Conceiving Criminality: An Evaluation of Abortion Decriminalization Reform in New York and Great Britain

Swara Saraiya*

What are the effects of the partial criminalization of abortion? By partial criminalization, I mean a situation in which access is legal only when certain conditions are met. When these conditions, defined in penal codes, are not met, the procedure becomes illegal and the individual runs the risk of being found to have committed a crime. More critically, are the effects of partial criminalization really so different from the effects of other forms of abortion regulation? This Note considers these questions by examining reform movements in New York and Great Britain that seek to de- criminalize abortion by moving the procedure’s regulation from the penal code into the public health code.

This Note examines how laws make abortion feel like a crime and looks to the history of abortion laws, the current laws, and the reform movements in both juris- dictions to posit that the consequences of partial abortion criminalization vary depending on the existence of other laws and legal norms that question its partial criminalization. Finally, this Note challenges assumptions about the effects of abortion regulation by analyzing it through the lens of stigma. It distinguishes between the stigma associated purely with abortion and the stigma associated more generally with criminal law, and considers how the law, in its penal and non-penal forms, creates both types of stigma and guilts women into feeling as though they have commit- ted a crime even when they have lawfully obtained abortions. In doing so, this Note recognizes the myriad forms beyond criminalization through which the law, and more broadly society, penalizes women who choose to terminate their pregnancies.

* J.D. Candidate, Columbia Law School 2019; B.A. University of Chicago, 2016. I would like to thank Professor Carol Sanger for her support and feedback with the Note, as well as her generous mentorship throughout my time in law school. I owe special thanks to the staff and editors of the Columbia Journal of Transnational Law for their friendship and invaluable edits on this piece. Finally, I am eternally grateful to my friends and family for their encouragement and guidance.