6). While the law also includes provisions for healthcare personnel to exercise a right to conscientious objection, this cannot override the right of pregnant individuals to access the procedure, and the patient must be promptly referred to another practitioner. Furthermore, in cases in which the life or health of the pregnant person is in imminent danger, conscientious objection to abortion cannot be invoked. Finally, there is no right to “institutional” conscientious objection—it is only individual—and the abortion procedure must be guaranteed in one way or another and in a timely fashion.

Particularly during the period that allows voluntary abortions without restrictions, the life projects and decisions of the pregnant person take precedence over other considerations. Before the abortion reform, fetal life took center stage by defining abortion as a crime carrying prison penalties, except for narrow circumstances involving “non-punishable” abortions. With the new law, while restrictions remain, the desires, interests, and autonomy of the pregnant person have gained greater consideration.

Ingrid Metzler (🇦🇹 Austria): The Austrian abortion settlement was and is motivated by the commitment to protect human life by protecting the lives of mothers and motherhood–and indeed, by “making up” mothers. On the one hand, this involved a commitment to social security measures to support expecting mothers to ensure that women could take care of their children; on the other hand, it also involved the need to entitle women with the right to choose not to carry a pregnancy to term, if the pregnancy was unwanted and undesired. Put succinctly, ensuring that women are in the position to take care of children is the Austrian mode of taking care of human life—biologically, socially, and politically.

The Austrian abortion settlement was also shaped by the commitment to protect political life with the help of a consensus-seeking political culture that emerged in post-war Austria. What is remarkable about the period solution is that—although it was adopted by a Social Democratic majority in the National Council against the votes of the opposition parties and the opposition of the Bundesrat, the second chamber of the Austrian parliament—it was nevertheless characterized by an attempt to mediate between the various positions held in and outside parliament at the time. Indeed, the commitment to tame potentially socially disruptive conflicts by sidestepping potentially contentious issues helps to explain the silences in the pragmatic Austrian abortion settlement. 

Ingrid Metzler (🇩🇪 Germany): The German abortion settlement is strongly rooted in the commitment to protect both unborn human life—not as potential human life, but as a form of human life in itself—and maternal life. In addition, the existence of the settlement, the way in which it was achieved and how it continues to be safeguarded also performs the imagined duty of state authorities to protect the life of the German polity by safeguarding the practices and principles of a liberal constitutional state (liberaler Rechtsstaat).  

The commitment to protect the life of the German polity by adhering to the principles of a liberal constitutional state makes the German Parliament responsible for enacting laws that provide constitutional rights with meaning and “legal certainty” (Rechtssicherheit). In German political culture this responsibility also involves the tacit commitment to put difficult conflicts out of dispute with acceptable compromises. The obligation to protect human life and dignity also obliges the legislature to achieve legal provisions in a way that is consistent with the dignity of the subject matter. The practices and institutions by which these compromises are negotiated are the procedural expression of the German state’s commitment to protect human life and its dignity.

Lisa Smyth (🇮🇪 Ireland): Abortion politics in Ireland is now primarily concerned with maternal life, health, and welfare, in a radical reversal since the initial politicization in the early 1980s. Debate today tends to focus on questions of equality, with concern tending to focus on making services fully accessible for all citizens and residents. Opponents of abortion also frame their politics in these terms, for instance arguing that unrestricted access leaves pregnant women vulnerable to coercion. Anti-abortion campaigning has abandoned the tone of righteous anger characteristic of earlier eras and claims that national culture is threatened by legal abortion. Today’s anti-abortion slogans emphasize individual liberty (“choose life”), as well as the need to love and support both woman and fetus. 

This reversal has developed slowly over time, replacing the concern with defending the nation from the supposed cultural imperialism of liberal morality. The beginnings of this reversal can be traced to 1992, when state interference in a family’s efforts to seek an abortion abroad for their suicidal 14-year-old daughter, pregnant because of rape, seemed to violate the status of the family, constitutionally defined as the “primary and fundamental unit group of society.” The primacy of the family in the national imaginary, which had underpinned anti-abortion politics, was violated as the state sought to defend the right to unborn life. The familial quality of many personal stories that subsequently emerged was crucial in shifting public concern from abstract “pro-life” moral absolutism to the complexity evident in concrete cases of girls and women struggling to end impossible or hopeless pregnancies.

