Abortion during the Covid-19 pandemic in Indonesia: nation’s responsibility in fulfilling women’s rights related to sexual health and reproduction

Abstract

Women’s sexual and reproductive health plays an important role in fulfilling human rights. Even during Covid-19 pandemic, it is important to fulfill sexual and reproductive health rights. However, many human rights violations occur among minority groups, especially women in cases of abortion. During pandemic, based on data The National Population and Family Planning Agency (BKKBN) of Indonesia, there has been a decrease by 40% in contraceptive use and an increase in unwanted pregnancies by 15–30%. The number of unwanted pregnancies will increase and make abortion an option for every woman. Social restrictions in Covid-19 situation create challenges and vulnerabilities for women, which has had a significant impact from the pandemic in fulfilling social justice. This article aims to analysis how abortion during Covid-19 is handled based on a human rights approach and how Indonesia as a state to fulfills its responsibilities in overcoming the problem of abortion during Covid-19. The research method used qualitative study by combining doctrinal legal research and empirical legal research. It was concluded that the rise in abortion cases during the Covid-19 pandemic shows that the state has not been able to fulfill the state’s responsibility to fulfill, to respect and to protect human rights, especially women’s sexual and reproductive health rights.

IMPACT STATEMENT

This article examines how abortion during Covid-19 is handled based on a human rights approach and how Indonesia as a state to fulfills its responsibilities in overcoming the problem of abortion during Covid-19. In principle, the state is obliged to have responsibilities such as respect, fulfill, and protect citizens or society. Based on this principle, the state has not been able to resolve it properly and appropriately. This is in line with the fulfillment of the right to sexual and reproductive health opportunities based on a human rights approach, which has not been achieved in terms of availability, accessibility, and quality of fulfillment of this right.

Keywords:

• Abortion
• Covid-19 pandemic
• social justice
• women right’s

JEL CLASSIFICATION CODES:

• Asian law
• human rights law & civil liberties
• health law

REVIEWING EDITOR:

• Guangchao Charles Feng, Hong Kong Baptist University, Hong Kong

SUBJECTS:

• Human Rights Law & Civil Liberties; Medical & Healthcare Law; Criminology and Criminal Justice; Health & Society; Health Conditions; Public Health Policy and Practice

1. Introduction

The Covid-19 pandemic has created a new culture in society, namely social restrictions. The Indonesian government, through the Government Regulation on Large-Scale Social Restrictions in the Context of Accelerating Handling of Covid-19 and the Presidential Decree on Determining the Covid-19 Public Health Emergency, regulates several restrictions and adjustments for community. Several existed regulations have an impact on people’s daily lives in various sectors. Millions of jobs have been lost during the pandemic, but millions of new jobs have also been created (Kooli, 2021). Some of the advantages include workplace flexibility and opportunity to work from home (Kooli, 2023). There are many activities that can be done at home, individuals tend to spend more free time with family by providing intense closeness stimulation (Supriyadi, 2022). Something that cannot be avoided in the family is the potential for additional family members due to pregnancies that were not planned or desired. An unwanted pregnancy is a pregnancy that occurs when a woman does not plan to have children (Astuti & Nurfadhilah, 2022). Meanwhile, restrictions during the pandemic have made women increasingly vulnerable, especially in fulfilling their health and reproductive rights. Especially during the Covid-19 pandemic with limited mobility, access to services, information (including awareness of their legal rights), and fear of infection, Indonesian women also experience limitations in getting safe reproduction health insurance.

During the pandemic, based on data from Indonesian National Population and Family Planning Agency (BKKBN), there was a decrease in the use of contraceptive health services during the pandemic with a decrease in contraceptive use of 40% (The Indonesian Institute, 2020). This happened due to several reasons, including the pandemic situation which forced patients to reduce visits for health checks at health services (Pujolar et al., 2022), to the closure of several health service facilities (Riley et.al., 2020). The decrease in contraceptive used due to restrictions during pandemic has also led to an increase in unwanted pregnancies.

