REPROHEALTHLAW Updates – May 2018

May 31, 2018

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

DEVELOPMENTS:

[Africa – Kenya]  J O O (also known as J M) v Attorney General & 6 others [2018] Petition No 5 of 2014, (High Court of Kenya at Bungoma).  [obstetric violence – abuse of pregnant women in healthcare system] 
Decision of March 22, 2018.

[Africa – Malawi, vagrancy] Mayeso Gwanda v. the State, Constitutional Case No 5. 2015  (High Court of Malawi. [successful human rights challenge involving an itinerant male vendor] Decision of January 10, 2017
— This decision cites the unreported case of Stella Mwanza and 12 Others v. Republic, Confirmation Criminal Case No. 1049 of 2007 (Malawi) [re 13 women arrested on streets after dark] discussed Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts  (Pretoria, Pretoria University Law Press (PULP), 2017), p. 127  PDF of book, 228 pages. Online edition

[Mexico] Suprema Corte de Justicia de la Nación, Segunda Sala [Supreme Court] 2018,  Amparo en Revisión 601/2017 (Ciudad de Mexico) April 4, 2018.  [Case of “Marimar”- raped minor should not have been denied abortion by hospital]   Decision in Spanish.   News report in English.

[Mexico] Suprema Corte de Justicia de la Nación, Segunda Sala [Supreme Court] 2018,  Amparo en Revisión 1170/2017 (Ciudad de Mexico) April 18, 2018.  [Case of Fernanda – public institutions must allow abortions to raped minor]  Decision in Spanish.     Same news report in English.

CALL FOR PAPERS
 “The Impact of Politics on Sexual and Reproductive Health and Rights,” for publication in Reproductive Health Matters, May 2019.  Submissions due October 31, 2018.
RHM Call for papers

CONFERENCE

V Latin American Congress on Reproductive Rights, Santa Marta, Colombia, November 1-3, 2018.    Congress website in Spanish.  Latin American Judges and Magistrates of the highest courts will gather to foster the inclusion of a gender perspective in judicial decisions regarding reproductive rights:  Synopsis in English.

Audio-visual resources from previous IV Latin American Conference, held in Lima Peru Nov 2-4, 2015, now published online, include many talks in Spanish, and some in English:
◊   Rebecca Cook, “Gender Stereotypes: Transnational Legal Perspectives,” (Nov. 3, 2015)   Video.     Slides
◊  Marge Berer, “Violence and Reproductive Rights.” (Nov. 3, 2015)  Video
◊   Joanna Erdman, “Violence against Women and Reproductive Rights: Revealing Connections.”  Nov. 2, 2015    Video.     Slides

SCHOLARSHIP:

Abortion Law Decisions online, a Table of Cases with links, recently updated.  English.   Spanish.

[abortion] “The Philippines: New post-abortion care policy” by Melissa Upreti and Jihan Jacob,  International Journal of Gynecology and Obstetrics 141.2 (May 2018): 268-275.  Abstract.     PDF online for 12 months.   Submitted text at SSRN.

“Abortion in Poland: politics, progression and regression,” by Julia Hussein, Jane Cottingham, Wanda Nowicka & Eszter Kismodi,  Reproductive Health Matters 26:52 (May 2018): 14-17.   Editorial online.

[conscience, Human Rights Committee, Ireland]:
“Sir Nigel Rodley’s Insights on the Feminist Transformation of the Right of Conscience,”  by Rebecca Cook,  Human Rights Quarterly 40.2 (May 2018): 255-259.   Abstract and Article.

[conscience, U.S.A.] “Divisions, New and Old — Conscience and Religious Freedom at HHS by Lisa H. Harris, New England Journal of Medicine 478.15 (April 12 2018): 1369-1371.   Article online.

[Ireland] “Conscientious Objection, Harm Reduction and Abortion Care,” by Ruth Fletcher, in: Mary Donnelly and Claire Murray eds.  Ethical and legal debates in Irish healthcare: Confronting complexities Manchester: Manchester University Press, 2016, ISBN: 978-0-7190-9946-5, Book details.     Abstract and Chapter online.

