Summary: This article explores the structure, brief history, and development of abortion law in Taiwan and the United States, showing that the issue has never been a binary question but rather a broader and more complicated problem. Following the Dobbs v. Jackson Women’s Health Organization case, the right to abortion in the U.S. now will be determined by each state, rather than being a fundamental right available to all. This article provides a brief overview of Taiwanese abortion law and discusses the U.S.’s legal debate and regulation changes following the Dobbs case.
Authors: Sharlene Chen* & Kathy Kim*
*S.J.D. Candidate at Indiana University Maurer School of Law.
The way the media portrays the discussion around abortion rights is mostly polarized and confrontational. However, the right to abortion has never fallen into a simple binary question but, instead, is an issue encompassing a broader range of complexities and nuances. This short article discusses Taiwanese abortion law as a quick overview to illustrate the spectrum of the issue and compare it with recent U.S. federal and state court decisions. We begin by discussing the grounds on which abortion can be legalized under Taiwanese abortion law.
Overview of the Taiwanese abortion law and its development
In Taiwan, abortion issues are regulated through criminal codes and the Genetic Health Act. Under Taiwanese criminal codes, the offenses related to abortion are stipulated in Articles 288 to 292. Pregnant women who seek an abortion would be subject to imprisonment of no more than six months or a fine of no more than 100 yuan. The person who performed the abortion at the pregnant woman’s request would be imprisoned for three to 10 years. The code also imposes penalties on anyone who publicly advertised methods of abortion, with imprisonment of no more than one year or a fine of no more than 1,000 yuan.
However, the Taiwanese government attempted to decriminalize or legalize abortion on certain grounds due to the over-growing population. The government decided to retain the criminal code while simultaneously passing new regulations to provide certain exceptions for accessing abortion under the Genetic Health Act. Currently, under the Genetic Health Act and the Enforcement Rules of Genetic Health Act, abortion is allowed if a pregnant woman requested it and met one of the following requirements: First, a pregnant woman, the spouse of the pregnant woman, or their relatives within four degrees kin were diagnosed with any genetic, infectious, or psychiatric disease. Second, a pregnancy might pose a serious risk to the pregnant woman’s life, physical, or mental health under medical consideration. Third, a fetus was diagnosed with an anomaly. Fourth, a pregnancy was resulted from rape or intercourse with a person who would be prohibited from marrying. Fifth, a pregnancy would cause the pregnant woman’s mental health and family life. Finally, an abortion could be performed within 24 weeks of pregnancy, except for certain medical reasons. The fifth requirement for abortion is usually considered a general ground for abortion, allowing a pregnant woman to ask for an abortion for any reasons she deems necessary, with the consent of her spouse. In addition, in January 2022, the Ministry of Health and Welfare passed a draft bill to remove the stipulation of the consent of the spouse, moving towards a woman’s right to abortion.
It is important to note that although the abortion issue in Taiwan seems to have shifted towards a woman’s right to abortion since its legalization in 1984 through the Genetic Health Act, the discourse surrounding the issue was not driven by advocating for “rights” but rather by the government’s concerns about population control. The government was concerned that the over-growing population might cause “the growth of a national problem.” Research even showed that the discussion of “eugenics” had been mentioned several times during the discussion of legalization. It was not until around 2000 that the whole debate gradually transformed into pro-choice v. pro-life.
Previous cases from the U.S. Supreme Court and state courts
Reviewing the U.S. history of abortion law, the initial movement to liberalize abortion in 1960 did not end up forcing all states to legalize it. Women in the states where abortion was banned had to travel to the states where abortion was legal; however, the travel options were not often feasible for women from poor socio-economic backgrounds. Also, some states imposed residency requirements for abortion, which further delayed the safe period for the procedure. All that led to the landmark U.S. Supreme Court decision in Roe v. Wade, which established a woman’s constitutional abortion right. Roe set the fundamental guidelines for the right to privacy regarding abortion and balanced the government’s interest in protecting women’s health with “the potentiality of human life.” However, after the Dobbs v. Jackson Women’s Health Organization decision in 2022, which overturned Roe v. Wade, the legal landscape of abortion has shifted dramatically. Several states restrict or ban abortion more actively, while others remain in the position to legalize and allow abortion, observing other states’ decisions.
Before Dobbs, the majority of Americans (61%) felt that abortion should be legal in all (27%) or most (34%) cases, whereas 38% of Americans took the position that abortion should be illegal (Pew Research Center public survey, 2019). After Dobbs, a follow-up survey showed Americans’ reaction to supporting legalized abortion remained at 62% into 2023. Even though the majority of Americans support the legalization of abortion, more than a dozen states acted quickly to ban abortion following Dobbs by immediately enforcing trigger laws designed to take effect in the event Roe was overturned. To date, 14 states have attempted to implement a complete ban or a pre-viability ban. Nine states impose a gestational limit between 15 and 22 weeks, while two states impose gestational limits between 6 and 12 weeks (about 3 months). Practically, these gestational limits could function similarly to a total ban since women may not know they are pregnant during that period. The remaining 25 states and Washington, D.C., have legalized abortion beyond 22 weeks. (Status of Abortion Bans in the United States as May 26, 2023).
When comparing with Taiwan’s requirement for allowing abortion, most non-abortion U.S. states have exceptions similar to Taiwan, permitting abortion in certain circumstances to protect the health or life of the patient, as well as in the case of rape or incest. In the laws surrounding abortion in the two countries, U.S. states that support abortion tend to have a more diverse set of arguments than the protection of women’s health when compared to criminal laws and the General Health Act in Taiwan.
For example, Ohio, Oklahoma, Georgia, Indiana, Kentucky, Utah, and Wyoming challenged the abortion ban by asserting that it violated due process, liberty, equal protection, or privacy rights. These states’ Supreme Courts had diverted the interpretation of those similar federal rights to the state level and exclusively protected the right to privacy in abortion.
Further, Wyoming and Ohio have challenged the abortion ban by amending their constitutions to create the right to decide on health care and health insurance. Neither state’s highest court decisions have been reached yet; these states are considering constitutional privacy rights while prioritizing health care decisions.
Also, individuals and religious faith leaders in Florida, Indiana, Kentucky, Missouri, Utah, and Wyoming challenged the abortion ban by claiming the state’s abortion restrictions violated religious freedom.
Thus, state-level abortion laws and regulations in the U.S. have created an uncertain policy environment depending on each state’s health facility condition, legal challenge, or political landscape. Even though it might take a bit longer to conclude how to protect women’s rights in abortion, the active discussion at the state level prompts a reconsideration of current abortion laws in implementation to protect women, aligning with the Federal constitutional protection.
Conclusion
From the above analysis, we can see that, first, the approaches to addressing the right to abortion in Taiwan and the U.S. legal systems differ. The approach to the abortion issue in Taiwan was led by the government and regulated under the criminal codes while allowing certain grounds for abortion in the Genetic Health Law. In Taiwan, the initial debate over abortion was not driven by women’s rights advocacy. Rather, it was driven by the government in consideration of the “over-growing population harming the development of the nation.” Therefore, the Taiwanese judicial interpretation of the Constitution has been more limited than the Constitutional interpretation of the U.S. Supreme Court.
In the U.S., abortion rights involve the constitutional right to privacy and the balance of protecting women’s health against “the potentiality of human life.” Each state has a unique judicial history and binding precedent, with state Supreme Court rulings diverging on liberty, privacy, and due process protections. After Dobbs, the U.S. Supreme Court preserved the right to access abortion to be decided at the state level. State courts interpret the constitutionality of abortion bans based on their own state’s Constitution and other laws.
