REPROHEALTHLAW Updates – Autumn 2021

October 1, 2021

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DEVELOPMENTS
ECUADOR Constitutional Court orders decriminalization of abortion in cases of rape. Corte Constitucional, Acción Pública de Inconstitucionalidad, Expediente No. 34-19-IN/21, Decision of April 28, 2021.  Summary in SpanishDecision in SpanishNews report in English.

MALAWI: High Court rejects girl’s application for judicial review of oral abortion refusal. The State (On the Application by HM (Guardian) on behalf of CM (Minor) vs The Hospital Director of Queen Elizabeth Central Hospital & The Minister of Health: Judicial Review Cause Number 03 of 2021 (unreported) (High Court of Malawi, Zomba District Registry) Decision of 15 June 2021.   (Download:) Legal Brief by Lewis Bande and Godfrey Kangaude.  Overview of their brief.

MEXICO: Supreme Court rules that criminalizing abortion is unconstitutional, Sept 7, 2021. Action of unconstitutionality 148/2017, promoted by the Office of the Attorney General of the Republic against the Legislative and Executive Powers of Coahuila, demanding the invalidity of articles 195, 196 and 224, section II of the Penal Code of the State of Coahuila de Zaragoza, contained in Decree 990, published in the local Official Newspaper on October 27, 2017 News report. Press release in Spanish.

NEW ZEALAND: High Court decision in NZ Health Professionals’ Alliance v Attorney-General, Sept. 24, 2021, upholds sections of the Contraception, Sterilisation, and Abortion Act 1977 (‘CSAA’), amended in the Abortion Legislation Act 2020, regarding conscientious objectors’ duty to refer and (within reason) accommodation of objecting employees. News report.

SAN MARINO: Referendum, Sept 24, 2021, voted to legalize abortion within 12 weeks’ gestation. BBC news report.

SCHOLARSHIP

[abortion laws] “Legal Epidemiology for a Clearer Understanding of Abortion Laws and their Impact,” by Patty Skuster, Temple Law Review 92.4 (Summer 2020): 917-929. Abstract and article.

[abortion, Ireland, COVID-19, remote consultation] “Early abortion care during the COVID-19 public health emergency in Ireland: implications for law, policy and service delivery” by Allison Spillane and Maeve Taylor, International Journal of Gynecology and Obstetrics 2021;154: 379–384.  PDF at Wiley online, Free access.

[abortion law, telemedicine] Early Medical Abortion, Equality of Access, and the Telemedical Imperative, by Jordan A. Parsons and Elizabeth Chloe Romanis (Oxford University Press, 2021) Book abstract.

[abortion policy, Amnesty] “Amnesty International’s Updated Policy on Abortion: A Resource for Medical Providers,” by Rada Tzaneva and Jaime Todd-Gher, International Journal of Gynecology and Obstetrics 153.2 (May 2021): 363-369. PDF at Wiley online, Free access.

[Africa] Advancing Sexual and Reproductive Health and Rights in Africa: Constraints and Opportunities, ed. Ebenezer Durojaye, Grace Mirugi-Mukundi, and Charles Ngwena. (Routledge, 2021) Abstract and Table of Contents. Open Access to entire book.

US-focused news, resources, and legal developments are available  on Repro Rights Prof Blog. View or subscribe.

VIDEO RESOURCE
“Shaping the Future of Abortion,” in the Oxford Human Rights Hub Documentary Series. The second episode of Shaping the Future of Sexual and Reproductive Health Rights, explores the role of human rights law in advocacy, examining successful legal strategies used in South Africa, Brazil, Mexico, Kenya and Poland.  Second episode online.

JOBS
Links to employers in the field of Reproductive and Sexual Health Law are online here.
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Compiled by: the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   See Program website for our PublicationsResearch resources, and Reprohealthlaw Commentaries SeriesTO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of our blog, then check your email to confirm the subscription.