[Ireland] “Reproductive justice in Ireland: a feminist analysis of the Neary and Halappanavar cases” by Joan McCarthy, in: Mary Donnelly and Claire Murray eds.  Ethical and legal debates in Irish healthcare: Confronting complexities Manchester: Manchester University Press, 2016, ISBN: 978-0-7190-9946-5, Book details.   Abstract of Chapter.

[Ireland – medical abortion] “Empowerment and Privacy? Home Use of Abortion Pills in the Republic of Ireland,” by Sally Sheldon, Journal of Women in Culture and Society 43.4(Summer 2018): 823-849.   Abstract and Article.

[Malawi] “Adolescent sex and ‘defilement’ in Malawi law and society,” by Godfrey D. Kangaude 17 (2017) African Human Rights Law Journal 527-549.    Article online.   Abstract with other African resources.

[medical abortion]  “Medical abortion pills have the potential to change everything about abortion,” introduction by  Marge Berer and Lesley Hoggart to special issue of Contraception 97.2 (Feb 2018″ 79–81.  Sections on medical abortion potential, women’s experiences, pharmacy provision, role of health system and providers, and research agenda.   Table of Contents, Medical Abortion special issue.

[Uruguay, human rights]  “Legal barriers to access abortion services through a human rights lens: the Uruguayan experience,” by Lucía Berro Pizzarossa, Reproductive Health Matters 26.52 (2018): 1-8    Abstract and article.

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


NEWS:

German doctor will appeal 6000-euro fine for “advertising” abortions among other medical specialties on her website.  Comment by Stephanie Schlitt, “Criminal prohibition of abortion ‘advertising’ restricts information provision,” Brief comment.  Detailed comment.

Ireland:  May 25th 2018 Referendum voted to repeal article 40.3.3 “the eighth amendment” which had enshrined a ban on abortion.” Law reform expected.  Christina Zampas editorial in Irish Examiner: “Yes Vote would give hope to millions. . . “.     Irish Times newspaper analyzes results.

JOBS

Links to employers in the field of Reproductive and Sexual Health Law are online here

______________
Compiled by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca For Program publications and resources, see our website, online here. TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.


The Philippines: New post-abortion care policy

May 31, 2018

Congratulations to Melissa Upreti and Jihan Jacob, whose useful article has been published in the Ethical and Legal Issues section of the International Journal of Gynecology and Obstetrics.   We are pleased to circulate the abstract.

Melissa Upreti and Jihan Jacob, “The Philippines’ new postabortion care policy,” International Journal of Gynecology and Obstetrics 141.2 (May 2018): 268-275.
DOI link.  PDF online for 12 monthsSubmitted text at SSRN

Abstract:  In 2000, a Philippine policy clarifying the legality of medical treatment for women with postabortion complications was introduced to address unsafe abortion as a leading cause of maternal death, and reports of discrimination and abuse by healthcare providers against women who had abortions illegally. Despite its initial success as a pilot program, the policy’s implementation and expansion were not prioritized. The incidence of unsafe abortion has increased over the years and, in 2009, the right to postabortion care was codified in national law, yet the mistreatment and abuse of women has continued in violation of medical ethics and the law. In 2016, following the demands of advocates and recommendations from national and international human rights bodies, the government introduced a new policy to strengthen the national framework for postabortion care, clarifying the legal and ethical duties of health service providers and offering women formal avenues for redress against abuse. The new policy offers useful guidance for countries that are contemplating new ways to strengthen the quality of postabortion care services in accordance with recognized standards of medical ethics and human rights.

Key words:  Abortion, Accountability of service providers, Discrimination against Post‐abortion patients, Mistreatment of patients, Philippines policy reform, Post-abortion care.

The published article is online in PDF at Wiley Library.
Full text, as submitted,  is online at SSRN.
Ethical and Legal Issues in Reproductive Health: 80+ concise articles.


Compiled by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca For Program publications and resources, see our website, online here. TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.


