The role of courts in abortion decriminalization: The unmet potential of proportionality

Abstract This article explores the role that courts can play in advancing the decriminalization of abortion, understood as the removal of all specific criminal provisions and related offenses. Over the last two decades, several constitutional courts have addressed fundamental questions concerning the constitutionality of criminal abortion laws, paving the way for an era of abortion liberalization or partial decriminalization. Yet none of these abortion rulings—including recent decisions by the highest courts in South Korea, Thailand, Colombia, Ecuador, Spain, and Mexico—have supported, or even been asked to consider, full decriminalization. Instead, courts have generally continued to accept criminal law as a legitimate form of abortion regulation, particularly for later gestations.This article examines how courts with the power of constitutional review could advance abortion decriminalization if such a petition were brought before them. We argue that, by deepening their constitutional analysis of criminal abortion laws through proportionality review, courts could meaningfully question the legality, rationality, necessity, and strict proportionality of criminalizing abortion at any stage of gestation. Our proposal does not suggest that abortion should go unregulated, nor that states are precluded from pursuing the protection of prenatal stages of life. Rather, it contends that criminal provisions governing abortion do not advance these goals. Abortion should instead be regulated as other areas of medical practice, subject to evidence-based healthcare laws and guidelines, and complemented by economic, social, and public health policies aimed at reducing unintended pregnancies and supporting motherhood for those who choose it.