Abortion Anarchy? The Case for Abortion Decriminalization

Abstract

For most of the last 35 years, Canada has stood alone as a global exception to the criminalization of abortion. Following the 1988 Supreme Court decision in R. v. Morgentaler, which deemed the existing federal abortion law unconstitutional, Canada has operated without criminal restrictions on abortion. Despite the distinctive nature of Canada's approach, there is a dearth of scholarly work that has explicitly traced the process through which abortion decriminalization materialized and offered an in-depth examination of its effectiveness. This paper aims to address this gap in two ways. First, it traces the process through which abortion decriminalization emerged in Canada, which resulted from a combination of context-specific circumstances and sociopolitical factors. Second, it argues that while Canada's pathway to abortion decriminalization is distinct and may not be directly transferable to other contexts, there are nonetheless insights to be drawn from the Canadian experience. The promise of abortion decriminalization, as both a governance and advocacy framework, lies in its efficacy, its ability to navigate constraints of the law, and its strategic and symbolic advantages.

Abortion continues to be the focal point of intense political debate and stringent legal oversight (Mullally and Murray, 2016). Across virtually every country, the decision-making power over abortion rests with politicians and its regulation falls within the domain of criminal or penal codes. Even in places where abortion care is largely permitted and supported by both public opinion and public institutions, there are still criminal statutes that establish the permissible boundaries regarding who can access abortion, where it can be performed, when it is deemed acceptable, and how it should be carried out (Assis and Erdman, 2022, 2235). This article challenges this established paradigm by asking: what would it mean to move beyond the law and completely decriminalize abortion?

We approach this question through a normative case study of Canadian abortion decriminalization. ¹ For most of the last 35 years, Canada has stood alone as an exception to the global trend of the criminal regulation of abortion. ² Following the 1988 Supreme Court decision in R. v. Morgentaler, which deemed the existing federal abortion law unconstitutional, Canada has existed in a unique context where there is no specific abortion law. Instead, regulations pertaining to abortion align primarily with healthcare frameworks, akin to regulations for procedures such as vasectomies, ectopic pregnancies, or treatments for a ruptured appendix (Shaw and Norman, 2020). In this way, abortion is not subject to criminal law but is publicly funded and regulated through standard accreditation processes overseen by self-regulatory bodies responsible for physician oversight. This places Canada as a significant global outlier in terms of abortion governance.

Despite the distinctive nature of Canada's approach, there is a dearth of scholarly work that has explicitly traced the process through which abortion decriminalization materialized and offered an in-depth examination of its effectiveness. ³ While existing research on abortion has focused on aspects such as its morality (Thomson, 1971; Greasly, 2017), historical context (Hildebrandt, 2015; Muldoon, 2021), accessibility (Sethna and David, 2019), and the legislative, judicial, and activist dimensions of the abortion debate in Canada (Erdman, 2017b; Brodie et al., 1992; Saurette and Gordon, 2016; Johnstone and Macfarlane, 2015), less attention has been given to exploring the potential of Canada's nonlegal avenues for abortion regulation. This paper aims to address this gap in two ways. First, it traces the process through which abortion decriminalization emerged in Canada, which resulted from a combination of context-specific circumstances and sociopolitical factors. Second, it argues that while Canada's pathway to abortion decriminalization is distinct and may not be directly transferable to other contexts, there are nonetheless insights to be drawn from the Canadian experience. The promise of abortion decriminalization, as both a governance and advocacy framework, lies in its efficacy, its ability to navigate constraints of the law, and its strategic and symbolic advantages.

In making this argument, the article is structured in four parts. The first section outlines our approach to the case study of Canadian abortion decriminalization. The second section delves into the Canadian case of abortion decriminalization, tracing both the process through which abortion decriminalization appeared and the contextual factors that help explain its durability. The third section considers what lessons can be drawn from the Canadian case—proposing a two-pronged framework for abortion decriminalization and surveying its main limitations and advantages. The fourth section concludes by highlighting the workability of abortion decriminalization, arguing that while there are limits to the framework, abortion decriminalization can serve as a productive minimum threshold and model for abortion advocacy and governance in other countries.

The Value of Normative Case Studies

Social scientists have traditionally given two overlapping justifications for the use of case studies: first, this approach can help to identify causal relationships, and second, case studies can help in the more interpretive work of understanding the worldviews of the people they study (Thacher, 2006, 1631). A less prominent approach, however, is what Thacher (2006, 1632) has referred to as “the normative case study,” which explicitly aims to “contribute to our understanding of important public values.” The underlying premise of the normative case study is that a deeper understanding of values and ideals can be achieved by reflecting on real-life cases. Unlike causal and interpretive case studies, its primary aim is not to explain causal relationships and worldviews but rather to enrich normative theory. In this way, normative case studies adopt a committed pose, seeking to persuade readers to reconsider their approaches and values. Rooted in what Flyvbjerg terms “phronetic social science,” it delves into the exploration of “things that are good or bad for [humankind]” through the analysis of specific cases (2001, 57). It is this approach which grounds our case for abortion decriminalization.

