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Good Abortion Law” Not Enough? Thehhr Final Logo Alone.Indd Case 1 10/19/15 10:53 AM of Estonia Liiri Oja

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Good Abortion Law” Not Enough? Thehhr Final Logo Alone.Indd Case 1 10/19/15 10:53 AM of Estonia Liiri Oja HHr Health and Human Rights Journal Why is a “Good Abortion Law” Not Enough? TheHHR_final_logo_alone.indd Case 1 10/19/15 10:53 AM of Estonia liiri oja Abstract There are various ways to critically discuss abortion. Constructing or finding the most suitable analytical framework—whether rooted in legal formalism, socio-legal considerations, or comparativism— always depends on the country of subject and whether the analysis is for litigation, advocacy, or more theoretical purposes. This paper offers a model for analyzing abortion in Estonia in order to connect it as a thought-provoking case study to the ongoing transnational abortion discussions. I set out by describing the Estonian Abortion Act as a “good abortion law”: a regulation that guarantees in practice women’s legal access to safe abortion. Despite this functioning law, I carve a space for criticism by expanding the conversation to the broader power relations and gender dynamics present in Estonian society. Accordingly, I explain the state of the Estonian feminist movement and gender research, the local legal community’s minimal engagement with the reproductive rights discourse, and the lingering Soviet-era narratives of reproduction and health, which were not fully extinguished by the combination of human rights commitments and neoliberalism upon restoration of independence in the early 1990s. I consequently show that Estonia’s liberal abortion regulation is not grounded in a sufficiently deep understanding of human rights-based approaches to reproductive health, therefore leaving the door open for micro-aggressions toward women and for conservative political winds to gain ground. Liiri Oja is a PhD candidate at the European University Institute. Please address correspondence to Liiri Oja. Email: [email protected]. Competing interests: None declared. Copyright © 2017 Oja. This is an open access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/), which permits unrestricted noncommercial use, distribution, and reproduction in any medium, provided the original author and source are credited. JUNE 2017 VOLUME 19 NUMBER 1 Health and Human Rights Journal 161 l. oja / Abortion and Human Rights, 161-172 Introducing the case study: Estonia and its was not surprising since after the restoration of “good abortion law” independence, the new democratically elected par- liament and the government were fully committed Estonia is a parliamentary democracy in the Baltic to reconnecting Estonia with the West. region of Northern Europe, with a population of 1.3 Furthermore, when the then minister of social million. There is no state church, only 30% of the affairs presented the draft bill, she emphasized that population describes itself as religious (Lutheran, the Abortion Act was meant not to influence the Catholic, Orthodox, Muslim, Buddhist, Pagan, or declining birth rate but to respect “free choices of other), and religion does not play an essential role the woman” and aim for “safety and protection.”4 in Estonian society. Having restored independence The transcripts of the parliamentary hearings from in 1991 after the nearly 50-year-long Soviet Union 1998 do, however, reveal some hesitation about the occupation, Estonia became a member of the law. For example, one member of parliament (MP) European Union and the North Atlantic Treaty referred to “other countries” and asked the minister Organization in 2004. Estonia has signed every whether abortion is “a violent act of taking a life” important regional and international human rights and whether the term-based model is somewhat treaty, and its Constitution, adopted in 1992 through arbitrary. Another MP raised the issue of requiring a referendum, upholds the rule of law, democracy, a husband’s (or partner’s) consent. Nevertheless, and equality.1 both of these questions were phrased as inquiries Abortion in Estonia is regulated by the of general interest rather than expressions of strong Termination of Pregnancy and Sterilization Act (hereafter the Abortion Act), which came into force opposition to abortion. One MP also noted sup- in 1998 in the context of the country’s transition portively how “Estonia is not a Catholic country, to parliamentary democracy.2 The Abortion Act so women have the right to give birth, or have an has been amended a few times over the years, and abortion if necessary.” the regulation currently in force combines the two Overall, it can be said that opposition to most common approaches to abortion regulation: a liberal abortion law was not strong. The con- the indications model and the term model. Namely, servative voice against abortion emerged more it stipulates that abortion is available on request vigorously and strategically only in the 2000s, as before 12 weeks of pregnancy. If the pregnancy has I show later below. When I asked the then minister lasted