Germany: Criminal prohibition of abortion “advertising” restricts information provision

May 31, 2018

Many thanks to Stephanie Schlitt, a consultant researcher with the World Health Organisation’s Global Abortion Policies Database (online here), for commenting about current legal debates in Germany.

In November 2017, general practitioner Dr Kristina Hänel was sentenced under Section 219a of the German Penal Code to pay a fine of 6000 for stating on her office website that she provides abortion services.  Her conviction (against which she is appealing), and cases of other physicians, have prompted a debate on the repeal or reform of Section 219a, one of several remaining Nazi era Penal Code articles.  Entitled “advertisement for termination of pregnancy”, §219a criminalises those who “for material gain or in a grossly inappropriate manner” offer abortion services, irrespective of whether the abortion provided is within the scope of the law.  In Germany, abortion is a crime which is not punishable if undertaken after mandatory conflict pregnancy counselling within twelve weeks of gestation and for specified indications at later stages.  There is no general prohibition against physicians’ websites stating the services they provide.

Those who wish to repeal §219a argue that it stigmatises abortion, violates women’s rights of access to information about a medical procedure which they have decided or may decide to undergo and unjustifiably exposes physicians to criminal prosecution for providing factual information.  Advertisement by physicians can be regulated adequately by laws on the practice of medicine.  Opponents of repeal argue that §219a is a necessary part of the state’s protection of prenatal life, relying on Constitutional Court statements that abortion must not be “normalised” or “commercialised” and therefore should not be treated like other medical procedures.  They say that information about physicians offering abortions could be published online by all state-level Ministries of Health.

The pro-repeal Social Democrat Party is calling for a free parliamentary vote, unless it can reach a law reform agreement with its anti-repeal Christian Democratic partners in Germany’s coalition government by summer of 2018.   . . .  Read more detailed comment.
___________

Note:  Reprohealthlaw readers who know about relevant legal provisions and law reform discussions in other countries are encouraged to contact the author {stephanieschlitt*at*hotmail .com} who can share such information with German advocates.

See also: 
“German doctor fined for illegally ‘advertising’ abortions”  News article.

Section 219a of the German criminal code available in German. 


Compiled by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca For Program publications and resources, see our website, online here. TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.


Adolescent sex and “defilement” in Malawi law and society

May 31, 2018

Congratulations to Godfrey Dalitso Kangaude,  an LL.D. (doctoral) Candidate in the University of Pretoria’s Department of Private Law, who recently published his article on this challenging topic.  We are pleased to circulating this abstract.

GD Kangaude “Adolescent sex and ‘defilement’ in Malawi law and society” (2017) 17 African Human Rights Law Journal 527-549.  DOI link.    Article online

Abstract:  During colonisation, Malawi received a Western penal code, which included the “defilement” provision, restricting males from sexually accessing girls below a specified age. Countries that maintain colonial age of consent provisions, including Malawi, have uncritically assumed that these laws serve the purpose of protecting girls and children from harm. This article examines the fundamental assumptions underlying the development of sections 138 and 160B of the Malawian Penal Code, and their historical and sociocultural origins.  This article suggests that these provisions serve the interests of adults and not those of children. They are inherently heterosexist, promote gender-stereotypical meanings of sexuality and potentially stigmatise the normative development of sexuality in children. Sections 138 and 160B need to be reviewed and
aligned with Malawi’s commitments to promote gender equality and sexual health and the rights of children.

Key words: childhood sexuality; child rights; Gender Equality Act, age of consent, Malawi Penal Code.

See also:
–A controversial decision from Kenya
Martin C.   v. Republic, Criminal Appeal No. 32 of 2015, April 26, 2016 (High Court of Kenya, at Malindi).  [Court held that the sexual relationship between adult man of 23 and girl of 14 is not “defilement” because she sought it.  Prisoner released.]  Decision online.

Godfrey Kangaude, “Adolescent Consensual Conduct,” and African case summaries in chapter 2 (“Children and Adolescents”) of:
Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts
, ed. Godfrey D. Kangaude (Pretoria: PULP, 2017) 228 pages.
Flyer with Table of Contents.     Entire book online


Posted by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca For Program publications and resources, see our website, online here. TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.


