REPROHEALTHLAW Updates – March 2018

March 30, 2018

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SCHOLARSHIP:

“Abortion by telemedicine in Northern Ireland: patient and professional rights across borders,” by Tamara Hervey and Sally Sheldon. Northern Ireland Legal Quarterly (2017) 68.1: 1-33    Article onlineSubmitted Text.

Abortion Law in Transnational Perspective: Cases and Controversies, ed. Rebecca J. Cook, Joanna N. Erdman and Bernard M. Dickens (University of Pennsylvania Press, 2014),  Table of Contents with chapter summaries.     Table of Cases.   English edition. now  in paperback, 20% discount code PH70. —–Spanish edition:  El aborto en el derecho transnacional: casos y controversias,  ed. Rebecca J. Cook, Joanna N. Erdman y Bernard M. Dickens (Mexico: FCE/CIDE, 2016)   En espanol, 2016: Fondo de Cultura Económica y Libreria CIDE.   Índice con resúmenes de todos capítulos    Tabla de jurisprudencia.
Abortion Law Decisions online, a Table of Cases with links.  English.   Spanish.

[abortion law, South Korea]  A critical assessment of abortion law and its implementation in South Korea, by Hyosin Kim & Hyun-A Bae, Asian Journal of Women’s Studies, 24.1 (2018): 71-87, Abstract and article.

“Access to Abortion in Cases of Fatal Fetal Abnormality: A New Direction for the European Court of Human Rights?” by Dr. Bríd Ní Ghráinne,  and Dr Aisling McMahon,  (March 12, 2018). 31-page working paper

[Africa] Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts  (Pretoria, Pretoria University Law Press (PULP), 2017).  PDF 228 page bookPrevious volumes online at CRR.      Printed edition from PULP.
Online edition with links to decisions and updates.

Breaking Ground 2018: Treaty Monitoring Bodies on Reproductive Rights, 3rd edition, by the Center for Reproductive Rights, summarizes United Nations jurisprudence, especially the standards being adopted on reproductive health information and contraception, maternal health care, and abortion.  54 page report.

[Chile] Landmark abortion law ruling by Constitutional Court of Chile, August 28, 2017 is now in English with its official synthesis and a table of contents.   Decision translated to English    Amicus curiae briefs also in English:  (1)  decriminalization of abortion Spanish and English;   (2) conscience and conscientious objection:  Spanish  and English.
Spanish Decision “Descargar Sentencia”.   Accompanying documents.  Submissions.      Síntesis.

“The Costs of Conscience,” by Micah Schwartzman, Nelson Tebbe, and Richard Schragger (March 2018) Virginia Public Law and Legal Theory Research Paper No. 2018-14.  Abstract and article. 

FIGO Bioethics Curriculum:  Introduction to Principles and Practice of Bioethics: Case Studies in Women’s Health, now in Spanish.  Table of Contents and List of Case Studies.   Curriculum in EnglishCurriculum in Spanish

“Reproductive Autonomy of Women and Girls under the Convention on the Rights of Persons with Disabilities,  by Prof. Charles Ngwena, International Journal of Gynecology and Obstetrics, 140.1 (Jan. 2018):128-133PDF online for 12 months.    Submitted Text.

Reproductive Health and Human Rights:  Integrating Medicine, Ethics and Law, (Oxford University Press, 2003)  Portuguese, 602 pages and Spanish (both now free online).    English  (through Oxford Scholarship Online)  French paperback.     Case Studies in Arabic online

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


NEWS:

Ireland:  May 25th 2018 date for Referendum on abortion “Voters will be asked if they want to repeal article 40.3.3 – known as the eighth amendment – which since 1983 has given unborn foetuses and pregnant women an equal right to life . . . enshrining a ban on abortion in the country’s constitution.”  If repealed, government will allow abortion within 12 weeks of pregnancy. Guardian newspaper

Paraguay’s harsh abortion law endangers adolescents.  Raped 14-year-old girl with pregnancy complications dies during caesarean section to save baby.  Human Rights Watch report

 

JOBS

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

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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.


