Right to Abortion

The US Supreme Court is the most powerful constitutional court in the world. Its decisions are followed with great by all legal circles, and even the dissenting votes are subjected to very detailed scrutiny.

The Supreme Court's decision[1] in Dobbs v. Jackson Women's Health Organization dated 24.06.2022 is once again at the top of the world agenda.

This decision is about the Right to Abortion and with this decision, the US Supreme Court has abolished 49 years of jurisprudence. The Dobbs decision was so highly anticipated that the draft of the decision was leaked to the press in May 2022 (a first in the history of the Supreme Court) and naturally caused a huge uproar.[2]

Based on this decision, we will try to outline the legal framework of abortion in a way that even non-lawyers can understand, and simply picture the current situation in the world in this article.

Since we started with the US Supreme Court, let's continue in the same vein, but with a few steps back in history.

In 1973, there was no common law on abortion in the United States. Since the states could make their own laws, many states banned abortion and passed laws that imposed prison sentences on those who performed or had abortions. Abortion was banned in 30 out of the 50 US states without exception. 16 states allowed abortion only in exceptional cases, such as in cases of rape, incest or health threats to the mother. 3 states allowed abortion only for women living within the state. Of these, only New York permitted abortion in general.[3]

In early 1973, the US Supreme Court decided Roe v. Wade, ending this diversity. With this decision, the Supreme Court defined abortion as an absolute right within the Right to Privacy under the US Constitution and decriminalized and outlawed abortion in the first 3 months of pregnancy nationwide. Thus, for the first time, a federal framework for abortion was established.[4]

Although there was a lot of controversy, this decision had been implemented for 49 years, until 2022. In 2021, Texas passed a law called the Texas Heartbeat Act.[5] According to this act, abortion was banned again as soon as the fetal heartbeat could be heard. With the aforementioned Dobbs v. Jackson Women's Health Organization decision dated 24.06.2022, the Supreme Court annulled the 1973 Roe v. Wade decision and ended the protection of abortion right under the federal constitution, ruling that this issue could be regulated by law by each state. In other words, it left the decision to the discretion of the states. After this decision, some states immediately tried to ban abortion again. Currently, 13 states criminalize abortion, and more are being added day by day.[6]

Both of the cases mentioned above that came before the Supreme Court involved the state of Texas since Texas is the strictest state in the US on abortion.

After the Supreme Court's 2022 ruling, in May 2023, a pregnant woman named Kate Cox sought a way to have abortion after learning that her baby was at risk of a fatal birth and that if she gave birth to the baby, it would reduce her chances of having children in the future. Dr. Damla Karsan agreed to perform the abortion, certifying that the pregnancy fell within the exception of the medical risk. Kate Cox, her husband, and Dr. Damla Karsan sued to have the abortion allowed and to avoid penalties such as fines and loss of license. Ultimately, the Texas Supreme Court dismissed[7] the case, stating that the pregnancy in question did not fall under the medical exception.  The Cox family was therefore forced to travel to another state for an abortion. If this case had been upheld, it would have been the first authorized medical-exception surgery in Texas since the federal Supreme Court's 2022 ruling.[8]

President Joe Biden, a Democrat, is a supporter of abortion rights. After this incident, President Biden's wife, Jill Biden, invited Kate Cox to be one of her and President Joe Biden's guest at the State of the State address in March.[9]

Abortion is indeed a very complicated issue since abortion is not only framed within the law, but also within the medical and biological sciences, religious rules, ethical or cultural norms which are more or less different in every society and all of these are related to abortion.

For example, the answer to the question "when does a human life begin" is one of the focal points of the debate on abortion. However, medical biology and legal science may give different answer to this question. Religious, social and ethical rules may answer this question in a completely different ways. For this reason, it is quite difficult to reach an answer that everyone can agree on.

On the other hand, different circles give different answers to the question "what is the limit of a woman's right over her own body?"

