Introduction
Past global health emergencies show that access to safe abortion can be negatively
impacted during crises.
1
While states’ COVID-19 responses are still evolving, increasing burdens on health
systems are likely to substantially reduce abortion access.
2
As providers become infected, clinics providing abortion in some countries have already
closed down. Lockdown and quarantine orders restricting movement may also exacerbate
the harm of existing abortion restrictions that require multiple clinic visits, such
as mandatory waiting periods, and increase women’s
†
risk of COVID-19 infection, as well as impede confidentiality and disrupt supply-chains
for abortion medication.
Yet abortion services are more essential now than ever. Preliminary reports indicate
that states’ COVID-19 responses may lead to increased unintended and unwanted pregnancies
due to quickly diminishing contraceptive supplies, increased incidence of domestic
violence, and rising income insecurity. Compelling continuation of unwanted pregnancies
is recognised as a human rights violation in several circumstances, including where
there are foreseeable physical or mental health impacts for pregnant persons. Further,
pregnancy carries heightened risks during crises and COVID-19 may create new barriers
to pregnancy-related care.
3
Abortion is a time-sensitive service, with delays and denials leading to unsafe abortions.
Evidence shows that where abortion is restricted or safe abortion is unavailable,
people turn to other, often unsafe means to end their pregnancies, such as ingesting
herbal concoctions or medications from unknown sources. Some countries are recognising
this risk and have started allowing remote consultation with patients seeking abortions
during the COVID-19 pandemic, such as in Ireland, England, and France. Scotland now
permits home use of mifepristone and misoprostol. Medical societies and advocates
including in India and Brazil are seeking similar clarifications. This aligns with
World Health Organization (WHO) guidance which confirms that self-managed abortion
is safe if pregnant individuals have information on effective protocols and access
to follow up health care if needed.
4
,p.xviii
Conversely, some US law and policy-makers are working to effectively ban abortion,
under the cover of the COVID-19 pandemic, by misleadingly categorising abortion as
“non-essential” and not “medically necessary” care. Courts in the US and the Netherlands
have had mixed responses to petitions to safeguard abortion access during this time.
Further, many governments are remaining silent on how the health system should prioritise
abortion at this time, leading to shrinking access as resources are reallocated and
providers are quarantined.
Incorporating measures to ensure safe abortion services into state pandemic responses
and eliminating barriers to abortion is not just a matter of harm reduction – it is
a human rights imperative. States have a duty to ensure that individuals do not have
to undertake unsafe abortions when faced with a pregnancy that is unwanted and/or
threatens their life or health.
5,
‡
These obligations are not waived in times of crisis; in fact, they become more pressing.
Enabling self-managed abortion by guaranteeing access to medications and telemedicine
counselling and ensuring women are not criminalised for inducing their own abortions
could be a critical step towards fulfilling states’ binding human rights obligations
and avoiding preventable abortion complications, including during the COVID-19 crisis.
6
State obligations to ensure abortion access during COVID-19
International human rights law explicitly recognises the rights to sexual and reproductive
health and bodily autonomy. These rights give rise to positive state obligations to
ensure abortion-related information and services and to remove medically unnecessary
barriers that deny practical access.
7
,p.12–14 Introducing additional barriers to abortion and/or failing to ensure abortion
access during the COVID-19 pandemic contravenes UN treaty bodies’ consistent critique
of states’ denial of safe abortion services, and recommendations that states both
refrain from introducing new barriers and eliminate existing barriers to abortion.
States’ international human rights obligations to respect, protect and fulfil the
rights to health, life and non-discrimination, among other rights, are not suspended
in times of crisis. Measures to prevent unsafe abortion and to ensure access to critical
sexual and reproductive health services, including abortion services, are non-derogable
core obligations of states, even in emergencies. Fulfilling this core obligation requires
repealing laws and policies that criminalise, obstruct or undermine access to sexual
and reproductive services; guaranteeing universal access to services; and preventing
unsafe abortions.
