An Irritant to the Body Politic
Since 2001 a group of NGOs led by the Indonesian Women's Health Foundation (YKP) has lobbied the Indonesian government for reform of arcane and confused laws related to abortion. They are motivated by concern about reproductive health rights, and specifically the need to prevent the thousands of deaths associated with septic abortions each year. They were able to persuade a majority of political parties to support their efforts in 2004, and in the dying days of Megawati Sukarnoputri's presidency, they gained parliamentary approval for a draft amendment to the health law that would have made abortion both safer and more easily available.
To the surprise of activists the amendment was not signed by the outgoing president, and thus lapsed when Susilo Bambang Yudoyono came to power in late 2004. Finding themselves back at square one, the NGOs and their allies in the DPR (People's Representative Council) brought the amendment back to the legislature in 2005, but found that the politics of the situation had changed dramatically.
Islamist politicians who had accepted the earlier change suddenly announced that they were opposed to abortion, and would now fight the amendment. Over the life of the 2004-09 DPR, amendments to the health law and particularly the clauses related to abortion made little progress, to the frustration of both the YKP and their DPR allies. The story of why this legal quagmire persists says a lot about the nature of democratic reform in Indonesia, and about the prospects for efforts to improve the status and health of women.
A contentious history
In Indonesia, as in many other countries, abortion is not simply a public health problem. It is a touchstone political issue, setting up conflicts of identity, morality and social control. Abortion has never dominated political debates, but it has been an irritant to the body politic since Independence.
The law against abortion was contained in the Criminal Code (KUHP) passed early in the twentieth century, and that in turn was modelled on the Dutch Criminal Code from the nineteenth century. It was seldom applied, even though abortion was widely carried out by dukun (traditional healers) and was not rare among medical professionals in cities. Rather, the law was applied selectively and usually only when a woman had died during or after the procedure.
In the 1950s contraceptive technologies were crude; there were only a handful of doctors trained to assist women with fertility control. Meanwhile, politicians like Sukarno accepted high fertility rates as a symbol of national potential, in terms of both workforce and identity. A decade later, family planning started to be seen as a priority at the same time that the invention of the oral contraceptive pill made birth control cheaper and more effective. Abortion was still considered to be problematic but in Jakarta groups of doctors campaigned to prevent septic abortion deaths.
From the mid-1960s, abortion was firmly on the agenda of the Indonesian Association of Obstetrics and Gynaecology (POGI). In 1974, for the United Nations Population Year, the association published a special issue of its journal on abortion with papers showing the dangers of the procedures done by untrained dukun, and calling for reform of laws to allow doctors to provide safe terminations of pregnancy.
The association showed that hospital maternity wards were straining from the pressure of septic abortions and that doctors struggled with the implications of not offering women a safe alternative. In the absence of protective legalisation from the DPR they sought protection from the courts to avoid prosecution for what was regarded as a vital medical need.
Ironically considering later developments, it was the United States Agency for International Development (USAID) that provided assistance for abortion services in the early 1970s. The organisation supplied vacuum aspiration equipment for procedures that were called menstrual regulation (MR). The assistance covered training for paramedics and doctors to carry out safe procedures during the first fourteen weeks of pregnancy.
This aid was possible because officials in the Indonesian family planning program made a technical distinction between inducing a delayed menstrual cycle and performing an abortion. For doctors carrying out the procedures, it was clear that in most cases a pregnancy was well established. But in the absence of a positive pregnancy test the patient and the doctor could assume that they weren't terminating a pregnancy but simply bringing on menses, making the Criminal Code provisions irrelevant, at least in their minds.
Students in medical schools were taught the new techniques, and over the course of the 1970s it became easier for urban women to find a doctor who would provide a safe abortion as long as it was called an MR.
For the next two decades, it appeared that the stipulations of the criminal code had been overcome by a combination of new technology and assiduous coalition-building. Doctors and lawyers pressed the Attorney General, justices of the Supreme Court and government ministers to accept MR as a medically approved procedure, while maintaining criminal sanctions against abortions carried out by dukun or other unqualified people.
Word spread among the medical profession that they were safe from prosecution so long as procedures adhered to high medical standards and no harm was done to patients.
Anti-abortion forces gathering momentum
This informal compromise might well have progressed to clear legalisation in Indonesia but for the rise of conservative forces in the United States in the late 1970s and early 1980s, bringing the cancellation of development assistance for MR and the rise in policies actively opposing abortion. Protection for doctors performing medical terminations in Indonesia weakened when the international debate changed direction with the so-called Mexico City Policy introduced by President Ronald Reagan.
Anti-abortion forces in Indonesia itself were also gathering momentum, as Islamic groups targeted family planning as a way to oppose the New Order government. These criticisms were muted when Suharto had a firm grip on power but, while they were not strong enough to inhibit the contraception program substantially, they did draw attention to the abortion provisions in the Criminal Code and pushed government ministers and others to condemn routinely the immorality and illegality of abortion. Few people were willing to speak up for what many saw as an extremely problematic procedure.
