PORTUGAL: LAW MATCHES REALITY.

PORTUGAL: LAW MATCHES REALITY. Good news for reproductive freedom today, as a referendum liberalizing abortion has passed in Portugal. Although the turnout didn't meet the quorum -- making it non-binding -- President Jose Socrates has pledged to change the policy. It's not a radical change -- it only permits fully legal abortion in the first 10 weeks of pregnancy -- but it's an important first step. Elaine Sciolino had an excellent article explaining the background this weekend, and which serves as another reminder of how abortion policy actually works on the ground. While American "pro-lifers" are generally unwilling to advocate legislation that is even minimally consistent with their professed values, on paper Portugal has a less obviously un-serious and unprincipled criminalization regime. Not only medical professionals, but women obtaining abortions and those who help them are subject to legal sanctions, as is the only defensible arrangement. But, in practice, only medical professionals ever see jail time, and then only rarely. As always, black market abortions are endemic:

Women who have been prosecuted for having abortions have been punished not with prison but with suspended sentences and a fine. But health-care professionals have been punished more severely. In one highly publicized trial that ended in 2002, a hospital nurse spent four years in prison for conducting illegal abortions.

The criminal aspect of abortion here is widely seen as unfair to women, even by much of the church and supporters of the no vote.

�This practice is so stupid, so inhumane,� said Marcelo Rebelo de Sousa, a political commentator and the former leader of the center-right Social Democratic Party who opposes approval of the referendum. �This is very Portuguese � you have the law and you have the social reality.�

[...]

Prime Minister Jos� S�crates, a Socialist whose center-left government enjoys a comfortable majority in Parliament, has campaigned hard in favor of the referendum, calling the country�s estimated tens of thousands of illegal abortions every year �Portugal�s most shameful wound.�

In this case, the disjuncture between the law on the books and practice on the ground is hardly unique to any country--this is a near-universal of abortion law in democratic politics. Even in predominantly Catholic countries where abortion carries a much broader moral stigma than it ever would in the United States, abortion bans never do much to actually stop abortions, although they do place the women who inevitably get them at greater risk. (And, as a bonus, the reactionary cultural policies that generally come bundled with abortion bans actually tend to increase unwanted pregnancies -- this is what produces sky-high Latin American abortion rates in the face of draconian bans.) Whatever their abstract commitments, most people aren't willing to apply "pro-life" principles when the rubber hits the road. So when we're discussing criminalization, therefore, what we're actually talking about are arbitrarily and sporadically enforced laws that create a regime of safe abortions for privileged women, a few poor women forced to carry pregnancies to term, and many more poor women forced onto the black market with its attendant risks to life and health. In other words, bans on abortion are completely indefensible, irrespective of one's moral position on abortion. They're grossly inequitable, and do little to achieve their only (legitimate) purpose.

--Scott Lemieux

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