In the case for abortion decriminalization, the advantages of the normative case study are two-fold. First, normative case studies are beneficial for policy-oriented research. Contrary to the misconception that policy experts are solely technical specialists focused on instrumental knowledge development, an equally important aspect of policy expertise lies in establishing criteria for defining public objectives. Thus, a normative case study of Canadian abortion decriminalization can assist professional and political decision-makers in clarifying, expanding, or even fundamentally reconsidering approaches to abortion law. The second advantage of normative case studies is their ability to uncover unforeseen situations and prompt a reassessment of deeply held ideals. We argue that examining abortion decriminalization in Canada, both as a normative ideal and a practical approach, has the potential to challenge the commitment of abortion advocates to use the law to achieve the aims of reproductive justice. Instead of adhering to what Assis and Erdman (2022) call the “medico-legal paradigm,” which assumes regulated legal control is the best avenue through which safe and accessible abortion care can be achieved, the Canadian experience provides a different and potentially more valuable avenue for realizing reproductive rights and justice outside the law.

Our focus is on the single case of Canada. This decision is methodologically justifiable given that Canada is the only country where abortion has been fully decriminalized for an extended period (more than three decades). Single case studies also offer several merits of their own: they afford an opportunity for the thorough examination of particular phenomena, they are valuable to recognize context-specific factors, and they are especially beneficial for exploring novel and relatively unexplored areas of inquiry (like the merits of abortion decriminalization). In line with Thacher's approach to normative case studies (2006), we combine empirical and normative analyses. Empirically, our case study is grounded in the process tracing of the sequence of events, decisions, and contextual factors that led not only to the complete decriminalization of abortion in Canada but also to the emergence of broad public and political support in its favor (Collier, 2011). From a normative perspective, we begin from the fundamental premise that safe, easy, and decriminalized access to abortion care is a moral and public good that promotes individual autonomy, gender equality, public and community health, and reproductive freedom and justice (Luna and Luker, 2013). At the center of our approach, then, is a normative claim: that decriminalizing abortion is a desirable avenue through which the tenets of reproductive freedom can be achieved.

The Curious Case of Abortion Decriminalization in Canada

Canada's status as the first (and for a long time only) country to fully decriminalize abortion was not inevitable. The decriminalization of abortion was neither a deliberate policy nor the result of activist recommendations; rather, until the late 1980s, the trajectory of Canada's abortion history mirrored that of many other countries, with abortion remaining legally regulated but experiencing a relaxation of laws and enforcement over time. The full decriminalization of abortion was never a central objective of the Canadian abortion rights movement (Muldoon, 2021). In contrast to traditional policy processes that stem from explicit policy formulation, social movement advocacy, or legislative debates, abortion decriminalization unfolded almost unintentionally and, perhaps for that reason, has been underacknowledged. Today, Canada's unique stance on abortion remains underdiscussed in public debates and academic research, which usually highlights ongoing access issues (Sethna and Doull, 2013) and critiques of abortion reform and the Morgentaler decision (Majury, 2002). Indeed, in our combined experiences of researching and teaching abortion politics for the past decade, it is evident that journalists, academics, students, and even policymakers are generally unaware that abortion is entirely decriminalized in Canada. The realization that Canada lacks any abortion law is most often met with a combination of astonishment and unease, even among those who are acquainted with other facets of Canadian politics (see, e.g. CBC News, 2022).

In this section, we trace the series of events that led to the decriminalization of abortion in Canada. We propose that three critical junctures, which transpired between 1969 and 1991, led Canada to the inadvertent decriminalization of abortion and the political and societal solidification of this path. However, as we will observe, the progression of this process did not assure its lasting effectiveness; in some ways, abortion decriminalization is still precarious in Canada. Rather, we argue that two additional contextual factors play a significant role in contributing to its enduring durability: (1) widespread support for legal, accessible abortion and (2) the nature of Canadian political institutions.

Critical juncture #1: Canada’s 1969 abortion reform and the medicalization of abortion

The story of abortion decriminalization begins with what former Justice Minister John Turner called the “most important and all-embracing reform of the criminal and penal law ever attempted at one time in this country” (Canada, 1969). In 1969, Pierre Trudeau's Liberal government tabled a landmark omnibus bill that marked a significant turning point in Canadian social policy. The bill, officially known as the Criminal Law Amendment Act, fully legalized contraception and partially legalized homosexuality and abortion, reflecting Trudeau's commitment to liberalizing societal norms and promoting individual freedoms. As Trudeau famously justified the bill at the time: “there's no place for the state in the bedrooms of the nation.”

While the omnibus bill aimed to modernize Canada's legal framework by addressing various issues within criminal law, its most significant and contentious impact was the introduction of a new abortion law—Section 251 of the Criminal Code. Prior to 1969, abortion in Canada was completely prohibited under criminal law (Haussman, 2022). Consequently, Section 251 legalized abortion in Canada for the first time, albeit with tight regulation imposed through both legal and medical constraints: it specifically allowed for hospital-based abortion care conducted by a physician, contingent on the approval of a “therapeutic abortion committee,” consisting of three doctors who deemed the procedure necessary to protect the life or health of the pregnant woman. This did not so much liberalize access to abortion care as it “legally sanctioned the status quo” (Erdman, 2017, 232). As one physician put it, it “end[ed] our lives as lawbreakers” (quoted in deValk, 1974, 43). In this way, Canada's new abortion law was a far cry from full decriminalization. Even so, the nature of this reform set Canada on a path that would prove pivotal in the abortion decriminalization to come in at least two ways.

