REPROHEALTHLAW Updates – June 2019

June 28, 2019

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:

[abortion, Germany]: Two more doctors fined for “advertising” abortion.  Newspaper report.  Criminal restrictions on abortion “advertising” restricts information provision – comment by Stephanie Schlitt.

[abortion, United Kingdom] UK Appeal court overturns forced abortion ruling. Termination had been said to be in best interests of woman with learning disabilities. The Guardian newspaper.

[abortion law, Croatia]:  Constitutional Court decision of February 21, 2017.  Rješenje Ustavnog Suda Republike Hrvatske, broj: U-I-60/1991 i dr. od 21.veljace 2017.  Decision in Croatian.  Summary from CRR.   Court’s press release.   New: Judgment translated into English.    I-CONnect Symposium online.

[abortion law, Mexico]  Suprema Corte de Justicia de la Nación, Primera Sala [Supreme Court] 2019,  Amparo en Revisión 1388/2015
[Case of “Marisa,” ruled that abortion should be allowed when mother’s health at risk]  May 15, 2019.  Decision in Spanish.   Backup copy.

[Costa Rica] Emergency contraception (Levonorgestrel) approved by Ministry of Health, for sale without prescription.  News article.

[homosexuality rulings]:
“Botswana’s High Court decriminalizes gay sex.”  June 12, 2019.  New York Times report.
“India: [Supreme] Court legalises gay sex in landmark ruling,” Sept 6, 2018.  BBC Report.
“Kenya: High Court upholds a ban on gay sex.”  EG & 7 others v Attorney General; DKM & 9 others Petition 150 & 234 of 2016 (consolidated), decision May 24, 2019  Decision online.    New York Times report.  Activists plan to appeal. Human Rights Watch report.

SCHOLARSHIP:

[abortion law, Brazil, Portuguese and English article]
—— “Constitucionalização do aborto no Brasil: uma análise a partir do caso da gravidez anencefálica,” por Marta Rodriguez de Assis Machado y Rebecca J. Cook. Revista Direito e Práxis, Ahead of print, Rio de Janeiro, 2019. DOI: 10.1590/2179-8966/2019/43406
Disponível em: Portugues, antes da impressão.
Resumo en Portugues.

—— “Constitutionalizing abortion in Brazil,” Marta Rodriguez de Assis Machado y Rebecca J. Cook. Revista de Investigações Constitucionais, Curitiba, vol. 5, n. 3, p. 185-231, set./dez. 2018. DOI: 10.5380/rinc.v5i3.60973. Article in English. Abstract and related resources.

[abortion law, Chile] The misrepresentation of conscientious objection as a new strategy of resistance to abortion decriminalisation,” by Verónica Undurraga and Michelle Sadler, Sexual and Reproductive Health Matters 27.2 (2019):1–3.  Abstract on Reprohealthlaw.   Article online

[abortion law, Croatia]: “Symposium: The 2017 Croatian Constitutional Court’s Abortion Ruling,” International Journal of Constitutional Law Blog (I-CONnect), June 15-18, 2019) includes comments from 3 legal scholars:
—— “Reconciling with the Past, Looking to the Future,” by Prof. Djordje Gardašević  Introduction
—— “A Nominal Win for Reproductive Freedom,” by Prof. Ana Horvat Vuković   Reproductive Freedom.
—— “Finding Common Ground amid Differences in Approach,” by Prof. Sonia Human  Common Ground.

[abortion law, South Korea] “Punishment for Abortion will Vanish from Korea’s Criminal Code: the April 2019 Constitutional Court Decision,” by Professor Hyunah Yang, Seoul National University School of Law  Commentary on Reprohealthlaw.

[USA]:  Reproductive Rights and Justice Stories (Law Stories Series), ed. Melissa Murray, Katherine Shaw, and Reva B. Siegel. Foundation Press, 2019. includes litigation stories behind important cases. Publisher’s summary.   Symposium about the book

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

REPORTS

[Dominican Republic] “I Felt Like the World Was Falling Down on Me,”  Adolescent Girls’ Sexual and Reproductive Health and Rights in the Dominican Republic (New York: Human Rights Watch, June 18, 2019)     Report in English.   en Español

[Honduras]  “Life or Death Choices for Women Living Under Honduras’ Abortion Ban,” (Human Rights Watch, 2019) Report in English.    en Español

[sex education – Canada] Canadian Guidelines for Sexual Health Education (updated edition, SIECAN (Sex Information & Education Council of Canada), May 1, 2019)  Guidelines, in Englishet en Francais.

