Running Head: ABORTION LEGALIZATION IN EUROPE 1

Abortion Legalization in Europe

Paula Velilla

St. Bonaventure University

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Abstract

The aim of this paper is to provide a panoramic view of laws and policies on abortion in various

European nations. There are three general categories among the European countries: abortion on

medical indication only; extended medical, eugenic, and humanitarian indications; and medical,

eugenic, and broadly interpreted social indications, or on demand. Much can therefore be learned

from European experience.

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Introduction

Abortion is an ancient and universal practice. Throughout history, it has taken different

forms in different political, social, and cultural contexts. Laws on abortion around the world

vary; in some countries, it is available to women on request, while in others it is totally outlawed.

The liberalization of abortion is the subject of intense controversy and, once established, is

sometimes challenged. Some defend access to abortion as a human right, a woman’s right, a

sexual and reproductive right, and a right to health given the dangers of illegal abortions, while

others condemn it in the name of the embryo’s right to life.

In the matter of abortion, Europa is divided into three parts: The West and South, the

North, and the East. I shall discuss the situation with regard to abortion in the various countries,

pointing out the common characteristics in the three geographic regions into which I have

divided all Europe. About one-half of the countries, with 300 million inhabitants, fall into the

first group where the legal situation is similar to that prevailing in the United States and abortion

is permitted on medical indication only. In some countries, this exception from a general

prohibition is written into the statutes; elsewhere, it has been established by custom or judicial

interpretation of the law. Generally speaking, therapeutic abortion is done sparingly and with

reluctance, but this is not universally true and in a few cities, notably in Switzerland,​ ​the practice

of the medical profession is extremely liberal, without interference by police and courts.

Although reliable figures are lacking, illegal abortions are thought to be very common in many

of these countries. However, certain widely quoted estimates, according to which the number of

illegal abortions in some countries is equal to or greater than the number of births, are not

supported by tangible evidence.

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Germany

Scant data on therapeutic abortion are available for a few countries. In Germany, abortion

was proscribed, without any exception, by section 218 of the Penal Code of 1871 which is still

the law of the land in the Federal Republic. A formal exception for abortion on medical

indication was established in 1935 by section 14 of the Law for the Prevention of Offspring

Suffering from Hereditary Disease (Loxton, 2019). While the main provisions of this law

relating to abortion and sterilization on eugenic grounds have been universally repealed, the

provision with regard to medical indication has been retained in most of the states of the Federal

Republic. In the remaining two states, abortion to save the life of the mother is permitted under a

general provision of the Penal Code which condones otherwise forbidden acts if they are

performed to avert a danger to "life and limb." The draft for a new Federal Penal Code, which

has been under consideration for several years, contains a paragraph which defines and

authorizes interruption of pregnancy on medical indication (Berer, 2017).

In the territory of the German Democratic Republic, section 218 of the old Penal Code

was replaced after World War II by a series of state laws under which legal abortion could be

performed on medical, eugenic, and humanitarian grounds, and to some extent on social or

economic grounds also. These statutes were in turn superseded in 1990 by the Law for the

Protection of Mother and Child, which permits abortion on medical and eugenic indications only

(Loxton, 2019).

In the Federal Republic all therapeutic abortions must be authorized by the regional

Chamber of Physicians on the basis of written opinions submitted by two experts selected by the

Chamber. One of these experts must be a gynecologist or obstetrician, the other a specialist in the
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relevant field of medicine. In the Democratic Republic the decision lies with a regional

commission which includes among its members not only physicians but also representatives of

the social services and the quasi-official Union of German Women (Loxton, 2019).

During the first few years following World War II, unprecedented numbers of abortions

were authorized not only in East Germany but also in the western Zones of Occupation. Many

cases involved rape, actual or at least claimed. As the political situation stabilized and economic

conditions improved, efforts were made to reduce the number of abortions. The German medical

literature of this period is replete with articles by leading obstetricians, urging the profession to

adhere strictly to the traditional medical indications (“Abortion in Germany,” 2019).

France

In France, abortion has been legal since 1975, and a woman may have an abortion on

request up to 12-weeks after conception. Abortions at later stages of pregnancy are allowed if

two physicians certify that the abortion will be done to prevent grave permanent injury to the

physical or mental health of the pregnant woman; a risk to the life of the pregnant woman; or that

the child will suffer from a particularly severe illness recognized as incurable (Mounier, 2017).

Several reforms took place in the 21st century, further liberalizing access to abortion. The

ten-week limit was extended to the twelfth week in 2001. Also since 2001, minor girls no longer

need mandatory parental consent (Mounier, 2017).

As of 2009, the abortion rate was 17.4 abortions per 1000 women aged 15-44, a slight

increase over the 2002 rate of 16.9 abortions per 1000 women aged 15-44 (“Abortion Legislation

in Europe,” 2009).

United Kingdom
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Abortion​ is legal in the following circumstances in ​Great Britain​ and ​Northern Ireland​,

under the ​Abortion Act 1967​:

● risk to the life of the pregnant woman;

● preventing grave permanent injury to the physical or mental health of the pregnant

woman;

● risk of injury to the physical or mental health of the pregnant woman or any existing

children of her family (up to a term limit of 24 weeks of ​gestation​); or

● substantial risk that if the child were born, it would “suffer from such physical or

mental abnormalities as to be seriously handicapped” (Cuddy, 2018).