First, unlike other countries, where changes in the regulation of abortion came about rather suddenly (see, e.g. Rebouché and Ziegler, 2023; Sutton and Vacarezza, 2021), the approach undertaken by Pierre Trudeau's government in 1969 was intentionally gradual (Vachon, 2022). Section 251 did not fully legalize abortion, and neither did it constitutionally guarantee a right to abortion; rather, it effectively replaced judicial control after the fact with medical control before the fact in a way that attempted to “create a compromise solution to the abortion controversy” (Muldoon, 2021, 173). Arguably, the gradual nature of abortion reform meant that the Canadian public had much longer time to acclimatize to the idea of more liberalized abortion access. Indeed, between 1969 and 1988, the year that effectively marked the full decriminalization of abortion, there was substantial movement in terms of increased public support for abortion care (Brodie et al., 1992).

Second, while Section 251 undoubtedly liberalized the abortion law, it did so in a highly medicalized fashion by placing the (largely male) medical community as the new “gatekeepers for abortions” (Muldoon, 2021, 183). This meant that women did not gain individual or collective rights to abortion in theory or in practice; rather, they gained the right to seek permission for an abortion from a committee of medical authorities. This medicalized orientation had a profound influence in shaping abortion politics over the next two decades. Instead of being centered around women's reproductive health or their status as rights-bearing citizens, the mainstream debate over abortion reform was primarily focused on the actions of doctors. Although this medicalized discourse would later be challenged by the feminist movement for its constraints on women (Brodie et al., 1992), it had the effect of drawing physicians into the fight for abortion rights and, in large part, framing abortion care as healthcare. Unlike other places, where feminist movements spearheaded legal challenges for abortion rights, physicians played a comparatively outsized role in challenging Canada's abortion law. Indeed, it would be figures like Dr Henry Morgentaler who would come to lead the most significant legal challenges against Canada's restrictive abortion law. The medicalized nature of Canada's 1969 abortion reform not only made doctors responsible for the management of abortion care, it also drew them into the struggle against Canada's abortion laws. ⁴

Critical juncture #2: Dr Henry Morgentaler and the charter of rights and freedoms

The genesis of the Morgentaler decision—which struck down Section 251 of Canadas Criminal Code as unconstitutional in 1988—can be directly traced back to two events: a 20-year civil disobedience campaign led by Dr Henry Morgentaler and the passing of the Charter of Rights and Freedom in 1982. In the early 1970s, Montreal-based Dr Morgentaler launched his campaign by publicly announcing that he had performed thousands of abortions in direct violation of the law. Morgentaler's aim was explicit: to put the law on trial by inviting the state to prosecute his actions (Erdman, 2017b, 244). This invitation was accepted, leading to three court cases between 1970 and 1976, where the Quebec government took legal action against Morgentaler. In each case, Morgentaler invoked the “medical necessity” defense, securing acquittals from juries on every occasion (ibid). However, despite its effectiveness in Morgentaler's personal acquittals (for the most part ⁵ ), this defense proved insufficient in challenging the abortion law itself. When Morgentaler appeared before the Supreme Court for the first time in 1974, seeking to overturn Section 251, the Supreme Court rejected the notion that the then-Bill of Rights had the strength to overturn Canada's abortion law, ultimately voting 6-3 to uphold the law.

However, the political opportunity structure for Dr Morgentaler changed with the introduction of the Charter of Rights and Freedoms in 1982. The Charter, which was part of a broader constitutional reform, was designed to entrench the rights and freedoms of Canadians in Canada's constitution, encompassing principles such as security and equality. Importantly for Morgentaler, the Charter established new avenues of legal argumentation that were more robust than those contained in its weaker antecedent, the Bill of Rights, providing a new and potent tool to challenge discriminatory laws and practices (Majury, 2002). The Charter not only established a legal framework for individuals and groups to address rights violations, it also granted the judiciary a more active role in safeguarding those individual rights (Jackman and Major, 2005).

The enactment of the Charter was a game changer in the context of abortion law. Among the many important and constitutionally binding rights contained in the Charter, one of the most influential and relevant to the abortion debate was Section 7, which guarantees the right to life, liberty, and security of the person. Section 7 was especially important in the context of the debate over abortion as the Court began to interpret the Charter rights of individuals as disallowing a variety of governmental interventions that had previously been judged constitutional. This meant that when Dr Morgentaler and the abortion issue landed before the Supreme Court for a second time in 1988, most justices agreed that Section 251 endangered women's health by delaying or denying access to care in a manner disproportionate to any legitimate aim. Canada's abortion law, therefore, violated section 7 of the Charter. With this, Canada's abortion law was struck down, effectively creating the context of abortion decriminalization.

Critical juncture #3: A parliamentary failure and the political reluctance to relegislate abortion

When the Supreme Court struck down Canada's abortion law, the wording of the decision made it clear that the justices anticipated that the government would enact a new law. Following a period of controversial deliberation, Brian Mulroney's Progressive Conservative government finally obliged, tabling Bill C-43 as a legislative response on November 3, 1989. Bill C-43 placed abortion back in the Criminal Code, prohibiting all abortion care unless a doctor ruled a woman's life or health was threatened. Anyone found in violation of the law could be sentenced for up to two years in prison (Brodie, 1992, 98).