Reproductive Autonomy of Women and Girls under the Disabilities Convention

March 30, 2018

Congratulations to Prof. Charles Ngwena of the Centre for Human Rights, Faculty of Law, University of Pretoria, South Africa, whose valuable article has recently been published in the Ethical and Legal Issues section of the International Journal of Gynecology and Obstetrics. We are pleased to circulate the following abstract:

Reproductive Autonomy of Women and Girls under the Convention on the Rights of Persons with Disabilities,”  by Prof. Charles Ngwena, International Journal of Gynecology and Obstetrics, 140.1 (Jan. 2018):128-133PDF online for 12 months.          Submitted text at SSRN

Women and girls with disabilities have historically been denied the freedom to make
their own choices in matters relating to their reproduction. In the healthcare sector
they experience multiple discriminatory practices. Women and girls with intellectual
disabilities are particularly vulnerable to coerced or forced medical interventions. The
present article considers the contribution the Convention on the Rights of Persons
with Disabilities makes towards affirming the rights of women and girls with disabilities
to enjoy reproductive autonomy, including autonomy related to reproductive
health, on an equal basis with individuals without disabilities. The Convention is
paradigm-setting in its maximal approach to affirming the rights of  individuals with
disabilities to make autonomous choices under conditions of equality and non-discrimination.  The Convention is the first human rights treaty to clearly affirm that
impairment of decision-making skills is not a justification for depriving a person with
cognitive or intellectual disability of legal capacity.

Full text available:   PDF online for 12 months.   or   Submitted text at SSRN


Abortion by Telemedicine in Northern Ireland: Patient and Professional Rights Across Borders

March 30, 2018

Congratulations to Professors Tamara K. Hervey of the University of Sheffield’s Faculty of Law, and Sally Sheldon of Kent Law School, whose insightful article was recently published in the Northern Ireland Legal Quarterly.  We thank them for putting their submitted text online, with the publisher’s permission: .

Tamara K. Hervey and Sally Sheldon, “Abortion by Telemedicine in Northern Ireland: Patient and Professional Rights Across Borders,” (2017) 68(1) NILQ 1-33.  Article in NILQ.       Submitted Text online at SSRN.

Abstract

The uneasy legal and political settlement regarding abortion in Northern Ireland has long relied on the outsourcing of aspects of reproductive health care. While local health services offer only highly restricted access to termination procedures, women travel to access abortion services elsewhere. However, technological changes, in particular the development of abortifacient medicines, are revolutionising this aspect of reproductive healthcare. Rather than women having to travel to a service, today that service can travel to women through the postal supply of abortion pills, sourced via the internet. While online supply of pharmaceuticals can pose potential public health risks, at least two groups offer safe and effective telemedical services to women in Northern Ireland. Women on Web and Women Help Women each supply abortion pills, under prescription from a doctor based in another country, to women who wish to end a pregnancy of nine weeks or less. Here, we consider the extent to which the telemedical abortion services that they offer are protected by transnational law, in particular, EU provisions on cross-border services. This offers new and hitherto unexplored lines of legal argument (including defences against criminal prosecution and challenges to a state’s attempts to restrict the flow of services). Through claiming the autonomy-based legal relationships implicit in transnational law and the power that flows therefrom, we suggest, women may challenge regulatory arrangements which seek to limit their reproductive rights.

For full text, see:   Article in NILQ.       Submitted Text online at SSRN.


Body Politics: Criminalization of sexuality and reproduction – Amnesty’s new primer

March 30, 2018

Congratulations to Amnesty International’s Criminalization of Sexuality and Reproduction Project Team for this useful new reference book:

Body Politics: Criminalization of sexuality and reproduction. (London: Amnesty International, 2018) 220 pages.  PDF online.

