Coding and classification of laws and policies
To populate the GAPD a data extraction questionnaire was developed; an extensive search for source documents was conducted; and data were extracted, cross-checked, sent to countries for review, cross-checked again and uploaded. Coding in the GAPD is based on the explicit text of the law, policy, or guideline. The written words of legal text, however, take their meaning from their purpose and context and often require interpretation. Words may be interpreted narrowly or broadly, and may have different meanings depending on the context in which they are used. Local contexts and their legal systems will therefore always matter to the interpretation and meaning of an abortion law or policy. Nonetheless, all interpretations must start or engage with the text. The GAPD aims to add transparency about the lawfulness of abortion globally by focusing on the explicit text of the law, acknowledging that words found in laws are critical to interpretations that ultimately allow or deny access to abortion in practice.
Extracted data in the GAPD include abortion on a woman’s request with no requirement for justification, legal grounds, associated gestational limits, and legal requirements for access such as third-party authorisations, mandatory waiting periods, counselling and medical screening tests, and rules of insurance coverage. The GAPD treats legal grounds as the circumstances under which abortion is lawful, that is, allowed or not contrary to law, or explicitly permitted or specified by law. Common legal grounds for abortion include: to save a woman’s life; to preserve her health (often delineating physical and mental health); for economic and social reasons; in cases of intellectual/cognitive disability of the woman; and in cases of rape, incest and fetal impairment. When the law specifies a common legal ground, without qualification, the GAPD classifies it within that legal ground.
When the law specifies a legal ground differently from one of these common grounds, it is labelled as other. Examples of other grounds include the woman being below or above a specified age, contraceptive failure, unlawful sexual intercourse, and itemized lists of conditions and circumstances that may reflect more restrictive versions of legal grounds for saving life, preserving health, or economic and social reasons.
Furthermore, some jurisdictions’ criminal code may have a medical or surgical treatment clause. These clauses exempt from criminal liability those who perform ‘in good faith and with reasonable care and skill a surgical operation upon an unborn child for the preservation of the mother’s life, if the performance of the operation is reasonable, having regard to the patient's state at the time, and to all the circumstances of the case’
3 or deem abortion justifiable ‘for the purposes of medical or surgical treatment of a pregnant woman’
4. Where such clauses refer to abortion in all but name and clearly state preservation of a woman’s life as the purpose, the GAPD classifies them as a legal ground to save the woman’s life.
To better understand the coding for abortion on a woman’s request and individual legal grounds in the GAPD, laws can be grouped into one of the following five categories:
1.
Jurisdictions where the law prohibits all abortion;
2.
Jurisdictions where unlawful abortion is prohibited or where there are only penalties for unlawful abortion, with no additional information provided about lawful abortion;
3.
Jurisdictions where the law allows or permits abortion only on one or more legal grounds;
4.
Jurisdictions where the law entitles a woman to abortion on request with no requirement for justification, and where legal grounds may apply if a gestational limit for abortion on request is present and has been exceeded; and
5.
Jurisdictions where abortion is regulated only as a health intervention in the health system.
In jurisdictions where laws prohibit abortion except or unless (or allow abortion only if) a legal ground or defence is specified, an ‘X’ is marked to reflect that abortion is unlawful on that particular ground and a check mark ‘✓’ indicates that abortion is lawful on that ground. In cases where only unlawful abortion is prohibited or penalised and it is unclear whether abortion is lawful on any particular ground, an ‘i’ is marked and an accompanying note reflects that the legal classification in question is ‘not specified’.
Regulations exist in different types of jurisdictions
A number of countries regulate abortion at the subnational and dependency levels. Traditional classifications of abortion laws typically only reflect national legislation and, in the case of countries where abortion is regulated at the subnational level, can appear to imply that laws in the most permissive jurisdictions apply nationwide. For example Mexico Distrito Federal allows abortion on a woman’s request, which is not permitted in the other 31 Mexican states. Thus, checking abortion on request for Mexico would inaccurately reflect abortion access for the majority of women and girls in the country. Reflecting differences in legal access at subnational and dependency levels highlights how women living in different geographic or administrative areas can have different degrees of access to lawful abortion, potentially leading to costly travel and associated opportunity costs as well as a higher likelihood of recourse to unsafe abortion where abortion is not allowed or permitted.
Globally, the total number of jurisdictions that regulate abortion is unclear. The GAPD currently includes all national jurisdictions but only selected subnational and dependency jurisdictions
5 due to challenges associated with identifying, retrieving, and monitoring changes in laws and policies from provincial-, state-, and dependency-level authorities
6. Although presently many subnational and dependency jurisdictions are not included in the database
7, additions will be made as new information becomes available. All information for national, subnational, and dependency jurisdictions is current as of the date noted in the individual country profiles.
Legal categories are treated as independent entities
By reflecting laws as written in the source documents, the GAPD treats each classification of lawful abortion independently – not as a subset of another – unless specified otherwise in the law. Thus, for example, it identifies jurisdictions that allow or permit abortion for health but not for life, rather than assume that abortion is also lawful to save the woman’s life; and the same criterion is applied to jurisdictions that allow abortion on a woman’s request but not for legal grounds of life, health, or fetal impairment.
For the purposes of classification, therefore, it is not assumed in the GAPD that a potentially broader ground such as health implies the existence of a narrower ground such as preservation of life. For example, in a country where lawful abortion is available only for a limited number of specified health conditions and there is no life ground, it is not assumed that a woman with a non-specified health condition leading to a fatal complication can lawfully access abortion services.
Untested common law principles and other legal precedents
The common law doctrine of necessity stipulates that where abortion is illegal and an abortion is performed to prevent a greater harm such as death or severe harm to a woman’s health, the common law doctrine of necessity provides a legal justification or exculpation for the crime. However, in the GAPD, it is not assumed that abortion is permissible to save a woman’s life in jurisdictions where the common law doctrine of necessity may apply unless authoritative text – such as a Ministry of Health guideline or a court decision – confirms that the necessity defence is applicable to abortion.
In jurisdictions with a colonial past, data coding in the GAPD does not presume that pre-independence laws, regulations or legal precedents continue to apply unless there is evidence of their official adoption or application following independence. For example, in jurisdictions that are former colonies of the United Kingdom of Great Britain and Northern Ireland, it is not assumed that women and providers can rely on the 1938 judgment
Rex v Bourne8 [
14], which expanded access to abortion, in the absence of evidence of its official application.