Law and Policy Guide: Medical Abortion

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Medical Abortion

Medical abortion was first introduced in the 1980s as a safe, effective, and less invasive method for terminating pregnancy. Since then, it has become increasingly more widespread and common as a safe abortion method. Medical abortion involves the use of pharmacological drugs, such as mifepristone and misoprostol, which are taken together; however misoprostol alone can also induce abortion.[1]World Health Organization, Medical Management of Abortion, page vii apps.who.int/iris/bitstream/handle/10665/278968/9789241550406-eng.pdf?ua=1 Medical abortion can greatly enhance the accessibility of abortion services, as it can be administered by lower-level healthcare workers or via telemedicine to women in areas underserved by the healthcare system, and enables women to privately terminate a pregnancy in their home or other preferred location. It is essential that countries register misoprostol and mifepristone on national drug registries, and ensure their laws comply with the World Health Organization’s (WHO) guidance on the broad range of healthcare providers who can administer abortion care. 

Human Rights Norms

UN Treaty Monitoring Bodies

Under the right to health, states have a human rights obligation to ensure access to essential medicines. The Committee on Economic, Social, and Cultural Rights in General Comment No. 14 on the right to health, recognized state parties’ obligation to provide all “essential drugs,” as defined by the WHO Model List of Essential Drugs.[2]Committee on Economic, Social, and Cultural Rights, General Comment No. 14, art. 12(a), www.refworld.org/pdfid/4538838d0.pdf This list includes drugs used for medical abortion.[3]WHO Model List of Essential Medicines, www.who.int/medicines/publications/essentialmedicines/20th_EML2017.pdf. In 2016, the Committee also issued General Comment No. 22, which reinforced the obligation to ensure access to essential medicines, including “medicines for abortion,”[4]Committee on Economic, Social, and Cultural Rights, General Comment No. 22, para. 12, www.escr-net.org/resources/general-comment-no-22-2016-right-sexual-and-reproductive-health and specifically regarded the removal of sexual and reproductive health medications from national drug registries as a retrogressive measure.[5]Committee on Economic, Social, and Cultural Rights, General Comment No. 22, para. 38, www.escr-net.org/resources/general-comment-no-22-2016-right-sexual-and-reproductive-health Furthermore, the International Covenant on Economic, Social, and Cultural Rights also includes the “right of everyone: . . . (b) To enjoy the benefits of scientific progress and its applications…,”[6]Article 15(1) of the International Covenant on Economic, Social, and Cultural Rights, www.ohchr.org/Documents/ProfessionalInterest/cescr.pdf which may be interpreted to include pharmaceutical and medical advancements, such as medical abortion. 

African Regional Bodies

The Maputo Protocol recognizes a woman’s right to reproductive health, including access to medical abortion under certain circumstances, including when the life or health of the woman is in danger and in cases of rape, incest, or fetal impairment. The African Commission’s General Comment No. 2 further clarifies that state parties to the Maputo Protocol must “ensure that the legal frameworks in place facilitate access to medical abortion…” when there is a risk to the pregnant woman’s health.[7]Para. 38, www.achpr.org/files/instruments/general-comments-rights-women/achpr_instr_general_comment2_rights_of_women_in_africa_eng.pdf

Global Medical Standards

In Safe Abortion: Technical and Policy Guidance for Health Systems, the World Health Organization (WHO) states that misoprostol and mifepristone, the medicines taken to induce an abortion, are essential medicines every State that legally permits medical abortion must have available and accessible to women.[8]World Health Organization, Safe Abortion: Technical and Policy Guidance for Health Systems, pages 95-96 (2012), … Continue reading The WHO Model List of Essential Medicines is a list of medicines deemed essential to human health and is designed to act as a template list of essential medicines for States to replicate at the national level. The most recent version recognizes misoprostol as an essential medicine.[9]WHO Technical Report Series, The Selection and Use of Essential Medicines: Report of the WHO Expert Committee 2017 (including the 20th WHO Model List of Essential Medicines and the 6th Model List of … Continue reading The International Federation of Gynecology and Obstetrics (FIGO) has also published recommendations on the dosages of misoprostol when used alone for a variety of gynecologic and obstetric indications, including abortion.[10]FIGO, Misoprostol-only recommended regimens 2017. Available at www.figo.org/sites/default/files/uploads/project-publications/Miso/FIGO_Dosage_Chart%20EN_0.pdf