Dilemmas of reform
Advocates for family planning and safe abortion faced a dilemma. On the one hand, they agreed with many of the criticisms levelled against the authoritarian government. On the other hand, even though many of them shared the religious beliefs and values of the critics, they were even more concerned about the welfare of women. As a result, they embarked on a complicated strategy to coopt the largest Islamic groups in support of the women's reproductive health agenda while at the same time lobbying government departments to change the legal framework surrounding abortion.
Throughout the 1990s, activists pursued a program of workshops, publications and public discussions to promote their aims, often with funding from international NGOs, UN agencies and sympathetic units within the government.
Both these strategies were moderately successful at first. Activists from Nahdlatul Ulama and Muhammadiyah were enlisted to promote improved reproductive health care for women, including access to safe abortion. Fundamentalist groups remained antagonistic, but the fact that family planning activists were able to show Islamic support for their campaign for access to safe abortion meant that it could not simply be dismissed as a western plot. In this way, reproductive health came to be re-defined as a central issue for socially minded Muslims, and the call for legal change less of a trigger for political conflict.
The first opportunity for reform came in 1991, when the DPR considered a draft law concerning health. While this draft was more aspiration than black letter law, it opened an opportunity for abortion to be shifted from a criminal issue to one of medical regulation. Working with the Department of Health, activists pressed for a statement that would make abortion legal if performed by licensed, trained medical personnel. But at that time, reviews of laws in the DPR's committee system had become increasingly fractious.
When the draft health law was examined by legislators they immediately challenged both the language and the content of the clauses touching on abortion. Transcripts showed arguments from Islamic and military factions questioning the propriety of any steps that would legalise abortion; these groups didn't even want lawmakers to consider the use of the word.
Officials from the Department of Health and advocates of reproductive health were shocked to see the law that emerged from the DPR. The so-called rubber stamp turned out to be a sledgehammer.
The word aborsi, used in the Department of Health's draft, had disappeared completely from the 1992 Health Law and it was clear that the new reference to 'certain medical procedures' would not address the problem of unsafe terminations of pregnancy. What these procedures might refer to was unclear, since they were described as being intended to save the life of a mother and/or her foetus – clearly a nonsense when talking about abortion.
It was only in the wake of this fiasco that a serious attempt was made to estimate the annual number of induced abortions. Along with our colleague Dr Sarsanto Sarwono, we reviewed the numbers of specialist obstetricians, general practitioners, midwives, nurses and traditional midwives. Then we made guesses about how many pregnancy terminations might be made on average by the members of each group, taking into account that many practitioners might not do any procedures, while others were offering abortions as their main mode of practice. This calculation produced an estimate of 700,000 procedures per year for the mid-1990s.
Such a figure was large in comparison with the estimated 5 million births annually at the time, but within months newspapers were quoting experts who took the estimate as a base and inflated the numbers upwards, on the speculation that any estimate would have been conservative and numbers would be rising rapidly. Before long the newspapers were regularly publishing statements that Indonesia had well over one million induced abortions annually.
Whether it was 700,000 or 1.2 million, it was clear that most abortions were provided to married women, not the stereotypical unmarried teenagers. Also, it was likely that large numbers of procedures were conducted by people who had no medical training, sometimes in ways designed simply to provoke bleeding, so women could go to hospital emergency rooms to seek professional help legally to complete the abortion.
A more reliable estimate of abortion numbers was made by Dr Budi Utomo and his colleagues in 2000 and 2001, using an innovative approach to monitor the practices of a sample of service providers in both urban and rural settings. This survey produced a minimum estimate of two million women seeking medical intervention for pregnancy termination in 2000; over half of these procedures were induced abortions, and around 800,000 were alleged spontaneous terminations needing some medical attention.
Again, it didn't take long before experts, including staff of the Department of Health, were quoting much higher figures, and newspapers were misquoting the two million figure as the total number of induced abortions.
Campaigning for change
Fired up by the figures, activists pressing for legal change were increasingly hopeful that lawmakers would reconsider the situation. Prominent among them were the feminist activists inspired by the 1994 Cairo Conference on Population and Development calling for human rights-based reproductive health. They hoped that President Abdurrahman Wahid's government (1999-2001) and a rejuvenated DPR would embrace these ideas, and they were delighted when the president appointed a young, energetic woman as the Minister for Women's Empowerment, a portfolio that she insisted must include family planning.
At the start of 2001 the Women's Health Foundation (YKP) was formed with support from all major political parties and a key official from the Ministry of Health. By July this coalition had begun the task of drafting the clauses needed to re-define the position of abortion in the health law.
During the New Order, laws had been drafted by government departments or ministries and passed on to the legislature for what was usually very minimal debate and rapid endorsement. After reformasi, the DPR committee responsible for health matters decided to take the initiative and draft a law on reproductive health to be presented to the government. In June 2002 the Minister of Health was approached privately to elicit his support for the draft law. He gave his blessing to the initiative and delegated the Director General for Community Health to assist.
