Contesting and Controlling Abortion in China’s Courts

Abstract

The decision of the United States Supreme Court in Dobbs v. Jackson Women’s Health Organization has brought renewed global attention to how legal systems protect and restrict women’s reproductive autonomy. Central themes have included how the rollback of reproductive rights in the United States coincides with the Court’s embrace of a broader “jurisprudence of masculinity” and the relationship between abortion restrictions and authoritarianism, as multiple countries have enacted restrictive measures while undergoing democratic backsliding. Comparative inquiry is central to the abortion debate: Dobbs’ majority opinion, Chief Justice Roberts’ concurring opinion, and the dissent all discussed abortion regulations in other countries, with the Chief Justice’s concurrence clearly associating elective abortion with authoritarian governance in China and North Korea.

Despite these comparative references, the scholarly conversation on abortion, democracy, and how courts reflect and entrench gender disparities entirely omits China, the largest authoritarian state and a country with a high incidence of abortion. This is largely unsurprising: the central challenge facing Chinese women has not been abortion access but state-mandated birth control and abortion. Almost no prior scholarship examines how Chinese courts adjudicate disputes over abortion. This lack of attention reflects the common understanding that courts play no role in regulating reproduction and that abortion remains unproblematic in China.

Yet Chinese courts do confront and decide claims involving abortion. Drawing on a dataset of more than 30,000 civil cases discussing abortion, this article examines claims by men that their wives obtained abortions without the man’s “authorization.” Chinese courts rarely award damages explicitly on this basis. But men’s claims to have legal rights to control women’s reproductive choices are common, despite having no legal basis in Chinese law. The persistence of such claims suggests that women’s access to abortion care is more regulated in China than academic and popular accounts convey.

As China shifts toward encouraging rather than restricting births, traditional views of gender roles and the family increasingly align with the Party-state’s new pro-natalist policies. Courts may be an important venue for adjudicating reproductive rights and for enforcing such policies. China also presents an important example of how abortion and gender are contested in a legal system in which constitutional rights play little role and the legal status of abortion appears to be settled. China demonstrates that resolving the legal status of abortion does not eliminate legal conflict, but rather opens up new areas of legal contestation regarding reproductive rights. Recognizing how and when abortion is litigated in China suggests the need for scholars to place more attention on the role of private law litigation in contesting and restricting reproduction across legal systems. Men’s claims to control women’s reproductive choices in China also highlight the ways in which rights advocacy can serve regressive as well as progressive goals in democratic and authoritarian systems, and also that regime type may not dictate how legal systems address legal conflict over abortion.

Keywords: China, abortion, family law, reproductive rights, courts