According to one view, human life begins with fertilization and any abortion after fertilization ends an innocent life.

According to another view, individual life does not begin in the first six months because the fetus cannot live outside the womb, but only after the sixth month.

Another view is that, although rare, some of the children born prematurely within 6 months can survive, so abortion on demand is possible within the first 3 months and should not be performed after the fourth month.

According to another view, every human being has the right to decide and dispose of his or her own body, and abortion should be recognized as part of a woman's right to decide on her own body, and the final say in this matter should be given to the woman who owns the body. Accepting otherwise also strikes a blow to equality between men and women.

Another view takes a mixed approach, recognizing that abortion is only permissible in cases of necessity or exceptional circumstances. The limits of these exceptions are unclear. According to some, abortion should be performed if the mother is under the risk of death. Others believe that abortion is permissible in cases of rape or incest. There are also people in the view that abortion is permissible if the mother is too young to take care of the child. Some others believe that the mother should be allowed to decide on abortion in the case of carrying a fetus that can be determined to be disabled even before it is born. Others accept all of these exceptions.

As mentioned above, religious rules also play an important role in abortion.

For example, in Judaism, according to the Ten Commandments of "do not take life" and other rules regarding the sanctity of life, most clerics believe that life begins with pregnancy as a gift from God and that any intervention after pregnancy should not be permitted. The majority of the clergy do not approve of termination of pregnancy even in the case of an embryo that is the result of illegitimate relations or is already known to be defective.[10]

Since Christians consider the Torah -which they define as the Old Testament- as one of their holy books, most of the practices related to abortion in Judaism have been accepted in Christianity, sometimes in the same way and sometimes with different changes. Although Christian clergy consider abortion as killing a human being, the practice of punishment is quite different from that of Judaism. Instead of punishment, the perpetrators should be treated with love and tolerance. It is stated by Christ himself that this behavior will be more effective in turning people away from wrongdoing and repenting. In the case of pregnancy resulting from illegitimate intercourse or rape and having an embryo, which is known in advance to be handicapped, most Christian clergymen agree with Jewish clergymen. In fact, Pope Paul II, addressing 20,000 women who became pregnant as a result of rape during the Bosnian war, urged them not to have abortions.[11]

In Islam, jurists are unanimous that the fetus cannot be touched after the soul is blown out, but since the issue of when the soul is blown out is controversial, the rulings on abortion vary depending on whether it is performed before or after this time period. On the other hand, the majority of Islamic scholars do not allow abortion to terminate pregnancies resulting from illegitimate intercourse or rape. Rape is a crime, but abortion is also a crime. This is like trying to justify one crime with another crime. During the time when Ibn Sina lived (980 – 1037, a Persian muslim polymath and the most important doctor and Islamic philosopher of his time, commonly known in the West as Avicenna), there were many developments regarding the birth process of women and the control of pregnancy. In his book, Ibn Sina explained the scientific nature and necessity of abortion. He defended the necessity of abortion in cases where the child is disabled or the life of the mother is at risk with the birth of the child. Stating that both sexes have a common influence and importance in pregnancy, Ibn Sina broke the patriarchal influences on childbirth.[12]

However, the Mufti of Kuwait did not allow abortion for women who were raped and impregnated by Iraqis during the Gulf War. Islam grants certain rights to the fetus in the womb, such as inheritance and wills.[13] 

According to a fatwa issued by the Presidency of Religious Affairs of the Republic of Turkey, "The protection of human life is one of the five fundamental principles and objectives of Islam. The human being, the most honorable being, is dignified and inviolable. The right to life is a fundamental right given by Allah from the moment the male sperm and the female egg unite and fertilization begins, and no one, including the parents, is allowed to interfere with this right from this stage. Accordingly, it is not permissible[14] to terminate a pregnancy unless there is a just and absolute necessity, such as the protection of the mother's life."

