Conscientious Objection: African reflections on Colombian abortion decision T-388/09, by Charles G. Ngwena

Congratulations to Charles Ngwena of the Centre for Human Rights, Faculty of Law, University of Pretoria, South Africa, whose 2014 article in the Journal of African Law is now available online.

Charles G. Ngwena. “Conscientious Objection to Abortion and Accommodating

Women’s Reproductive Health Rights: Reflections on a Decision of the Constitutional Court of Colombia from an African Regional Human Rights Perspective. Journal of African Law, 58 (2014): 183-209  Article now online.

Abstract and Overview:  If applied in isolation from the fundamental rights of women seeking abortion services, the right to conscientious objection can render any given rights to abortion illusory, including the rights to health, life, equality and dignity that are attendant to abortion. A transformative understanding of human rights requires that the right to conscientious objection to abortion be construed in a manner that is subject to the correlative duties which are imposed on the conscientious objector, as well as the state, in order to accommodate women’s reproductive health rights. In recent years, the Colombian Constitutional Court has been giving a judicial lead on the development of a right to conscientious objection that accommodates women’s fundamental rights. This article reflects on one of the court’s decisions and draws lessons for the African region.

After reviewing the history and status of abortion restriction in Africa, and comparing approaches to conscience clauses in South Africa, Zambia and Zimbabwe, Dr. Ngwena carefully reviews the Colombian decision in Case T-388/09 which, he concludes, “is ultimately about recognizing an overlapping consensus of the imperative of mutual co-existence in a liberal and heterogeneous society. . . .   [At the] interface between the right to conscientious objection and the right to abortion, African domestic courts and institutions can do well to look, among other juridical resources, to the Colombian decision for the development of constitutional and human rights standards that are aimed at accommodating the fundamental rights of conscientious objectors with the equally fundamental rights of women seeking abortion.  African regional treaty bodies have the same need.   . . . [In] African states, judicial interpretation has a crucial role to play in the authoritative interpretation and application of human rights protections under the African Charter system.

The Colombian decision is an important juridical resource and advocacy tool for human rights practitioners, civil society and non-governmental organisations that seek to promote women’s sexual and reproductive health,including access to abortion as a human right. In Case T-388/09, the Colombian Constitutional Court adopted a judicial approach that is gender sensitive and transcended a classical liberal interpretation of rights by avoiding the trap of enunciating abortion rights in a manner which reduces them to a mere rhetorical flourish.  Application of abortion rights requires judicial awareness that rights holders will often be unable to realize the rights in the same way for the reason that they have different capabilities and are differently situated, particularly in an environment in which gender inequalities are embedded.  Thus, imposition of state duties to provide adequate information and material resources to facilitate equitable access to healthcare services becomes a more meaningful way of vindicating abortion rights as not just tangible human rights but also human capabilities.

Abortion has a long history of being at the receiving end of moral censure by patriarchal political and religious authorities. Women remain a political minority. Unless closely interrogated, the right to conscientious objection to abortion can easily come to deny the very heterogeneity it seeks to acknowledge. Instead, it can become a Trojan horse for popular patriarchal and religious prejudices that deny women’s reproductive agency and accentuate the historical marginalization and stigmatization of reproductive healthcare services which only women need. How health care professionals understand and exercise the right to conscientious objection has implications for the realization of the reproductive rights of women seeking abortion services.
Charles G. Ngwena. “Conscientious Objection to Abortion and Accommodating
Women’s Reproductive Health Rights: Reflections on a Decision of the Constitutional Court of Colombia from an African Regional Human Rights Perspective. Journal of African Law, 58 (2014): 183-209  Article now online.
Related resources:
Colombian decision T-388/09  Corte Constitucional [Constitutional Court] 2009,  Decision in Spanish

T-388/09:  Conscientious Objection and Abortion: A Global Perspective on the Colombian Experience. (Georgetown, USA, O’Neill Institute for National and Global Health Law / Women’s Link Worldwide, 2014)    English | Español

 “Healthcare responsibilities and Conscientious Objection” by R. J. Cook, M. Arango Olaya and B.M. Dickens,  International Journal of Gynecology and Obstetrics 104 (2009): 249-252. Spanish translation.
The Scope and Limits of Conscientious Objection,” by B.M. Dickens and R. J. Cook (2000) 71 International Journal of Gynecology and Obstetrics 71-77.

Conscientious Objection-
Articles and other resources from the International Reproductive and Sexual Health Law Program at University of Toronto, online here.
Ethical and Legal Issues in Reproductive Health80 concise articles.
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