When viewed globally based on data from the Annual Report by the United Nations Population Fund (UNFPA) as an international organization in the field of population, almost 60% of all pregnancies in various countries ultimately chose to have an abortion, 45% of which are unsafe (United Nation Population Fund, 2022). In Indonesia, abortion is also still common, based on data from 2015 to 2019 before the Covid-19 pandemic occurred, there were 2.8 million women’s pregnancies in Indonesia that were unwanted pregnancies and 1.7 million of them ended in abortion (Guttmacher Institute, 2008). These abortions are carried out both safely and unsafely by women of reproductive age (Bearak et al., 2022). On the other hand, during the pandemic, with restriction health and reproductive services for women, there was an increase in unwanted pregnancies. Officialy from Indonesian BKKBN states that there has been a decrease in contraceptive use by 40% and an increase in unwanted pregnancies by 15–30%, it is estimated that more than 800,000 unwanted pregnancies occurred in the first quarter of 2020 alone (Yulisman, 2020). It is not impossible that the number of unwanted pregnancies will increase and make abortion an option for every woman (Wijayati, 2015). This shows that abortion is an option that cannot be eliminated from unwanted pregnancies during the Covid-19 pandemic, even though there is the potential for various violations of human rights and even discriminatory actions that result in women’s lives becoming vulnerable due to the loss of human rights. The impact of abortion is worrying because abortion increases the risk of death for both mother and child during the birth process (Wijayanti, 2015).

Women are included in the vulnerable group category along with children, both in terms of language, religion/belief, nationality, political choice, ethnicity, race, and sexual orientation (Riyadi, 2012). Vulnerable groups are groups in society who are at high risk because they are in situations and conditions that make them unable to avoid the threat of these risks. Women as a vulnerable group are known in developing countries because of the patriarchal roots of family law culture (Sudarso et al., 2019), placing women mainly in the domestic sphere.

Indonesia has ratified several international instruments regarding state obligations to fulfill human rights, especially the right to sexual and reproductive health for women, such as the International Covenant on Civil and Political Rights (ICCPR). In national law, the Indonesian government has made provisions that are pro-life, where abortion is regulated in several provisions such as the Criminal Code, Law Number 36 of 2009 concerning Health, and Government Regulation Number 61 of 2014 concerning Reproductive Health. Some of these provisions have not been able to accommodate abortion issues due to differences in implementation and regulatory requirements, one of which is the difference in gestational age as a condition for allowing abortion. The disharmony of several of these provisions is a new problem faced by women in having a safe abortion. There are other causes, such as a societal culture that still cannot accept children outside of legal marriage (Yuliartini, 2010) as well as problems where abortion and policies on genetic development and human reproduction have become sensitive discussions in several Muslim-majority countries (Kooli, 2020). The abortion problem that occurred during the Covid-19 pandemic shows that Indonesia has not been able to carry out its responsibility to protect, to fulfill, and to respect human rights (Matompo, 2014) as regulated in international human rights instruments. Meanwhile, reproductive health rights are also included in the basic human rights of every woman.

Several previous studies analyzed similar problems, namely how the Indonesian state is responsible during the Covid-19 Pandemic based on national and international law and what Indonesian law will look like in the future in formulating a national emergency status (Disantara, 2020). However, there has been no study regarding the relationship between abortion and state responsibility for abortion cases during the Covid-19 pandemic based on a human rights approach. The purpose of this article is to analyze the expression of human rights regarding the provision of safe abortion for women and the responsibility of the Indonesian state regarding the issue of abortion during restrictions due to the Covid-19 pandemic for women.

2. Research method

This research represents a qualitative study by combining doctrinal legal research and empirical legal research with a regulatory approach and a conceptual approach (Marzuki, 2016) related to the state responsibility in handling of increased abortion during Covid-19 in Indonesia. The research data collection technique was carried out by carefully searching the literature on primary legal materials and secondary legal materials. This primary legal material sources in the form of statutory regulations, namely the Criminal Code (KUHP), Law Number 36 of 2009 concerning Health, and Government Regulation Number 61 of 2014 concerning Reproductive Health. The secondary legal materials in the form of various library works consisting of books, journals, previous research, and so on in the legal field (Soerjono Soekanto dan Sri Mamudji, 2015). Secondary data was taken from the activities utilizing existing data obtained from certain agencies or institutions (such as BKKBN and Guttmacher Institute) and then processed systematically and objectively. The data that has been collected were summarized, restated, and thematically categorized in accordance with the goals of this article, namely analysis of the handling of abortion during Covid-19 in Indonesia based on legal materials that have been collected and analyzed juridically deductively.