When we look at the European Union countries, we see various practices. The strictest country in this regard is Ireland. Abortion is forbidden in Ireland. Malta, Northern Ireland and Poland are also countries that do not leave Ireland alone. In Andorra[15], abortion is forbidden even in cases of rape and even the morning-after pill is forbidden.  In other countries, abortion bans vary according to exceptions.  Most countries in the European Union have laws that allow abortion on demand and also allow termination of pregnancy in special circumstances.[16]

In January 2024, the European Union (EU) Parliament called for the right to abortion to be included in the EU Charter of Fundamental Rights, and work is ongoing.[17]

In France, for example, the right to abortion is being sought to be constitutionally guaranteed, which is expected to happen in 2024.[18]  There is a draft constitutional amendment on this issue. If it is passed by Parliament, France will be the first country to constitutionally guarantee the right to abortion.[19]

Note: France is the first country to enshrine the right to abortion in its constitution in early 2024. https://www.bbc.com/turkce/articles/c3gke2ey0v5o

In Germany, abortion after the first 12 weeks is generally prohibited and punishable by up to 3 years in prison.[20]  This is stated in Article 218[21] of the Criminal Code. Abortion can only be performed under certain conditions, i.e. exceptionally. These conditions are specified in Article 218a of the Code. If the pregnant woman wishes to have an abortion of her own free will, she must go to a state-recognized counseling agency and obtain a certificate (this is only the case in Germany); at least three days must elapse between the day she receives the certificate and the day of the abortion (in case the woman changes her mind). The abortion must of course be performed by a doctor, and the doctor performing the abortion and the doctor providing counseling must not be the same person. Problems with the certificate from the counseling center are also reported. For example, since 2001, institutions affiliated with the Catholic Church are no longer recognized by the state because they only offer counseling but do not provide the necessary certification.[22] There are groups who stand in front of counseling centers or abortion clinics and try to persuade women who come there to give up their abortions. This has become so commonplace that it is now known as "sidewalk harassment" in Germany. So far, these groups have not been prosecuted under the right to demonstrate. In January 2024, however, the Federal Cabinet passed a bill to make it an administrative offense punishable by a fine.[23]

As for the European Court of Human Rights (ECHR) rulings:

The European Convention on Human Rights does not include abortion as a right. The applications before the ECHR are generally in the context of the right to life, the right to property, the right to human dignity and honor, and the right to family and private life.

It is seen that the ECHR leaves the issue of abortion to national discretion. It can be said that the ECHR does not want to be effective on states on this issue, or even shows no will to be effective.

We have mentioned above Ireland's strict attitude towards abortion. It is also possible to reach this conclusion from the ECHR case A,B,C/Ireland. Under the Irish law, abortion is prohibited under the criminal law.

In the case of A, B, C v. Ireland, 3 women who were pregnant went to the UK because they could not get an abortion in Ireland and brought a claim before the ECHR that this constituted a violation of their rights. All three applicants had become pregnant unintentionally. Woman A; an unmarried, unemployed woman living in poverty, had four children, all of whom had been placed in foster care. As a former alcoholic struggling with depression, she decided to have an abortion so as not to jeopardize her chances of reuniting her family. She paid for the abortion at a private clinic in the United Kingdom by borrowing money from a loan shark. Woman B was not ready to be a single parent and had a special condition related to ectopic pregnancy. The third applicant, C, was a woman recovering from cancer who was unaware that she was pregnant and had undergone a series of cancer-related check-ups during her pregnancy. When she found out that she was pregnant, she believed that there was a risk that her pregnancy could lead to a recurrence of her cancer and therefore was worried about her health and life. She was also concerned about the risk to the fetus if she went ahead with the birth and so decided to have an abortion in the UK.

