The outbreak of COVID-19 brought into sharp relief the well-known tensions between individual rights and freedoms and the protection of public health. The area of reproductive rights constitutes one of the most striking examples of these tensions.

The devastating consequences of COVID-19 on sexual and reproductive health
Amidst the economic uncertainties, rising sexual violence and limited access to contraception that have occurred during the coronavirus pandemic, access to reproductive health services has become all the more important. At the start of the pandemic, Marie Stopes International predicted that as many as 9.5 million women were at risk of losing access to such services as a direct result of the pandemic. The World Health Organization (WHO) estimated that ‘even a 10% reduction in these services could result in an estimated 15 million unintended pregnancies, 3.3 million unsafe abortions and 29,000 additional maternal deaths during the next 12 months’.

Studies have found that restrictions imposed on the movement of persons and goods both domestically and internationally, introduced to protect public health, curtailed reproductive rights. In particular, public health restrictions limited the ability to access information and advice concerning abortion, attend appointments at abortion clinics, and receive and administer abortion pills at home. Some clinics had to close or limit the number of procedures they provided because of lockdowns and staff illness or quarantine. This meant that many women had to travel long distances to access services. In addition, women with COVID-19 symptoms or suspected of COVID-19 could not access time-sensitive abortion services. At the same time, according to a wide-ranging study conducted at the beginning of the pandemic:

none of the surveyed countries expanded the legal gestational age limit for abortions (including the 16 countries permitting elective abortions only up to 12 weeks or less) and none of the 12 surveyed countries requiring mandatory waiting periods officially lifted this regulation.

In other words, there is ample evidence that COVID-19 has exacerbated the existing legal, socio-economic and geographical barriers to accessing abortion services and created new ones, with restrictions having a disproportionate effect on persons from disadvantaged backgrounds.

Exacerbating existing trends
However, new barriers to access abortion services are not the only consequence of the SARS-CoV-2 outbreak. Crucially for any future analysis of the law making process during the pandemic, policy and legislative trends visible before its outbreak have been intensified. To be precise, some governments seized the opportunity created by COVID-19 to accelerate their long-term policies and agendas concerning reproductive rights.

On the one hand, in some countries, we have seen further retrenchment of reproductive rights (although in most of these countries, the courts either blocked such changes or restored the pre-COVID-19 legal or regulatory situation). For example, in the USA , in states like Alabama, Arkansas, Iowa, Louisiana, Ohio, Tennessee, Texas and West Virginia, ultra-conservative anti-abortion politicians categorised abortion services as non-essential, banning abortion clinics from performing what they defined as elective surgical procedures. A temporary suspension for similar reasons took place in Hungary, where the government is pursuing an increasingly conservative agenda in the field of reproductive rights. In Brazil the Federal Board of Medicine (CFM) and the Regional Boards of Medicine—professional regulatory bodies—used COVID-19 to issue professional guidelines, which in effect restricted access to abortion services. In Poland, the Constitutional Tribunal—controlled by a conservative government—seized the opportunity to issue a judgment (K 1/20) that to all intensive purposes banned abortion in Poland. The judgment rendered unconstitutional a provision of abortion law, which had allowed abortion on the grounds of fatal foetal abnormality. While the judgment was not directly related to the coronavirus, public authorities utilised COVID-19 restrictions to contain the mass protests that erupted after the announcement and the publication of the judgment.

On the other hand, in some parts of the world we could observe signs of liberalisation. For instance, in Great Britain, Ireland, France, South Africa and parts of the USA, abortion regulation was specifically relaxed in response to the challenges posed by the pandemic. Some states in the USA adopted special legislation to secure access to lawful abortion services. In the UK permission was granted for medical abortion to be administered at home, although there is a risk that these changes might be reversed. Furthermore, the UK government granted new powers to force Northern Ireland to speed up and enhance access to abortion services, lawful since 2019. Finally, apex courts and governments in Thailand and South Korea took steps to decriminalise abortion (up to a certain gestational limit).

One important reason why it was possible for some public authorities and professional bodies to restrict access to abortion services is that, despite decades of struggle, reproductive rights are still too rarely considered as part of human rights. None of the international human rights organisations or adjudicative bodies has expressly acknowledged the right to abortion as a basic human right, although some came close to such pronouncements. For instance, while the European Court of Human Rights has found violations of domestic abortion laws to amount to inhumane and degrading treatment breaching Article 3 of the European Convention on Human Rights, it has so far refused to recognise the right to abortion as part of the European human rights system.

At the same time, it is worth pointing out that most of the liberalising changes were accompanied by a paternalistic discourse (i.e., changes were allowed in order to protect women’s health and wellbeing, rather than their autonomy). When the decision-making power concerning reproduction remains in the hands of healthcare professionals, women’s personal autonomy and health can be positioned against each other. Viewing health and reproductive autonomy in such oppositional terms is obviously counterproductive. In this respect, it is crucial not to see reproductive rights as merely peripheral in discussions about the right to health and global or transnational health law and continue the in-depth analysis of the inherent relationship between civil and political rights and their socio-economic counterparts.

COVID-19 as a formative moment?
Paradoxically, the outbreak of COVID-19 has the potential to become a ‘formative moment’ in the development and institutionalisation of reproductive rights globally and transnationally. There are at least two reasons for this.

First, COVID-19 has exposed all the problems linked to the erosion of the welfare state and socio-economic rights and the impact of such erosion on personal freedoms. Health/healthcare has become a central driver for policy-making and legitimation (at least rhetorically) across different policy domains. Health/healthcare is now at the centre of our concerns and communications. We are witnessing an explosion of laws concerning the protection of public and individual health. For the first time, the Director-General of the WHO has spoken about the obligation of the state to guarantee access to safe abortions, rather than prevent unsafe abortions.

Second, restrictions imposed on abortion services in some countries mean that there is an increased need for transnational abortion services. This increased movement of goods, persons and services could, in turn, lead to the development of new regulations concering reproductive rights at the transnational level. We can already observe the emergence of professional standards created by large transnational professional organisations like FIGO (International Federation of Gynaecologists and Obstetricians) and by small transnational NGOs (e.g., Abortion Without Borders). Importantly, transnational organisations delivering abortion services are showing a tendency towards formalisation of norms guiding their activities. A recent study of professional standards concerning abortion in times of COVID-19 observed a convergence of ‘consensus statements and recommendations that there should be access to sexual and reproductive health services, including safe abortion care during the COVID-19 pandemic with the concerted effort of service re-organization’.

It is possible that these emerging principles and structures will develop and formalise further and become part of a Transnational Reproductive Health Law ‘constitution’. The human rights community should make sure that human rights are integral to any such development and its implementation.

Cite as: Krajewska, Atina. "Reproductive Rights in Times of COVID-19", GC Human Rights Preparedness, 29 July 2021, https://gchumanrights.org/preparedness/article-on/reproductive-rights-in-times-of-covid-19.html