3. Result and analysis

3.1. Handling of abortion during the Covid-19 pandemic based on a human rights approach

Abortion is a problem in every country, both developed and developing countries where generally there are safe abortion policies in developed countries (Ganatra et al., 2017), but not in developing countries. Before Covid-19 pandemic, generally, abortion is commonly carried out unsafely or illegally. In fact, the rate of illegal abortions is about the same between countries where abortion is legal and countries where abortion is prohibited (Rahmawati & Budiman, 2023). This is because in general countries that regulate legal abortion are also countries that regulate contraceptive use and have a strong health system that can provide sexual and reproductive health services that can reduce unwanted pregnancy rates (Doucleff, 2022). In contrast, countries that prohibit abortion women tend to face high risks due to unwanted pregnancies such as legal, financial, (Fuentes et al., 2016) and physical risk when attempting to look for abortion accesses (Roberts et al., 2014).

Referring to international law, the nation has the responsibility to fulfill human rights, especially the right to life which is the most basic right for every human being and cannot be deviated under any circumstances (non derogable rights). The right to life is a basic right that cannot be deviated from and is the most important right because it is a priori. This means that if the right to life is excluded then the existence of other rights is no longer meaningful (Jayawickrama, 2002). In international legal instruments, the right to life is regulated in Article 6 paragraph (1) of the International Covenant on Civil and Political Rights (ICCPR), which states that every human being has the right to live so that it must be protected by law. In other international instruments that have been ratified by Indonesia, such as the Convention on the Rights of the Child (CRC) especially in Article 6 paragraph (1) and paragraph (2), states that the nation must realize that from the start every child has the right to life and the state is obliged ensure that the child has maximum endurance and development.

Human rights-based approach can be used to analyze opportunities to obtain safe sexual and reproductive health. Based on Sexual and Reproductive Health Matters, a global organization that promotes sexual and reproductive health, there is a human right- based approach that can be followed by every country as a basis for knowledge of implementing regulations and policies related to sexual and reproductive health. One of several rights in question, namely the right to the highest attainable standard of health, covers four main areas including availability, easy access, acceptability, and quality of services as described in the following table.

Based on the table above, it shows that in Indonesia several human rights principles related to sexual and reproductive health have not been fulfilled (Table 1). While constitutionally, the right to life is contained in the 1945 Constitution of the Republic of Indonesia (1945 Constitution of the Republic of Indonesia) which basically regulates the right to live and defend life precisely in Article 28 A. In essence, the provisions stipulate that everyone has the right to live by defending his life and existence. Referring to the 1945 Constitution of the Republic of Indonesia, the right to life, the right not to be tortured, the right to be recognized before the law, the right to freedom of thought and conscience, and the right not to be prosecuted based on a law that applies retroactively are human rights that cannot be reduced in any circumstances.

Table 1. Implementation of fulfillment of women’s rights to sexual and reproductive health based on a human rights approach.