Ireland: Early abortion care during COVID-19

October 1, 2021

Congratulations and thanks to co-authors Alison Spillane, Maeve Taylor, Caitriona Henchion, Róisín Venables, and Catherine Conlon of the Irish Family Planning Association in Dublin, whose timely article was recently published in the International Journal of Gynecology and Obstetrics as part of its Ethical and Legal Issues in Reproductive Health series. Professor Spillane also teaches at the School of Social Work and Social Policy, in Trinity College, Dublin. The article explains that COVID-19 precipitated the introduction of remote consultation for early abortion in Ireland. This paper explores what this may mean for law, policy and service delivery. We are pleased to circulate the following abstract:

“Early abortion care during the COVID-19 public health emergency in Ireland: implications for law, policy and service delivery” by Alison Spillane and Maeve Taylor, International Journal of Gynecology and Obstetrics 2021;154: 379–384.  PDF at Wiley online, Free access.

Abstract: Early abortion care became available in Ireland in January 2019. Service delivery involves two consultations with a medical practitioner, separated by a mandatory 3-day waiting period. The Model of Care for termination of pregnancy initially required in-person visits. The onset of the COVID-19 pandemic necessitated significant reductions in in-person interactions in healthcare. A revised Model of Care for termination of pregnancy, issued for the duration of the pandemic, permits delivery of early abortion care by remote consultation. Significantly, this was introduced without amending the 2018 abortion law. The pandemic precipitated a rapid development in the delivery of abortion care that was not anticipated at the time of abortion law reform only 18 months earlier. We outline the work undertaken to maintain access to abortion care in early pregnancy through the lens of a single community-level provider
and explore what these developments may mean for abortion law, policy, and service delivery.

RELATED RESOURCES:

Legal and Policy Responses to the Delivery of Abortion Care During COVID-19,” by Elizabeth Chloe Romanis & Jordan A Parsons. International Journal of Gynecology and Obstetrics 151.3 (Dec. 2020): 479-486  PDF at Wiley online. Submitted Text at SSRN.

Ethical and Legal Issues in Reproductive Health – 100+ other concise articles are online here.

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


New book: “Early Medical Abortion, Equality of Access and the Telemedical Imperative”

October 1, 2021

Congratulations to Jordan A. Parsons and Elizabeth Chloe Romanis, whose new book has just been published by Oxford University Press. Jordan A. Parsons is a doctoral candidate at Bristol Medical School, and Elizabeth Chloe Romanis is Assistant Professor in Biolaw at Durham University’s Law School in the United Kingdom. We are pleased to circulate the publisher’s description and some related resources.

Jordan A. Parsons and Elizabeth Chloe Romanis, Early Medical Abortion, Equality of Access, and the Telemedical Imperative (Oxford University Press 2021) Publisher’s webpage.

Telemedicine has recently become a key focus of healthcare systems globally, heavily influenced by the COVID-19 pandemic and the increased need for remote treatment. Implementing telemedicine can bring myriad benefits for both patients and providers and has the potential to make a huge impact by improving access to abortion care.

In both the United Kingdom and United States, abortion is heavily regulated – exceptionally so when compared to other routine healthcare. This regulation has had the impact of exacerbating the social and geographical circumstances that can make access to abortion clinics difficult.

This book examines early medical abortion provided by telemedicine, alongside the access barriers created by laws in the US and UK. It critically appraises a series of developments in this rapidly evolving subject providing an up to date and well-informed analysis. In doing so, it argues that there is a moral imperative to make the necessary regulatory changes that would enable the provision of telemedical early medical abortion.
Discount code for recent launch: AMPROMD9

RELATED RESOURCES:
Legal and Policy Responses to the Delivery of Abortion Care During COVID-19,” by Elizabeth Chloe Romanis & Jordan A Parsons. International Journal of Gynecology and Obstetrics 151.3 (December 2020): 479-486  PDF at Wiley online. Submitted Text at SSRN.

Early abortion care during the COVID-19 public health emergency in Ireland: implications for law, policy and service delivery” by Allison Spillane and Maeve Taylor, International Journal of Gynecology and Obstetrics 2021;154:379–384.  PDF at Wiley online, Free access.

Abortion by telemedicine in the European Union,” by Tamara K. Hervey and Sally Sheldon,  International Journal of Gynecology and Obstetrics 145(2019): 125–128.   PDF at Wiley OnlineSubmitted text at SSRN.
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Compiled by: the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   See Program website for our PublicationsResearch resources, and Reprohealthlaw Commentaries SeriesTO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of our blog, then check your email to confirm the subscription.


