The start of 2021 saw a surprising addition to countries progressively liberalizing their abortion laws: this January, abortion during the first 14 weeks of pregnancy became legal in Catholic Argentina. However, the country joins a global trend that has yet to gain momentum, given that 27 countries still prohibit abortion in all cases. And while the European Union has been taking the lead in supporting reproductive rights, this list of countries includes one of its member states.
In most EU countries, the right to abortion is granted on request or on broad social grounds, as is the case for Finland. While women’s rights to request abortion are usually confined to the first trimester of pregnancy, when health or life is at risk, abortions may also be permissible at a later stage. Poland and Malta, however, are the exceptions to this rule. Polish law dictates that only sexual assault or a serious risk to life or health may justify the termination of a pregnancy. This law has regularly experienced attempts for further restriction, the latest being executed in January 2021, just a few days after Argentina’s liberalized abortion law went into effect, replacing a law from 1921 that restricted abortion to cases of rape and serious health risks only. The sudden introduction of a near-total ban resulted in thousands of women taking to the streets and reopened the great divide among European lawmakers regarding reproductive rights.
Despite these recent developments, the one EU country among the 27 global hardliners is not Poland but Malta, where abortion is a crime that can lead to three years in prison. Before the Covid-19 pandemic, about 300 to 400 women per year were leaving the country to have abortions abroad, primarily in the UK with the help of the UK based Abortion Support Network (ASN), operating in Malta since 2019. Living isolated on an island, Maltese women were hit especially hard by international air travel restrictions. But neither rigorous laws nor the cancellation of international flights can erase women’s determination to take their bodily autonomy into their own hands. Because it is impossible to postpone abortions, women are increasingly turning to remote abortion, and Malta is a hotspot for this procedure.
What does EU law say?
Even before the pandemic, ordering abortion pills – mifepristone and misoprostol – online had become increasingly popular among women in countries lacking legal termination services as an alternative to travelling and undergoing dangerous procedures to end the pregnancy outside of approved methods. The abortion pills purchasable on prescription by a doctor residing in another EU country are safe and effective. Being remotely accompanied by a doctor throughout the procedure, abortion via telemedicine is thus not so different from medical terminations – to be distinguished from surgical terminations that require in-patient clinical access. But is it legal?
Providing cross-boundary abortions services within the EU is a sensitive political issue, but legally speaking, it is straightforward. In trade terms, domestic restrictions on such services are non-tariff barriers and thus must be reduced or eliminated under trade agreements, particularly under the Treaty on the Functioning of the EU (TFEU), one of the most comprehensive trade agreements. Additionally, both service providers and receivers are entitled to enforce their rights before courts under EU law. A health professional has a relatively high level of protection when providing a service in compliance with their domestic rules – and so does the patient requesting their services in another EU country, equipped with the enforceable right to receive such services.
Telemedicine, in particular, is covered by the e-Commerce Directive, adopted in 2000, and where the directive is not applicable, by Article 56 of the TFEU. Both specify that restrictions on cross-border services are only acceptable if required on the grounds of public interest. The European Court of Justice has been notoriously restrictive in interpreting any exceptions to free trade. First of all, EU law states that doctors of other EU countries are equally qualified as local health professionals. Should the protection of women’s health be brought forward, a state must be able to prove that domestic restrictions on abortion services are better suited to serve this purpose than abortion via telemedicine. Given the safety and effectiveness of providers such as Women on Web (WoW) and the risks of alternative, self-managed procedures, evidence supports the decreased health risk of offering remote services. Furthermore, arguing based on the protection of the fetus is likely to be similarly unfruitful since all EU countries restrict abortion procedures to the earlier months of pregnancy. Finally, enforceable human rights for pregnant women seeking dignity, autonomy, and freedom from degrading treatment may also come into play.
A Semi-promising Solution
Between March 2020 and March 2021, WoW confirmed having shipped over 220 abortion pill kits to women in Malta. The number of pills ordered from the Netherlands-based online platform in April 2020 was almost twice as high as in February that year. For Maltese women, services like those provided by networks such as WoW remain the only possibility to terminate unwanted pregnancies. But the demand for abortion by telemedicine also saw an increase in other EU countries that had restricted domestic travel and clinics’ businesses. Those who do not take advantage of telemedicine choose illegal pills or other methods to induce a miscarriage. Accordingly, Malta’s only public acute hospital reported an increase of women seeking help after failed miscarriages, which often lead to the abnormal deliveries. Furthermore, the health risk from illegal abortion pills is increased by women giving false information to doctors in the emergency department out of the fear of repercussions.
Although any litigation would expose the court to new terrain and may entail a long and cost-intensive legal process, EU law allows both patients and doctors to challenge non-tariff barriers that aim to restrict importing abortion pills. And their prospects are good: there is no sign that the EU will stop supporting the trend toward more liberal abortion laws and as far as telemedicine is concerned, it is one of European Commission President Ursula von der Leyen’s declared goals to further develop the “digital single market”.
Executing an abortion via telemedicine has clear advantages compared to travelling to an abortion clinic abroad, even in non-pandemic times. Pregnant women’s physical, emotional, and financial well-being suffer when they take on the burden of medical tourism. Accordingly, an Austrian court recognized the work of WoW for its contribution to women’s health and survival in a case revolving around an Austrian doctor prescribing abortion pills to Irish women in 2012. Nevertheless, turning to doctors abroad for medical assistance will always be a last resort. Forcing women to seek such help remotely deprives women of the option to terminate surgically, and their right to exercise bodily autonomy without the fear of blame or punishment.
Edited by Debanwita Paul; Photo Credits to Anna Shvets, Pexels