On May 29, 1990, Bill C-43 narrowly passed through the House of Commons by nine votes (140-131). While Mulroney intended Bill C-43 to serve as a compromise, neither side of the abortion debate found satisfaction with the new law and, even though the bill was still awaiting Senate approval, the House of Commons vote had immediate consequences. Uncertain about how Bill C-43 might affect them individually, doctors withdrew abortion services en masse, leading hospitals nationwide to reject women needing abortion care (Brodie, 1992, 98–108). In response, the Senate conducted two months of hearings before a free vote on January 31, 1991. Remarkably, the outcome resulted in a 43-43 tie, the first and only in Canadian history. According to Senate rules, a tie meant the defeat of Bill C-43, marking the first such defeat of a government bill in the upper chamber in 30 years (Tatalovitch, 1997, 94). Sensing the lukewarm support for Bill C-43, even among its own promoters, the conservative government announced it would not reintroduce new legislation on the issue (ibid).

What no one could have predicted at the time was that Bill C-43 would be the last abortion-related bill tabled by any sitting federal government, making Canada the first (and, for over 30 years, the only) jurisdiction in the world without an abortion law. Perhaps even more surprising is that, today, this status quo has come to be supported by both abortion rights organizations and the Canadian public (Action Canada, 2022). None of the three major federal political parties (the Liberals, Conservatives, and New Democrats) support reopening a debate over abortion law, a position that seems to be mirrored by the Canadian public (Dawson, 2022). While, in other countries, abortion politics have been marked by a seemingly perpetual series of legislative and court battles over the legality of abortion, in Canada, there has been no legal or political backtracking from the Morgentaler decision. On the contrary, Canada has experienced the entrenchment and gradual expansion of abortion-related access and funding (Shaw and Norman, 2020). ⁶

Contextual factors

These three critical junctures help us understand how abortion decriminalization materialized in Canada. However, there are important contextual factors that have also contributed to its ongoing viability. First, public support has consistently backed the legality and accessibility of abortion. Even before the 1969 abortion reform, a majority of Canadians (53%) were in favor of making abortion access easier (Tatalovitch, 1997, 109). By 1975, nearly three-quarters of those surveyed supported abortion when a woman's health was at risk. This sentiment grew so strong that by 1988, when the Supreme Court delivered the Morgentaler decision, 69% of Canadians believed that abortion decisions should strictly be between a woman and her doctor (Brodie, 1992, 60-1).

Public approval has only grown: a 2012 poll by Forum Research indicated that 60% of Canadians think abortion should be legal under all circumstances, with another 30% favoring legality in most situations (Forum Research, 2012). This suggests that nearly 90% of Canadians support some form of legal abortion, with only a small minority opposing it outright. Perhaps even more revealing, the same poll showed that these numbers are not significantly different among voters who identify as Conservative. More recent polling further highlights strong support for abortion by Canadians. Following the overturning of Roe v. Wade in the United States, a 2022 poll found that 72% of Canadians do not want the abortion debate reopened and 78% believe the federal government needs to pass laws to protect abortion rights. While these figures suggest some inconsistencies (probably at least in part due to a lack of public literacy about the reality of Canada's unique lack of abortion regulations), they undeniably point to extremely high levels of support for abortion (Dawson, 2022).

The second set of factors contributing to the enduring decriminalization of abortion in Canada is rooted in its political institutions. Research has underscored how the nation's political structure has influenced both the direction and sustainability of abortion decriminalization (Halfmann, 2011). For their part, Canadian political parties have acted more as “brokerage parties,” with even conservative parties shying away from politicizing abortion, focusing instead on broader electoral appeal and avoiding polarizing stances (Farney, 2012). This approach is likely influenced by the widespread public support for abortion and the limited role of religious ideology in party politics, which restrains anti-abortion elements within parties from dominating the policy agenda. Drew Halfmann (2011) has further illustrated the impact of judicial review combined with activism on Canadian abortion politics. Following the pivotal Morgentaler decision, social movements, particularly those advocating for women's rights, effectively used the established rights and health-based framework to mold public opinion and influence policy. These movements benefited from a political atmosphere occasionally receptive to progressive changes on reproductive matters. According to Halfmann, this interplay between judicial mechanisms and active social movements has shaped a policy approach that prioritizes health (via the medicalization of abortion) and rights (through judicial decisions), rather than focusing on criminalizing abortion through legislative means.

The Case for Abortion Decriminalization: Lessons from Canada

The above sections demonstrate how the decriminalization of abortion in Canada was a precarious development, narrowly secured through a tie vote in the Senate, making its existence somewhat accidental. The persistence of this status quo can largely be attributed to a combination of cultural and institutional factors, along with politicians’ ongoing hesitation to revisit abortion legislation. Long-standing political inaction has often been targeted by abortion rights advocates who argue that their efforts, particularly before the enactment of the Charter, were stifled by governmental reluctance to act decisively. As Majury (2002, 316) points out, the failure of governments to legislate in favor of a woman's right to choose abortion—despite widespread public support—highlights a significant disconnect and demonstrates “the ways in which our elected representatives and the institution of democracy have shown themselves [to be] remarkably undemocratic.” However, while it seems that politicians have shied away from legislating on abortion to avoid alienating voters on a once contentious issue (Majury, 2002, 317), the effects of this inaction may have also produced positive outcomes. In the following section, we propose the normative case for the Canadian model of abortion decriminalization as both an approach to regulating abortion and as an advocacy strategy.

The framework

Drawing on the Canadian experience, our framework for abortion decriminalization is founded on two objectives:

The complete removal of abortion from the realm of criminal law, which would mean repealing any existing criminal abortion laws, and

For abortion care to be treated like any other essential health issue in the medical realm, based on best practices guidelines, training and delivery. Here, we view the medical realm in a broad sense, one that would include pharmacists, nurses, nurse partitioners and midwives as essential deliverers of health and abortion care.

