Janne Rothmar Herrmann*
As the right to autonomy has been rolled back with the overturn of Roe v. Wade in the US, a societal and political discourse on liberty and the basic freedom of women to decide over their own bodies sparked new debate on the issue of abortion in Denmark. The fact that rights could be rolled back in this way raised concern across the political spectrum, and especially two political parties[1] urged the Danish Council of Ethics to consider an amended week limit for access to on-demand abortion.[2] Furthermore, a legal research project has presented to the Danish Parliament’s Health Committee a number of identified concerns in the administrative practice of late-term abortions.[3] At the same time, compared to the other Nordic countries, the Danish regulation increasingly stood out as conservative and outdated. Sweden already had a limit of 18 weeks, Iceland had raised it to 22 weeks, and Norway had just appointed an expert group to consider new regulation of late-term abortion as well as a possible change of the abortion limit.
While Denmark was one of the first countries in the Western world to adopt free, on-demand abortion as an entitlement, Danish abortion legislation is very rarely amended, and it is the first time in more than 50 years that major changes will happen.
As the Danish Parliament opens the new parliamentary year in October, it is expected that a revision of the Health Act’s provisions on abortion will feature on the government’s agenda of Bills to be put to Parliament this season. The expected Bill will, once adopted, put into law the political agreement finalized in May 2024.[4] What legal changes are expected?
A new 18-week limit for on-demand abortion
In line with the limit in Sweden and the newly proposed limit in Norway,[5] Denmark will adopt an 18-week limit for on-demand abortions. The political agreement states that ever since 1973 the right to abortion has been regarded as a basic women’s right. This in itself marks a more explicit focus on women’s autonomy as the basis for a right to abortion.
While the right to autonomy certainly featured in the public debate leading up to the adoption of the 1973 liberalization of the abortion act, the preparatory remarks of the time had a predominant focus on women’s lives and safety. Recognizing that abortions took place irrespective of their legality, it was better to make abortion legal and safe, sparing husbands and children from losing their wife and mother to clandestine, unsafe, illegal abortions performed by back street abortionists on kitchen tables. The coming amendment of the abortion limit is thus founded on the desire to modernize the regulation. This also applies to the underlying scientific basis, which featured heavily in the original reasoning for the 12-week limit. There is no longer scientific evidence for increased risks associated with abortions after week 12 compared to week 18. The regulation will also be modernized in terms of the woman’s age. Currently, a woman must be 18 years old to have competency for autonomy in relation to abortion, which is in contrast to the Health Act’s general 15-year limit for autonomy in health care. The new regulation will lower the age limit to 15 years for abortion.
A more transparent and uniform administration of abortion cases
Whereas women must currently apply to a regional abortion council to be permitted an abortion after week 12, the political agreement leaves the regional system behind in recognition that there were considerable regional differences in the administrative practice.[6] A new national abortion council will be competent to authorize abortions after week 18 based on the indications in the law, which remain unchanged. However, it is the clear intention of the agreement that the rule of law in this area be strengthened, which also coincides with a relatively new practice of publishing anonymized decisions,[7] something that had been criticized in legal literature for not being in compliance with human rights obligations.[8]
The bigger picture
The expected Bill is based on three political agreements between the government and a number of political parties. The agreement has been split into three separate documents reflecting that some parties, for example, could agree to a raised week limit but not to lower the age limit to 15 years. Nonetheless, it is important that the week limit is broadly supported across different political parties, which was also the express intention of those governmental parties that were perhaps in favour of an even higher limit to secure that going forward, the abortion limit would have political stability and not face changes every time the balance of parliamentary power tipped.
The new and more explicit positioning of autonomy as the main reason for updating abortion regulation mirrors that autonomy in health care is increasingly the motive behind regulatory changes. In a few months, a working group appointed by the government to consider a more dignified death will offer reflections on a possible increased scope for autonomy in dying, while political parties have hinted that increased access to fertility treatment is also expected to be a focal point. Both reflect on the fact that autonomy in health care is an argument that has received increased traction both in society and in the Danish Parliament.
* Janne Rothmar Herrmann is Professor at the Faculty of Law, University of Copenhagen.
[1] https://jyllands-posten.dk/politik/ECE14274012/enhedslisten-og-venstre-aabner-nu-for-foelelsesladet-diskussion-om-hoejere-graense-for-abort-vi-oplever-en-antiwoke-og-ultrakonservativ-bevaegelse/
[2] https://www.ft.dk/samling/20061/almdel/uer/bilag/12/359392.pdf
[3] https://www.ft.dk/samling/20211/almdel/SUU/bilag/329/2593993.pdf and Annika Frida Petersen & Janne Rothmar Herrmann: Abortsamrådenes hemmelige liv: Praksisanalyse af en Black Box forvaltning, Ugeskrift for Retsvæsen U.2021B.190.
[4] https://www.regeringen.dk/nyheder/2024/nye-politiske-aftaler-om-abort-styrker-kvinders-selvbestemmelse/
[5] https://www.regjeringen.no/no/aktuelt/regjeringen-legger-fram-forslag-til-ny-abortlov/id3051033/
[6] See Annika Frida Petersen & Janne Rothmar Herrmann: Abortsamrådenes hemmelige liv: Praksisanalyse af en Black Box forvaltning, Ugeskrift for Retsvæsen U.2021B.190.
[7] https://stpk.dk/afgorelser-og-domme/resumeer-af-afgorelser-fra-abortankenaevnet/
[8] Annika Frida Petersen & Janne Rothmar Herrmann: Abortsamrådenes hemmelige liv: Praksisanalyse af en Black Box forvaltning, Ugeskrift for Retsvæsen U.2021B.190.
