What shapes abortion law? - A global perspective Dr. Achim Hildebrandt University of Stuttgart Institute for Social Sciences Breitscheidstrasse 2 70174 Stuttgart Germany [email protected] Paper prepared for presentation at the International Conference for Public Policy, Milan, 1-4 July 2015 1 Abstract This paper analyses a correlate of abortion law that has not been addressed in previous research: the effects of past or present communist rule. As communists reject any moral standards that were based on religious beliefs, they liberalized abortion law after they gained power. A quantitative analysis of 170 nations shows that countries with a communist past or present have more liberal abortion laws. Moreover, abortion law tends to be more liberal, the more modern and globalized a country is and the more women are represented in the workforce and in parliament. A larger percentage of Catholics in the population, in contrast, correlates with more restrictive legislation. Some countries do not fit this general pattern and the paper discusses the reasons. Based on the empirical results it goes on to present the implications of the findings for public policy: In many countries strong and persistent socio-economic and cultural forces stand in the way of further abortion law liberalization. Under these conditions, proponents of liberalization have greater chances of success if they take a moderate stance and focus on women’s health instead of women’s rights. Introduction Legislation on abortion is frequently the subject of heated political disputes about first principles, which leave only little room for compromise: Calls for women’s self-determination clash with religious beliefs and prohibitions. While for decades these controversies were national issues (McBride Stetson 2001b), abortion law is now discussed on an international and increasingly on a global level. Reproductive rights have become the subject of international conferences and international non-governmental groups try to shape national legislation to reflect their values (Bob 2012). 2 Abortion law has attracted attention among scholars, focusing on comparative case studies (Blofield 2006, Blofield 2008, Yishai 1993) and comparative analyses of Western industrialized countries (Minkenberg 2002, Gindulis 2003). During the past forty years, regular overviews of the development of abortion laws have determined a trend towards liberalization, albeit with some notable exceptions (Cook/Dickens 1978, Cook/Dickens 1988, Rahman et al. 1998, Cook et al. 1999, Boland/Katzive 2008); in the last two decades, four large-N quantitative studies analyzed the correlates of this liberalization or of the factors standing in its way (Asal et al. 2008, Pillai/Wang 1999a, Pillai/Wang 1999b, Ramirez/McEneaney 1997). While Pillai and Wang analyze 101 developing nations, Asal et al. and Ramirez and McEneaney try to provide a global perspective, but succeed only partly due to insufficient data for some countries. Ramirez and McEneaney include 155 nations in their analyses, Asal et al. only 112. These four studies unanimously identify some correlates of abortion law: Abortion law tends to be more liberal, the greater the proportion of women in parliament is, the more women participate in the labour market (Asal et al. 2008, Ramirez/McEneaney 1997), and the more international organizational linkages a country has (Ramirez/McEneaney 1997). In contrast, the higher the percentage of Catholics in the population, the more restrictive abortion law usually is (Asal et al. 2008, Pillai/Wang 1999a). The effect of modernity remains controversial: while Asal et al. identify a liberalizing effect, Pillai and Wang (1999a, 1999b) and Ramirez and McEneaney do not.1 These four previous studies identified relevant correlates of abortion law, but did not address another important factor: the effects of former or present communist rule. As communists reject any moral standards that are based on religious beliefs, they liberalized abortion law once they came to power. Many communist countries developed an “abortion culture” (Bélanger/Flynn 2009), in which abortion is regarded as an alternative to contraception and not as a last resort. Abortion remained socially acceptable even after some communist countries temporarily 3 tightened their rules to increase the birth rate. This paper analyses the effects of former or present communist rule on abortion law and uses the correlates identified by the above authors as controls.2 Despite the common problem of data availability, it also intends to come as close as possible to the ideal of a truly global analysis by including 170 of the 193 UN member states. Finally, the paper discusses the reasons why some countries do not fit this general pattern. Hypotheses As with other laws, the content of abortion legislation partly depends on how the issue is framed in the policy debate. In this debate, policy makers determine “what problems deserve attention, how those problems should be defined, and what should be done about