Recent Developments in Abortion Law

The New York Times, August 26, 1990, p. 9 and September 1, 1990, p. 3.

Law of March 9, 1972 (Gesetzblatt der Deutschen Demokratischen Republik, Part I, March 15, 1972, p. 89) and Regulations of March 9, 1972 (Gesetzblatt der Deutschen Demokratischen Republik, Part II, March 20, 1972, p. 149).

Strafgesetzbuch (Penal Code), §§ 218–219, as amended by the Law of May 18, 1976 (Bundesgesetzblatt, Part I, May 18, 1976, p. 1213).

Treaty between the German Democratic Republic and the Federal Republic of Germany on Bringing about Germany Unity (Gesetzblatt der Deutschen Demokratische Republik, Part I, 28 September 1990, p. 1627).

Id., Articles 8–9(2), 31(4); Annex I, Chapter III, Part C(1)(1); and Annex II, Chapter III, Part C(1)(1). See also Note 1, supra.

The Law of June 18, 1974, (Bundesgesetzblatt, Part 1, 1974, p. 1297) was held unconstitutional by the Federal Constitutional Court on 25 February 1975 (BVerfGE, Vol. 39, p. 1).

The Washington Post, March 7, 1991, p. D1; Reuters, 14 March, 1991; Newsday, 11 March 1991, p. 5.

Shortly after the incident, a spokesperson from the Max Planck Institute for International Law stated that at least 80 women in the last ten years had been stopped at the border on suspicion of having travelled to the Netherlands to obtain an abortion. At least ten of these were required to undergo medical examination. The Daily Telegraph, March 5, 1991, p. 10. In addition, the German Interior Ministry announced that there had been ten such cases in the last ten years. Id., The Washington Post.

Newsday, supra, note 7.

Official Journal of the European Communities, No. C 106/113, March 14, 1991; Reuters, March 14, 1991.

Dziennik Ustaw, No. 12, 1956, Entry 61; 9 International Digest of Health Legislation 319 (1958).

Ordinance of the Minister of Health of December 19, 1959 (Dziennik Ustaw, No. 2, 1960, Entry 15; 13 International Digest of Health Legislation 140 [1962]) and Instruction No. 11/81 of September 21, 1981 of the Ministers of Health, Transport, National Defense, and Interior Affairs (Dziennik Urzedowy Ministerstwa Zdrowia i Opieki Spolecznej, No. 11, 1981, Entry 42). Because Instruction No. 11/81 applied only to abortions performed in social health service establishments, no time limits apparently existed for abortions performed in private clinics.

Regulations of April 30, 1990 (Dziennik Ustaw, No. 29, 1990, Entry 178). An English translation made available to the author will appear in a forthcoming issue of the International Digest of Health Legislation.

The Washington Post, September 2, 1990, p. B1 and October 6, 1990, p. A20; Gannett News Service, July 28, 1990.

RPO/62965/90/I. A summary in English of the decision was provided to the author by the Swiss Institute of Comparative Law.

Note 14, supra. The Los Angeles Times, October 22, 1990, p. A1.

The British Broadcasting Corporation, Summary of World Broadcasts, October 2, 1990, p. EE/0884/C1/1; United Press International, September 29, 1990; The Independent, October 2, 1990, p. 11.

The Warsaw Voice, February 3, 1991; The Daily Telegraph, January 31, 1991, p. 10.

The Reuter Library Report, April 20, 1991; The Warsaw Voice, March 17, 1991.

The Reuter Library Report, April 6, 1991; The British Broadcasting Corporation, Summary of World Broadcasts, April 8, 1991, p. EE/1040/C2/1.

The New York Times, May 18, 1991, p. 1; The Reuter Library Report, May 17, 1991; Polish Press Agency, PAP News Wire, May 18, 1991.

Note 14, supra; The Washington Post, June 14, 1991, p. A19.

See Frejka T. , “Induced abortion and fertility: A quarter century of experience in Eastern Europe,’ 9 Population and Development Review, 494 (1983); Zielinska E. , “European Socialist Countries” in Frankowski S.J. and Cole G.F. , ed., Abortion and Protection of the Human Fetus, (Boston: Martinus Nijhoff Publishers, 1987), pp. 277–287.