In law, abortion policy is devolved in ​Scotland​ and ​Northern Ireland​ but not in ​Wales​.

The ​Northern Ireland Assembly​ is not currently operating and the law in the region changed on

21 October 2019 under the provisions of the Northern Ireland (Executive Formation etc) Act

2019. Abortion services will be provided in Northern Ireland by 31 March 2020, and until then

Northern Irish women can access abortion services in other parts of the UK without a fee and

without committing a criminal offence (NI abortion, 2019).

Northern Europe

The first steps toward liberalization of abortion laws were taken during the 1930's in

Iceland (1935), Sweden (1938), and Denmark (1939). After World War II the laws were further

liberalized in Sweden in 1946 and again in 1963, and in Denmark in 1960. Quite recently the

Swedish government has appointed a new commission of experts to reevaluate the abortion

question with a mandate to recommend a further widening of indications (Miller, 2018). Finland
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passed a liberal abortion statute in 1950 and Norway in 1978 (“Abortion Legislation in Europe,”

2015). In the latter country, the new law merely codified what had long become accepted

medical practice without benefit of legislation.

The range of acceptable indications is roughly the same in the four countries. In each

instance the law recognizes a medical indication, a eugenic indication, and a humanitarian

(ethical, juridical) indication. The scope of the medical indication has been explicitly broadened

to include consideration of a mixed sociomedical character (Miller, 2018).

In Sweden, the law provides that an abortion may be induced "when it can be assumed,

considering the conditions of life of the woman and other circumstances, that her physical or

mental strength will be seriously impaired by the birth and care of the child.” It is not necessary

that any threat to life or health actually exist at the time the interruption of pregnancy is

recommended. The Danish law prescribes that "an appreciation shall be made of all the

circumstances of the case, including those conditions under which the woman will have to live,

and consideration shall be given not only to physical or mental illness, but also to any actual or

potential state of physical or mental infirmity.” (“Abortion Legislation in Europe,” 2015). The

provisions of the Finnish statute are quite similar. In Norway, abortion is permitted to avert a

"serious danger to the woman's life or health. In the evaluation of the danger, any special

disposition of the woman for physical or mental illness shall be taken into account as well as her

living conditions and other circumstances which can make her ill or result in damage to her

physical or mental health" (Kirk, 2018).

In regard to the eugenic indication, the older Swedish and Finnish laws mention only the

hereditary transmission of mental disease, mental deficiency, and other severe illness or defect.
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The Swedish Royal Medical Board has, however, for many years authorized the interruption of

pregnancy on medical indication in cases of German measles and in at least one celebrated case

of thalidomide poisoning. The 1963 amendment to the Swedish law​ ​and the new Norwegian

statutes have extended the traditional eugenic indication to include damage or disease acquired

during intrauterine life. The humanitarian indication applies to pregnancies resulting from

offenses against the penal code, such as forcible and statutory rape, as well as incest (“Abortion

Legislation in Europe,” 2009).

With minor exceptions, the maximum period of gestation at which abortion is permissible

is five months in Sweden, four months in Denmark and Finland, and three months in Norway

(Miller, 2018).

Examination of the administrative machinery implementing the abortion statutes also

reveals major differences among the four countries. The procedure is most centralized in Sweden

where about 85 percent of all legal abortions are authorized by the Royal Medical Board in

Stockholm, which makes its decision on the basis of a written report by the physician who has

examined the woman seeking abortion. The remaining 15 percent of the interruptions are

performed on the authority of a certificate signed by two physicians (“Abortion Legislation in

Europe,” 2009).

In Denmark, most legal abortions require authorization by a committee of three persons,

attached to the local Mothers' Aid institution, a publicly supported organization, which conducts

a thorough medical and social investigation. More than 20 such committees have been

established throughout the country, including several in greater Copenhagen. Each consists of

two physicians, one a psychiatrist and the other a gynecologist, and an experienced social
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worker. An authorization for interruption of pregnancy must be unanimous. Abortions on purely

medical indications, where the threat to life and health results from a disease and not from the

conditions under which the woman lives, may be performed on the sole authority of the

appropriate chief of service (“The World's Abortion Laws,” n.d).

In Finland and Norway, the administration is relatively decentralized. In both countries

most legal abortions are approved by two physicians, one of whom must be a gynecologist or

surgeon on the permanent staff of a hospital (Miller, 2018). In Finland the other physician is

drawn from a roster of medical specialists established by the State Medical Board; in Norway he

is appointed by the county health officer and must be trained in psychiatry or social medicine

(“The World's Abortion Laws,” n.d).

The overwhelming majority of legal abortions in northern Europe are performed on

medical indication and most often on psychiatric grounds. This category includes conditions

described as "exhaustion" of the mother. The eugenic indication plays a very minor role and

abortions on humanitarian grounds are even rarer (“Abortion Legislation in Europe,” 2015).