There are a few considerations to keep in mind concerning this approach to abortion decriminalization. First, we do not contend that decriminalization alone can ensure universal abortion rights and access. Rather, drawing from Elizabeth Romanis’ perspective (2023), our framework builds on the notion that emphasizing abortion access (in conjunction with rights) is more impactful than solely concentrating on rights and legal reform without ensuring access. Our framework of abortion decriminalization does not preclude the possibility of governments adopting proactive measures beyond criminal law to safeguard abortion rights and ensure equitable access to abortion care. Indeed, governments can approach abortion by incorporating it into their constitutional rights, as France did in 2024, or by offering comprehensive public health services, which several Canadian provinces have implemented since decriminalizing abortion in 1988. Ultimately, we do not envision abortion decriminalization as a panacea that guarantees abortion rights or access, but rather as a productive starting point and a minimum threshold for abortion governance.

Second, when we discuss the value of abortion decriminalization, we view it both as a method for regulating abortion and as a model for advocacy. From a regulatory perspective, decriminalization constitutes a fundamental paradigm shift, moving abortion from the realm of criminal law into that of public health frameworks and reimagining abortion not as an issue of criminal regulation but as a matter of public health. Such a theoretical shift introduces several advantages: it aligns with efforts to destigmatize and decriminalize abortion, invites us to reimagine abortion politics not merely as a criminal, rights-based, and/or private matter but as a public and collective concern, and fosters open discussions on reproductive rights and justice that include, but also hold the potential of going beyond, abortion care. Moreover, as we will elaborate below, while there are limits to implementing this framework in certain contexts, advocating for abortion decriminalization still presents advantages in contexts where its realization seems unlikely. Indeed, by challenging existing norms and laws that restrict abortion under punitive conditions, abortion decriminalization ultimately advocates for a theoretical revaluation of reproductive rights by not only reframing abortion as a healthcare issue but also by initiating broader sociopolitical dialogue about personal autonomy, gender equality, and human rights (Assis and Erdman, 2022).

Third, our model for abortion decriminalization is normatively and theoretically grounded in broader theories and activism associated with reproductive justice (Roberts, 2021; Luna, 2020; Luna and Luker, 2013). Central to reproductive justice theory and activism is a critique of how legal reforms in abortion regulation have been approached (Ross, 2020). Reproductive justice adopts an expansive social justice framework that includes integrating issues of race, class, gender, disability and economic inequality into the discourse on reproductive rights. Our stance on abortion decriminalization aligns with these theories, expressing skepticism toward the effectiveness of purely legal approaches in overcoming systemic barriers and transforming societal conditions that affect reproductive health. Theoretically, our approach to decriminalization aims to transcend merely securing legal protections; instead, it focuses on making abortion care tangibly accessible to all and underscores the necessity of confronting and correcting structural inequalities both within the legal system and broader society.

Finally, our framework for abortion decriminalization builds on other, more radical strands of abortion activism, particularly in the realm of self-managed abortion care (SMA). Over the past two decades, advancements in internet technology and the safety, effectiveness, and availability of medication abortion pills such as Misoprostol and Mifepristone have transformed the landscape of abortion provision. As Assis and Erdman (2021, 2236) highlight, the increasing visibility and accessibility of SMA not only meet the immediate needs of individuals but also challenge the fundamental principles of the medicolegal paradigm, particularly the notion that safe abortion can only be achieved through regulated systems of legal and medical control. This indicates that the provision of abortion care is already shifting away from the medicolegal paradigm toward the avenue of abortion decriminalization.

The limitations

To date, the scholarship that examines abortion decriminalization, especially in Canada, has overwhelmingly focused on its limitations. Fudge (1989), for instance, characterized the Morgentaler decision as a “narrow victory,” arguing that it failed to address the multitude of challenges preventing many women from accessing safe abortion. Majury (2002) is skeptical of the procedural focus of the section 7 analysis of Morgentaler, emphasizing that despite considerable discussion on access issues, there was a notable absence of references to the socioeconomic contexts influencing accessibility. Erdman (2017) and Johnstone (2017) have also examined the limits in Morgentaler's decriminalization of abortion, arguing that it has essentially legitimized the withdrawal of the state from abortion provision (particularly in the Maritime provinces), created space for the privatization of abortion care, and perpetuated enduring social inequalities in access. Indeed, as Baird (2017, 198) has highlighted in the Australian context, “while decriminalization may be a precondition for the improvement of access to abortion services, it is only when public health departments take responsibility that equitable access will be delivered.”

We are very much in agreement with these characterizations of the limitations of decriminalizing abortion. No model of abortion governance is perfect, and this is also true of abortion decriminalization. We see three significant limitations of abortion decriminalization. However, without minimizing these challenges, we stress that each of these concerns is either already present in systems where abortion is subject to criminal law and/or likely to be improved through decriminalization.

