On 24 June 2022, the conservative majority Supreme Court of the United States made a seismic decision in the case of Dobbs v Jackson Women's Health Organization that sent shockwaves across the medico-legal community and led to protests in major US cities, pitting pro-life and pro-choice protestors against each other.1,2 In the blink of an eye, the case of Roe v Wade, which for the last half a century guaranteed a constitutional right to abortion, was overruled.3 America, which has long prided itself as a defender of freedom and patient's autonomy, now finds itself at a crossroad. Since 1973, Roe v Wade has permitted abortions during the first two trimesters of pregnancy in the US.
Following the latest ruling, abortion is no longer a constitutional right and is given the distinction between federal and state laws. This means that about 50% of the US population (mostly those living in the conservative "red states") will see their abortion rights severely curtailed or restricted altogether as the court's controversial ruling gives individual states the power to determine their own abortion laws without concern of running afoul of any constitutional restrictions. In fact, some states in the US immediately banned abortion on the same day of the seismic decision.4
This article will attempt to give a broad overview of the various abortion laws across the world and how they have evolved in recent decades. It will also discuss what impact this controversial US Supreme Court decision is likely to have in the pro-life and pro-choice debate in Singapore and worldwide.
The ethics of abortion
There are generally three main schools of thought in this arena.
In the first school of thought, opponents of abortion such as John Finnis concentrate on the foetus's moral status,5 arguing that its personhood – or alternatively, its future or potential personhood – should lead us to be extremely reluctant to tolerate its destruction.6 This sort of argument has been disputed by others who contend that while the foetus may be human, it is not yet a person, and that its potential to become a person cannot justify giving it primacy over the rights of an actual person, namely the pregnant woman.
For the second school of thought, an emphasis is placed upon the physical invasiveness of pregnancy and upon the wholly unprecedented degree of self-sacrifice which would be forced upon women if they were compelled to continue an unwanted pregnancy. The woman's right to an abortion is not, in this view, necessarily dependent upon proving that the foetus is not a person. Rather, as Judith Jarvis Thomson argued, even if the foetus is a person, it might be argued that pregnant women have the right to use self-defence in order to protect themselves from the physical invasion of an unwanted pregnancy.7
In the third school of thought, a middle ground exists which acknowledges both that the foetus's potential personhood is a good reason to afford it some protection, and that the pregnant woman has a legitimate interest in self-determination. This "third way" would protect the woman's right to terminate her pregnancy, but only in certain circumstances. This stance is consistent with the majority of the world's regulation of abortion in that the abortion is permitted within certain parameters – such as time limits – which are supposed to indicate the seriousness of foetal destruction.
Glimpse of worldwide abortion laws
In general, abortion laws worldwide are divided into five categories: 1) prohibited altogether; 2) allowed to save a woman's life; 3) to preserve health; 4) broad social or economic grounds; and 5) on request (though gestational limits vary). Currently there are only about 26 countries in the world where abortion is prohibited outright.8
The past fifty years have been characterised by an unmistakable trend towards the liberalisation of abortion laws, particularly in the industrialised world. Around 73 million abortions take place worldwide each year, according to the World Health Organization.9 This trend is also evident from the data compiled by the Center for Reproductive Rights, which showed that over the past several decades, monumental gains have been made in securing women's right to abortion, with nearly 50 countries liberalising their abortion laws. Some of this reform has been incremental, enabling women to access legal abortion only when there is a threat to her life or when the pregnancy results from rape. But many of these changes have been truly transformative, overturning absolute bans on abortion in favour of women's reproductive autonomy.10 One of the best examples of the liberalisation of abortion law worldwide is the case of the Republic of Ireland. Though well known for its strong Roman Catholic influence, it has also legalised abortion in recent years.11
Worldwide, the gestation period in which termination of pregnancy by choice is allowed differs between countries. Data compiled by the United Nations showed that the most restrictive limit is a maximum of eight weeks whereas the most permissive period is capped at 28 weeks, and the mean and mode of these limits are at 24 weeks.12 The common limit of 24 weeks is not a coincidence, and is based on medical studies which showed that beyond 24 weeks, there is a realistic chance that the foetus will be viable on its own outside the maternal body. In its last review, the British Medical Association's position remains that 24 weeks is the correct upper limit for abortion and cites the findings of the Nottingham EPICure study, which was set up to address the absence of data on survival and long-term outcomes for extremely premature infants.13
Currently, New Zealand likely has the most liberal abortion law among developed nations whereby there is no need for a doctor to perform the abortions, as midwives, nurse practitioners and registered nurses can perform abortions as well. There is also no longer a requirement for abortions to be performed in licensed premises, which means that abortion services can be provided even via telemedicine.14