But while the director general was a long time supporter of family planning, he was less than helpful, claiming that the department had received threats from conservative religious leaders who were concerned about the moral implications of abortion. If it was easy to terminate a premarital pregnancy, they had argued, immorality would flourish. He found it hard to refute their logic.
The YKP responded by proposing to undertake research on the demand for abortion, which they knew was likely to show that most procedures were sought by married women whose contraceptive methods had failed. This would have been an easy enough task if they had had access to the records of the largest network of abortion clinics in the country, the Indonesian Planned Parenthood Association (PKBI).
Ironically, at that time the head of PKBI was none other than the Director General for Community Health, who instructed the clinics not to participate in the research. But the YKP was closely connected to the doctors working for the PKBI, many of whom agreed to participate in the study but without reference to the PKBI name.
While the researchers were in the field, YKP staff then approached parliamentarians to discuss the need for amendments to the 1992 law. They met with Commission VII of the DPR, the committee that had produced the original law, but whose composition had now changed.
The commission chair immediately put the amendment on its agenda, but discussions dragged on for two years. In February 2004, commission members finally signed a Letter of Agreement supporting a draft law, including the abortion amendment, to be sent to the full DPR for confirmation. A plenary session of the DPR passed the law and sent it to the president for final endorsement.
An unsigned bill
With the distraction of the elections that year the draft remained on the desk of President Megawati until August, when she called in members of the YKP to have lunch with her and to discuss the implications of the amendment. The president said she would sign the law as soon as she received a routine letter of support from the minister of health. The relevant paperwork went to the minister, and he passed it on to the legal department of the ministry. In the meantime Susilo Bambang Yudhoyono won the second round of voting in the presidential elections by a substantial margin.
There had been no letter from the minister, despite many reminders from the YKP, so outgoing President Megawati did not sign the bill. When Yudhoyono was sworn in on 24 October 2004, the draft Health Law amendment had expired. The amendment would have to make its way through the DPR again. In the meantime, many strong supporters of health reform had failed in their election attempts or had retired, and the mood of the parliament had substantially shifted.
Things changed even more dramatically in August 2005, when the Islamist group Hizbut Tahrir sent a message to the president calling on him to stop any proposal to legalise abortion in any form. While only a very small group, Hizbut Tahrir was able to command public attention with a coordinated media campaign and public protests across the country. Its members claimed that the only possible solution to unwanted pregnancies was a return to Islamic law.
Despite the strong language of the attack, Hizbut Tahrir had little influence in parliament. Nonetheless, when the amendment was discussed in the newly formed DPR Commission IX for Population, Health, Labour Force and Transmigration, it was totally revised, introducing many negative references to abortion as a concept, and complex descriptions of conditions under which women might obtain abortions from trained medical staff.
Moral arguments put by religious critics
For four years the parliamentarians and advocacy groups argued back and forth about the best way to handle their conflicting preferences. Human rights advocates have called for the legalisation of abortions carried out by trained medical practitioners operating in certified facilities and using safe standard operating procedures, including professional counselling and follow-up provision of effective contraception.
Moral arguments put by religious critics focus on the restriction of terminations to women who can be proven to have been raped, and the imposition even in those cases of strict limits in terms of the duration of the pregnancy (often referring to six weeks after the last menstrual period, which would imply only two weeks after the woman might be able to confirm her pregnancy accurately with reference to a missed menstrual period).
The draft also stipulated that religious leaders would be required to confirm the need for an abortion. It did not specify if that person would be of the same religion as the woman or her medical practitioner.
In early September 2009 it appeared that history was poised to be repeated, with the draft health law either dying with the retirement of the outgoing DPR, or through the impossibility of ever implementing a poorly drafted law. Remarkably, on the evening of September 14, the near empty chamber of the DPR voted to adopt the proposed Health Law, including somewhat changed clauses on abortion (articles 75-77). The six week stipulation remains, but making exceptions in cases of medical emergencies.
Pre and post abortion counselling by a competent provider is required, and procedures require the approval of the woman's husband, except in cases of rape. Only certified medical practitioners are allowed to carry out abortions. It is unclear what type of medical professionals will be certified; that is up to the Minister of Health.
What does seem likely is that traditional healers, uncertified medical personnel and individual women will continue to use dangerous methods to terminate unwanted pregnancies. Clause 194 stipulates that those caught doing so will be subject to a one billion rupiah (ca. $130,000 / €910,000) fine and a maximum sentence of ten years in prison.
Were that to be applied rigorously to the one million or so cases of abortion each year the legal system would never be able to cope with the trials, or the punishments. The reformed Health Law has again failed to protect or serve the women of Indonesia.
Terry Hull, Ninuk Widyantoro
© Inside Indonesia 2010
Terry Hull (email@example.com) is Professor of Demography at the Australian Demographic and Social Research Institute, Australian National University.
Ninuk Widyantoro (Ninuk_who@yahoo.co.id) is a practicing psychologist and women's reproductive health advocate in Jakarta.