The transfer of public concern from the unborn to the social rights of girls, women, and children is shaping current efforts to regulate embryo research and assisted human reproduction. As one of very few European countries that has not introduced legislation in this field, Ireland’s legislature is currently debating a comprehensive regulatory framework. This lays out the relative rights and duties of gamete donors, intending parents, surrogate mothers, and treatment providers. The right of any child conceived in this way to know about their origins is affirmed. With some exceptions, sex-selection and pre-implantation genetic screening and diagnosis are outlawed, as are the creation of embryos through commercial inducements or to improve the health of a sibling. The welfare of gestational mothers and children conceived through this route take priority in the outline of positive rights and duties for all parties involved.

Amy Krauss (🇲🇽 Mexico): Gina Dent notes how histories of feminist resistance constrain our ability to effectively engage in new struggles. The consolidation of feminist movements around individuality, including the individual right to choose, have helped produce a scenario where the lives of women are in contest with the life of the fetus. The Dobbs decision amplifies a dimension of Justice Blackmun’s written opinion in Roe v. Wade about the state’s legitimate interest in the “potential” life of the fetus as it grows over time. Dobbs suggests that we should be interested in the potentiality of life itself and that we do violence by fastening the life-value of the fetus to the progress of time. There is a weird point of resonance between the way this anti-abortion discourse problematizes value and time and the anticapitalist ethics of care that some abortion accompaniment activists I worked with in Mexico articulate. The crucial difference is that the anti-abortion conception of life is always individual, to the point of being radically devoid of relations. It is the floating fetus of Life magazine, now in microscopic proportions.

Part of what is so radical about abortion accompaniment practices in Mexico and across Latin America is that they are not primarily organized around a horizon of state recognition. This gives people who do the work of caring for each other through the process of ending pregnancy the chance to feel out and debate dimensions of life and death that have ethical weight and importance in ways that don’t have to be narrowed down into a legal or biomedical concept. That said, abortion rights movements do make demands on the state in the name of forms of life that exceed the individual and the biological. In addition to the social right to health, which implies social, economic, environmental, and political conditions of wellbeing beyond mere survival, abortion rights have been interwoven with the demand to live a life free of violence at the center of the Ni Una Menos movements. This assemblage of demands refuses to isolate the sanctity of fetal life from a broader context of patriarchal capitalist violence and the devaluation of mothers and social reproductive labor more generally.

Justice Zaldívar of the Mexican Supreme Court recently stated, “we are all pro-life, only that some of us are in favor of allowing women to live a life in which their dignity is respected, and they can exercise their rights fully.” These social movements are changing the language of the courts, but we don’t know yet if or how it will translate into law.

3. In other countries, who has the discretion to decide between protected and unprotected instances of abortion and under what authority? Who is required to give reasons to whom, and who decides what counts as a legitimate reason?

Barbara Sutton (🇦🇷 Argentina): Argentina’s new abortion law specifies which instances of abortion are legally protected, with a regulatory system that combines time limits for abortion on demand and permitted grounds for the procedure afterwards. Particularly during the first 14 weeks of pregnancy, the Argentine law grants more autonomy to the pregnant person than systems that are more paternalistic in giving the authority first and foremost to doctors or other experts, or that impose waiting times or force the pregnant person to undergo counseling. A number of such mandates were instituted in various parts of the US even before the Dobbs decisions. Closer to Argentina, neighboring Uruguay incorporated some tutelage aspects in its abortion policy, such as requiring a reflection period and a consultation with an interdisciplinary committee. 

