Contrary to popular belief, abortion is not a right in the Netherlands. Instead, it is classified as a criminal offense, carrying a maximum sentence of four years and six months in prison. The Termination of Pregnancy Act (Wet afbreking zwangerschap), which regulates access to abortion in the Netherlands, lays down the conditions under which a doctor can perform an abortion without facing prosecution. These include restrictions on the timing and place of the abortion, but also demands from physicians that they ensure that ‘the decision to terminate the pregnancy is made carefully’ and only ‘carried out if the woman’s emergency situation makes it unavoidable.’ It also stipulates that the physician needs to verify that the pregnant individual ‘has made and maintained her request after careful consideration, with awareness of her responsibility for unborn life and the consequences for herself and those around her’ and that ‘responsible counselling on alternatives to terminating the pregnancy have been provided’. The Act does not provide pregnant individuals with any rights.
Abortion is available because of a liberal practice, not because of liberal legislation
The RE-WIRING study on gendered law-making highlights the problematic nature thereof. In the case of this abortion law, it entails that it does not offer pregnant individuals any guarantees in terms of access to abortion in the event of a political or societal shift, that it incites stigma, and that it feeds into harmful gender stereotypes. Abortion is currently available in the Netherlands only because of a liberal abortion practice, not because of liberal abortion legislation. It is accessible because doctors are willing to provide this care. Examples from other countries demonstrate how quickly this can change. For example, in the United States, since the Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization, many doctors fear performing abortions—even when the procedure is legal, including in cases where the pregnant person’s life is at risk. Although it may seem unlikely that doctors in the Netherlands would suddenly refuse to perform abortions, it is important to understand that the current law offers no protection if a political or societal shift were to occur. If the government, for instance, decided to prosecute physicians for failing to fully assess a woman’s emergency situation or for not providing enough information on alternatives. This risk is heightened by the rise of conservative and anti-feminist movements, which are becoming increasingly visible worldwide, including in the Netherlands. The well-funded anti-abortion lobby, particularly from the United States, is exerting greater influence on political and public discourse across Europe. In this climate, it is not hard to imagine a scenario where strict interpretations of the law are used to make abortion effectively inaccessible.
(Re-)producing gender stereotypes & stigma
The effects of the criminalization of abortion have been extensively researched and documented. Even in countries where abortion is conditionally available in practice, restrictions have stigmatizing and deterrent effects, as well as a negative impact on human rights, disproportionately affecting marginalized people. Researchers, in line with international human rights bodies, therefore argue that abortion should be fully decriminalized—even in countries with more liberal abortion policies, such as the Netherlands. Dutch legislation, moreover, actively reproduces harmful gender stereotypes. The Termination of Pregnancy Act places the responsibility on the physician to remind the pregnant person of her responsibilities: Has she thought it through properly? Is she aware of her responsibility for unborn life? This legislation portrays the pregnant person as someone incapable of making a careful decision regarding her reproductive health and responsibilities; she is inherently self-centered, and disregarding her ‘duty’ as the bearer of unborn life. As such the law reproduces and feeds into well-known stereotypes of the pregnant person as emotionally unstable and unable to make rational decisions about their reproductive health, as well as the belief that women are impulsive and inconsistent, requiring guidance from more ‘stable-minded’ individuals, often men, to manage their reproductive choices.
Time for urgent reform: towards a gender-transformative abortion law
Dutch abortion law, in its current form, is deeply flawed. It fails to recognize abortion as a fundamental right and actively reinforces stigma and gender stereotypes. With the RE-WIRING project we advocate gender-transformative law-making. This means moving beyond outdated, gender-exploitative legislation and enact law-making that is not only gender-sensitive but also geared towards combating and eradicating gender stereotypes. The time for reform is now.
Fleur van Leeuwen. Lecturer in law, Utrecht University.
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