Amnesty’s updated abortion policy: a resource for medical providers

October 1, 2021

Congratulations and thanks to Rada Tzaneva and Jaime Todd-Gher, whose article on Amnesty International’s updated abortion policy was recently published in the International Journal of Gynecology and Obstetrics. Rada Tzaneva is a Researcher and Policy Advisor on Gender at Amnesty International, and Jaime Todd-Gher is a Reproductive and Sexual Health Law Fellow at the University of Toronto’s Faculty of Law.

Rada Tzaneva and Jaime Todd-Gher, Amnesty International’s Updated Policy on Abortion: A Resource for Medical Providers, International Journal of Gynecology and Obstetrics 153.2 (May 2021): 363-369. Free access to entire article.

Abstract: Treating abortion as a matter of reproductive autonomy is essential to promoting health, complying with medical ethics and advancing human rights. When pregnant people can make autonomous decisions about their pregnancies, their health and human rights outcomes improve. Additionally, medical providers that support autonomous sexual and reproductive health decision-making can provide care in line with the highest ethical standards and promote pregnant individuals’ human rights.

This article highlights Amnesty International’s updated institutional abortion policy which uses a reproductive autonomy frame to promote the full realization of human rights for all pregnant people. The policy relies on decades of evidence, the organization’s learning from abortion research and advocacy around the world and evolving human rights law and standards. While not specifically developed for a medical audience, Amnesty International’s updated policy can be a useful resource for providers who seek to promote reproductive autonomy and achieve better health outcomes for their patients.

Related Resources:

Amnesty Abortion Policy. Explanatory note.

Key messages. Frequently asked questions.

Ethical and Legal Issues in Reproductive Health – 100+ other concise articles are online here.

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


New book: Advancing SRH and Rights in Africa

October 1, 2021

Congratulations to Ebenezer Durojaye, Gladys Mirugi-Mukundi, and Charles Ngwena, whose co-edited book, was recently published by Routledge. Ebenezer Durojaye is Professor and Head of the Socio-Economic Rights Project at the Dullah Omar Institute, University of the Western Cape, South Africa; Gladys Mirugi-Mukundi is a researcher in the same project; and Charles Ngwena is Professor of Law, Center for Human Rights, University of Pretoria. We are pleased to circulate the abstract and Table of Contents of this open-access book, showing the wide range of authors and subjects covered.

Ebenezer Durojaye, Gladys Mirugi-Mukundi and Charles Ngwena, eds., Advancing Sexual and Reproductive Health and Rights in Africa: Constraints and Opportunities (Routledge, 2021), 268 pages. Entire book is online and downloadable.

This book explores recent developments, constraints and opportunities relating to the advancement of sexual and reproductive health and rights in Africa.

Despite many positive developments in relation to sexual and reproductive health in recent years, many Africans still encounter challenges, for instance in poor maternity services, living with HIV, and discrimination on the basis of age, gender, sexual orientation or identity. Covering topics such as abortion, gender identity, adolescent sexuality and homosexuality, the chapters in this book discuss the impact of culture, morality and social beliefs on the enjoyment of sexual and reproductive health and rights across the continent, particularly in relation to vulnerable and marginalized groups. The book also explores the role of litigation, national human rights institutions and regional human rights bodies in advancing the realization of sexual and reproductive health and rights in the region. Throughout, the contributions highlight the relevance of a rights-based framework in addressing topical and contentious issues on sexual and reproductive health and rights within Sub-Saharan Africa. This book will therefore be of interest to researchers of sexuality, civil rights and health in Africa.

The Open Access version of this book, available online here, has been made available under a Creative Commons Attribution-Non Commercial-No Derivatives 4.0 license.