them” (McBride Stetson 2001a: 3). With regard to abortion, there are four different frames that imply either positive or negative attitudes to abortion and hence different preferences in terms of rules and regulations. Whether a country's abortion law is more liberal or more restrictive therefore depends to a considerable extent on the frames that dominate the policy debate. These four frames are now presented in the order they entered the policy debates. The first is the religious frame. Fundamental questions of life and death are part of every religion, making religion an inevitable presence in the politics of abortion (Maguire 2003: 3). Religious arguments usually focus on the sanctity of life; their proponents therefore argue for the protection of the foetus and advocate restrictive abortion laws. Religious arguments have dominated the debate on abortion for a very long time. Abortion can also be framed as an instrument of population policy. Abortion has repeatedly been used to curb population growth, in China, for example, to enforce the one-child policy, or in Japan after World War II for fear of overpopulation due to the loss of colonies and the ensuing 4 repatriation of millions of people. In the past, abortion was not only used to control the size of the population but also its composition by targeting people with disabilities. In the early decades of the 20th century, eugenic policies were widely supported but lost much of their popularity as a consequence of the Nazi murders and a rising awareness of disability rights. Today, hardly any government would publicly confirm that they try to control their disabled citizens' fertility. Many countries do permit abortion in the case of foetal impairment but leave the decision to the parents.3 In contrast, concerns about low fertility rates led some countries to restrict access to abortion, such as several communist states in the 1960s and 1970s (Kulcyzycki 1995: 497- 498). Thus if abortion serves as a policy instrument, the procedure is not evaluated as such but only with regard to its capacity to help achieve other goals. Thirdly, abortion can be framed as a public-health problem. Since the early 20th century, proponents of abortion law reform have continued to argue that the law cannot force women to carry a pregnancy to birth if they do not want to. Prohibitions do not reduce the number of abortions but make them a clandestine affair, forcing millions of women to resort to various black-market providers or self-help. Clandestine abortions cause complications, disability and death, mostly due to haemorrhage or severe infections (WHO 2011). Fourthly, feminists regard access to abortion as a fundamental right of women that grants them control over their bodies. This argument gained prominence in the 1960s and represents the most recent of the four ways abortion has been framed. Both the third and the fourth frame support the liberalization of abortion laws. While advocates of the fourth frame wholeheartedly approve of abortion, however, proponents of the third frame do not necessarily have a positive attitude to it. They merely postulate that a ban is ineffective and has more serious consequences than liberalization. 5 The correlates analyzed in this study increase or reduce the likelihood of each of these frames dominating the policy debate and via this route affect how liberal the law is. In a number of countries abortion laws are marked by decades of communist rule. As communists rejected any moral standards that were based on religious beliefs, sex law reform was on the agenda after the communists had assumed power. Accordingly, post-revolutionary Russia legalized abortion along with divorce and same-sex acts between men and granted men and women equal rights in marriage. These reforms were daringly progressive and served as a model for sexual reformers in Western democracies (Weeks 1990: 137). The backlash came in 1936, when abortion was outlawed in an attempt to boost the birth rate and provide the Soviet state with more workers and soldiers (Kon 1995: 74). In the Soviet Union abortion was legalized again in 1955 due to concerns about maternal morbidity caused by clandestine abortions. Subsequently, a number of central and Eastern European countries under communist rule also liberalized their abortion laws. In some of them concerns about fertility rates that were deemed too low later led to renewed restrictions (Kulcyzycki 1995: 497-498). Apart from the influence of pro-natalist positions and public health concerns there were also ideological reasons for the restriction and subsequent liberalization of abortion law in the Soviet Union. It is no coincidence that the ban on abortion was introduced at the height of the Stalinist terror in the 1930s and revoked in the mid-1950s during the Khrushchev Thaw, which brought about limited reforms and liberalization. In the 1930s, totalitarian control of the individual extended to the most intimate spheres of private existence and included the tight regulation of sexual conduct.