Category	Definition	Implementation
Availability	Availability of adequate health care infrastructure (hospitals, medicines, human resources) as well as sexual and reproductive health information and services that are evenly distributed.	It was found that the availability of health care infrastructure was inadequate. There is a delay in Reproductive health checks, which affects the health of the mother and baby. Lack of medical personnel are also something that reduces the quality of health services (CNN Indonesia, 2021).
Accessibility	All health care can be accessed by everyone (including contraception and other sexual and reproductive health services) by paying attention to physical access, economic access and access to information.	In fact, not everyone has access to health care. For example, when physical access is restricted, such as restrictions on mobility, transportation, and even the closure of health facilities, which results in limited people’s choices. Regarding economic access, of course most people from small economies lose their jobs so that their income decreases, but the cost of living continues. This has resulted in limited access to paid services and a decrease in contraceptives. Finally, access to information relates to how accurate the information conveyed to the public is. This related to inadequate access to information has an impact on people’s difficulties in understanding existing information and creates a low level of awareness about contraceptive options (Nurhaliza, 2020).
Acceptability	Sexual and reproductive health information and services must respect human rights and medical ethics, dignity, and culture of individuals, as well as minority groups. So that it can be accepted by some people or minority groups.	The fact is that in Indonesia, of course it cannot be separated from various cultures, norms, and beliefs in society. There is still a lack of training for health workers, there is not optimal counseling for inclusiveness and non-discrimination, and there is not optimal partnership and synergy with the community in providing sexual and reproductive health information and services that prioritize human rights and medical ethics, individual dignity, and culture (Jannati & Dwi, 2021).
Quality	Facilities, goods, information and services relating to sexual and reproductive health must be of good quality, meaning they are evidence-based and scientifically and medically appropriate and up to date.	Inadequate facilities, goods, information, and quality sexual health services are important things to improve. This is because evidence-based services and scientific guidelines for sexual and reproductive health services have not been implemented optimally. This means that medical standards are put aside in providing health services. This can also start from a lack of procurement of the latest medical equipment, inadequate training of health workers, and guidelines that are recognized both internationally and nationally have not been established. This is certainly part of the government’s unpreparedness in dealing with existing problems.

When referring to the provisions of the laws and regulations in force in Indonesia, the handling of abortion during the Covid-19 period refers to several existing statutory regulations or positive laws. At the statutory level, it has been regulated in Law Number 36 of 2009 concerning Health, particularly in Article 75 to Article 77. The Criminal Code has also regulated Articles 346 to Article 348. In addition, at the level of government regulations in that the law -The law contains Government Regulation Number 61 of 2014 concerning Reproductive Health. Not only that, at the ministerial regulation level, but the Ministry of Health has also ratified Minister of Health Regulation Number 3 of 2016 concerning Training and Implementation of Abortion Services for Indications of Medical Emergencies and Pregnancy Due to Rape, as well as Decree of the Minister of Health Number 725/Menkes/SK/V/2003 regarding Guidelines for Organizing Training in the Health Sector.

Several provisions governing abortion have apparently not been able to accommodate the problems that occur where abortion tends to be carried out unsafely or illegally. This can be seen from the differences in implementation and regulatory requirements relating to abortion, one of which is related to differences in gestational age as explained in the previous discussion. Thus, the disharmony of some of these provisions is a new problem faced by women in having safe abortions. Disharmony in laws and regulations related to abortion is seen in several regulations ranging from general to specific, for general ones it is regulated in Article 346-349 of the Criminal Code, for specific ones Article 75-76 of Law Number 36 of 2009 concerning Health (Health Law) which regulates actions and administrative requirements for abortion provocatus medicinalis and abortion provocatus criminalis and in Government Regulation Number 61 of 2014 concerning Reproductive Health (Government Regulation on Reproductive Health) in Articles 31–32, 34–38. This disharmony is found in the Criminal Code, which in principle prohibits opportunities for abortion, in fact abortion is prohibited for all roles and all conditions. Meanwhile, the Health Law has provided space and loopholes for abortion under certain conditions. The regulation of abortion is regulated by Article 75 of the health Law which in principle still prohibits abortion but provides exceptions for certain conditions as regulated in Article 75 paragraph (2) of the health Law, namely that exceptions related to abortion may be carried out if a medical emergency occurs in the mother and/or babies and pregnancies resulting from rape. Both theoretically fall into the category of abortion provocatus abortion, which is an abortion that is carried out intentionally either by using tools and/or using drugs (Afifah, 2013). Even so, this action can only be carried out after prior counseling and cannot be carried out immediately as stipulated in Article 75 paragraph (3) of the Health Law. The legal problem that occurs is that the general rules (KUHP) and special rules (Health Law) are both still valid and are at the same hierarchical level in the statutory order, namely in the order of the law. This causes a conflict of norms which regulates the same object, namely regarding abortion, a conflict occurs where the Criminal Code closes loopholes and opportunities for anyone and in any form to carry out abortions, while on the other hand the Health Law, although in principle prohibits it, still provides space to the exception of carrying out an abortion in 2 (two) conditions, namely in the event of a medical emergency for the mother and/or baby and pregnancy as a result of rape. With the existence of a new provision in the Health Law which states that abortion is permitted under certain conditions, then in accordance with the legal principle (Lex Posterior Deregogat Legi Priori) the new law overrides the old law and the legal principle (Lex Specialist Derogat Legi Generalis) a more In particular, setting aside more general laws, the Health Law should repeal the provisions of the relevant articles in the Criminal Code, because it can ensnare counselors, companions, and other health workers who are involved in administering abortions. However, in the closing provisions of the Health Law, it only contains the repeal of the previous Health Law, there is no regulation regarding attitude in the provisions of the Criminal Code and the occurrence of a conflict of norms will also result in the enforcement of penalties against abortion perpetrators in Indonesia which will undermine legal certainty.

