Maintaining exceptionality: Interrogating gestational limits for abortion
| Date | 01 June 2022 |
| DOI | 10.1177/09646639211032317 |
| Published date | 01 June 2022 |
| Author | Erica Millar |
| Subject Matter | Articles |
Maintaining exceptionality:
Interrogating gestational
limits for abortion
Erica Millar
La Trobe University, Australia
Abstract
Gestational limits on abortion are often seen as a condition for decriminalisation.
Focusing on the final reports of three institutional law reform inquiries into abortion
in Australia, this article argues that gestational limits were recommended through fore-
closing the subject position of the unwillingly pregnant woman who experiences gesta-
tional time as a threat to her bodily integrity and imagined future. Structural features of
law reform commissions tethered models of decriminalisation to the era of criminalisa-
tion. Abortion was also rendered meaningful in the reports through discursive tropes
that centred foetal viability and constructed later abortion in terms of a delay that
required explanation, with the medico-judicial categories used to explain this delay –
which distinguished between ‘medical’and ‘psychosocial’abortions –recentring the
decision-making authority of doctors. Gestational limits on abortion rearticulate the
exceptionality of abortion, reinscribing the illegitimacy of abortion and the people
who have them, at least at later stages of pregnancy.
Keywords
Abortion law, abortion discourse, later abortion, foetal viability, reproductive autonomy,
reproductive politics, gender, regulation
Gestational limits are a common feature of abortion law worldwide and key to legislative
moves to both restrict and liberalise access (Boland, 2010; Remez et al., 2020). The last
20 years have witnessed a global liberalisation trend in abortion law (Remez et al., 2020).
In the terrain of constantly evolving social norms, the decriminalisation of abortion may
Corresponding author:
Erica Millar, Social Inquiry, La Trobe University, 3086 Bundoora, Victoria, Australia.
Email: e.millar@latrobe.edu.au
Article
Social & Legal Studies
2022, Vol. 31(3) 439–458
© The Author(s) 2021
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sagepub.com/journals-permissions
DOI: 10.1177/09646639211032317
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aid in, or be indicative of, moves toward the increasing normalisation of earlier abortion
(or at least acceptance that a legal framework must accommodate for the inevitability of
such abortions). This has often come through further entrenching the non-normativity of
later abortion. Even in jurisdictions that have decriminalised or partially decriminalised
abortion, gestational limits on abortion often remain a core strategy for restricting repro-
ductive autonomy (Berer and Hoggart, 2019).
Gestational limits on abortion result in two-staged laws that differentiate ‘early’from
‘late’abortions and subject the latter to increased legal and medical oversight and surveil-
lance. They produce later abortion as a legal exception whereby, as the Victorian Law
Reform Commission (VLRC) explained, abortion is regulated ‘differently to other
medical procedures’(VLRC, 2008: 89) so that ‘During the later stages of a pregnancy
abortion is an exception to a woman’s general right to determine what medical procedures
she will undergo and what relationships she will enter’(92). Exceptionality is a hallmark
of abortion law. Penelope Deutscher writes that before decriminalisation, there was
‘almost never a legal abortion that …[was] not an exception to its own illegality’
(Deutscher, 2017: 126). Today, gestational limits on abortion exemplify how ‘increas-
ingly wide states of illegality have [been] taking shape within the space of a legality
which itself is instituted provisionally’(126). Gestational limits on abortion carve out
spaces of legal illegitimacy (although not necessarily in criminal law) and point to the
provisional nature of the legality of abortion, and ‘the possibility of its unavailability,
administering states of unease, and enshrining if not administering the possibility of
revoked access’(126). Gestational limits on abortion are often based on the concept of
foetal viability –a socially contingent construct that is attached to advancing medical
technologies (Franklin, 1991) –so that the possibility of an ever-reducing threshold
for on-request abortions is built into the fabric of the law. This possibility has been rea-
lised in the US context, for example, where 18 US states reduced gestational limits on
abortion between 2008 and 2019 (Remez et al., 2020).
This article examines how the final reports of three law reform inquiries into the
decriminalisation of abortion in Australia approached the issue of later abortion and ratio-
nalised gestational limits to on request abortion. In doing so, it makes visible the norma-
tive and legal mechanisms by which a prevalent mode of abortion exceptionality has been
retained in decriminalising legislation. This analysis entails identifying how the reports
decentred or foreclosed an alternative framework that approaches abortion from the pos-
ition of the person who is unwillingly pregnant and wanting an abortion. The exceptional
status of abortion is reliant on, and achieved through, the de-centring, or erasing, of this
mode of subjectivity and embodiment. When abortion is approached from the position of
the unwillingly pregnant person, it emerges as a necessary and urgent social good (Furedi,
2016; Millar, 2017; Pollitt, 2014) and discussions of law reform foreground abortion
access and decisional security for pregnant people (De Londras, 2020). Gestational
limits, as will be demonstrated, construct unrestricted abortion in negative terms,
create barriers to abortion access and grant doctors decisional authority over later
abortions.
The article begins with background work that establishes the centrality of gestational
limits to laws that have decriminalised abortion over the past decade, defines the
key terms of ‘later abortion’and the subject position of the ‘unwillingly pregnant
440 Social & Legal Studies 31(3)
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