Table of Contents

1. Introduction
Ebenezer Durojaye, Gladys Mirugi-Mukundi and Charles Ngwena

2. Abortion and ‘conscientious objection’ in South Africa: The need for regulation
Satang Nabaneh

3. Addressing Maternal Mortality through decriminalizing abortion in Nigeria: Asking the “Woman Question”
Ibrahim Obadina

4. Mainstreaming the ‘Abortion Question’ into the Right to Health in Uganda
Robert Nanima

5. Barriers to Access to Contraceptives for Adolescent Girls in Rural Zimbabwe as a Human Rights Challenge
Michelle Rufaro Maziwisa

6. It Takes Two to Tango! – The Relevance and Dilemma of Involving Men in the Realisation of Sexual and Reproductive Health and Rights in Africa
Sibusiso Mkwananzi

7. Positive Approaches to Childhood Sexuality and Transforming Gender Norms in Malawi
Godfrey Dalitso Kangaude

8. Addressing Female Genital Cutting/Mutilation (FGC/M) in The Gambia: Beyond Criminalisation
Ebenezer Durojaye and Satang Nabaneh

9. In Search of a Middle Ground: Addressing Cultural and Religious Influences on the Criminalisation of Homosexuality in Nigeria
Adetoun T Adebanjo

10. A Case for Removing Barriers to Legal Recognition of Transgender Persons in Botswana
Kutlwano Pearl Magashula

11. Advancing the Rights of Sexual and Gender Minorities under the African Charter on Human and Peoples’ Rights: The Journey to Resolution 275
Berry D. Nibogora

12. Lessons from Litigating for Sexual and Reproductive Health Rights in Southern Africa
Tambudzai Gonese-Manjonjo and Ebenezer Durojaye

13. Experiences from the Kenya National Commission on Human Rights KNCHR) on the Promotion and Protection of Sexual and Reproductive Health and Rights
Shatikha S. Chivusia

14. Monitoring implementation of the sexual and reproductive health and rights of adolescent children: the role of the African Committee of Experts on the Rights and Welfare of the Child
Ayalew Getachew Assefa

Open Access Book:
Read Full Book – Open Access Opens in new tab or window

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


Malawi’s first abortion ruling sheds light on law and hospital norms

October 1, 2021

Many thanks to legal scholars Lewis Bande, Ph.D, and Godfrey Kangaude, LL.D., for submitting a learned commentary on the High Court of Malawi’s first ever “Ruling on a judicial review application to access safe abortion,” decided June 15, 2021. Their 6-page summary and analysis of this decision has just been published at this link, among the online updates to the third volume of case summaries, Legal Grounds: Reproductive and Sexual Rights in Sub-Saharan African Courts. Here is a brief overview of their comments on the following case:

The State (On the Application by HM (Guardian) on behalf of CM (Minor) vs The Hospital Director of Queen Elizabeth Central Hospital & The Minister of Health: Judicial Review Cause Number 03 of 2021 (unreported) (High Court of Malawi, Zomba District Registry) Decision of 15 June 2021. Decision on Google drive. (Download:) Legal Brief by Lewis Bande and Godfrey Kangaude. 

The case centres upon a minor known as “C.M.,” a 15-year-old girl who had been “defiled,” impregnated and abandoned by a married man.  She claimed to have been refused termination of pregnancy at the Queen Elizabeth Central Hospital’s facility for survivors of sexual abuse. There, healthcare providers told her that abortion is illegal in Malawi.  From legal counsel, the girl’s family later learned that abortion is indeed illegal under the antiquated Malawi Penal Code of 1930, but prosecution can be avoided under Section 243, which provides:

A person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for his benefit, or upon an unborn child for the preservation of the mother’s life, if the performance of the operation is reasonable, having regard to the patient’s state at the time, and to all the circumstances of the case.

Healthcare providers routinely interpret this Section of the law restrictively, excluding victims of defilement or sexual assault. In this context, abortion requests and refusals normally happen orally and are not usually recorded in medical records.

The Court’s Ruling: The Court rejected the application for judicial review on the sole ground that there was no evidence that the First Defendant, as director of a public hospital, was responsible for any “decision” that could be judicially reviewed. As Bande and Kangaude observe, the Court cannot be faulted for this ruling. However, the Court proceeded to speculate that this application would probably have failed on other grounds that seem debatable. The Court’s ruling, they write, shows room for further litigation on the interpretation of the current law for girls and women who have been sexually assaulted.  In the ruling, the Court used language that suggests that it recognizes that preservation of a woman’s life entails preserving her mental and physical health. This seems progressive on the part of Court, as it conforms with the consensus in the human rights discourse that the rights to health and life are closely related.   