This book “aims to motivate and equip the organization’s global movement to challenge unjust criminalization of sexuality and reproduction in local, national, regional and international contexts.”  It is part of an Amnesty International series, which includes this Primer, a Toolkit and a forthcoming Training Manual (see links below).
As noted in the Introduction, “This Primer gives an overview of sexual and reproductive rights that states must respect, protect and fulfil and how states punish and prevent people from exercising these rights. . . . [It] looks at these issues from a human rights perspective, in particular through the lens of “bodily autonomy” – the entitlement to decide what we do with our bodies, what we allow, desire and/or forbid others to do with our bodies, and to make essential decisions about our bodies. The Primer includes discussion of seven issue areas where overreaching laws and policies criminalize sexual and reproductive actions, decisions and gender expression thereby violating our bodily autonomy and denying us our dignity and human rights.” (p.19)  The seven focus issues are:   Criminalizing pregnancy, abortion, adolescent sexual activity, same-sex sexual activity, sex outside marriage and sex work, as well as HIV non-disclosure, exposure and transmission. The book also contains a useful glossary.
As Anand Grover comments: “Amnesty International’s Primer and Toolkit – Body Politics: Criminalization of sexuality and reproduction – is a timely, meaningful and welcome contribution that can enable activists to both comprehend and challenge illegitimate criminalization of sexuality and reproductive decisions. It is vital to understand the extent to which criminalization has permeated states today and the damage which is done by such measures masquerading as legitimate public health or public morality initiatives. This Primer details the major areas of concern and the harm which both direct and indirect criminalization inflict on an individual’s human rights and the health of society as a whole. It is not enough, however, to simply understand the problem of criminalization of sexuality and reproductive decisions; steps must also be taken to challenge it. The Toolkit provides concrete campaigning techniques such as mapping stakeholder participation and power, identifying advocacy targets, and building capacity. The [forthcoming] Training Manual can be used to build understanding and capacity around these issues for a range of audiences and activists.”  (p. 9, our emphases)

Body Politics: Criminalization of sexuality and reproduction”
220-page Primer
See also:  Toolkit:  38-page PDF
Rationale for this Amnesty International’s campaign  is explained here.


Irish Government announces referendum on abortion

January 31, 2018

Many thanks to Christina Zampas, our Reproductive Health Law Fellow,*  for preparing this expert comment for Reprohealthlaw subscribers.

On January 29, 2018. the Irish government announced that it will hold a referendum on the provision of the Constitution which limits abortion access. In deciding this, it took into consideration the recommendations issued on December 20 by the  Joint Committee of the Irish Parliament (the Oireachtas).

Ireland has one of the most restrictive abortion law regimes in the world, only allowing abortion in cases of risk to a woman’s life. The Joint Committee on the Eight Amendment of the Constitution was formed to review the  Citizens’ Assembly recommendations calling for constitutional reform of Article 40.3.3 (the Eighth Amendment) which guarantees an equal right to life of the “unborn” as to a pregnant woman.   The Eighth Amendment was inserted in the Constitution in 1983, after a bitterly contested referendum.  The intent of the Amendment was to halt the wave of liberalization of European and US abortion laws from hitting Ireland. An Amnesty International report shows how the Eighth Amendment fundamentally shaped the restrictive scope and content of Ireland’s abortion law and the quality of care received by all pregnant women and girls, not just women seeking abortion.

For three months in autumn, 2017, the Joint Committee assessed the Citizens’ Assembly recommendations and heard from scores of witnesses, including myself. I provided expert testimony on the impact of the Eighth Amendment on women and girls, the human rights violations resulting from such a draconian legal framework, and the practical reality that thousands of women from Ireland are accessing abortion either by travelling overseas or purchasing the abortion pill online.  As a result of this process, the Joint Committee recommended repeal of the Eighth Amendment, to align Ireland’s abortion law with human rights obligations and the laws of other European countries.  These recommendations will also guide the government in drafting a referendum proposal that will go to the people.  The Joint Committee’s recommendations include ensuring abortion on request in the first 12 weeks of gestation, and beyond 12 weeks for fatal fetal impairment, life and health, including mental and physical health.  They recognized that medical decisions are best made in a clinical setting, not by a legislature.  While most recommendations align with women’s and girls’ health care needs, human rights norms and the laws of other European countries, others do not–such as recommendations which do not recognize the need to allow on abortion on grounds of rape beyond 12 weeks gestation and which explicitly disallow abortion on grounds of severe fetal impairment.