for more than 12 but fewer than 22 weeks, it of social affairs Tiiu Aro about this phenomenon, can be terminated if there is a danger to the wom- she explained that in the mid-1990s medical ex- an’s health, if the child may suffer a severe health pertise regarding abortion was well respected by damage, if there is a danger of an illness or health politicians. Thus, the health and safety argument problem which would hinder the woman from supported by the medical community kept poten- raising the child, or if the woman is younger than tial moral and political opposition at bay. 15 or older than 45 years. Abortion is subsidized by In addition, as noted above, Estonia was the state, and women do not need a referral from a not—and continues to not be—a religious society general practitioner. with a strong church presence; thus, in the mid- The preparatory works of the Abortion Act’s 1990s, typical religious arguments were not raised. draft bill from 1998 cited the Patient’s Rights Dec- Furthermore, Tiiu Aro noted that she and some laration of the World Health Organization (1994), colleagues had just attended the International Con- the European Convention on Human Rights ference on Population and Development in Cairo in and Biomedicine (1997), and practice and laws September 1994 and were aware of the reproductive in Sweden and Finland.3 These references speak rights language, which also inspired the founding of an ideological choice—Estonia considered the of the Estonian Family Planning Society (now standards of the United Nations, the European the Estonian Sexual Health Society) in November Union, and Scandinavian countries as models. This 1994.5 The high-quality work of the Estonian Sexual 162 JUNE 2017 VOLUME 19 NUMBER 1 Health and Human Rights Journal l. oja / Abortion and Human Rights, 161-172 Health Society—which brings together not only more nuanced spectrum of reproductive rights gynecologists, obstetricians, and midwives but issues is also tied to the harmful dichotomies of also people from other disciplines—has proved an developed/developing and Western/other. Such essential force in supporting reproductive rights in depictions may result in a misleading image of a Estonia in the 2000s. homogenic, progressive, and emancipatory Europe In short, timely and legal access to abortion is that hinders discussion about abortion beyond the guaranteed to women in Estonia in both law and “usual suspects” of Poland and Ireland. This is es- practice. Such a conclusion, backed with support- pecially problematic for Estonia, which is left out ing empirical data, would not necessarily spark from critical conversations since women in Estonia further examination. However, with this paper I can access abortion legally and effectively. carve a space for a more insightful discussion in Second, in addition to the “suspect bias,” which I argue that it is possible to find subtle but white-cube syndrome means that the contempo- persistent harmful narratives about women’s bod- rary legal analysis of abortion is often funneled into ies and sexuality, even in a country with a perfectly specific inquiries (for example, the design of abor- commendable human rights track record and liber- tion laws, women’s access to abortion in practice, al access to reproductive health services. or how different landmark abortion decisions have traveled between jurisdictions) and does not look at the much larger discussions on reproduction and The “white-cube syndrome” of abortion 7 analysis power. This second layer of white-cube syndrome is troublesome for Estonia as a country with a “good In 1976, Irish art critic Brian O’Doherty published abortion law” that is well implemented in practice an essay collection in which he deconstructed the and to which many of the existing conversations impact of a white-walled gallery space. O’Doherty from the Global North are not relevant or helpful explained how although the white-cube space due to its different history. serves as a seemingly neutral context in which art Thus, with this paper I draw attention to the is presented, it actually creates an illusionary world need to find a cure for white-cube syndrome and, where some of the everyday context is left out, thus in the case of Estonia, to use a nuanced analytical constructing a reality for us in one specific way.6 frame that explicitly deconstructs abortion into O’Doherty’s essays commented on the crisis of broader questions about power, control, and gender post-war art and had no link to the second-wave narratives. With this approach, a regulation usually feminist agenda concerning women’s sexuality and accepted as a “good abortion law” might actually be reproductive rights. Still, I borrow from O’Doherty insufficient for meaningful and steadfast reproduc- and explain briefly how the contemporary legal tive rights protection. analysis of abortion and women’s reproductive The following sections explain this alterna- rights in general in Europe suffer from what I term tive analytical frame and show the concerns that “white-cube syndrome.” emerge when the frame is applied to Estonia.
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