Limitation #1: Decriminalization can leave abortion rights vulnerable

The first limitation of abortion decriminalization concerns the possibility that it leaves abortion rights in a vulnerable and legally precarious position. Abortion decriminalization does not establish or protect abortion rights (although neither does it foreclose this possibility). It is, by nature, a negative action. In this way, it risks leaving abortion vulnerable to further legal encroachment. The extent to which this is a concern depends on social and political attitudes toward abortion and other protections in place, such as constitutional rights. In South Korea, for example, where decriminalization was a side effect of inaction by elected officials, there is ongoing concern about the quality of available care, which is primarily surgical, not yet guided by official clinical guidelines, often unfunded, highly stigmatized, and dependent on the consent of male partners (Moon et al., 2023). This pattern, to a much lesser extent, is also evident in Canada, where inequalities and barriers to access persist today, despite significant improvement over time (Shaw and Norman, 2020). Simply put, abortion decriminalization alone does not ensure equitable access to safe abortion care.

Limitation #2: The problem with treating abortion care as health care

Second, decriminalizing abortion means transferring control over access to the realm of healthcare. The effects of this move are inherently tied to the nature of the healthcare system and the terms under which regulation is transferred (Rebouché, 2016). For instance, Canada's model of socialized medicine, which most Canadians view as a right, meant that the reclassification of abortion as healthcare created new inroads for care that were ostensibly universally available, and entrenched a sense of entitlement to abortion services. But decriminalization also has the potential to simply download responsibility for abortion care to the private market, a move that does nothing to uphold the right to abortion and means that pregnant people only gain “the freedom to seek abortion as a private commodity in a newly decriminalized market” (Erdman, 2017b, 247). In a scenario where no funding is available, the ability to exercise the right to abortion is limited to those who can afford it (Luna, 2020). Decriminalization alone does not effectively tackle this issue.

A related risk of decriminalization is that classifying abortion as a healthcare concern rather than a legal one risks deradicalizing calls for access and depoliticizing abortion in ways that obscure the need for access. Erdman (2017, 253), for instance, argues that the Morgentaler decision had an unintentional moderating effect on the direction of Canadian abortion rights advocacy, which has largely focused on pursuing improvements within the existing system rather than pushing for larger systemic change. That is, activists saw such significant advances working within the healthcare system that they stopped pursuing more innovative approaches to access. While we recognize this as a cautionary tale, the actions of groups are not limited by the delivery of abortion through healthcare. Activists can shift their focus and agitate for change as they see fit.

Limitation #3: The potential backlash

Third, there are potential challenges to moving toward abortion decriminalization. In countries with strong opposition to abortion rights and highly restrictive laws, a more incremental approach, advocating for small accommodations within restrictive legal frameworks, may appear more practical and cautious. Indeed, there is evidence that even states in favor of decriminalizing abortion may struggle to divest themselves of the remnants of restrictive laws, fearing the negative effects and accompanying backlash of abruptly removing long held restrictions. For instance, in Australia and New Zealand, where abortion is now decriminalized, the shift from crime to health is constrained by two limitations: (1) gestational age (excluding the Australian Capital Territory) and (2) requirements for patient counseling or advising patients on available counseling services. These stipulations have “tethered decriminalized abortion to the era of criminalization” by implicating that those in need of abortion will “misuse access until birth” without criminal oversight (ibid., 440, 444). When we consider decriminalizing abortion in countries that may be, at least initially, more hostile to such recognitions, these changes also risk opening the door for new and potentially stricter forms of criminalization (Balfour, 2021, 69). Even in Canada, where the push for retrenchment was short-lived, it only failed by the narrowest of margins.

Of course, any major political change is likely to incite some degree of backlash. In the case of abortion, which continues to be highly contested in many parts of the world, we anticipate that this pushback will be significant. Even so, acquiescing to criminal restrictions to avoid such a response is unlikely to create pathways to meaningful change. Here, the Canadian case serves as an example of what is possible. Canada has demonstrated that the long-term regulation of abortion through healthcare is both safe and effective. Moreover, as addressed in the next section, decriminalization may also remove retaliatory pathways.

The promise

We must be mindful of these limitations as we assess the impact of abortion decriminalization, but, as we have stressed, it is important to consider these constraints within the broader context of legal approaches to regulating abortion. Notably, despite the global trend toward more lenient abortion laws, legal advancements alone have not ensured equitable access to abortion care. Perhaps the most powerful example of this can be observed in the United States, where permissive abortion laws and even constitutional protections for abortion rights have proven insufficient in ensuring comprehensive access to abortion care nationwide, a situation that existed even before the repeal of those constitutional protections in 2022 (Rebouché and Ziegler, 2023). In simple terms, the presence of criminal restrictions on abortion worsens both access and outcomes. Consequently, despite these limitations, the promise of abortion decriminalization outweighs its potential drawbacks.

Promise #1: Abortion decriminalization works

Perhaps the most obvious advantage to abortion decriminalization is that it works. As Shaw and Norman (2020) have shown, after three decades of decriminalization, Canada has demonstrated that safe and ethical abortion care can be effectively regulated within the framework of health care without the need for criminal law. Moreover, due to Canada's constitutional structure and division of responsibilities, in which criminal law falls under federal jurisdiction, provincial legislatures have not been significant sources of conflict or major contributors to abortion-related legislation. ⁷ Although some governments have attempted to block access through limitations on funding, most of those restrictions have since been struck down in court. Further, under the framework of decriminalization, several provinces have taken positive action to institutionalize pathways to abortion care, passing laws and regulations which improved the equitable distribution of abortion care. In the province of Quebec, for example, development and planning to ensure accessible surgical abortion care spans more than four decades (Masson, 2015). Similarly, both British Columbia and Ontario, to varying degrees, mandate hospitals to provide abortion care (Shaw and Norman, 2020). Recently, abortion care in Canada has also expanded in other ways that bring it more in line with emergent trends of SMA. Since 2017, the prescription of Mifepristone is governed similarly to other prescription medications, allowing any pharmacist to dispense Mifepristone to a patient, who can then choose when and where to take the medication. Medical abortion care is also being provided via telemedicine, enabling healthcare professionals in urban areas to assess and manage abortion provision in regions with no preexisting abortion services (Shaw and Norman, 2020). All these improvements occurred outside the realm of the law.

