“How Courts can use Proportionality to Decriminalize Abortion”

June 9, 2026:

“How Courts can use Proportionality to Decriminalize Abortion”

Congratulations to Alejandra Cárdenas Cerón, Ona Flores Montero , and Rosario Grimà Algora, whose article was recently published in the International Journal of Constitutional Law and is fully available online. Formerly Senior Director of Legal Strategies, Innovation and Research at the Center for Reproductive Rights, Alejandra Cárdenas Cerón is now a human rights lawyer and independent scholar. Ona Flores Montero, also a human rights lawyer, currently serves as an independent consultant and researcher to the United Nations, regional and civil society organizations. Rosario Grimà Algora is a DPhil (PhD) candidate in law at the University of Oxford. We are pleased to circulate their abstract:

Alejandra Cárdenas Cerón, Ona Flores Montero and Rosario Grimà Algora, “The role of courts in abortion decriminalization: The unmet potential of proportionality,” 23.4 International Journal of Constitutional Law (October 2025) 1073–1112. Abstract and article online.

Abstract:
This article explores the role that courts can play in advancing the decriminalization of abortion, understood as the removal of all specific criminal provisions and related offenses. Over the last two decades, several constitutional courts have addressed fundamental questions concerning the constitutionality of criminal abortion laws, paving the way for an era of abortion liberalization or partial decriminalization. Yet none of these abortion rulings—including recent decisions by the highest courts in South Korea, Thailand, Colombia, Ecuador, Spain, and Mexico—have supported, or even been asked to consider, full decriminalization. Instead, courts have generally continued to accept criminal law as a legitimate form of abortion regulation, particularly for later gestations.This article examines how courts with the power of constitutional review could advance abortion decriminalization if such a petition were brought before them. We argue that, by deepening their constitutional analysis of criminal abortion laws through proportionality review, courts could meaningfully question the legality, rationality, necessity, and strict proportionality of criminalizing abortion at any stage of gestation. Our proposal does not suggest that abortion should go unregulated, nor that states are precluded from pursuing the protection of prenatal stages of life. Rather, it contends that criminal provisions governing abortion do not advance these goals. Abortion should instead be regulated as other areas of medical practice, subject to evidence-based healthcare laws and guidelines, and complemented by economic, social, and public health policies aimed at reducing unintended pregnancies and supporting motherhood for those who choose it.

RELEVANT RESOURCES:

Veronica Undurraga, “Proportionality in the Constitutional Review of Abortion Law,” in Abortion Law: Transnational Perspectives: Cases & Controversies, ed. Rebecca J. Cook, Joanna N. Erdman and Bernard M. Dickens (2014) Abstract online in English and Spanish.

Rebecca J. Cook & Bernard Dickens, “Abortion” [Comparative Abortion Law], in Elgar Encyclopedia of Comparative Law (Jan M. Smits et al. eds., 2023). Article Online.

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Compiled by: the Coordinator of International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca. See Program website for Abortion Law Decisions, Publications, Research resources, and the Reprohealthlaw Commentaries Series. TO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of this blog, then check your email to confirm the subscription.

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