The Warsaw Voice, May 19, 1991; Chicago Tribune, June 22, 1991, p. 19.

CTK National News Wire, February 13, 1991; The British Broadcasting Corporation, Summary of World Broadcasts, January 14, 1991, p. EE/0969/C1/1.

Law of October 20, 1986 (Sbíirka záakonu, No. 22, November 3, 1986, Entry 66; 39 International Digest of Health Legislation, 642 [1988]).

Constitutional Act No. 53 of Jan 9, 1991 (30 Bulletin of Czechoslovak Law 15 [1991]; The British Broadcasting Corporation, note 25; Rudée Práavo, January 16, 1991; The Reuter Library Report, January 10, 1991.

The British Broadcasting Corporation, Summary of World Broadcasts, March 29, 1991, p. EE/1033/B/1; CTK National News Wire, March 27, 1991.

Note 26, supra, §§ 2–3.

[1991] S.J.C. No. 20. See 18 Law, Medicine & Health Care 405 (1990) for earlier Supreme Court decisions.

[1989] 2 S.C.R. 530.

The Court, however, did leave open the possibility that the midwives could be charged with criminal negligence causing harm to the pregnant woman through the death of the fetus.

Aranzadi, Repertorio de Jurisprudencia, vol. 1, 1991, entry 9461; La Vanguardia (Barcelona), February 8, 1991, p. 27.

Organic Law No. 9 of July 5, 1985 (Boletín Oficial del Estado, No. 166, July 12, 1985, p. 22041; 36 International Digest of Health Legislation 614 [1985]). Before 1985, abortions were permitted only to save the life of the pregnant woman. Cóodigo Penal, §§ 411–417.

In another abortion case that has received recent attention, a physician was imprisoned after conviction of performing an illegal abortion on a 14-year-old girl raped by a relative before the 1985 law went into effect. Although pardoned by the Government after serving five days of his four-year sentence, he was reimprisoned for contempt upon launching a severe attack on the judiciary and only finally released by a High Court judge approximately a week later. See The Independent, April 5, 1991, p. 12; Reuters, April 8, 1991; The Reuter Library Report, April 19, 1991. The conviction of the physician was upheld by the Supreme Court on 30 January 1991. See Aranzadi, Repertorio de Jurisprudencia, No. 18, January 1991, p. 526. In addition, he faces charges of illegally performing abortions in a case scheduled to be heard later in 1991. See The Reuter Library Report, May 22, 1991.

Inter Press Service, July 25, 1991.

Law of 3 April 1990 (Moniteur belge, 5 April 1990, p. 6379; 41 International Digest of Health Legislation, 447 [1990]). See Note 30, supra at 410 for a discussion of the new law.

Journal des Tribunaux 29 (1991).

See Cook R.J. and Maine D. , “Spousal Veto over Family Planning Services”, 77 American Journal of Public Health 399 (1987). Because the case did not involve a husband whose wife was attempting to have an abortion against his will, it is possible that the issue of spousal veto could be raised again.

Law of August 13, 1990 (Moniteur belge, October 20, 1990).

For background on the approval of RU-486 see Note 30, supra at 409.

Order of November 22, 1988. Revue française de droit administratif 321 (1991).

Code de la Santé Publique, Article L.511.

Revue française de droit administratif, 208 (1991). The plaintiffs in these cases also made the following arguments, all of which were rejected by the State Council: a) that the Minister of Health had no authority to regulate RU-486 under the Code of Public Health; b) that the person who actually signed the order approving RU-486 had not been properly delegated to do so by the Minister of Health; c) that the Minister of Health was required to submit proposed regulations on RU-486 to national councils of physicians and pharmacists; d) that the timing of the order approving RU-486 was irregular; e) that instructions on the use of RU-486 were not sufficiently precise to preclude misuse of the drug; f) that regulations on the distribution of RU-486 violated legal provisions prohibiting the offering or sale of substances that can provoke abortion; and g) that instructions calling for women using RU-486 to be informed that, if this method of abortion fails, they run the risk of giving birth to a deformed fetus should they carry the pregnancy to term, violated legal provisions prohibiting “propaganda” in favor of abortion.

