In 1920, Soviet Russia was the first country in the world to legalize abortion. However, 100 years later, the world has seen a noticeable regression on the issue. Not only in modern Russia, but also in countries such as Poland and the United States, conservative forces are actively seeking to ban abortion. According to legal scholar Ekaterina Mishina, these efforts will have devastating consequences.
In late October 2020, Poland saw massive protests against the ruling of the Constitutional Court that had effectively banned abortion. A poster in Sanok, Poland, reads: “women's strike.” Photo: Silar / Wikimedia Commons.
Unexpected pioneers
November 18, 2020, marks the hundredth anniversary of the adoption of the resolution “On the protection of women’s health” by the People’s Commissariat for Health and Justice. Soviet Russia thus became the first country in the world to legalize abortion. Sadly, we approach the anniversary with nothing that even resembles progress. Not only in Russia, but elsewhere too, there is a clear tendency towards severe restrictions, including an abortion ban.
“Women’s health” was a key phrase in the Bolshevik act on legalizing abortion, which repeatedly called the act evil. It also clearly stated that other countries “fight this evil by punishing both the woman who decided to miscarry, and the doctor who carried it out. Without leading to positive results, this countermeasure drove the procedure underground and made the woman a victim of selfish and often ignorant abortionists, who created a trade for themselves from secret operations.” Noting that “the moral relics of the past and the difficult economic conditions of the present still force some women to decide on this operation,” the People’s Commissars allowed free abortions only by doctors and only in hospitals in order to “protect the health of women ... and [the Commissars] consider the method of repression in this area as falling far short of the goal.” If such an operation were performed by a non-doctor, or by a doctor but in a private practice, they would be brought before a people’s court.
The 1922 Criminal Code of the Russian Soviet Federative Socialist Republic specified this type of criminal liability and established, in Article 146, that artificial termination of pregnancy with the consent of the mother, committed by a person without medical education or by a physician, but in improper conditions, was punishable by imprisonment or forced labor for up to one year. Abortion “in the form of a trade,” without the mother’s consent or if it resulted in her death, was punishable by imprisonment of up to five years.
This sensible and progressive regulation of abortion was largely due to Alexandra Kollontai, a famous Russian revolutionary, feminist, and the first woman in world history to hold a ministerial position (Kollontai was the People’s Commissar of State Charity in the first Bolshevik government in 1917-18).
Russian society’s attitude to Kollontai is highly ambiguous, and her name is primarily associated with her essay “Make way for winged Eros!”—a hymn to “sexual communism.” But Kollontai paved the way not only for “winged Eros,” but also for progressive legal regulation. Through her efforts, the early Bolshevik legislation saw norms that improved the legal status of women, equalized illegitimate children in rights with children born in marriage, simplified the procedure for marriage and divorce, provided for the establishment of paternity in court, and legalized abortion. Unfortunately, most of these innovations were subsequently abolished. In 1936, abortion in the USSR was banned by a joint resolution of the USSR’s Central Executive Committee. The History of the All-Union Communist Party (Bolsheviks): Short Course, a Soviet textbook, noted with satisfaction that “in 1936, in connection with the growing prosperity of the masses, the government issued a law banning abortion.”
New reaction
At the dawn of the new Roaring Twenties of the 21st century, the problem of abortion is suddenly causing waves on both sides of the Atlantic. In Russia, last year, Patriarch Kirill called abortion a sinful practice in cases where abnormalities of fetus development are detected. Then the Patriarch’s stance softened somewhat, and he suggested that if there are medical reasons to terminate pregnancy, a woman is freed from sin, especially if she has other children. But by that time, Russian legislators had picked up the tune.
In February 2020, State Duma deputy Vitaly Milonov, known for his active support of the abortion ban in Russia and the idea to establish an Anti-Abortion Day, suggested including the abortion ban in the Preamble to the Russian Constitution. In early May 2020, the Patriarchal Commission on Family, Motherhood and Childhood Protection proposed to introduce a moratorium on abortions in Russia during the coronavirus pandemic. At the end of May, Children’s Rights Ombudsman Anna Kuznetsova came up with the idea to restrict the sale of abortion drugs in pharmacies.
