Abortion Law Reform 2020: Where, How and Why

by | Jun 28, 2021

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About Gauri Pillai

Gauri is a DPhil candidate, with the Faculty of Law, University of Oxford. Her research focuses on theorising reproductive rights within constitutional law in India. Her research is supervised by Professor Sandra Fredman. She was awarded the Alaine Locke Studentship (Hertford College, University of Oxford) in 2020 and the Rhodes Scholarship in 2017. Prior to the DPhil, she read for the Bachelor of Civil Law at the University of Oxford, and the BA LLB (Hons.) at the West Bengal National University of Juridical Sciences. She is Editor of the Oxford Human Rights Hub Blog, Associate Editor with the Indian Law Review and was Co-Chairperson of the Oxford Pro Bono Publico (2018-19). She has worked closely with the World Health Organisation and the United Nations Office for the High Commissioner of Human Rights on ‘Shaping the Future of Reproductive Rights’, a documentary series exploring how the language of human rights can be used as a tool for reproductive justice. Her broad research interests are in discrimination law, constitutional law, comparative human rights law and feminist legal theory.

Abortion Law Reform 2020: Where, How and Why is a blog series by the Oxford Human Rights Hub which examines the process of legal change in six countries where significant reforms in abortions laws were introduced in 2020.

There has been a proliferation of literature on the intersection between legal mobilisation and social change, with a specific focus on the actors driving legal change. Abortion law reform brings to the fore questions such as ‘what is the role of courts in structural change?’ or ‘what is the division between political and human rights claims?’ which have been at the centre of these debates. Some authors herald legal mobilisation as achieving ‘wider collective objectives’ by exerting pressure through law. Others argue that the law more generally, or rights more specifically, in isolation, often fail to produce meaningful changes in the social reality. Some highlight the difficulty in precisely evaluating the effects of new legislation or judicial interpretation on society, terming it ‘naive’ to expect that legal change will directly and simplistically translate into predictable social changes. Others narrow in on the role of different actors involved in legal change: courts, legislature, social movements, and civil society. Some point to the crucial role of courts as drivers of legal and social change while acknowledging the challenges involved in litigation. Others critique the judicial role, arguing that courts merely offer a form of ‘hollow hope’. Yet others point to the non-democratic nature of courts, and their limitations especially in deciding divisive social issues like abortion. These authors highlight the risk of backlash in response to a judicial decision, impeding both further legal reform and the social effect of any legal change that might be introduced. Some authors see the law as involving ‘diverse and often contradictory’ legislation, judicial decisions and administration, with advances in one area being thwarted by setbacks in another. Other authors highlight the central role played by social movements, in conjunction with traditional legal actors like courts and the legislature, in bringing in legal, and consequently social, change.

Set against this literature, this blog series explores how the reform in abortion law came about in the six countries under study: India, Northern Ireland, Argentina, Poland, South Korea and New Zealand. These countries were chosen because their abortion laws underwent significant reform during 2020. While much has been written about the nature of legal changes brought in by the reform, the process of introducing the reform, and what the process says about the interaction between various actors in introducing legal and social change, remains under-explored. The series aims to fill this gap by looking closely at the actors involved—courts, the legislature, social movements—in initiating the legal reform, and how they worked together, or in some cases against each other, to bring about the reform.

Through this, the series allows readers to draw conclusions about how some fora worked better in certain countries and why. This offers helpful comparative insights on strategies for change to those considering abortion law reform in their individual countries. The series also brings into conversation countries from the Global ‘North’ and ‘South’, tracing patterns—both similarities and divergences—in the manner in which the legal reform was eventually introduced in each country. The series therefore offers a platform for jurisdictions typically excluded from the global conversation on abortion. Finally, in setting out the roles played by various actors, the series underscores that traditional legal fora—like courts—may neither be the only option available, nor be the best or most effective one. Thus, using the example of abortion law reform in 2020, the series contributes to the burgeoning literature on legal mobilisation and social change, cogently illustrating the varying complementary and contradictory roles of the different actors involved in the process.

This post forms part of the Abortion Law Reform 2020: Where, How and Why blog series. 

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