The Joint Committee also made important ancillary recommendations which would prevent unwanted pregnancies and ensure quality of care to all pregnant women.  They include decriminalization of abortion (to reduce the chilling and stigmatic effect that criminal law has on provision of health care to all pregnant women), robust, evidence-based sex education, free access to contraception, equal access to high standards of obstetric care regardless of geography or socio-economic status, and improvements to counselling and support facilities surrounding pregnancy and abortion.

The government in announcing the referendum decided wording that effectively repeals the Eighth Amendment. Alongside this, the government announced that the Minister for Health will prepare legislation in line with the Joint Oireachtas Committee’s recommendations on abortion access, which includes a 12-week ‘on request’ period for abortion access.

This is a significant step for Ireland, where the abortion debate raged for decades with little government response until 2012, when the tragic and unnecessary death of Savita Halappanavar provoked large public protests.  Her death was due, in part, to the Eighth Amendment’s role in the clinical decision not to provide her with appropriate care during miscarriage.  This tragic case, combined with a judgment from the European Court of Human Rights in A, B and C v Ireland (2010), which had found Ireland in violation of the European Convention for lack of legal clarity on risk to life, the only ground on which women can access abortion,  the Protection of Life During Pregnancy Act (PLDPA) was passed in 2013.  This PLDPA replaced the 1861 Offences against Persons Act, a complete ban on abortion penalized by lifetime imprisonment.  Over 150 years later, the new law was limited by the Eighth Amendment and the Supreme Court’s interpretation (in Attorney General v. X (1992)) that the Constitution only permitted abortion where there is a “real and substantial risk to the life, as opposed to the health, of the mother.”  Within these confines, the 2013 law offers surprisingly little clarity on allowable circumstances and places formidable barriers, including multiple provider authorizations, to exercising the “life” exemption from criminal prosecution.  It continues to impose a criminal penalty on abortion: 14 years imprisonment.

The reformed law has changed nothing; every day, 10-12 women or girls travel from Ireland to England for an abortion.  These may include victims of rape, schoolgirls, women who cannot afford to have another child and those faced with fatal fetal diagnoses.  These women travel because they cannot access safe and legal abortion in Ireland.  Meanwhile, marginalized women, such as migrants, asylum seekers or impoverished women, are trapped in Ireland, unable to access abortion by travel.  For all these women and girls, their human rights are being violated, as criticized by international and regional bodies for over 20 years, most recently by the UN Human Rights Committee in Mellet v Ireland (2016) and Whelan v Ireland (2017)

Ireland’s draconian abortion law is part of its notorious history of strict punitive social controls over female sexuality, both in law and in practice, amid the socio-religious stigma that drove women and girls to the infamous “mother and child homes” or “Magdalene Laundries,” and subjected pregnant women to the medical practice of Symphysiotomy during childbirth.  It’s about time that such abuses and human rights violations are not only prevented from happening in the future but that the State recognized its role in this wrongdoing.

Related Links:

*Christina Zampas, a Reproductive Health Law Fellow in the International Reproductive and Sexual Health Law Program at the University of Toronto’s Faculty of Law and an independent human rights consultant, provided expert testimony on international human rights standards related to abortion to the Joint Committee on the Eighth Amendment to the Constitution on October 4, 2017  Video of testimony (at 2:27-2:45)

Ireland must comply with international human rights obligations, including HRC rulings in Whelan and Mellet cases, by Mercedes Cavallo Reprohealthlaw Blog, January 31, 2017.  Commentary online.

These are #115 and #116 in our Reprohealthlaw Commentaries Series. online here.

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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.