Act of January 17, 1975 amended by an Act of Dec. 3, 1979 (Journal officiel, January 1, 1980, p. 3).

Journal Officiel, January 16, 1975, p. 671.

Revue françcaise de droit administratif 292 (1991).

One of the major points of contention in this suit was whether third parties had standing to challenge the order directed at Roussel-UCLAF. The Council ruled that the plaintiffs, various anti-abortion groups, did have standing because of their social interest in the question.

The New York Times, April 21, 1991, Section 1, Part 1, p. 3; Chicago Tribune, April 21, 1991, p. 24.

United Press International, April 11, 1991.

Note 48, supra.

The New York Times, note 49, supra. The United States Government continues to express its opposition to RU-486. In April 1991 the Bush administration demanded that the World Health Organization account for any use of United States funds on RU-486. The New York Times, April 10, 1991, p. 25.

Bulletíi Oficial, No. 21, July 21, 1990, p. 377, Articles 185–189.

Id., General Dispositions.

Id., Article 192. Other similar provisions have been interpreted in this fashion. See the decision of the Italian Supreme Court of June 18, 1987 (Cassazione penale, 1988, Entry 609; 14 Annual Review of Population Law 28 [1987]).

Inter Press Service, December 26, 1990.

Cóodigo Penal y de Procedimientos, Articles 217–222; 15 Annual Review of Population Law 35 (1988).

Id., Annual Review of Population Law.

It has been reported that the Mexican state of Quintana Roo has also recently liberalized its abortion law. See Latin America Weekly Report, March 21, 1991, p. 9.

Note 56, supra; Latin America Weekly Report, January 17, 1991, p. 4; Los Angeles Times, December 30, 1990, p. A8; Corpus Christi Caller-Times, January 20, 1990.

Latin America Weekly Report, January 17, 1991, p. 4; Los Angeles Times, March 31, 1991, p. A5; Corpus Christi Caller-Times, January 20, 1991.

Note 60, supra; Eser A. and Koch H.G. , Schwangerschaftsabbruch in internationalen Vergleich (Baden-Baden: Nomos, 1989, pp. 715–16).

Note 56, supra; Los Angeles Times, note 60, supra.

Criminal Law (Second Amendment) Ordinance, 1990 (Ordinance No, VII of 1990) (The All Pakistan Legal Decisions, Vol. 43, 1991, Central Statutes, p. 110).

See Weiss A.M. , ed., Islamic Reassertion in Pakistan (Syracuse, N.Y.: Syracuse University Press, 1986). In her introductory essay to this book the editor suggests that various Pakistani governments have used the controversial issue of the Islamization of law for political ends. See also, Amin M. , Islamization of Laws in Pakistan (Lahore: Sang-E-Meel Publications, 1989); Maudoodi S.A.A. , The Islamic Law and Constitution (Lahore: Islamic Publications Ltd., 1986); Noori A.Y. and Amin S.H. , Legal and Political Structure of an Islamic State (Glasgow: Royston Ltd., 1987); Patel R. , Islamisation of Laws in Pakistan? (Karachi: Faiza Publishers, 1986).

Article 89 of the Constitution authorizes the President to enact legislation if he is “satisfied that circumstances exist which render it necessary to take immediate action.” It also provides that this legislation is to be placed before Parliament and lapses four months after enactment if it is not repassed by Parliament. On January 4, 1991, the day before the expiration of the four month period following the enactment of the new Penal Code provisions, the President of Pakistan enacted almost identical legislation, thus prolonging by four months the time in which Parliament could consider ratifying these provisions. As of the writing of this Article, it is not known whether the legislation was ratified by Parliament, whether it was reenacted by the President, or whether it lapsed. See Criminal Law (Second Amendment) Ordinance, 1991 in The All Pakistan Legal Decisions, Vol. 43, 1991, Central Statutes, p. 208.