Referring to the statutory provisions relating to abortion, it is necessary to examine its application in the field. That there is a risk of abortion in Covid-19 patients who are pregnant. The evidence relating to the impact of Covid-19 on pregnancy is limited to the second and third trimesters of pregnancy, while data regarding the first trimester is still limited. Many viral infections can cause harm to the fetus during the first trimester of pregnancy. It is known that infection with Covid-19 in the first trimester of pregnancy does not appear to be a predisposing factor for miscarriage in early pregnancy, the cumulative incidence was found to be no different between women with spontaneous abortion and pregnant women (Cosma et al., 2021). Whereas pregnant patients were still found with confirmed Covid-19 using blood sample examination and RT-PCR examination using nasopharyngeal swab samples. In addition, there are also various otherco-morbidities that can increase the risk of spontaneous abortion in the first trimester and the prevalence of Covid-19 in pregnant women (Sunita, 2021). Some of these facts can affect maternal and obstetric outcomes which may produce results that are different from those reported. This also means that the Covid-19 pandemic situation affects the availability of health services, limited mobility, and access to rights that should be obtained by those entitled to them.

The Covid-19 pandemic situation in pregnant women increases women’s vulnerability because they have to protect themselves from the Covid-19 virus and keep their babies safe. Based on a human rights approach, pregnant women affected by Covid-19 experience an intersection between choices to save themselves or the baby in their womb. It can not be denied that Covid-19 pregnancy had a higher risk of maternal death, fetal death, preterm birth, cesarean delivery, and cesarean section occurring before the onset of labor (Brioschi Dos Santos et al., 2023). In human rights perspectives, there is inherent right namely the right to autonomy and privacy, it means the decision to bear and give birth child to a child falls within the right to privacy that must be respected by states and protected from third-party interference (Amnesty International, 2020). Respecting decisions taken by women, especially pregnant women, is a main indicator of the level of achieving gender equality (Cook & Howard, 2007). Therefore, if there is a policy that does not respect and respect the autonomous decisions of women and pregnant women, it can be said to be a form of discrimination (Amnesty International, 2020). However, it is not an easy thing to decide which one of the two souls must be saved.

During a pandemic, if there are indications or a medical emergency and according to a doctor’s recommendation, the unborn baby is a soul that need to be saved, then the role of the state is needed here. The state should be ready to provide technical guidelines for preventive measures and treatment of pregnant women, so that pregnant women do not become infected with Covid-19 and find themselves in a tough decision dilemma. For example, technical guidelines for implementing the Covid-19 vaccine for pregnant women. In fact, because the government was quite slow in issuing vaccine provisions for pregnant women (Adzkia & Owen, 2021), quite a few pregnant women were exposed to Covid-19, which threatened the lives of themselves and their babies (Nurfitriani & Herdayati, 2023). In 2021 alone, maternal mortality cases increased to 6,865 cases from 4,197 cases in 2019 (Dewi, 2021). The Covid-19 vaccine for pregnant women is the right step to prevent the death of pregnant women and babies during birth with a significant level of effectiveness (Nurfitriani & Herdayati, 2023). Furthermore, the government needs to pursue various strategic steps to reduce the number of positive infected patients.