CEDAW re Northern Ireland abortion laws: grave and systematic violations of women’s rights

April 26, 2018

Many thanks to Professors Claire Pierson of the University of Liverpool,  Kathryn McNeilly of Queen’s University Belfast and Fiona Bloomer of Ulster University, founding members of the Reproductive Health Law and Policy Advisory Group, online here, who kindly commented on the results of CEDAW’s inquiry into Northern Ireland’s abortion laws, based on their 9-page Briefing Document:

Reproductive Health Law and Policy Advisory Group,  Briefing Document: Report of the inquiry concerning the United Kingdom of Great Britain and Northern Ireland under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, April 2018.
Briefing on CEDAW’s Northern Ireland inquiry and UK response – (9 pages).

From the late twentieth century onwards, human rights emerged as a significant tool, drawing attention to reproductive health provision for women. In Northern Ireland, however, it is only recently that human rights have stimulated meaningful discussion on local abortion access. The UN CEDAW Committee has become the latest body to engage rights in this way.

In early 2018, the CEDAW Committee completed an Optional Protocol inquiry into Northern Ireland’s abortion laws. CEDAW’s report, online here, found the United Kingdom in violation of several articles of the Convention through maintenance of a criminal framework permitting abortion in Northern Ireland only in circumstances of threat to life or serious and long-term threat to health. These violations were found to be grave and systematic.

The inquiry was undertaken following a 2010 submission by the Family Planning Association for Northern Ireland (FPA), Alliance for Choice and the Northern Ireland Women’s European Platform (NIWEP). In 2014, the UK submitted written observations on the submission to CEDAW.  These denied that violation of rights had occurred and outlined that legislative change was not envisaged.  Upon reviewing the UK response and material received by the FPA, Alliance for Choice and NIWEP, CEDAW determined the allegations were reliable and assigned two delegates to conduct an inquiry in 2016.

In addition to the impact of the region’s restrictive criminal law on women’s health and equality, the report highlights concerns with wider access to reproductive and sexual health services, including: post-abortion care, harassment at reproductive health clinics, and a lack of adequate sexual health education. It particularly notes the disproportionate impact of restrictive abortion access on rural and poorer women.

The Committee made 13 recommendations, including repeal of the current criminal law (sections 58 and 59 of the Offences against the Person Act 1861) and the creation of legislation to allow for abortion under particular grounds.  The UK Government has issued a response outlining that it does not accept that women in Northern Ireland have been subject to grave and systematic violations of rights under the Convention.

A separate legal challenge to the compatibility of Northern Ireland’s law with domestic human rights commitments is being heard by the UK Supreme Court. Pressure is mounting for the UK to seriously consider the rights implications of abortion law in this region.

RELEVANT LINKS:
CEDAW’s Report, see: Committee on the Elimination  of Discrimination against Women,Report of the inquiry concerning the United Kingdom of Great Britain and Northern Ireland under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, U.N.  Doc, CEDAW/C/OP.8/GBR/1, February 23, 2018.  CEDAW’s report on abortion law in Northern Ireland, 19 pages

Observations of the Government of the United Kingdom of Great Britain and Northern Ireland on the report of the inquiry concerning United Kingdom of Great Britain and Northern Ireland of the Committee on the Elimination of Discrimination against Women under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women*  United Kingdom response, 7 pages

The Reproductive Health Law and Policy Advisory Group, discussed above, has issued a  a Briefing Document summarizing both the CEDAW report and the UK government’s response 9-page briefing.


Chile: Constitutional Court abortion decision – now in English!

April 26, 2018

Congratulations and thanks to the legal translators* of the landmark 2017 abortion decision in Chile.  In this 294-page ruling, the Constitutional Court of Chile upheld the constitutionality of new government legislation that would remove the criminal prohibition on procuring an abortion on three grounds:  when there is imminent risk to the life of the mother, in case of fatal fetal disease, and in cases of rape.  It also made  important revisions to the law, extending conscientious objection beyond “professional” participants, and allowing conscientious objection to be invoked by institutions.