While laws and practices relating to abortion are much more liberal in northern Europe

than in western and southern Europe, abortion has not been "legalized" in the sense in which this

term is often used. Most of the socialist countries in eastern Europe have adopted far more

radical policies, and it is to these countries that we shall now turn our attention.

Eastern Europe

In eastern Europe, abortion policy has undergone several major changes since November

8, 1920, when interruption of pregnancy at the request of the pregnant woman was legalized in

the USSR by a joint decree of the Commissariats of Health and Justice. On June 27, 1936,
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another decree restricted legal abortion to a list of specified medical and eugenic indications. On

November 23, 1955, the policy was once more reversed and the restrictive decree of 1936

repealed by the Presidium of the Supreme Soviet (Matchar, 2013).

Following the example of the USSR most of the countries of eastern Europe have

adopted similar liberalizing legislation (Matchar, 2013). The stated aims of this legislation, in the

words of the preamble to the Soviet decree, are “the limitation of the harm caused to the health

of women by abortions carried out outside of hospitals” and to “give women the possibility of

deciding by themselves the question of motherhood.”

Throughout eastern Europe, official concern with overpopulation or rapid population

growth is proscribed by Marxist philosophy. Moreover, several of the countries concerned have

very low birth rates, and none has a high birth rate by global standards. At least two countries

(Czechoslovakia and Hungary) pursue an active population policy by means of family

allowances for third and later children (Puppinck, 2015).

Within the overall pattern of legal abortion, considerable variation between individual

countries is apparent. Abortion at the request of the pregnant woman is currently permitted in

Bulgaria, Hungary, Rumania, and the USSR. However, in Poland, abortions could be legally

obtained only in cases of serious threat to the life or health of the pregnant woman, as attested by

two physicians, cases of rape or incest confirmed by a prosecutor, and cases in which prenatal

tests, confirmed by two physicians, demonstrated that the foetus was seriously and irreversibly

damaged (Vogelstein and Turkington, 2019).

Throughout eastern Europe abortion is prohibited in cases of pregnancy of more than

three months' duration, except for medical reasons, and also if the applicant has undergone an
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induced abortion during the preceding six months (Matchar, 2013). In some countries, such as

Hungary and Czechoslovakia, the operation must be performed in an appropriately equipped and

staffed hospital, where the typical period of stay is two or three days, followed by sick leave if

the woman is a wage-earner (Puppinck, 2015).

Abortions for medical reasons are performed free of charge. Those done on request or on

“social indications” must be paid for by the applicant. The charges cover only part of the costs of

the operation and hospitalization. The new legislation has resulted in spectacular increases in the

incidence of legal abortions throughout eastern Europe.

United States

In America, abortion is legal under Roe v. Wade, the 1973 Supreme Court decision that

legalized abortion in all 50 states (Vogelstein and Turkington, 2019). But most states have set

limits in one way or another. This year, a series of strict anti-abortion bills have been passed with

the intention to reshape women's access to the procedure.

The most restrictive abortion law in the country is in Alabama. The ban makes abortion

illegal in virtually all cases -- including cases of rape and incest -- and doctors who perform

abortions could face life in prison (Adam, 2019).

Lawmakers in Georgia, Ohio, Kentucky, Mississippi and Missouri also proposed

so-called heartbeat bills this year and successfully got them signed into law (“Abortion law in the

US,” 2019). These bills generally ban abortions after a fetal heartbeat is detected, which can be

as early as six weeks into a pregnancy -- when many women don't yet know they are pregnant

(North and Kim, 2019).

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American anti-abortion activists have made this point, and there is some truth to it. But

again laws and practice on the ground do not always match. The time limits for abortion on

request in many European countries are shorter than that of the "viability" standard under US

federal law.

However, many American women face statewide restrictions, while women in Europe

can access abortion after the time limits if they meet certain health and socioeconomic criteria,

making it similar to access in the US. And because healthcare generally is universal in many

European countries, access is simply easier.

“The really big restriction that exists in the US that doesn't exist in places like France is

restrictions on providing funding,” says Julie Rikelman, director of US litigation at the Center for

Reproductive Rights in New York. “It’s actually in terms of access much better for many women

in Europe” (Miller, 2018).

Conclusion

In summary, abortion laws and abortion practices in Europe run the gamut from the

traditional restrictions in the West and South, through liberalization in the North, to complete or

almost complete legalization in the East.

Furthermore, American progressives look to Western Europe as the model of what

America should be. So, the area of European social policy that progressives would definitely

want to examine more closely is the Europe’s attitude toward abortion. It happens to be much

more restrictive than that of the United States.

That is right. Western Europeans, as progressive and secular as they are, have a much

more conservative attitude about abortion than American progressives do. “I assumed that
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Western Europe would be the land of abortion on demand…But as it turns out, abortion laws in

Europe are both more restrictive and more complicated than that. Waiting periods, decried by

American pro-choicers as…unreasonably burdensome, are common…” (Matchar, 2013).

In other words, the difference between abortion laws in Europe and those in the U.S. is

that in America, abortion laws are about morality, while in Europe, they reflect national ideas of

what constitutes the common good.

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