Some policies, such as large-scale social restrictions, have an impact on increasing pregnancy rates. The National Population and Family Planning Agency (BKKBN) noted that the number of contraceptives decreased by around 40% during Covid-19, in one year around 4.8 million people gave birth, whereas if pregnancy was left for two to three months it could increase to up to 5, 6 million pregnancies (Nurhanisah, 2021). Referring to this, during the Covid-19 pandemic, KTD has a wide impact. Abortion, increased risk of maternal and child mortality, anemia in pregnant women, malnutrition in the mother and fetus, and so on are potential problems. Therefore, it is necessary to determine fast and appropriate policies to handle this matter. This also means that treatment is needed, such as carrying out safe abortions during the Covid-19 pandemic.

In relation to the implementation of safe abortions, people who have experienced rape are permitted to have abortions, if they meet the applicable requirements in the Health Law and the PP on Reproductive Health. Instead, the victim must face the law and ends up being punished. Even though there are already regulations that regulate the conditions for allowing abortions caused by rape victims, the regulations regarding time limits for allowing abortions still generate a lot of debate for and against from various parties regarding the administrative requirements. As stated in Article 76 letter (a) of the Health Law regarding the time limit for allowing abortion for rape victims. This is unfair because rape victims who have abortions are only given time before 6 weeks of pregnancy, calculated from the first day of their last menstruation, except in cases of medical emergencies. Regarding the gestational age limit permitted for abortion for rape victims, namely 6 weeks or 40 days, it cannot be applied. This time is too short because the victim does not necessarily know that she is pregnant (Abdullah, 2019). Efforts to organize the provision of services are not possible in just 40 days, the referral mechanism and conditions that must be met clearly require more than 40 days. To obtain approval, rape victims need a counselor’s certificate, a letter of suitability for abortion, information from investigators and/or counselors regarding the alleged abortion, and a certificate of gestational age and this takes quite a long time (Rahmawati & Budiman, 2023).

Until this research was carried out, the Government issued the latest regulations related abortions, which were ratified by Law Number 17 of 2023 concerning Health, known as The Omnibus Health Law. This regulation is present as a development in health development and as a lesson from the Covid-19 pandemic, so it is hoped that the transformation of the health system in Indonesia will be realized with this regulation. The provisions for abortion are regulated in Article 60, which regulates the prohibition carrying out abortion. Meanwhile, Article 61 regulated the criteria for permissible abortions, there are; if the abortion is carried out by medical personnel and health workers who have competence, is carried out in a health service facility that meets the requirements, and there is consent from the pregnant woman concerned and husband’s consent except for rape victims. Referring to these provisions, there are still legal limitations, because further provisions related to abortion will be regulated through government regulations or implementing regulations. However, the government regulations regarding the implementation of Article 60 and Article 61 still have not yet been approved.

When referring to World Health Organization (WHO) regulations regarding the implementation of safe abortion, they are divided into three categories, including:

Referring to the table, the time for safe abortion depends on the medical condition of the patient. Based on this, a more complete and comprehensive medical Standard Operating Procedure (SOP) is needed that must be made by state administrators as a form of state responsibility regarding the timing of safe abortion so that it can be implemented and guarantees the fulfillment of women’s rights to health (Table 2).

Table 2. Category of safe abortion implementation.

Abortion category	Explanation	Abortion time
Incomplete abortion	Open cervical ostium and bleeding, where all the products of conception have not been expelled from the uterus.	<13 weeks, or ≥13 weeks
Intrauterine fatal demise (IUFD)	Fetal death refers to the situation in which the fetus is no longer viable but the uterus has not started ejecting its contents and the cervical os remains closed	≥14–28 week
Induced abortion	A person with an unplanned, mistimed, or unwanted pregnancy may choose to have a medical abortion.	<12 weeks, or ≥12 weeks

Source: World Health Organization, 2018.