Our new English translation, online here, will allow a wider range of international scholars and advocates to examine and comment upon the text of Chile’s abortion bill, with access to the petition of unconstitutionality, the State’s responses, the final judgment of the majority, and the arguments and reservations of dissenting judges.

Constitutional Court of Chile (Tribunal Constitucional de Chile)  STC Rol N° 3729(3751)-17 CPT.   English Decision: 149 pages
which includes a Table of Contents for both English and Spanish editions. 
Original Decision in Spanish: 294 pages, 

OVERVIEW OF ENGLISH PDF   149-pages
Citation and Acknowledgments     (p. 1)
Table of Contents to English and Spanish print versions     ( 2-7)
Background
Impugned articles of the abortion Bill     (8-14)
Petitioners’ arguments and State responses      ( 14-17)
Alleged Constitutional Conflicts     (17-25)
International Law Aspects     (25-26)
Public Hearings and Reviews      ( 26-29)
Decision of the Majority
Brief Summary  (p. 30)
1:  Decriminalization of abortion on three grounds     (30-69)
2:  Conscientious Objection     (69-72)
Dissents:
1: Decriminalization of abortion on three grounds   (73-98)
2: Conscientious Objection      (98-118)
Reservations and Partial Concurrences:
1: Decriminalization on three grounds     (118-124;  124-131)
2: Conscientious Objection      (131-132,  132-133, 133-141)
Official Syntheses:
1: Decriminalization on three grounds     (143-145)
2: Conscientious Objection       (146-149).

*This unofficial translation, sponsored by the International Reproductive and Sexual Health Law Program, Faculty of Law, University of Toronto, Canada, was completed in March 2018, with many thanks to our valiant team of translators and editors: Maria Belén Saavedra, Claudia Sarmiento, Diego Garcia-Ricci, Eleana Rodriguez, Christopher Campbell-Duruflé, Olimpia Boido, Carlos Herrera Vacaflor, Mercedes Cavallo, and Esteban Vallejo-Toledo.


Rape-related abortion: legal and policy aspects – working bibliography

April 26, 2018

Congratulations and thanks to the Co-Directors, research assistants and advisors of the International Reproductive and Sexual Health Law Program at the University of Toronto’s Faculty of Law, who recently issued the following annotated bibliography online.

Working Bibliography: Legal and Policy Dimensions of Rape-Related Abortion Services: Court Decisions, Treaty Resources, Policy Guidance and Publications (Toronto: International Reproductive and Sexual Health Law Program, April 21, 2018),
(English Rape bibliography, 39 pages).
 (Spanish Rape bibliography, 40 pages)

This working bibliography was compiled during various legal research, policy and advocacy projects on the delivery of abortion services as a result of rape.  It is work in progress, and also includes a few references to the literature and cases on delivery of emergency contraceptives following rape, post-exposure prophylaxis for sexually transmitted infections, and social services including trauma counselling.  Its objective is to provide resources to stimulate further legal research, policy and advocacy projects to ensure the timely delivery of dignified health care of women who have been raped.
A sister-bibliography of Spanish resources is online here (update in progress)
Please send any suggestions for possible additions to either bibliography to
reprohealth . law @utoronto.ca.

Table of Contents

Court Decisions: 
Argentina, Bolivia, Chile, Colombia, India, Ireland, Peru, Rwanda, United Kingdom, United States, Zimbabwe

Treaty Resources: Regional and International Treaty Bodies
– Decisions, Comments and Observations

Policy Guidance – National and International

Databases that show whether countries allow abortion in cases of rape

Publications 
Articles and Book Chapters
Reports and Resources of Non-Governmental Organizations

Suggestions for further inclusion, in Spanish or English, are welcome at:   reprohealth . law @utoronto.ca.

Acknowledgments:  We are immensely grateful to University of Toronto Law students: Michelle Hayman, Hanna Kofman and Jacqueline Stroz for helping us put this bibliography together, and to Marge Berer, Millicent Bogert and Jaime Todd-Gher for insightful comments on previous drafts.