 

 

 

 


Ireland must comply with international human rights including HRC rulings in Whelan and Mellet cases

January 31, 2018

Many thanks to Mercedes Cavallo, a doctoral candidate in the University of Toronto’s Faculty of Law, and a Reproductive Health Law Fellow,  for analyzing these two key Irish cases for readers of this blog:

On October 18, 2017, the Irish Oireachtas (Parliamentary) Joint Committee on Abortion recommended 15-2-2 not to fully retain the Eighth Amendment restrictions on abortion.   Irish abortion laws are among the most restrictive in the world and have been condemned by the UN Human Rights Committee in the cases of Whelan v. Ireland and Mellet v. Ireland.  Under the Irish Constitution’s Eighth Amendment, as interpreted by the Supreme Court of Ireland in Attorney General v. X and Others, abortion is a crime and is only permissible when it is established, as a matter of probability, that there is a real and substantial risk to the life, as distinct from the health, of the pregnant woman.

In addition, the “Abortion Information Act” 1995 restricts circumstances in which individuals (including health professionals) can provide information about legal abortion services in Ireland or abroad, and criminalizes “advocating or promoting” the termination of pregnancy.  Due to the constraints of this legal framework, women who need abortions in Ireland usually travel to the United Kingdom, with little information and no financial or psychological support from the State.

In the Whelan and Mellet. cases, the UN’s Human Rights Committee found Ireland non-compliant in denying abortion services and grief counselling to two women who had each been pregnant with a doomed foetus.

Siobhán Whelan, at 20 weeks pregnant, was informed that her foetus had a congenital malformation and would likely die in utero, during labor, or soon after birth. Her obstetrician mentioned that “in another jurisdiction [she] would be offered a termination but obviously not in this country due to Irish law.” The obstetrician expected Ms. Whelan to “continue with the pregnancy, attend ante-natal appointments ‘as normal’ and wait for nature to take its course.” Another doctor gave her a report of the scan, “in case [she] wanted to travel.”  She sought further information about travel, but most agencies could only assist women who were less than 13 weeks pregnant, so she learned about the Liverpool Women’s Hospital through a friend. At significant expense, she arranged babysitting, leave from work and farm relief.  Afterwards, she felt very isolated, and suffers from complicated grief and trauma.

Amanda Jane Mellet was 21 weeks pregnant when she was told that her foetus had congenital defects and would die in utero or shortly after birth.  Hospital staff said only that abortions were not available in Ireland and that some people “choose to travel.” The midwife advised her to contact an Irish family planning organization for information and counseling. Her doctor attempted to dissuade her from travelling to the UK for abortion. Only 12 hours after the abortion, she travelled to Ireland because she could not afford a longer stay in the U.K.  Upon her return, she was denied access to grief counselling. She still suffers from complicated grief and unresolved trauma.

In both cases, the Committee ruled that Ireland had violated the women’s rights to privacy (article 17), equality/non discrimination (article 26) and freedom from cruel, inhuman and degrading treatment (article 7), under the International Covenant on Civil and Political Rights.  To make amends, the Committee required Ireland to pay full reparations to both women, make psychological treatment available to them, and take measures to prevent similar violations in the future.  According to the Committee, “the State party should amend its law on voluntary termination of pregnancy, including if necessary its Constitution, to ensure compliance with the Covenant, ensuring effective, timely and accessible procedures for pregnancy termination in Ireland, and take measures to ensure that health-care providers are in a position to supply full information on safe abortion services without fearing they will be subjected to criminal sanctions” (Mellet, para. 9).

In Mellet, Judge Nigel Rodley concurred that “the refusal of the State party to allow for terminations even in the case of fatal foetal abnormality cannot even be justified as being for the protection of the (potential) life of the foetus. In addition, not only has article 7 [prohibition of inhuman and degrading treatment under ICCPR] been violated cumulatively … but by the very requirement that a pregnant woman carrying a doomed foetus is subjected to the anguish of having to carry the pregnancy to term.”(Mellet p.25).

As human rights expert Christina Zampas testified (2:27-2:45) before an Irish  parliamentary committee, Ireland is obligated to comply with international human rights law, including these two decisions: “The urgency of the human rights concerns in Ireland is reflected in serious human rights violations amounting to cruel, inhuman and degrading treatment, as found in the Mellet and Whelan cases. The UN Human Rights Committee held in these two cases that prohibiting and criminalising abortion in situations of fatal foetal impairment subjected these women to conditions of intense physical and mental suffering, and that no justification could be invoked, nor were there extenuating circumstances to excuse such harm.”