Significance: Although permission for judicial review was denied, this ruling is a milestone, marking the very first instance that the High Court of Malawi has acknowledged and discussed the position that abortion can be lawfully performed in Malawi. The ruling also shows that defiled or raped Malawian girls and women are being excluded from safe abortion, and they are forced to keep pregnancies that are a result of sexual assault because the Section 243 exception is interpreted restrictively by health providers. The Second Defendant in this case was, appropriately, the Minister of Health, because decisions to refuse terminations of pregnancy would be based on policies for which the Health Minister is responsible.

The Malawi Law Commission’s 2015 review of the colonial abortion law proposed liberal changes to the law which, if implemented, would eventually expand access to safe abortion.[1] Rather than waiting for law reform, the Ministry of Health should immediately provide defiled girls and rape victims with access to safe abortion by clarifying the application of the existing abortion law. In the Health Ministry’s current Standards and Guidelines for Post Abortion Care (2020)[3], section 1.2, it remains unclear whether victims of sexual violence can access safe terminations legally. Professional guidelines should clarify that any girl or woman who has been raped or defiled should have an option to terminate the pregnancy, and without being subjected to burdensome requirements such as proving severe depression or suicidal ideation. Meanwhile, health advocates should continue to champion law reforms that respect Malawi’s constitutional and international obligations toward girls and women.

Related Resources:

[1]   Malawi Law Commission. Report of the Law Commission on the review of the law on abortion (Penal Code CAP.7:01 of the Laws of Malawi). Lilongwe: Malawi Law Commission; 2015. Report online.

 [2] See also: Godfrey Dalitso Kangaude and Chisale Mhango, “The Duty to make abortion law transparent: A Malawi case study” International Journal of Gynecology and Obstetrics 143.3 (Dec. 2018): 409–413, Published Version at IJGOSubmitted text online at SSRN.

[3] Ministry of Health, Malawi, Standards and Guidelines for Post Abortion Care 2020.   43-page document. PAC Guidelines.

(Download:) Legal Brief by Lewis Bande and Godfrey Kangaude. 

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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 our PublicationsResearch resources, and Reprohealthlaw Commentaries SeriesTO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of our blog, then check your email to confirm the subscription.


REPROHEALTHLAW Updates – Winter 2021

February 18, 2021

SUBSCRIBE TO REPROHEALTHLAW: To receive these updates by email, enter your address in upper right corner of this webpage, then check your email to confirm the subscription.

DEVELOPMENTS
Argentina legalized abortion within 14 weeks’ gestation, Dec. 30, 2020. Newspaper report.

South Korea decriminalized abortion, effective Jan. 1 2021, by order of the Constitutional Court of Korea
Decision of 2019 explained by Prof. Hyunah Yang.

Thailand – abortion became legal on request within 12 weeks, Feb. 7, 2021, based on Constitutional Court judgment of Feb. 19, 2020 (English summary download), and legislative amendments of Jan. 25, 2021 Newspaper report.

NEW CASE SUMMARIES:
[Kenya, abortion law, rape, training healthcare professionals] Federation of Women Lawyers (Fida – Kenya) & 3 others v Attorney General & 2 others [2019] eKLR, Petition No. 266 of 2015, Decision of June 12, 2019. (High Court of Kenya at Nairobi, Constitutional and Human Rights Division) Decision online. Case Summary by Benson Chakaya (download PDF). Overview by Bernard Dickens.

[Zimbabwe, transgender, constitutional rights] Ricky Nathanson v Farai Mteliso, The Officer in Charge Bulawayo Central Police Station, Commissioner of Police and the Minister of Home Affairs, Case no.HB 176/19 HC 1873/14 [2019] ZWBHC 135( (14 November 2019);  (Zimbabwe, High Court) Decision online.   Overview on Reprohealthlaw Blog. Case Summary by Keikantse Phele (download PDF).

SCHOLARSHIP
Access to Abortion: An Annotated Bibliography of Reports and Scholarship. (Toronto: International Reproductive and Sexual Health Law Program, 2020) 44 pages. Abortion access bibliography.

