Removing abortion from criminal law: what might that look like?

Stigma must not prevent women from seeking abortion care 

Buijsen’s argument remains legally sound. Article 296 of the Dutch Criminal Code does not criminalise the woman, but rather the person who performs the abortion outside the conditions set out in the Termination of Pregnancy Act (Wafz), the law which, since 1984, has regulated the conditions under which abortion may take place. “No criminal charges are brought against the woman. So anyone who says that women are stigmatised by this law is, strictly speaking, basing their argument on a misunderstanding,” says Buijsen. 

However, for Buijsen, that is no longer the only consideration. He refers to his new perspective as “evolving understanding” and focuses on a different question. Is the original intention of the legislature in 1984 still the most important criterion? “If the stigma is  

actually experienced and women are indeed deterred from seeking proper abortion care as a result, is that not something the legislature ought to address?” For him, therefore, it is no longer a question of whether the stigma is justified, but of its effect in practice. 

GPs and the abortion pill 

Buijsen sees a current example of this effect among GPs. Since 1 January 2025, GPs have also been authorised to prescribe the abortion pill up to nine weeks into a pregnancy. Yet at present, only three to four per cent of GPs do so. Buijsen points out that the criminal law framework surrounding this form of care is likely a contributing factor. Strikingly, this example is rarely linked to stigma, even though it touches on what academics call a ‘chilling effect’: the phenomenon whereby a rule discourages people from doing something, even if they themselves are not at risk of being punished. “The criminal law framework surrounding this regulation certainly contributes to the lack of access to this form of abortion care,” says Buijsen. “But in this context, nobody talks about stigmatisation or chilling effects.” 

An alternative: from criminal law to administrative law 

If Article 296 were to be abolished, abortion would have to be regulated elsewhere. The private member’s bill tabled by GroenLinks and the PvdA (two Dutch political parties) in 2023 proposed using the Healthcare Quality, Complaints and Disputes Act (Wkkgz) for this purpose. This is the Act that sets out general rules in the Netherlands regarding the quality of care, such as how healthcare providers must deal with patient complaints. According to Buijsen, this Act is therefore too general for something like abortion care, which is not only a medical but also a socially sensitive issue and thus requires more specific rules than the Wkkgz provides. “Anyone who knows this Act even a little bit knows that’s nonsense,” says Buijsen. “The Wkkgz is completely unsuitable for that purpose.” 

He prefers to look at the possibilities offered by the Special Medical Procedures Act (Wbmv). This Act regulates, through administrative law – that is, via government licences rather than through criminal law – medical procedures that are exceptional because they are costly, scarce or morally sensitive. IVF, organ transplants and paediatric heart surgery are already covered by it. “If one wishes to decriminalise abortion care whilst retaining a licensing regime, bringing it under the Wbmv is the most logical solution,” says Buijsen. He himself rules out a purely private-law approach, via the Medical Treatment Agreement Act (Wgbo), the law governing the relationship between doctor and patient. He describes that step as “a bridge too far” for the medical profession. 

So what makes that approach a bridge too far? Buijsen explains that the Wgbo entitles patients to care in accordance with the ‘professional standard’, in other words, the standard set by the professional body itself in protocols and guidelines. In the case of a GP treating a patient with flu-like symptoms, it works like this: if the professional standard prescribes antibiotics, the patient has an enforceable right to them, even if the GP would prefer to recommend something else. The situation is different when it comes to abortion care. The rules currently apply not as a professional standard but as a legal standard, laid down in the Wafz. That standard grants a right to abortion care, not to abortion itself. If abortion care were to fall under the Wgbo, the professional body would have to determine for itself what the professional standard for abortion entails, and in doing so would inevitably also have to answer the question of whether a woman requesting an abortion would then have an enforceable right to it. Buijsen believes that leaving that decision to the professional body goes too far. 

The protection that must remain in place 

A key counter-argument against decriminalisation is that Article 296 of the Dutch Criminal Code also offers protection, for example against forced abortion. The Netherlands is, in fact, a party to the Istanbul Convention, which requires that abortion without the woman’s consent remain a criminal offence. Buijsen previously identified this provision of the Convention as a sticking point, without outlining a solution. 

Now, however, Buijsen does have a solution. He proposes reformulating the current paragraphs 1 and 3 of Article 296 of the Dutch Criminal Code into a new, separate criminal provision that criminalises only forced abortion. The rest of the provisions could then be transferred to the Wbmv. In this way, the Netherlands would continue to comply with its treaty obligation, whilst abortion care itself would no longer be subject to criminal law.

Not yet a viable option politically 

From a legislative point of view, this step is relatively straightforward, according to Buijsen. Politically, however, the situation is different. He compares the Wafz with other laws that were enacted following a hard-fought compromise, such as the Euthanasia Act, and which politicians are reluctant to tamper with. His advice to supporters of decriminalisation is therefore to emphasise that, from a legal perspective, this is a small step – from a criminal prohibition to an administrative prohibition – and, above all, not to touch on late-term abortion after 24 weeks. They must also point out that a shift from criminal to administrative law will in no way undermine current standards of care in abortion practice. 

According to Buijsen, anyone who views the debate as a simple ‘yes’ or ‘no’ to abortion under criminal law is missing the point. “It concerns exclusively terminations of pregnancy up to 24 weeks, not late-term abortions and not forced abortions, which would remain a criminal offence. Nor does decriminalisation mean that abortion becomes ‘ordinary’ healthcare. It remains specialised care; it is simply that, from now on, it could be regulated under administrative law rather than criminal law.”