The model of abortion governance through decriminalization is also finding resonance and being adopted in other countries. For example, New Zealand implemented decriminalization through a federal act in 2020, ⁸ while Australia has seen a state-by-state incremental decriminalization process, starting with the Australian Capital Territory in 2002 and culminating with Western Australia's legislative change in 2023. South Korea's Constitutional Court removed criminal abortion bans in 2021 without replacement legislation, paralleling Canada's approach (Yoon, 2022). And, in 2023, the Mexican Supreme Court's unanimous decision to strike down criminal abortion laws awaits legislative ratification to effectuate change (Wright and Bayly, 2023). These developments demonstrate an evolving legal landscape that increasingly moves away from criminal law in the governance of abortion. Moreover, global health authorities such as the World Health Organization and the International Federation of Gynecology and Obstetrics (FIGO) have called for the decriminalization of abortion, citing it as conducive to evidence-based best practices and the reduction of stigma around abortion (WHO, 2023; FIGO, 2022). Such endorsements suggest that decriminalization is being recognized not merely as a legal necessity but as an effective and integral part of a worldwide public health initiative.

Promise #2: Abortion decriminalization can bypass the limits of the law

Although there are constraints associated with decriminalizing abortion, legal reform has its own limitations. While the law holds symbolic significance and can lead to shifts in the allocation of rights and resources, it also poses the risk of perpetuating violence (Smart, 1989; Brown, 1995). Even in the pursuit of abortion liberalization, legal measures can expose women and pregnant people to heightened levels of legal scrutiny and can subtly shape broader political conversations in manners that compromise bodily autonomy. Indeed, the criminalization of abortion consistently correlates with increased maternal morbidity and mortality (Faúndes and Shah, 2015, S57), and criminal restrictions have proven ineffective as deterrents (Berer, 2017, 14-15).

There is also a well-established correlation between the restrictiveness of a country's abortion law and its impact on abortion rates. Countries with less restrictive laws tend to have lower abortion rates: three to five times lower in places where abortion laws are broadly permissive and access is easy (Faúndes and Shah, 2015, S57). This is because, rather than addressing the need for abortion, criminal abortion laws tend to coincide with other discriminatory practices, such as restrictions on birth control and a lack of sex education, intensifying inequality and fueling the demand for access. Moreover, like other areas of criminal law, when abortion prohibitions are criminally enforced, they tend to be enforced in ways that are highly discriminatory. For instance, even prior to the Dobbs decision that overturned the constitutional right to abortion in the United States in 2022, prosecutorial discretion resulted in a pattern of selectively enforcing abortion-related laws concerning miscarriages, stillbirths or perceived risks during pregnancy. Notably, between 1973 and 2005, the National Advocates for Pregnant Women identified 413 such cases, with a disproportionate number of poor people of color, particularly Black pregnant women, being subjected to these prosecutions (Paltrow and Flavin, 2013). Given the significant limitation of the law, we view the Canadian model of abortion decriminalization as a potential avenue to mitigate some of the harms imposed on pregnant people by criminal abortion laws.

Promise #3: Abortion decriminalization provides strategic benefits

In the context of Canada, there are good reasons to believe that the lack of an abortion law has provided strategic benefits to abortion advocates. While activists in other counties have focused their efforts both on establishing and protecting the right to abortion, an expensive endeavor that includes challenging criminal restrictions, Canadian abortion advocates have not had to allocate comparable resources or efforts to these areas. For instance, when the Morgentaler decision came down in 1988, activists simply claimed it as a victory for abortion rights. In doing so, the language of rights recognition so permeated the movement that many believe the Morgentaler decision actually did affirm a right to abortion (it did not explicitly do so, but the Supreme Court was also not asked to consider whether a right to abortion exists under the Charter). This belief has become so entrenched that even Prime Minister Justin Trudeau has affirmed that “[e]very woman in Canada has a right to a safe and legal abortion” (Dummitt and Sethna, 2020). In this way, the political void has been filled by activist language, and the need to further affirm this right, now deeply held by most Canadians, is less animating for the movement. Instead, activists have focused their strategic energies on the practical objective of ensuring actual access to abortion care for all people (Muldoon, 2021).