See Banerjee A.C. , English Law in India (Atlantic Highlands, N.J.: Humanities Press, 1984); Jain M.P. , Outlines of Indian Legal History (South Hackensack, N.J.: F.B. Rothman, 1976); Mittal J.K. , Indian Legal History (Allahabad: Central Law Agency, 1985).

Pakistan Penal Code, §§ 312–314.

Id., § 313. Before amendment by the Law Reform Ordinance of 1972, the Code provided for punishment of up to ten years' imprisonment or transportation for life, rather than imprisonment for life.

See Ranchhoddas R. , Law of Crimes (Lahore: Mansoor Book House, 1982), p. 620.

See Bassiouni M.C. , The Islamic Criminal Justice System (London: Oceana Publications, 1982).

Note 64, supra, §§ 338–338C.

In both laws punishment for an abortion performed in early pregnancy is up to three year's imprisonment, for an abortion performed later in pregnancy, up to seven years' imprisonment, and for an abortion performed without consent, up to ten years' imprisonment.

According to most Islamic jurists, the limbs and organs of the fetus are formed after four months' gestation. See Hussain A. , Status of Women in Islam (Lahore: Law Publishing Co., 1987).

Further, the revision as a whole raises questions as to the utility and wisdom of replacing western-derived criminal law with traditional Islamic criminal law. Although the law imposed by the British in 1860 is in itself not the most suitable of systems for a modern Islamic Asian society, its replacement has perhaps even greater liabilities. The latter was originally applied to the customs and crimes of the 7th century inhabitants of the Arabian peninsula, not the 20th century inhabitants of Pakistan. Thus, it contains a number of largely irrelevant crimes, such as eight different categories of crime for injury to the head and face and seven different categories for injury to the body leaving a “mark of the wound.” Note 64, supra, §§ 332B-337F. More seriously, by instituting a system of retaliation and compensation, it introduces punishments which by modern human rights standards are unacceptable and discriminates in favor of the wealthy in giving the victim or heirs the power to pardon the offender for payment. Finally, since there are a number of different Moslem communities in Pakistan, each with its own set of Islamic law rules, any law claiming that it is the true embodiment of legal principles set forth in the Quran is bound to produce disagreement by those who do not subscribe to the particular rules selected.

19 Planned Parenthood in Europe 21 (1990); The Independent, May 16, 1990, p. 3.

Health (Family Planning) (Amendment) Act 1985 of 12 March 1985 (12 Annual Review of Population Law 21 [1985]. Before passage of this Act, only pharmacists were allowed to sell condoms, and only when a purchaser had obtained a prescription for them.

Note 76, supra.

The Independent, February 27, 1991, p. 10; The Times, February 27, 1991, p. 10.

The Reuter Library Report, April 17, 1991; Press Association Newsfile, April 17, 1991.

The Times, April 24, 1990; The Independent, April 24, 1990, pp. 1, 6; The Daily Telegraph, April 24, 1990, p. 1. See also, note 30, supra at 404.

Human Fertilisation and Embryology Act 1990 of November 1, 1990.

Id., §§ 27–30, 36.

The 1990 law also, in effect, places monetary restrictions on surrogacy agreements by providing that an adoption order will not be made in favor of parties to a marriage if “money or other benefit (other than for expenses reasonably incurred) has been given or received” with respect to a surrogacy agreement.

Law on the Protection of Embryos (Bundesgesetzblatt, Part I, December 19, 1990, p. 2746; 42 International Digest of Health Legislation 60 [1991]).

The Independent, October 25, 1990, p. 9; The Times, October 25, 1990; The Reuter Library Report, October 24, 1990.

Law on the Amendment of the Adoption Arrangements Law (Bundesgesetzblatt, Part I, November 30, 1989, p. 2016; 42 International Digest of Health Legislation 35 [1991]).

See Robertson J.A. , “Embryo Research”, 24 The University of Western Ontario Law Review 15 (1986); 14 Law, Medicine & Health Care 113 and ff. (1986).