 So far, these decisions only represent a victory for the two victims.  The Human Rights Committee ignored that the criminalization of abortion in Ireland discriminates against women on grounds of sex and gender. The Committee decided that the women’s right to equality was violated only because other women who had had spontaneous miscarriages in Ireland could access counselling services, but they could not.

Equal treatment on grounds of sex and gender demands accommodation of the biological differences between men and women in reproduction,2 not endorsement of a false legal equality created by men for men.  Both decisions overlooked that the criminalization of abortion discriminates against women because it is a medical procedure that only women need, whereas the Irish legal system does not criminalize any medical procedure that only men need. Fortunately, concurring opinions by Committee members Yadh Ben Achour and Sarah Cleveland exemplify jurisprudence that strives to understand the perspectives of women in difficult situations.

It remains to be seen whether Irish government initiatives and a referendum this year, will bring Irish law into compliance with international human rights law.

Related resources:

Ireland:  Irish Government announces referendum on abortion, by Christina Zampas, Reprohealthlaw Blog, January 31, 2017.  Commentary online.

These are #115 and #116 in our Reprohealthlaw Commentaries Series. online here.
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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.

 


“How Laws Fail the Promise of Medical Abortion,” by Patty Skuster

January 31, 2018

Congratulations to Patty Skuster, Senior Policy Advisor at Ipas and an Adjunct Professor at the University of Pennsylvania’s Center for Public Health Initiatives;  her recently published article is now publicly available through SSRN.  We thank her for abstracting this article for Reprohealthlaw subscribers:

Patty Skuster, “How Laws Fail the Promise of Medical Abortion: A Global Look,” Georgetown Journal of Gender and the Law 18.379, 2017.  Article online at SSRN

Abortion law has not kept pace with abortion practice, namely the rising use of abortion with pills. Evidence is growing that women can safely use misoprostol without the involvement of a healthcare professional. And researchers have attributed abortion with pills outside formal health care settings to a worldwide decrease in abortion mortality.

Meanwhile, abortion law globally and nationally remains rooted in outdated abortion methods that do require a healthcare professional.  Global human rights experts recommend governments decriminalize women who seek abortion to meet human rights treaty obligations and reduce unsafe abortion deaths. However, the vast majority of abortion laws—even recently liberalized ones—still require a health-care professional to perform or approve legal abortion. More recent laws have progressed to allow mid-level providers (instead of medical doctors) to provide legal abortion. But even in liberal settings, women who end their abortion with pills and without a provider face imprisonment.

This article includes a summary of treaty body recommendations on abortion and the right to life and health. While treaty bodies call for governments to change laws to make abortion more accessible, treaty bodies have failed to address the nearly universal criminalization of women’s self-abortion with pills. It offers examples of laws that criminalize women’s self-use: newer laws in Uruguay and Uganda, and Zambia which, like many other former British Colonies, follows the model of the United Kingdom and requires provider involvement.

To make real progress toward upholding women’s rights to health and life, human rights authorities and governments must examine provider involvement requirements in abortion laws. We must work toward laws that permit all women to realize the promise of medical abortion.

Related links:

Access to safe abortion in Uganda: Leveraging Opportunities through the Harm Reduction Model” by Moses Mulumba, Charles Kiggundu, Jacqueline Nassimbwa and Noor Musisi Nakibuuka, International Journal of Gynecology and Obstetrics 138 (August 2017): 231–236. doi:10.1002/ijgo.12190   PDF at Wiley Online Submitted text.

Updated WHO Guidance on Safe Abortion: Health and Human Rights”   by J.N. Erdman, T.  DePiñeres, and E. Kismödi, International Journal of Gynecology and Obstetrics 120 (2013): 200-203. Article online

Applying Human Rights to Improve Access to Reproductive Health Services,” by Dorothy Shaw and Rebecca J. Cook,  International Journal of Gynecology and Obstetrics 119 (2012) S55–S59.  Article online,

Ethical and Legal Issues in Reproductive and Sexual Health80+ brief articles

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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.