[abortion – COVID-19] “Legal and Policy Responses to the Delivery of Abortion Care During COVID-19,” by Elizabeth Chloe Romanis & Jordan A Parsons. International Journal of Gynecology and Obstetrics 151.3 (December 2020): 479-486  PDF at Wiley online. Submitted Text at SSRN.

[abortion – Europe] “Access to Abortion in Cases of Fatal Foetal Abnormality: A New Direction for the European Court of Human Rights?” by Bríd Ní Ghráinne and Aisling McMahon, Human Rights Law Review 19.3 (November 2019, Pages 561–584, Abstract and institutional access.

[abortion laws – map] “Global Abortion laws Relating to Self-Managed Abortion,” interactive map created by Ipas with the Center for Public Health Law Research at Temple University, based on WHO Global Abortion Policies database, “displays self-managed abortion laws in 180 countries and 40 sub-national jurisdictions including Australia and Mexico, as of June 1, 2019. Self-Managed Abortion Law Map

“Bioethics training in reproductive health in Mexico,” by Gustavo Ortiz-Millán and Frances Kissling, International Journal of Gynecology and Obstetrics 151.2 (November, 2020): 308-313  PDF at Wiley OnlineSubmitted Text at SSRN
Also forthcoming in Spanish:    Bioética y derechos reproductivos de las mujeres en México, edited by Lourdes Enríquez Rosas, María del Pilar González Barreda, and Arturo Sotelo Gutiérrez (Fonde de Cultura Económica and the Programa Universitario de Bioética of the Universidad Nacional Autónoma de México (UNAM)

[Brazil] “Confidentiality and treatment refusal: conservative shifts on reproductive rights by Brazilian medical boards,” by Juliana Cesario Alvim Gomes and Corina Helena Figueira Mendes, International Journal of Gynecology and Obstetrics 152.3 (March 2021): 459-464.   PDF at Wiley online.   

[conscience, Argentina] “Una vuelta de tuerca a la objeción de conciencia: Una propuesta regulatoria a partir de las prácticas
del aborto legal en Argentina,” por Sonia Ariza Navarrete & Agustina Ramón Michel (Ipas, 2019) Descargar informe en PDF. Summario – Espanol y Ingles

[conscience – Argentina] “Re-thinking the Use of Conscientious Objection by Health Professionals: A regulatory proposal based on legal abortion practices in Argentina, 2019  Executive Summary – English and Spanish

“Conscience Wars in the Americas,” by Douglas NeJaime and Reva Siegel, Latin American Law Review 5 (2020): 1-26
English and Spanish on web.   Download English PDF      Spanish PDF.

Conscientious Objection / The Right to Conscience – annotated bibliography, updated Feb. 15, 2021.

Women’s Birthing Bodies and the Law: Unauthorised Intimate Examinations, Power and Vulnerability, new book edited by Camilla Pickles and Jonathan Herring. Hart Publishing, 2020. Publisher’s webpage.  

US-focused news, resources, and legal developments are available  on Repro Rights Prof Blog. View or subscribe.

JOBS
Links to employers in the field of Reproductive and Sexual Health Law are online here.
______________
Compiled by: the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   See Program website for our PublicationsResearch resources, and Reprohealthlaw Commentaries SeriesTO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of our blog, then check your email to confirm the subscription.


Guerras de conciencia en las Américas

February 18, 2021

Douglas NeJaime y Reva Siegel, “Guerras de conciencia en las Américas,” Latin American Review 5 (2020) 1-26
 Descargar PDF en Espanol.

Resumen: Alrededor del mundo, sujetos y entidades pertenecientes a los sectores públicos y privados están invocando la conciencia como base para objetar leyes o decisiones judiciales que confieren derechos reproductivos y LGBT a otras/os ciudadanas/os. Las objeciones de conciencia que se dan en el contexto de las “guerras cultures” respecto de derechos reproductivos y LGBT, difieren de las situaciones paradigmáticas en las que se conceden excepciones al cumplimiento de la ley donde alguien de una religión minoritaria busca observar un ritual religioso o vestirse conforme a su religión, en violación a leyes generalmente aplicables. En cambio, el otorgamiento de objeciones de conciencia que se da en el contexto de las “guerras culturales” puede causar daños significativos a terceros e imponer visiones tradicionales a ciudadanos/as, cuyos derechos han sido recientemente protegidos por la ley.