Singapore's abortion laws
In Singapore, unlike in the US, abortion by choice was never a right guaranteed by our constitution, but rather was permitted by an Act of Parliament. Our abortion laws during its infancy were heavily modelled after the UK Abortion Act 1967. The reasons for legalising abortion in Singapore raised by the Minister for Health in Parliament in 1969 included the following: medical considerations (to safeguard the physical and mental health of the pregnant woman), eugenic considerations (to avoid or reduce the risks of giving birth to mentally handicapped or deformed children), humanitarian considerations (where the pregnancy was due to sexual crimes such as rape and incest), social and environmental considerations (faced by the mother and family in having to bring up the child), legalisation as a means to deal with the practical problem of illegal abortions, a secondary consideration to control population growth, and the failures of contraceptives.15 The original Abortion Act 1969 was subsequently modified in 1974 to relax the criteria even further and was renamed Termination of Pregnancy Act, which remains in force till today.16
Abortion is allowed in Singapore under conditions specified in the Termination of Pregnancy Act. It is not an offence if the pregnancy is terminated by an authorised medical practitioner in an approved institution, acting on the request of a pregnant woman and with her written consent. There is no legal minimum age for a person seeking an abortion. Further, parental consent is not strictly required for minors who wish to undergo abortion. This is provided the minor possesses sufficient maturity and understanding to give valid consent. However, unmarried pregnant women below 16 years of age shall be referred by the authorised medical practitioner to a counselling service.17
The authorised medical practitioner is entitled to carry out the treatment to terminate pregnancy on a pregnant woman who is a citizen of Singapore or the wife of a citizen of Singapore; a holder or is the wife of a holder of a work pass issued under the Employment of Foreign Manpower Act; or who has been resident in Singapore for a period of at least four months immediately preceding the date on which such treatment is to be carried out. The medical practitioner may also carry out such treatment if it is "immediately necessary to save the life of the pregnant woman". Abortion is prohibited where the pregnancy is of more than 24 weeks' duration unless the treatment is "immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman". If the pregnancy is more than 16 weeks but less than 24 weeks' duration, the procedure has to be carried out by an authorised medical practitioner with surgical and obstetric qualifications, or special skill in such treatment based on his/her practice, or appointment in an approved institution. As recently as 2019, MP Alex Yam mooted the adjustment of the gestational threshold for abortion from 24 weeks to 22 weeks, but the suggestion was eventually rejected by MOH, citing viability studies.18 However, it is submitted that with the advancement in neonatal technology and improvement in neonatal intensive care, it is axiomatic that the gestational threshold will be lowered in the future when the time is ripe.
Interestingly in a legal sense, procuring an abortion technically remains a crime in both the UK and Singapore. Under sections 58 and 59 of the Offences Against the Person Act 1861,19 abortion is still a criminal offence in the UK but for the statutory exceptions granted by the UK Abortion Act 1967. Similarly, Singapore Penal Code Section 312 states that "subject to the provisions of the Termination of Pregnancy Act 1974, whoever voluntarily causes a woman with child to miscarry is guilty of a criminal offence."20 Therefore, if a pregnant lady were to induce her own abortion without going to the doctors, she would technically be guilty of a criminal offence. This is exactly what happened in R v Sarah Catt where the defendant was charged with, and pleaded guilty to, an offence under section 58 of the Offences Against the Person Act 1861.21 She had ordered a labour-inducing drug, misoprostol, via the Internet, used this drug to abort her foetus, and was sentenced to a few years in prison.
Comparison of Singapore's and Malaysia's abortion laws
Given our common judicial history, it is no surprise that Malaysia's Penal Code Section 312 is in pari materia to Singapore. However, two amendments were made to Malaysia's Section 312 post-separation from Singapore.22 In general, abortion is illegal in Malaysia with two exceptions: if it is to preserve mental or physical health (amended in 1989) or to save the life of a women (amended in 1971) with gestational age of not more than 22 weeks.23 As a Muslim country, Malaysia also has a dual legal system with Muslims being subject to Sharia law. In 2002, the National Fatwa Council issued a fatwa permitting abortion up to 120 days of gestation in cases where the mother's life is in danger or where there is foetal impairment. Abortion on the grounds of rape, incest or foetal impairment (beyond 120 days of gestation) is still illegal.
Conclusion
Given the status of the US as a global power, it remains yet to be seen if this unprecedented decision by the US Supreme Court will act as an impetus and reverse a global trend in the liberalisation of abortion laws. With world politics becoming more polarised and with the rise of far-right political parties in certain countries, this landmark decision could spark the start of a reversal in the direction of abortion laws changes worldwide. Nevertheless, with regard to Singapore, given our recent parliamentary stance and Singapore's unofficial status as a secular state, this landmark decision is unlikely to affect Singapore as our abortion laws seem rather entrenched – at least for the time being – with no special interest groups or governmental will to explore any changes to our abortion laws at present.