8
,
9
Meeting these core obligations is essential and mandatory in the time of COVID-19.
Under international human rights law, states must mitigate any discriminatory impacts
of their emergency responses, including concerning women’s health. While states are
permitted and, at times, required, to take extraordinary measures during public health
crises, they do not have free reign to restrict rights, nor do they fully relinquish
their binding legal obligations. As affirmed by the Siracusa Principles
10
and the UN Human Rights Committee,
11
any public health measures taken that limit individuals’ rights and freedoms must
be lawful, necessary, and proportionate, and cannot have a discriminatory impact on
specific persons or marginalised groups.
Restricting abortion access as a response to COVID-19 violates states’ human rights
obligations during crises. Failing to ensure abortion access, a core component of
guaranteeing people’s health and well-being, has a disparate impact on those with
low or no incomes and/or who lack housing, migrants, refugees, people with disabilities
and adolescents, and compelling pregnancy worsens health outcomes, particularly in
the context of COVID-19. Further, abortion restrictions discriminate against women
more broadly by compelling pregnancy, thus eliminating their bodily autonomy, and
worsening their health by increasing unsafe abortion.
Additionally, given the time sensitivity of abortion and the health risks at stake,
prohibiting access to abortion is a disproportionate response. Abortion must, therefore,
be considered an essential medical service and made available at this time. Along
these lines, WHO has explicitly classified reproductive health care as an essential
health service that must be accorded high priority in COVID-19 response.
12
WHO’s Model List of Essential Medicines includes the active drugs for medical abortion,
misoprostol and mifepristone, which human rights bodies have recognised states are
obligated to ensure.
Given states’ international legal obligations to ensure abortion access, even during
crises, governments’ COVID-19 planning must integrate abortion care from the outset.
States cannot simply refrain from passing restrictive policies, but rather should
introduce bold, innovative measures to maintain and expand access in accordance with
human rights. Additionally, states must prioritise critical measures that fulfil their
legal obligations while also lessening demands on facility-based resources, reducing
women’s exposure to coronavirus, and increasing abortion safety. WHO recognises that
self-managed abortion can “help to triage care, leading to a more optimal use of health-care
resources”,
4
,p.68 as well as the empowering role self-managed abortion can play, which is vital
to restoring power and dignity during a period when women are otherwise facing higher
levels of discrimination. States could facilitate self-managed medical abortion via
telemedicine by waiving requirements that entail one or more clinic visits, including
mandatory waiting periods; removing bans on telemedicine abortion counselling or mail
delivery of abortion medications; and removing or suspending criminal penalties for
self-managed abortions.
State responses that have facilitated access to self-managed abortion are important
measures that can increase compliance with human rights obligations. States must implement
similarly evidence-based and transformative solutions to ensure abortion access for
those who need/prefer surgical abortion, or those who do not have autonomy or structural
support to undertake self-managed abortion. Abortion must also be guaranteed where
health and technology systems may not be able to support telemedicine abortion. States
must further anticipate and confront medication shortages due to disrupted supply-chains.
Other crucial steps include ensuring that telemedicine and other abortion services
are available free or at low cost and to marginalised groups.
Conclusion
As states move to halt the devastation of COVID-19, women’s right to safe abortion
must not be forgotten. With reducing contraceptive supplies, overburdened health systems,
job losses, and increasing risks of violence, women must be able to prevent and/or
manage unwanted pregnancies, not only for their own health and well-being, but also
to support effective public health responses to prevent and treat COVID-19. The pandemic
has placed a spotlight on the ways in which existing legal frameworks – even in countries
with “liberal” abortion laws – continue to undermine access to this essential health
service by failing to recognise the safety of medical abortion, including through
telemedicine. Permitting women to undertake safe self-managed abortion with telemedicine
counselling, is not simply about harm reduction; it is a human rights imperative and
would also be a critical step toward complying with states’ binding international
legal obligations.