From a strategic vantage point, decriminalizing abortion in Canada also had the unexpected effect of diminishing the influence of the antiabortion movement. This can be observed by examining how formal protections for abortion can act as a lightning rod for opposition from antiabortion groups. To return to the American example, prior to the landmark Roe v. Wade (1973) ruling that legalized abortion, the country had no stand-alone, unified antiabortion movement. Abortion had been illegal for a century; there was no need for one. However, the Roe v. Wade decision ignited a strong and organized opposition among opponents of legal abortion. In many ways, the decision served as a rallying point for the movement, uniting various antiabortion groups, religious organizations, and conservative activists who mobilized against constitutional protections for abortion with the aim of overturning them (Rebouché and Ziegler, 2023). Despite being a multifaceted movement that, at times, faced internal divisions and political fractures, Roe provided antiabortion activists with a clear legislative and political target and a well-defined litigation strategy that served to energize the conservative base (Saurette and Gordon, 2016). This momentum and political focus eventually culminated in the election of President Donald Trump and the Dobbs decision, which resulted in the reversal of legal abortion in nearly half of the country. In contrast, the absence of a specific abortion law in Canada has diffused the antiabortion movement, which lacks a single, highly contentious legal target to galvanize opposition (ibid). While the Canadian antiabortion movement faces many obstacles related to public opinion and limited political influence, one of its primary barriers has been the lack of a common goal (Gordon and Saurette, 2020).

We also see strategic advantages in the potential of a decriminalization framework to forge connections with other progressive social and political movements, particularly those centered around reproductive justice and penal abolitionism. As Johnson and Porth (2023) argue, abortion decriminalization can provide a platform for solidaristic theorizing and action with other social causes. Moreover, in the current era, characterized by intersecting racial and abortion politics, these linkages are increasingly crucial (Roberts, 2021). The global rise of the Movement for Black Lives in 2020 has brought forth a renewed focus on penal abolitionism in the broader struggle for racial justice in North America (Woodly, 2022). These events not only heightened public awareness regarding the need for structural changes within the criminal legal system but also ignited explicit discussions surrounding criminal legal reform and processes of decriminalization in ways we have not seen before. Consequently, there is a growing public recognition of the detrimental effects associated with many criminal laws, leading more individuals to support transformative changes, including reimagining public safety, and exploring alternatives to reliance on criminal law and incarceration. These shifting attitudes and opinions provide new opportunities for decriminalization efforts, including avenues that can benefit advocates for abortion access. They also facilitate meaningful connections between abolitionist, antiracist, and reproductive justice movements, while fostering potential for collaboration and collective action.

Promise #4: Abortion decriminalization sends an important symbolic message about abortion

The last advantage of the abortion decriminalization framework is the powerful message it conveys about the nature of abortion itself. Even in contexts where achieving abortion decriminalization may be unlikely, there are inherent advantages to advocating for this cause. In part, this originates from the problem with the symbolic message of abortion laws, which start from the premise that women cannot be trusted to make decisions about their own bodies and lives and that pregnant people will make poor or harmful decisions without the deterrent of criminal sanctions. No matter how liberal the law, criminal restrictions on abortion are, at best, paternalistic and, at worst, degrading.

Advocating for abortion decriminalization sends a different message about the nature of abortion itself ⁹ —one that challenges the perception of abortion as a criminal act and disrupts the associated stigmatization. Advocating for the complete repeal of abortion laws allows proponents to highlight (i) the inherent injustice of criminalizing abortion and its infringement on women's equality, (ii) that abortion care belongs within the realm of healthcare (and not criminality), and (iii) the legitimacy of abortion as a public health matter rather than a moral question. Ultimately, decriminalization holds the potential to foster a more open and destigmatized approach to abortion (Sheldon and Wellings, 2019). Even if removing such restrictions did not improve outcomes, which evidence shows it does (Berer, 2017), we should still be in favor of such a rhetorical shift.

Concluding Remarks: Moving Toward Abortion Decriminalization

The long-term decriminalization of abortion in Canada was unexpected, as were its effects. Rather than anarchy, however, Canada experienced a slow march toward improvements in access. None of these changes were inevitable, but we contend that the belief that abortion is not criminal, but a matter of health, was a key catalyst to achieving these ends. The Canadian case disrupted the relationship between law and rights assertions; rather than the acceptance of a less restrictive criminal law to improve access, the complete decriminalization of abortion created a new and, we argue, better path to improvements in access. As recent years have seen other states pursuing the complete decriminalization of abortion and a shift to abortion as healthcare, in no instance has the decriminalization of abortion led to anarchy. Abortion levels have not risen (indeed, they have tended to decrease) and maternal mortality has likewise decreased.

Drawing on Canada as a case study, we questioned the advantages and disadvantages of decriminalizing abortion. We found that the advantages to decriminalization outweigh any limitations. Indeed, potential disadvantages to decriminalization, including its continued precarity and barriers to access, are also features of a criminalized system and are likely to be improved through decriminalization. Importantly, concerns about an antiabortion backlash to decriminalization, while founded, also failed to manifest in Canada. The complete decriminalization of abortion removed an important legal foothold to challenge access and diffused antiabortion resistance. In this way, the Canadian model demonstrates both the desirability and workability of decriminalizing abortion. Abortion access has steadily improved, buoyed by litigation and the work of activists who have shifted their attention away from legality to improving access, often in concert with other activist groups. Although there is no law guaranteeing abortion access in Canada, Canadians have come to accept abortion as a right, a reality with significant implications for the way women and those capable of becoming pregnant internalize their equality rights.

In suggesting abortion decriminalization as a path forward, we do not wish to imply that there is a single approach to abortion law that will work in all cases, or that this model will resolve all disputes around abortion. However, we argue, as prison abolitionists often highlight, that the perception of limited feasibility should not dissuade us from advocating for decriminalization (Davis, 2011). We believe the Canadian case of abortion decriminalization has helped to carve out new possibilities for abortion access outside the realm of crime and punishment, to be built on and reimagined by other states.