In Poland, the situation has recently become even more dire. On October 22, the Polish Constitutional Court ruledunconstitutional the 1993 Abortion Law, which allowed abortion in cases of serious and irreversible defects or diseases of the fetus. The court ruling states that termination of pregnancy due to an incurable fetal disease is a eugenics practice and discriminates against the unborn child. Now abortion in Poland is permitted only in cases of rape, incest, or threats to the health and life of the mother, and these constitute only about 2 percent of legal pregnancy terminations in recent years, while 98 percent of legal abortions were carried out precisely because of fetal disease. Immediately after this ruling that effectively prohibited abortion, massive protests erupted across the country. On October 31, about 100 thousand people took to the streets of Warsaw—Poland had not seen such massive protests and power since 1989. As a result, the government decided to postpone the ban’s entry into force.
In the United States, tensions between pro-choice and pro-life abortionists have grown steadily over the past few years. The recent death of the great Supreme Court Justice Ruth Bader Ginsburg catalyzed emotions: in the comments to articles dedicated to the memory of this legendary defender of women’s rights, one could see not only words of gratitude, but also streams of hatred. The tone of the discussion was suspiciously familiar. I had a strange feeling that, among the American prairies or cornfields, the brothers-in-arms of Yevgeny Prigozhin’s “troll factory” had ripened. However, instead of the “crucified boys” familiar to viewers of Russian national TV, poor unborn children were used as a bugbear. And they had no say in the matter, because, according to opponents of abortion, they were killed through the fault of Judge Ginzburg.
Ruth Bader Ginsburg was indeed a consistent advocate of women’s rights, including abortion, throughout her career. Since 1993, she had done this as a judge of the highest court in the United States. At a Senate hearing on her candidacy for the post of Supreme Court judge, Ginsburg said: “The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. … When government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.” Equally well-known is her dissenting opinion in the 2007 Gonzalez v. Carhart case—a landmark decision of the Supreme Court, in which the 2003 Act prohibiting the so-called “partial birth” procedure was found to be constitutional: “[L]egal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.”
Unfortunately, Judge Amy Barrett, who took the Ginsburg seat on the Supreme Court, is known for her conservative views and negative attitudes towards abortion, so she is unlikely to actively advocate for women’s rights. Thus, fears of a revision of such precedent decisions as Roe v. Wade (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey, which established that the right of women to abortion belongs to the category of constitutional rights and is protected by the 14th Amendment to the US Constitution, are not groundless.
Risks of banning abortion
The abortion issue is that rare case when I completely agree with the Bolsheviks: the method of repression in this area absolutely falls far short of its goal. The abortion ban is an incomparably greater evil than the legalization of abortion. The prohibition and criminalization of any in-demand service (or product, as showcased by the 18th Amendment to the US Constitution and the Prohibition era) does not eliminate the demand for it—on the contrary, it stimulates it. But in case of abortion, services rendered illegally will entail significantly higher risks for all participants.
The consequences of such bans, as a rule, go beyond the most pessimistic forecasts. As a result of 13 years of Prohibition in the United States, which ended only in 1933 following the adoption of the 21st Amendment to the US Constitution, organized crime flourished, primarily related to the illegal production and sale of alcohol, the volume of smuggling increased, the entertainment industry suffered greatly, and restaurants were ruined as a result of lost revenue due to the prohibition of legal alcohol sales. Breweries, wineries, and bars were forced to close, leading to the loss of thousands of jobs. One of the most destructive consequences of the Prohibition era was the sharp decline in tax collections. At the federal level, Prohibition cost the state billions in lost taxes.
The consequences of an abortion ban are always devastating, long-lasting, and completely different from what the proponents of the ban expect. First of all, it always leads to a spike in abortion numbers, as happened in the Soviet Union after the 1936 abortion ban: by 1939, their number had grown by more than 150 thousand compared to 1937. As a result of illegal abortions, which are often performed in unsanitary conditions, a huge number of women die or can’t have children anymore. And let us not forget about the psychological hardships of women forced to abandon an unwanted child, and of children born not from love, but from despair.
In today’s discourse on abortions, the expression “Don’t throw the baby out with the bathwater” could be rephrased. The baby, however, has been moved to the foreground, while the woman is being thrown out. The issue of women’s health and well-being has almost disappeared from the public agenda, and this is not just wrong, but tragic. After 33 years in the legal profession, I still cannot understand people who argue that the rights of the embryo are more important than the rights of the woman in whose body it appeared against her wishes or under difficult circumstances. And when a woman makes the heart-wrenching decision to terminate an unwanted pregnancy, she does so because she cannot do otherwise. But it is the woman who must decide for herself. This is her right and her choice.