Meanwhile, the Covid-19 pandemic that occurred disrupted health systems throughout the world with a significant impact on sexual and reproductive health services such as family planning (KB), maternal and newborn health (MNHC), and safe abortion, especially in Low and middle-income countries (LMICs) are resulting in increased numbers of unintended pregnancies, unsafe abortions, and subsequent maternal deaths on top of deaths directly caused by Covid-19. WHO has recommended that safe abortion be carried out by the least invasive, most effective, and most appropriate method in relation to the duration of pregnancy. Globally, most abortions occur during the first trimester. Those who get abortions later are usually due to various barriers in accessing services, especially in LMICs. A similar trend can also be seen in Indonesia. The recommended methods for abortion during the first trimester are medical abortion using a combination of mifepristone and misoprostol, or misoprostol alone when mifepristone is not available, or manual/electric vacuum aspiration (MVA/EVA) (Miranti, 2022). Invasive procedures, such as dilation and curettage (D&C), are no longer recommended. MA and MVA/EVA can be carried by healthcare providers at the PHC level. In a variety of LMIC settings, it has been found that providing safe abortion at the PHC level on an outpatient basis is safe, feasible, and cost-effective. Referring to this elaboration, of course it can be known about how the country is dealing with various abortion problems during the Covid-19 pandemic through existing policies.

Referring to The Omnibus Health Law, where these regulations need to be immediately followed up and adjusted to WHO regulations regarding the implementation of safe abortion. This situation is worrying considering that until the Covid-19 pandemic ends, abortion provisions will still be legal uncertainty due to disharmony in laws and regulations. If viewed from a human rights approach, of course the State is obliged to implement sexual and reproductive health policies that refer to availability, accessibility, acceptability, and quality of services.

3.2. Nation’s responsibility in fulfillment of sexual and reproductive health during the Covid-19 pandemic

State responsibility in international law is basically motivated by the idea that no country can enjoy its rights without respecting the rights of other countries. Dixon provides an understanding related to ‘State Responsibility’, in at least two senses, namely, to indicate the procedural rules that apply in establishing responsibility for violations of any international obligations, and to indicate the procedural and substantive rules relating to certain cases that result in responsibility for violations of the rights of foreign citizens (Kusumaatmadja, 2003).

The state as a duty bearer needs to carry out an obligation of conduct and an obligation of result. The obligation to act obliges the state to take steps to realize economic and socio-cultural rights (ESC rights), while the obligation to produce results obliges the state to achieve certain results. Based on this, it can be noted the results achieved from the implementation of state obligations so that they are relevant to the gradual realization (progressive realization). Because of the nature of this gradual manifestation, the fulfilment of state obligations is not only seen from the results alone, but also must be examined from the steps taken.

In connection with the emergence of state responsibility, a state is responsible if an act or omission that can be linked to it results in a violation of an international obligation, whether arising from an international agreement or from other sources of international law. The elements of state responsibility that need to be understood include the presence of an act or omission (act or omission), a violation of an international obligation, whether the obligation arises from an agreement or from a source of international law, and the existence of an element of damage or loss to a party or other countries. Furthermore, Dixon believes that there are elements to declare a state responsible, such as internationally wrongful acts and the state’s actions must be in a position where the state as a public institution is not carrying out state duties, so it is immune (Sumolang, 2018).

To overcome abortion cases that occurred during the pandemic in Indonesia, it is necessary to have concrete state efforts to guarantee and protect the rights of its citizens, especially women’s rights related to sexual and reproductive health in accordance with the state’s goal of achieving citizen welfare (Welfare State) which has been mandated in the Constitution 1945. According to Kranenburg, the Welfare State not only maintains law and order, but also actively strives for the welfare of its citizens. Welfare also covers various fields that are broad in scope, so it is proper that the goals of the country are called plural, namely the goals of the country. In addition, according to him, efforts to achieve the country’s goals are based on equal and balanced justice. In terms of the right to sexual and reproductive health, so far women’s rights have only been associated with reproductive issues, whereas women’s rights to health must be seen. Women have the right to get the opportunity to be free from death during childbirth, and this right must be sought by the state. The state is also obliged to ensure that health services are obtained, particularly services for family planning (KB), pregnancy, childbirth and postpartum.