La contribución de este trabajo es práctica y crítica. Por un lado, ofrecemos una guía para mostrar cómo el gobierno puede promover el pluralismo a través de proveer excepciones a la ley para objetores y al mismo tiempo protege a ciudadanos/as que pueden verse afectados/as. Por otro lado, consideramos que cuando el gobierno protege la conciencia en un marco que no preserva los derechos de otros/as ciudadanos/as, podría estar utilizando la objeción de conciencia para crear un orden jurídico de facto en favor de las creencias de los objetores.
 Descargar PDF en Espanol.

Palabras clave: Conciencia, Objeción de conciencia, excepciones a la ley por en razones religiosas, derechos reproductivos, LGBT, SOGIE

en Ingles: “Conscience Wars in the Americas,” by Douglas NeJaime and Reva Siegel, Latin American Law Review 5 (2020): 1-26 Descargar Ingles PDF    

RECURSOS RELEVANTES:
Conscientious Objection / The Right to Conscience – annotated bibliography, updated Feb. 15, 2021.

[Argentina] “Una vuelta de tuerca a la objeción de conciencia: Una propuesta regulatoria a partir de las prácticas
del aborto legal en Argentina,” por Sonia Ariza Navarrete & Agustina Ramón Michel (Ipas, 2019) Descargar informe en PDF. Summario – Espanol y Ingles

[Recurso relevante en Ingles:] “Regulating Conscientious Objection to Legal Abortion in Argentina: Taking into Consideration Its Uses and Consequences,” by Agustina Ramón Michel, Stephanie Kung, Alyse López-Salm, and Sonia Ariza Navarrete, Health and Human Rights Journal 22.2 (Dec 2020): 271 – 384. Resumen y articulo en Ingles.
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Compiled by: the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   See Program website for our PublicationsResearch resources, and Reprohealthlaw Commentaries SeriesTO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of our blog, then check your email to confirm the subscription.


Conscience Wars in the Americas

February 18, 2021

Congratulations to Douglas NeJaime and Reva Siegel, Professors of Law at Yale University, whose article on “Conscience Wars in the Americas” was recently published by the Latin American Law Review in two languages, English and Spanish. We are pleased to circulate the authors’ abstract:

Douglas NeJaime and Reva Siegel, “Conscience Wars in the Americas,” Latin American Law Review 5 (2020): 1-26,
English and Spanish on web. Download English PDF. Download Spanish PDF.

Abstract:
Across the globe, public and private actors are now invoking conscience as a ground for objecting to laws or judicial decisions that confer on citizens reproductive and LGBT rights. Conscience claims in culture-war conflicts over reproduction and sexuality differ from paradigmatic religious accommodation claims, where an individual from a minority faith seeks to engage in ritual observance or religiously-motivated dress that runs afoul of generally applicable laws. Accommodation of culture-war conscience claims may inflict significant harms on other citizens and impose older, traditional views on citizens whose rights the law only recently has come to protect.

Our intervention is practical and critical. We offer guidance on accommodation, showing how government might promote pluralism by accommodating objectors while protecting citizens who may be affected. We suggest that when government accommodates conscience in a framework that does not preserve the other citizens’ rights, government may be employing accommodation to create a de facto public order favoring objectors’ beliefs.

Keywords: Conscience, Conscientious Objection, Religious Accommodation, Reproductive Rights, LGBT, SOGIE

RELATED RESOURCES

Conscientious Objection / The Right to Conscience: Annotated Bibliography online.

Conscience Wars in Transnational Perspective: Religious Liberty, Third-Party Harm, and Pluralism” by Douglas NeJaime and Reva Siegel in:  The Conscience Wars: Rethinking the Balance between Religion, Identity, and Equality, ed. Susanna Mancini & Michel Rosenfeld (Cambridge Univ. Press, 2018), pp. 187-219. Online at SSRN.

Regulating Conscientious Objection to Legal Abortion in Argentina: Taking into Consideration Its Uses and Consequences” by Agustina Ramón Michel, Stephanie Kung, Alyse López-Salm, and Sonia Ariza Navarrete, Health and Human Right Journal 22./2 (Dec. 2020): 271 – 384. Abstract and article online. Informe en Espanol.
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Compiled by: the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   See Program website for our PublicationsInformation resources, and Reprohealthlaw Commentaries SeriesTO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of our blog, then check your email to confirm the subscription.