In this case, after examining the application in terms of the right to life, the right to human dignity and honor and the right to private and family life, the ECHR rejected the application of the applicants A and B against the abortion ban and accepted C's claim of violation not because of the ban itself, but because the legal regulation allowing abortion was left incomplete.  Therefore, the ECtHR acted in line with the will of the national judiciary.[24]

If the state in question recognizes abortion as a right, the ECtHR does not say anything about it, and if it prohibits abortion, the ECtHR does not say anything about it. The ECtHR's decisions are generally in the direction of examining the situation within the scope of national discretion based on the principle of subsidiarity.[25]

The situation in Turkish Law:

The word kürtaj[26] is derived from the French word curetage "surgical intervention in the form of scraping with a knife" and was first used in Turkish in 1933.

The first paragraph of Article 17 of the Constitution of the Republic of Turkey reads as follows: "Everyone has the right to life, to protect and improve his/her material and spiritual existence."

Article 28 of the Turkish Civil Code, entitled "Birth and death", reads as follows: "Personhood begins at the moment the child is born fully alive and ends with death. The child acquires the capacity to acquire rights starting from the moment of conception, provided that the child is born alive."

Law No. 2827 on Population Planning permits the voluntary termination of pregnancy within the first 10 weeks, and states that abortion after 10 weeks can only be performed in cases of life-threatening or severe disability risk documented by a medical report.

In the Turkish Penal Code, the acts of abortion and induced abortion of a child older than 10 weeks without a medical report are subjected to imprisonment.[27]

In Turkish Law, the most comprehensive and most recent decision of the Constitutional Court (AYM) on abortion is the R.G. decision dated 23.07.2020, which was issued in plenary session upon an individual application.[28] 

In this decision, the applicant stated that was subjected to qualified sexual abuse by more than one person as a result of force and threats and she became pregnant when she was under the age of 18. The applicant claimed that the prohibition of inhuman and degrading treatment was violated by stating that although she applied to the criminal judgeships of peace many times for the termination of her pregnancy, wrong and contradictory decisions were given, the pregnancy period exceeded twenty weeks due to this attitude of the courts, the decision to terminate the pregnancy could not be taken on time, she was forced to endure a pregnancy resulting from rape, and that her family did not want her for this reason. The applicant also stated that the legislation does not include procedural and substantive provisions regarding the termination of a victim's pregnancy resulting from a crime, that the legislation is inadequate and unclear, and that this situation makes it impossible for women victims of crime to exercise their legal right to abortion in practice. Therefore, the applicant claimed that the right to respect for private life was violated.

The Constitutional Court stated that "Article 17 of the Constitution does not contain an explicit right or guarantee regarding termination of pregnancy and it is not possible to interpret the said article as containing such a right. In this framework, it should be accepted that the legislator has a wide discretionary power in terms of regulations regarding the termination of pregnancy, where sensitive moral, ethical and religious debates are in question. Therefore, it is within the discretionary power of the legislator to determine up to which week the termination of pregnancy can be decided and how and under what conditions this will be done." After commenting on this issue, the court found that the applicant could not access the opportunity to terminate the pregnancy due to the protracted delay in the decision on the applicant's request for termination of pregnancy by not being given within two months and ruled that the applicant could not access the opportunity to terminate the pregnancy and awarded a violation of right and 100,000 TL compensation.

Situation in other countries:[29]

Canada stands out as the only country to have de facto decriminalized abortion by a Supreme Court decision in 1988. No other country has been willing to completely decriminalize abortion, no matter how liberal the law reform is.

Morocco's abortion law came into force in 1920, when Morocco was under the French protectorate. In May 2015, following a public outcry over reports of women dying from unsafe abortions, the king ordered a reform process to expand legal protections.

Ethiopia liberalized its abortion law in 2005. Previously, abortion was only permitted to save a woman's life or protect her physical health. The current law allows abortion in cases of rape, incest or fetal malformation, if the woman's life or physical health is in danger, if she has a physical or mental disability, or if she is physically underage or mentally unfit for childbirth. This is a liberal law for sub-Saharan Africa.