During the first 14 weeks of pregnancy, Argentina’s law recognizes the sole authority of the pregnant person to decide whether to have an abortion. In the case of people who are under the age of 16 or have restricted capacities according to judicial ruling, there are some additional informed consent provisions that account for age and impairment. After 14 weeks of pregnancy, the law specifies the grounds for legal interruptions of pregnancy: rape or risk to the life or health of the pregnant person. These coincide with the exceptions that were in effect, though difficult to access, before Law Nº 27610, when abortion was largely illegal. Even before the new law, Argentina’s Supreme Court—in the landmark “F., A. L. case” in 2012—asserted that abortions that fit the legal exceptions should not be submitted to judicial review as a condition for access. Not only was such review not required by law, but it could be an impediment to the exercise of rights, cause unnecessary delays in a procedure for which time is of the essence, and impinge on the pregnant person’s ability to make an autonomous decision. Under the new policy, it is also not necessary to have any kind of judicial review or police report to access abortion for reasons of rape or danger to life or health. In the latter case, the evaluation given by health personnel plays a greater role in the decision than it would in the first 14 weeks of pregnancy. The Ministry of Health’s protocol (2022), which provides guidance for the implementation of the law, remarks that “[t]he danger to life or health has to be verified and informed within the framework of health care and according to the rights to health, dignified treatment, access to information, and autonomy of the gestating persons.”

Abortion decisions continue to be a contentious terrain. Even if the law grants a series of rights, they may not be fully realized depending on actual implementation practices. Respecting the rights of pregnant persons to make decisions over their own lives and bodies is important not only to guarantee requested abortions, but also to impede forced abortions and other abuses. Reproductive decision-making—whether to have children or not—does not happen in a vacuum but in specific social contexts. Therefore, adequate support systems, rather than barriers and impediments, need to be in place.

Ingrid Metzler (🇦🇹 Austria): The Austrian abortion settlement moved interruptions of pregnancies under the control and discretion of the medical profession. The provisions on abortions in the penal code stipulate that abortions must be performed by physicians and that they must counsel women. However, neither the provisions in the penal code nor in any other federal law provide more details on how physicians ought to counsel pregnant women. These issues are left at the discretion of the medical profession. Within the first three months, women decide what counts as a legitimate reason for interrupting a pregnancy; after the first three months, physicians are involved in deciding whether an interruption of a pregnancy is legitimate.

When it comes to deciding on legitimate reasons for pregnancies, the temporality of abortions matters. Within the first three months, women can choose to interrupt a pregnancy without the need to justify why they do not wish to carry a pregnancy to term. After the three-month time limit, interruptions of pregnancies are not punishable for three reasons defined by law. First, they can be interrupted if the woman was a minor at the time of impregnation. Second, they can be interrupted for the sake of protecting the life and health of women. Third, they can be interrupted if the fetus is expected to suffer from a serious health condition. Particularly in this last case, which is often referred to as “embryopathic indication,” discretion on what counts as a legitimate reason for interrupting a pregnancy shifts from pregnant women to practices of “shared decision making” between women and physicians. Physicians are involved in deciding whether a diagnosed condition is severe enough to justify the interruption of a pregnancy. This discretion is rooted in their authority over medical conditions and in the provision stipulating that "[n]o physician shall be required to perform or assist in the performance of an abortion unless the abortion is necessary without delay to save the pregnant woman from imminent danger to her life that cannot be otherwise averted.”

Ingrid Metzler (🇩🇪 Germany): If women do not wish to carry a pregnancy to term within the first 12 weeks after conception, they must seek counseling. Certified counseling is a prerequisite for abortions, unless they are performed for medical reasons or after sexual crimes. The requirement for counseling is mandated by the Penal Code. The “Pregnancy Conflict Prevention and Management Act” (Gesetz zur Vermeidung und Bewältigung von Schwangerschaftskonflikten) regulates information and pregnancy conflict counseling, as well as the requirements for performing abortions without punishment. 

The counseling is performed to protect unborn human life. It is intended to “encourage” women to continue the pregnancy, “to open up to her perspectives for a life with the child,” and thus help her make a “responsible and conscientious decision (verantwortliche und gewissenhafte Entscheidung)—in the knowledge that the unborn child also has its own right to life vis-à-vis her at every stage of the pregnancy.” At the same time, the counseling must be open-ended and not instructive. While German law obliges women to receive counseling if they do not wish to carry a pregnancy to term and makes the state responsible for providing an appropriate counseling infrastructure, the ultimate decision for or against continuing a pregnancy rests with the woman. She has a duty to seek counseling; however, she has no duty to justify her decision.

In the case of abortions for medical reasons or after sexual offenses, there is no duty to seek counseling from independent agencies. In these cases, the doctors who perform the abortions may and should provide advice. However, women have a right to seek advice from an independent body if they so wish.