The WHO developed an in-depth guide on medical abortion, Medical Management of Abortion, in which it underscores the importance of an “enabling regulatory and policy environment” in order ensure access to safe and legal abortions.[11]page 24 apps.who.int/iris/bitstream/handle/10665/278968/9789241550406-eng.pdf?ua=1 The WHO highlights that medical abortions can be safely administered by trained non-physician healthcare workers, enabling greater access to safe abortion for women around the world.[12]World Health Organization, Safe Abortion: Technical and Policy Guidance for Health Systems, page 65, apps.who.int/iris/bitstream/handle/10665/70914/9789241548434_eng.pdf?sequence=1; World Health … Continue reading In Health Worker Roles in Providing Safe Abortion Care and Post-Abortion Contraception, the WHO outlined tasks that could be performed by specific levels of healthcare workers in regards to medical abortion, including pharmacists (assessing eligibility for medical abortion), and auxiliary nurses and nurses (administer medical abortions).[13]World Health Organization, Health Worker Roles, page 6, apps.who.int/iris/bitstream/handle/10665/181041/9789241549264_eng.pdf;jsessionid=5F1802024D72059E561A44A348388685?sequence=1 The recommendations also include guidelines for self-administration of medical abortion, noting that women can safely self-administer mifepristone and misoprostol without the direct supervision of a healthcare worker or physician.[14]World Health Organization, Health Worker Roles, page 6, apps.who.int/iris/bitstream/handle/10665/181041/9789241549264_eng.pdf;jsessionid=5F1802024D72059E561A44A348388685?sequence=1

Comparative Law

Countries often regulate medical abortion administration and drugs through health policies and general drug restrictions, rather than abortion laws. Countries are increasingly recognizing the importance of medical abortion and adding these to national drug registries. For example, since 2006, Ethiopia has permitted medication abortion in accordance with WHO recommendations and allows properly trained midlevel health care providers to administer medical abortion services.[15]Ethiopia Ministry of Health, Technical and Procedural Guidelines for Safe Abortion Services in Ethiopia, Addis Ababa, Ethiopia: Federal Democratic Republic of Ethiopia, 2006. Since Ethiopia legalized medical abortion, by 2014 over one-third of abortions were accessed through this method.[16]Guttmacher, www.guttmacher.org/sites/default/files/factsheet/ethiopia_fact_sheet_final.pdf Furthermore, between 2008 and 2014, the percentage of midlevel healthcare workers providing abortion care increased from 48% to 83%.[17]www.guttmacher.org/sites/default/files/factsheet/ethiopia_fact_sheet_final.pdf

Additionally, a number of countries have removed previous restrictions on access to medical abortion, such as overly stringent regulations on who can administer medical abortion services and other unnecessary procedural barriers. For example, in 2019, a U.S. Federal District Court in the state of Virginia struck down  a law prohibiting advanced practice clinicians from providing first-trimester abortion care, noting that first trimester abortions “do not require the onsite presence of a licensed physician.”[18]www.reproductiverights.org/sites/crr.civicactions.net/files/documents/2019-05-06-412-VA-Memorandum-Opinion.pdf, page 37. As of 2018, general medical doctors (GPs) and nurse practitioners in the capital territory of Australia are able to prescribe misoprostol and mifepristone, increasing access and availability of medical abortions and reducing the travel time and financial burden of abortion.[19]Australian Capital Territory, Health (Improving Abortion Access) Amendment Bill 2018, Art. 81(1)(c)(2018) www.legislation.act.gov.au/b/db_57801/ In 2019, Canada removed the requirement for a mandatory ultrasound prior to having a medical abortion, and instead allows prescribers to use their professional judgement to determine whether an ultrasound is medically necessary.[20]www.cbc.ca/news/health/mifegymiso-ultrasound-1.5100405

