The right to abortion has today been positioned not only as a legal, but also as a political and religious issue, which has been the subject of numerous discussions for years, both in terms of moral and legal treatment. Unfortunately, a consensus has not yet been reached on the right to abortion, which is also emphasized by advocates of the pro-life and pro-choice movements. If we were to start an analysis of international documents and court practice, as well as the current situation in certain countries, which, due to restrictive interpretation of the right to abortion, leave women without adequate and complete legal protection, we would also express deep concern for the future of the legal regulation of the right to terminate a pregnancy. Reproductive rights, as human rights, do not allow the abuse of laws or population policies but aim to empower states to adopt affirmative actions that would ensure women’s free access to contraception and safe abortion.
Today, as already known, there are two methods of abortion: surgical or with the help of abortion pills. Medication abortion is a procedure for terminating an unwanted (early) pregnancy that does not require anaesthesia and involves taking two pills (misoprostol and mifepristone) at specific time intervals. The effects of these medications primarily involve halting the progression of the pregnancy, accompanied by the expulsion of tissue from the uterus. This is a procedure that requires a certain level of attention and may be accompanied by pain of a certain intensity, but significantly facilitates the process of termination of pregnancy for women.
Historically, the abortion pill was first produced in 1980 and, after a testing period, officially began to be used in France in 1988. For example, it was officially registered in the United Kingdom in 1991, in Sweden in 1992, and in Austria and Belgium in 1999. Available data indicate that by the end of 2002, more than half of abortions in Europe were performed by this method (in France 56%, in Scotland 61%, in Sweden 51%), and by 2020 those figures are as follows – in Italy 32%, in Switzerland 70%, in Sweden 83%, and in Finland even 94%. In most EU countries (e.g. France, Sweden, Denmark), medication abortion is the primary method of abortion, except Hungary and Poland, which, by the way, with their rigid national legislation, impose a series of restrictions on women seeking abortion.
United States of America (USA)
In April 2023, the US witnessed two opposing rulings by federal district judges in the states of Texas and Washington regarding the access to the abortion pill. That triggered a sharp legal conflict that experts thought would end up before the US Supreme Court. Interestingly, on 7 April 2023, a federal judge in Texas, appointed by Donald Trump, ordered the suspension of the approval of the abortion pill – mifepristone. On the same day, a judge appointed by Barack Obama in the state of Washington issued the opposite decision, ordering that access to the pill, which was allowed more than 20 years ago, is maintained in 17 states. Less than seven days later, the U.S. Supreme Court announced that it was temporarily staying federal rules governing the use of the abortion drug and that they needed some time to more fully consider the issues raised in the lawsuit, meaning they would abortion pills would continue to be available on that market.
Before these verdicts in the US, it was announced that abortion pills would be sold in pharmacies with a prescription, with pharmacies needing official approval from the manufacturer to sale them. The data from the FDA (Food and Drug Administration), as of June 2022, that 5.6 million women in the US used the abortion pill, indicates the extent of the use of medical abortion as a form of termination of pregnancy in the US. However, rules on the use and distribution of abortion pills apply only in states where termination of pregnancy is still legally allowed. As a reminder, in 2022, the US Supreme Court transferred the issue of abortion to the jurisdiction of individual states, making it no longer a matter of federal legislation. Many conservative US states took advantage of this and further restricted access to abortion, and some even banned it completely.
Neighbouring Countries
In Croatia, HALMED (Croatian Agency for Medicines and Medical Devices) has approved the abortion pill that can only be obtained in healthcare institutions, while medication abortion became available in 2015. The Law on Health Measures for the Exercising the Right to Freedom of Decision on Childbirth, from 1978, with only three changes so far, is attempted to modernize. Thus, in 2020, the Proposal for the Law on the Medical Termination of Pregnancy and the Final Proposal for the Law was submitted to the Croatian Parliament by the SDP club of MPs, which would legislatively regulate medication abortion, provide a range of educational and preventive measures for the use of appropriate contraceptive methods to make abortion an exception, defined the institute of conscientious objection more closely, etc. Unfortunately, it did not receive majority support in the Parliament.
In Bosnia and Herzegovina (B&H), medications for medication abortion were officially approved in 2019 and can be applied to the 10th week of pregnancy. The problem faced by women in B&H concerns the price of abortion pills, more precisely their evident difference in price that varies from city to city, as well as from institution to institution (private/public).
In North Macedonia, a new Law on Abortion was adopted, fully respecting the right of women to choose the method of termination of pregnancy. Under the previous law from 2013, women after consulting a specialist doctor and listening to the heartbeat of the fetus had to submit a written request for an abortion, which put women in a very difficult position. In 2020, the Ministry of Health approved clinical guidelines for safe abortion, and provided recommendations for performing medication abortion. At that time, the Ministry also approved a budget of half a million dollars for the purchase of the necessary medicines used for this purpose.
In Serbia, a permit has been issued for the use of the abortion pill, which is available exclusively in healthcare facilities and is applied until the seventh week of pregnancy in GAK (Gynecology and Obstetrics Clinic). For a hospital or clinical centre to be able to dispense these medicines, it is necessary to obtain permission from the Ministry of Health.
Situation in Montenegro
The Law on Conditions and Procedures for Termination of Pregnancy, more specifically Article 4, which addresses woman’s right to abortion, does not distinguish between methods of abortion, but rather specifies the time intervals during which it can be performed and under what circumstances. Therefore, the legislator does not explicitly differentiate between surgical abortion, medication abortion, and the like, but only states the weeks of pregnancy (counted from the day of conception) when the pregnancy can be terminated. Similar solutions are present in the countries of the region.
Only the Clinical Center of Montenegro, but not general hospitals, have permission to perform medication abortion. Out of 134 abortions performed in the first six months of 2023, as many as 92 were medication abortions. However, the problem in Montenegro lies in private health institutions performing this type of pregnancy termination, charging exorbitant fees for medication abortion.
On the other hand, the drugs used for medication abortion – misoprostol and mifepristone – are not registered drugs in Montenegro. The Institute for Medicines issued temporary consent for their import and distribution, but the process of their registration has not been completed. This kind of temporary “solution” is far from acceptable, and leads to numerous challenges in practice. It is not uncommon for women to be forced to seek abortion pills at the so-called “black market”, thereby endangering their lives.
The issue of unwanted pregnancy, as well as the method to terminate that pregnancy, imposes the need for a wider social focus and careful treatment to narrow the space for misinterpretations or temporary “solutions”. In the context of human rights and freedoms, in the so-called collision of the right to the life of the fetus and the right of the woman to freedom of choice, priority should undoubtedly be given to the right of women to have freedom of choice. That is why an additional effort by the state is necessary in the implementation of international standards and relevant strategies to ultimately ensure the necessary need for education, primarily of the young population, for the prevention of unwanted pregnancies, the promotion of sexually responsible behaviour, as well as additional protection of women’s human rights. Only within that framework will we can talk about an emancipated, mature, and responsible society, and I believe that Montenegrin society is capable of being such.
dr Sanja Grbović, Teaching Associate at the Law Faculty of the University of Montenegro