Abortion, criminal law, and transgression

Abstract

This article challenges the boundaries and binaries that legal frameworks, which attempt to exceptionalise abortion, create for the spectrum of reproductive experience. Specifically, this paper articulates the extent to which the meaning of abortion is contested in a number of ways, to the extent to which it could be argued that it does not hold a fixed understanding, and the ramifications this has for the operation of law in this area. Any legal framework which attempts to exceptionalise abortion is bound to transgress a range of experiences and impact the provision and accessibility of care in a range of ways. Building on the theme of this Special Issue, ‘transgression’, the article shows the instability and transgressive potential of law in the regulation of miscarriage, abortion, and stillbirth. Miscarriage, abortion, and stillbirth exist on a spectrum of experience and may engage a range of clinical encounters that are not straightforwardly distinguished from each other. The paper contributes to the scholarship calling for the decriminalization of abortion and does so by highlighting often overlooked aspects of the impacts and unworkability of criminal exceptionalisation. The claim being made in this paper is twofold: first, abortion involves a number of features which are problematic within an exceptionalist framework. This leads to the second claim which is that any exceptionalist abortion frameworks will by definition encroach on and negatively impact experiences of reproductive loss in myriad ways.