Lisa Smyth (🇮🇪 Ireland): The framing of abortion as a matter of positive social rights to life, health, and liberty places a duty on registered medical practitioners to decide whether these rights are at stake in specific circumstances. When a pregnant woman requests an abortion on grounds of early pregnancy, a registered doctor must certify that the pregnancy has not gone beyond the 12-week limit. This is measured from the first day of the woman’s last menstrual period, and a three-day wait is then imposed before the abortion can be carried out, again within the 12-week limit. These requirements have been the focus of contestation, as any woman requesting an abortion on these grounds needs to secure certification of early pregnancy within roughly nine weeks of conception to be within the allowed time. 

Beyond this, discretion to decide whether an abortion should be performed on clinical grounds requires certification by two medical practitioners that there is a risk to a pregnant woman’s life, a serious risk to her physical or mental health, or that the fetus suffers from a condition likely to lead to death within 28 days of birth. In emergency situations where a woman’s life or health are at stake, one medical practitioner’s opinion is enough. One of the medical practitioners certifying risk to life, health, or fetal survival must be an obstetrician or gynecologist, and in cases of fatal fetal disorder, the other must be a relevant specialist. Where a pregnancy poses a risk to the life or health of the pregnant woman, the doctor also must certify that the fetus has not reached viability—that is, that it cannot survive birth without extraordinary life-saving measures. The woman must consent before any abortion can take place.

A woman who has been refused an abortion on clinical grounds has a right to have the decision reviewed by the Health Service Executive (HSE), the state’s public health body. The Review Committee must include one obstetrician or gynecologist and one relevant specialist in cases involving a threat to a woman’s life or health or a fatal fetal condition. Medical practitioners, nurses and midwives have a right to conscientiously object to participating in an abortion under these regulations, except in emergencies when a woman’s life or health is at stake. A conscientious objector has a duty to transfer the relevant woman’s care to another appropriate doctor, nurse, or midwife. This clause has generated significant barriers to abortion, bolstering to some extent Ireland’s historic climate of abortion shame. 

Amy Krauss (🇲🇽 Mexico): After the passage of the Mexico City law in 2007, the National Commission of Human Rights challenged its constitutionality as a violation of the fetal right to life. The Mexican Supreme Court adjudicated the case in terms of the proper order of jurisdiction rather than rights, stating that the Mexico City government was not obligated to punish abortion as a crime, even if it is defined as such in the national penal code. This set a precedent for the proliferation of competing legal authorities surrounding abortion within the nation—a process now also unfolding in the United States. In addition to the list of exceptions to punishment defined differently in each Mexican state, penalties vary dramatically, and some state constitutions recognize rights-bearing life at the moment of conception. These different bodies of law overlay with a decentralized public healthcare system and variable assemblages of private and transnationally funded NGO clinics. The Mexican Catholic Church denounces abortion as a sin and has excommunicated public officials who support abortion access. In short, governmental authority is plural and intensely contested. 

Between 2011 and 2014, I did ethnographic fieldwork in state-run abortion clinics in Mexico City. At that time, an immense amount of discretionary power lay with public clinic staff and providers who were simultaneously anxious about their own moral status and empowered to enact the law and police its boundaries and thresholds. Although patients were not formally required to give reasons to justify seeking an abortion, a whole clinical machine emerged around redeeming patients according to moral criteria at the discretion of the staff. For example, clinic secretaries charged with initiating and archiving patient files began to mark them as returning patients. Social workers led groups of patients to fill out forms that asked for their reasons for the abortion using a grammar of future-oriented individual responsibility, rewording responses that expressed ambivalence or that failed to assert future reproductive plans. Ultrasound physicians questioned patients about why it took them so long to arrive to clinic, and patients often reported attempts to terminate their pregnancy on their own with pills prior to traveling across state lines to the clinic. Asserting the illegality of unofficial pill use and the temporal limitations of legal abortion became a key site where state medical and legal authorities converged and profited or gathered force from the situation of competing jurisdictions. 

In this context, we might think of the work that feminist accompaniment collectives do to claim the power to decide for pregnant people and those who support them as a counter-jurisdiction-making project in a sea of competing jurisdictions. The accompaniment movement transforms legally unprotected and criminalized instances of abortion into a safe and legitimate practice. In my work, I am interested in the collective authority that they are inventing, which exceeds the dictates of state law.