The current law in Portugal, passed in 1984, allows abortion until the 12th week of pregnancy in case of “mental and physical risk,” until 16 weeks in case of rape, until 24 weeks in case of a malformed fetus and at any time if the woman’s life is in danger. It calls for prison sentences of up to three years for a woman who has an illegal abortion and up to eight years for the person who illegally performs it.
But the availability of abortion is complicated by the medical profession’s narrow interpretation of the existing law. Portugal’s conservative psychiatric hierarchy has ruled that an unwanted pregnancy can be a mental health issue only in the most extreme cases; most medical doctors are unwilling to challenge the conventional wisdom.
By contrast, in Spain, which has a similar law, the legislation is liberally interpreted, and abortions are routinely performed. That has created a lucrative market for legal abortions in Spain for those Portuguese women who can afford to travel there.
There are two important lessons here. The first–which all too many scholars in the field make–is that you can’t infer the availability of legal abortion from the precise wording of statutes that delegate discretion to doctors (and haggling over changes in wording instead of decriminalization is a fool’s game.) The related lesson concerns the fact that laws that focus on protecting doctors rather than women are seen as the Eden of American abortion politics by the Saletan/Wittes/Rosen Axis Of We’ve Got Ours. But as the Spain/Portugal comparison suggests, they don’t in any way correspond to whether or not a woman has a reason for getting an abortion that Ben Wittes finds sufficiently compelling; in liberal areas, abortions will be widely available, and in less liberal areas women will be routinely denied abortion for arbitrary reasons (especially if they don’t have the connections or resources to window shop.) The additional problem, of course, is that these laws also don’t make any sense; given the discretion that doctors will have in practice, they’re making moral, not medical, judgments, and there’s no conceivable reason why these judgments should be made by doctors rather than the women whose lives are at stake.
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