In recent years in Latin America, a combination of legal reforms, court decisions and public health guidelines have improved women's access to safe abortion. These include allowing abortion on demand in the first trimester of pregnancy, as in Mexico City (since 2007) and Uruguay (since 2012). In Argentina, Bolivia, Brazil, Colombia, Bolivia, Brazil, Colombia and Costa Rica, the high courts have been influential in interpreting the constitutionality and scope of specific grounds for abortion, although their decisions are not always implemented.

Conclusion:

As we can see, there are three main practices regarding abortion in the world: Total prohibition, total permissibility and permissibility with exceptions. It is very difficult to give an answer as to which of these practices is correct or legal. This is because what is right or what is legal may vary depending on where we look at, according to our understanding, religious beliefs or legal system.

Do we look at the issue from the point of view of ending the life of a living being, from the point of view of a living being's bodily integrity and the right to property and private life, from the point of view of letting the child be born and grow up however it grows up, or from the point of view that societies consisting of children who are raised willingly will make the world more livable?

These are questions that are very difficult to answer. Perhaps there is more than one right answer. But at the end of this article, our opinion can be summarized as follows:

There is no direct prohibition of termination of pregnancy in the Torah, the Bible or the Qur'an. All the views expressed in these religions are purely the interpretations of religious scholars. In the present day, the parents of a child can now easily be identified with almost one hundred percent accuracy immediately. Information such as the sex of the baby and whether the baby will be born with a disability or not can be determined with one hundred percent accuracy before birth, and the heartbeat can be heard before the baby is born. Even before the baby is born, surgery can be performed on the baby while it is still in the womb. For this reason, the views that have been held by religious leaders for thousands of years need to be revised in the light of new scientific developments.

What we want to say is that the views of scientists as well as clergymen should be valued when it comes to human health.

Every year around 73 million abortions are performed in the world. In other words, a total ban on abortion would mean adding a population to the world equal to the population of France every year.[30]

Banning abortion will lead to a generation of undesired children. Even in countries where abortion is completely banned, there is a huge demand for abortion. Unintended pregnancy rates are highest in countries that restrict abortion access and lowest in countries where abortion is generally legal. Most women who are denied the right to abortion, if they have made up their minds to terminate the pregnancy, try to get rid of the pregnancy by any means necessary, often in an unconscious and unhealthy way, resulting in many maternal deaths while trying to get rid of the children.

Taking steps to improve sexual and reproductive health and contraception has many more advantages than banning abortion.

It seems to be the best solution to leave the decision on abortion to the joint decision of the parents. Because it is the mother and father who will carry, give birth to, care for and raise that child.

On the other hand, it is necessary to constitutionally guarantee abortion as a right. France's steps in this regard are very positive. In line with the scientific community's view, the minimum age at which a fetus is considered to be viable should be determined and the termination of pregnancy should be allowed on request within this period.

The right to abortion needs to be constitutionally guaranteed so that changes in government or changes in high court panels do not affect the gains in the right to abortion.

                                                                                                           Emre TAN - 11.02.2024

[1] https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf

[2]https://edition.cnn.com/2023/01/19/politics/supreme-court-dobbs-report-leak/index.html#:~:text=The%20leak%20%E2%80%93%20the%20worst%20breach,a%20constitutional%20right%20to%20abortion.

[3] https://en.wikipedia.org/wiki/Abortion_in_the_United_States#:~:text=As%20of%202024%2C%20California%2C%20Michigan,state%20law%20such%20as%20Colorado

[4]https://tr.euronews.com/2022/06/24/abdde-kurtaji-yasallastiran-ve-iptal-edilen-roe-v-wade-davasi-nedir#:~:text=ne%20anlama%20geliyor%3F-,Roe%20v.,bir%20hak%20oldu%C4%9Funu%20ortaya%20koydu.