References

References
1 World Health Organization, Medical Management of Abortion, page vii apps.who.int/iris/bitstream/handle/10665/278968/9789241550406-eng.pdf?ua=1
2 Committee on Economic, Social, and Cultural Rights, General Comment No. 14, art. 12(a), www.refworld.org/pdfid/4538838d0.pdf
3 WHO Model List of Essential Medicines, www.who.int/medicines/publications/essentialmedicines/20th_EML2017.pdf.
4 Committee on Economic, Social, and Cultural Rights, General Comment No. 22, para. 12, www.escr-net.org/resources/general-comment-no-22-2016-right-sexual-and-reproductive-health
5 Committee on Economic, Social, and Cultural Rights, General Comment No. 22, para. 38, www.escr-net.org/resources/general-comment-no-22-2016-right-sexual-and-reproductive-health
6 Article 15(1) of the International Covenant on Economic, Social, and Cultural Rights, www.ohchr.org/Documents/ProfessionalInterest/cescr.pdf
7 Para. 38, www.achpr.org/files/instruments/general-comments-rights-women/achpr_instr_general_comment2_rights_of_women_in_africa_eng.pdf
8 World Health Organization, Safe Abortion: Technical and Policy Guidance for Health Systems, pages 95-96 (2012), apps.who.int/iris/bitstream/handle/10665/70914/9789241548434_eng.pdf;jsessionid=7D7261384A06937FFF02CB773EEB6FBE?sequence=1
9 WHO Technical Report Series, The Selection and Use of Essential Medicines: Report of the WHO Expert Committee 2017 (including the 20th WHO Model List of Essential Medicines and the 6th Model List of Essential Medicines for Children), p. 46, apps.who.int/iris/bitstream/handle/10665/273826/EML-20-eng.pdf?ua=1.
10 FIGO, Misoprostol-only recommended regimens 2017. Available at www.figo.org/sites/default/files/uploads/project-publications/Miso/FIGO_Dosage_Chart%20EN_0.pdf
11 page 24 apps.who.int/iris/bitstream/handle/10665/278968/9789241550406-eng.pdf?ua=1
12 World Health Organization, Safe Abortion: Technical and Policy Guidance for Health Systems, page 65, apps.who.int/iris/bitstream/handle/10665/70914/9789241548434_eng.pdf?sequence=1; World Health Organization, Health Worker Roles, page 3, apps.who.int/iris/bitstream/handle/10665/181041/9789241549264_eng.pdf;jsessionid=5F1802024D72059E561A44A348388685?sequence=1
13 World Health Organization, Health Worker Roles, page 6, apps.who.int/iris/bitstream/handle/10665/181041/9789241549264_eng.pdf;jsessionid=5F1802024D72059E561A44A348388685?sequence=1
14 World Health Organization, Health Worker Roles, page 6, apps.who.int/iris/bitstream/handle/10665/181041/9789241549264_eng.pdf;jsessionid=5F1802024D72059E561A44A348388685?sequence=1
15 Ethiopia Ministry of Health, Technical and Procedural Guidelines for Safe Abortion Services in Ethiopia, Addis Ababa, Ethiopia: Federal Democratic Republic of Ethiopia, 2006.
16 Guttmacher, www.guttmacher.org/sites/default/files/factsheet/ethiopia_fact_sheet_final.pdf
17 www.guttmacher.org/sites/default/files/factsheet/ethiopia_fact_sheet_final.pdf
18 www.reproductiverights.org/sites/crr.civicactions.net/files/documents/2019-05-06-412-VA-Memorandum-Opinion.pdf, page 37.
19 Australian Capital Territory, Health (Improving Abortion Access) Amendment Bill 2018, Art. 81(1)(c)(2018) www.legislation.act.gov.au/b/db_57801/
20 www.cbc.ca/news/health/mifegymiso-ultrasound-1.5100405
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