Zimbabwe: High Court upholds Transgender persons’ constitutional rights

February 18, 2021

Many thanks to Keikantse Phele, a Botswana based Human Rights lawyer and LL.M. graduate in Sexual and Reproductive Rights in Africa, at the Centre for Human Rights of the University of Pretoria’s Faculty of Law. Her summary and analysis of this pioneering decision has just been published among the online updates to co-published third volume of case summaries, Legal Grounds: Reproductive and Sexual Rights in Sub-Saharan African Courts. We are pleased to circulate brief excerpts:

Ricky Nathanson v Farai Mteliso, The Officer in Charge Bulawayo Central Police Station, Commissioner of Police and the Minister of Home Affairs, Case no.HB 176/19 HC 1873/14 [2019] ZWBHC 135( (14 November 2019);  (Zimbabwe, High Court) Decision online.   Case Summary by Keikantse Phele (download PDF).

COURT HOLDING: The Plaintiff, a transgender woman, was awarded damages of 400,000 ZWD, for unlawful and malicious arrest during which she was subjected to inhuman and degrading treatment, which violated her fundamental and constitutional rights.

SIGNIFICANCE: After summarizing the facts of the Plaintiff’s ordeal and the Court’s analysis of violated constitutional rights, human rights lawyer Keikantse Phele concludes that “Overall, the case contributes to the gradual progress and improvement of transgender persons’ rights in the African continent.” “The Zimbabwean High Court,” she writes, “should be commended for taking the Plaintiff’s civil suit as an opportunity to pronounce that the rights of transgender persons are protected by the Constitution and that their individuality must be respected. Thus, the Court warned and cautioned transphobic citizens of the consequences of discriminating against transgender people in Zimbabwe. The decision sets an important precedent for transgender rights in Zimbabwe and also in the African region, affirming that Courts are ready to protect human rights of every individual, without discrimination, using domestic, regional and international law. . . .” (p. 8)

This decision sets a good precedent not only for LGBTQI people in Zimbabwe but also in Southern Africa for LGBTQI persons in asserting their fundamental human rights in courts. It is a persuasive authority that can be used as an advocacy tool to pursue policy and law reform for transgender persons in other countries. The Court in this case buttresses the individuality and the constitutional rights of transgender persons in Zimbabwe, and provides needed jurisprudence in protecting and promoting transgender rights.” (p. 8)

The Court’s full decision (43 pages) is online here. 
Keikantse Phele’s Case Summary (8 pages downloads here (PDF).

RELEVANT RESOURCES:

Transsexuality:  Legal and Ethical Challenges,” by Bernard M. Dickens.  International Journal of Gynecology and Obstetrics 151.1 (October, 2020): 163-167 : PDF free access for 12 months.  Submitted Text at SSRN.

Baby “A” (suing through her mother, E.A.) and  The Cradle the Children Foundation v Attorney General, Kenyatta National Hospital, and the Registrar of Births and Deaths [2014] eKLR, Petition No. 266 of 2013 (High Court of Kenya at Nairobi, Constitutional and Human Rights Division). [Kenyan Court recognizes need to protect the constitutional rights of intersex persons]  Decision online. Case summary in Legal Grounds downloads here (PDF).

Republic v Kenya National Examinations Council & Another [2014] eKLR, JR Case No. 147 of 2013 (High Court of Kenya at Nairobi) [Kenyan Court ordered name and gender change on high school diploma]  Decision online Case summary in Legal Grounds downloads here (PDF) .

Legal Grounds III: Reproductive and Sexual Health in Sub-Saharan African Courts contains summaries and comments on 60+ court decisions, 2008-present
Online edition with updates and links to decisions.
Published books – free PDF downloads: Legal Grounds I (2005), Legal Grounds II (2008), Legal Grounds III (2017).
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Compiled by: the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   See Program website for our PublicationsResearch resources, and Reprohealthlaw Commentaries SeriesTO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of our blog, then check your email to confirm the subscription.