Regarding the position of the state’s obligation to address the problematic handling of abortion during a pandemic in Indonesia, in international human rights law, the state is placed as the main duty bearer who has 3 (three) main obligations, namely, to protect, to respect, to fulfill human rights towards its citizens (Matompo, 2014). The obligation to protect here is that the state is obliged to require active action from the state itself and can guarantee that no human rights violations occur by private individuals (Riyadi et al., 2012). Based on this principle, if it is collided with the policies that have been implemented in handling abortion during the Covid-19 pandemic, the state has not been able to resolve it properly and correctly with the disharmony regulations that were still being applied during the pandemic. The obligation to respect here means that the state is obliged not to intervene in human rights and freedoms (Riyadi, 2018). During the pandemic, the state limited the capacity of health services and there were differences in handling between patients with indications of Covid-19 and those without indications and hospitals that were full, so that it was difficult for people to get their rights to access proper health. The obligation to fulfill also in this case means that the state is obliged to take legislative, administrative, judicial, and practical policy steps to ensure that the rights that become its obligations can be fulfilled to the maximum extent possible (Riyadi, 2018). In practice, during the pandemic there has been no effort by the state to deal with cases of abortion that have occurred in the form of concrete steps such as making legislative, administrative, judicial, and practical policies. For example, the government must follow up on implementing regulation for abortion provisions regulated in the Omnibus Health Law in order to create legal certainty for women who meet the requirement of abortion.

Basically, the state has always been a strong party because it has authority and power, while society is in a weak position because it does not have authority and power. Coupled with weak global health care due to the Covid-19 pandemic (Romanis & Parsons, 2020), women become a vulnerable group due to the reduction of their essential human rights. Human rights are a process of defense by society against arbitrary actions carried out by the state because of the unequal position of the state and society (Romanis & Parsons, 2020). Therefore, this ultimately places the state as the holder of the obligation to respect, protect and fulfill human rights, especially women’s rights related to sexual and reproductive health.

4. Conclusions

In this case, it is known how the country is dealing with various abortion problems during the Covid-19 pandemic through existing policies. If viewed from a human rights perspective, it can certainly be detected that the state has not been able to handle this problem. The government must immediately establish clear technical guidelines from The Omnibus Health Law for safe abortion. The guideline not only about clinical criteria for carrying about abortion but also pre and post abortion counseling. The guideline should be developed in line with the latest WHO recommendations and based on best practice in other emerging and developing countries.

In principle, the state is obliged to have responsibilities such as respect, fulfill, and protect citizens or society. Based on this principle, if there is a conflict with the policies that have been implemented in handling abortion during the Covid-19 pandemic, the state has not been able to resolve it properly and appropriately. This is in line with the fulfillment of the right to sexual and reproductive health opportunities based on a human rights approach, which has not been achieved in terms of availability, accessibility, and quality of fulfillment of this right. It is hoped that this paper can become a critical thinker capable of criticizing the provisions on abortion in a quo national law, which can then become an evaluation for the government to address the massive abortion problem to ensure the fulfillment of women’s rights to sexual and reproductive health in the future.

Acknowledgments

Thanks to Faculty of Law, Universitas Gadjah Mada, which has funded this research.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Notes on contributors

M. Kenza Radhya E.A

M. Kenza Radhya E.A was born in East Java, Blitar, Indonesia on 15 October 1997. Currently pursuing a master’s degree at Universitas Gadjah Mada, Yogyakarta, Indonesia. He is active in writing scientific journals and books. He is also the founder of a law firm Analyzed Law and Policy.

Noering Ratu Fatheha Fauziah Sejati

Noering Ratu Fatheha Fauziah Sejati was born in Mempawah, West Kalimantan, Indonesia. As a graduate student at Gadjah Mada University, she is very interested in criminal law, gender and human rights. Currently, she is active as a volunteer at the Law, Gender and Society research center.

Dicky Eliakim Siringoringo

Dicky Eliakim Siringoringo was born in Medan, on January 11 2000. He currently serve as a Masters Student in Litigation Law at Gadjah Mada University and work as Director of Research and Education at the Law and Policy Analysis Firm (Sleman, Special Region of Yogyakarta). When he was still an undergraduate student, he actively participated in organizational activities both on campus and outside campus, social activities, as well as academic and non-academic activities. Apart from that, he also have an interest in the field of analysis or scientific writing by actively participating in competitions at both regional and national levels. He has experience in the field of academic research, especially legal policy and reviewing academic texts for Regency/City, Provincial and National regulations.