Abortion laws in the Netherlands work, so why change them?

The most frequently mentioned argument by the initiators is that the current place of abortion in criminal law creates a "criminalization, unless..." situation rather than an "abortion right, provided that..." system. Additionally, the current law is said to create an extra barrier for women considering abortion. D66 parliament member Paulusma and GroenLinks parliament member Ellemeet, among others, argue that the current law perpetuates a stigma. Paul Mevis, Professor of Criminal (Procedural) Law, Martin Buijsen, Professor of Health Law, and Liselotte Postma, Assistant Professor of Criminal (Procedural) Law, are critical of the citizens' initiative and the parliamentary debate.

Is there really a problem?

Firstly, Mevis, Buijsen, and Postma criticize the fact that there is little discussion about whether there is indeed a problem that needs to be solved. Does the legislation, which has been in effect for years, not function properly? "The law has recently been evaluated for the second time, and this study also showed that the legislation functions properly," says Buijsen. "Additionally, the Health and Youth Care Inspectorate publishes an annual report on the Dutch abortion practice, and there are no reports of misconduct."

Pregnant individuals never subject to penalties

Furthermore, according to the researchers, a wrong representation of the situation is being presented. It is sometimes wrongly assumed that pregnant individuals considering abortion commit a punishable offense if they opt for an unauthorized abortion. However, according to Article 296 of the Criminal Code, only the person performing the abortion is liable to punishment, and only if they are not authorized and the abortion is not performed in a hospital or clinic. The same article explicitly states that abortion performed by a doctor in a hospital or clinic is not a punishable offense. The doctor does not have to justify themselves retrospectively in each case, as is the case with euthanasia. Mevis, Buijsen, and Postma argue that the current debate does not make sufficient distinction between abortion carried out by a doctor and abortion performed by an unauthorized individual. Therefore, the current criminalization does not hinder abortion but rather serves as a guarantee for a medically professional act within the boundaries of the Termination of Pregnancy Act. Removing the provision regarding unauthorized abortion from the Criminal Code would also eliminate protection against their practices, thus weakening the right to abortion.

Abortus in an international context

Furthermore, according to the researchers, there is also little attention given to the jurisprudence of the European Court of Human Rights and the European Convention on Human Rights in the debate. While the convention allows for some discretion on the part of member states, there still needs to be adequate protection of unborn life, especially against actions by unauthorized individuals or outside the bounds of medical professionalism. This is precisely the protection that the Dutch law, Article 296 of the Penal Code in conjunction with the Termination of Pregnancy Act, currently provides, where neither the doctor nor the woman face criminal liability for abortion. A majority in the Chamber rightly shared this view, the researchers conclude.