[5] https://en.wikipedia.org/wiki/Texas_Heartbeat_Act

[6] https://www.bbc.com/turkce/haberler-dunya-61931766

[7] https://reproductiverights.org/case/cox-v-texas/cox-v-texas-case-in-depth/

[8]https://www.voaturkce.com/a/abd-kurtaj-hakkiyla-imtihani-teksas-izin-vermedi-baska-eyaletlerde-davalar-kapida/7395057.html

[9] https://zbr.com.mx/tr/sin-categoria-es/jill-biden-kurtaj-hakki-savunucusunu-devletin-durumu-konusmasinda-misafir-olarak-davet-ediyor/1295210/

[10]Abortion in Judaism, Christianity and Islam, Aynur Eryiğit Bader, https://dergipark.org.tr/tr/pub/antakiyat/issue/45661/554924

[11] https://www.latimes.com/archives/la-xpm-1993-02-28-mn-234-story.html

[12] Hak, Cinayet ve Politika Üçgeninde Kürtaj Hakkı, Sait Yıldırım, Sosyal ve Beşeri Bilimler Araştırmaları Dergisi, 2018, https://dergipark.org.tr/tr/download/article-file/537417

[13] Abortion in Judaism, Christianity and Islam, Aynur Eryiğit Bader, https://dergipark.org.tr/tr/pub/antakiyat/issue/45661/554924

[14] Din İşleri Yüksek Kurulu, 12.07.2017, https://kurul.diyanet.gov.tr/Cevap-Ara/999/kurtaj-yaptirmak-caiz-midir

[15] https://taz.de/In-Andorra-ist-Abtreibung-verboten/!5973892/

[16] https://tr.euronews.com/2018/05/03/avrupa-da-kurtaj-en-kat-ve-en-liberal-ulkeler

[17] https://www.die-tagespost.de/politik/abtreibung-sticht-grundrechte-art-247503

[18] https://fransizgastesi.com/2023/11/fransada-kurtaj-hakki-2/#google_vignette

[19]https://www.ntv.com.tr/dunya/fransada-kurtaj-hakki-anayasal-guvence-altina-aliniyor,EcJ_0YvvQk-Zt4Y10N2P9g

[20] https://tr.wikipedia.org/wiki/Almanya%27da_k%C3%BCrtaj

[21] § 218 “(1) Any person who terminates a pregnancy shall be liable to a custodial sentence not exceeding three years or to a monetary penalty. Acts which take effect before the fertilized egg has been implanted in the uterus shall not be deemed to be abortions within the meaning of this Act.

(2) In particularly serious cases, the penalty shall be imprisonment from six months to five years. As a rule, a particularly serious case exists if the perpetrator,

1.Acts against the will of the pregnant woman or

2.Recklessly causes the risk of death or serious damage to the health of the pregnant woman.

(3) If the pregnant woman commits the offense, the penalty is imprisonment for up to one year or a fine.

(4) The attempt is punishable. The pregnant woman shall not be punished for attempt.”

[22] https://www.kadindayanismasi.net/index.php/2022/04/06/almanyada-bir-garip-kurtaj-yasasi/

[23]https://www.aerzteblatt.de/nachrichten/148830/Regierung-will-Schwangere-vor-Belaestigungen-von-Abtreibungsgegnern-schuetzen

[24] https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-102332%22]}

[25] AİHM’nin Kürtajla İlgili Kararlarındaki Etkililik İradesi ve Toplumsal Cinsiyet İlişkisi, Arş. Gör. Muhammet KOÇAKGÖL, Ankara Barosu Dergisi, 2018/3, https://dergipark.org.tr/tr/download/article-file/554232

[26] https://www.nisanyansozluk.com/kelime/k%C3%BCrtaj

[27] Articles 99 and 100 of the Turkish Penal Code No. 5237

[28] https://kararlarbilgibankasi.anayasa.gov.tr/BB/2017/31619

[29] Marge Berer, Health und Human Rights, v. 19(1), 2017 Jun, Abortion Law and Policy Around the World,

    https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5473035/

[30] https://www.guttmacher.org/fact-sheet/induced-abortion-worldwide