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 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.


Korean Constitutional Court holds abortion law unconstitutional

June 28, 2019

Many thanks to Professor Hyunah Yang of the Seoul National University School of Law, for sharing her insights on this landmark decision of the [South] Korean Constitutional Court (Case No.: 2017Hun-Ba127, KCCR, April 12, 2019) :

Punishment for Abortion will Vanish from Korea’s Criminal Code: the April 2019 Constitutional Court Decision

by Professor Hyunah Yang,
Seoul National University School of Law

On April 11, 2019, the Constitutional Court of Korea held that Articles 269 and 270 of the Criminal Code are not in conformity with the Constitution of the Republic of Korea, by a decision of 4 (not in conformity with the Constitution) to 3 (unconstitutional) to 2 (not unconstitutional). Accordingly, these statutory provisions should be removed or revised, no later than December 31, 2020.

Paragraph 1 of Article 269 of the Criminal Code that has criminally punished abortion in Korea provides that “[A] woman who procures her own miscarriage through the use of drugs or other means shall be punished by imprisonment for not more than one year or by a fine not exceeding two million won” [approximately US$1750].  This Article was first enacted as part of Korea’s inaugural Criminal Code of 1953, and has remained until today with only minor revisions. The majority opinion of the Constitutional Court in the above April 2019 decision held that this Article gravely restricts the women’s right of self-determination without providing proper social remedies to protect the life of the fetus.  The Court also held that it is not in conformity with the Constitution in that the Article forbids almost all abortions, with very narrow exceptions, such as serious congenital diseases, conception due to rape or incest, and danger to the mother’s life, without considering viability of the fetus and its developmental phases.  Article 270, that has criminally punished physicians who perform abortion with the agreement of a pregnant woman, was also held to be not in conformity with the Constitution.

In 2012, the Constitutional Court had rendered a decision on the same provisions, holding them to be constitutional, in that the right to life should be weighed much more heavily than “women’s right of self-determination.” The dichotomy between these two rights sways in the recent decision.  However, it is notable that the Constitutional Court paid great attention to the closely integrated relation between the two subjects, mother and fetus, although they are separate beings. In this special relationship, the fetus entirely depends on the mother, and the welfare of the mother is largely congruent with that of the fetus. Giving birth and child-rearing are fundamental to the life of a woman and, thus, her decision to continue or discontinue a pregnancy takes entire aspects of her existence into consideration, and, as such, her decision should be respected.

The reasoning of the Constitutional Court in the April 2019 decision almost exactly echoes what feminist scholars have claimed for the last couple of decades, accommodating women’s position regarding pregnancy-related conflicts. Pursuant to this Court’s decision, the legislature should revise relevant legal provisions so that a pregnant woman may have a lawful abortion within the period up to the 22nd week of her pregnancy.

However, there is an unclear point in the reasoning of the Court, concerning the very constitutional nature of the abortion right. Abortion is a medical, physical, ethical and social experience, and a gender “difference” issue that no male person faces. The Court ought to construct the abortion right in terms of equal rights between genders in this regard. Basing the Court’s rationale solely on the notion of the right to self-determination under Article 10 of the Constitution which is about the ‘dignity of human being’ and the ‘right to pursue happiness’ neither considers the right to gender equality nor addresses the specificities of the nature of abortion rights.

Compared with other areas of feminist movements in Korean society, the cause of abortion has not been salient until recently.  This is, I surmise, because women in Korea could and did obtain illegal abortions anyways. Despite the Criminal Code sanctioning abortion, the number of abortions per woman in Korea has been estimated to be higher than that in the United States, especially during 1980s and 1990s, although there have been no official statistics about the illegal activities.

The high estimate, however, does not signify the realization of women’s self-determination.  Rather, it was more like a sign of their vulnerability. Most abortions in Korea were performed due to family planning, preference for sons over daughters, the unmarried status of the mother, poverty or other socio-economic reasons. For many women, abortion has been ‘the last resort’ in the absence of proper contraceptives, which implies insufficient information and power to control unwanted pregnancy.  During the 1970s and the 1980s, as one of the late-developing countries, Korea’s governmental control of reproduction of the population through family planning was “the invisible hand” in women’s choosing abortion. This explains the rarity of actual criminal punishment of abortion so far. Thus, the notion of women’s choice has been a very confusing notion in this regard in Korea.

In recent years, the heightened awareness of rights to sexuality, sexual self-determination, reproductive rights and the right to health among younger generations represent notable changes.  Amid transnational phenomena such as the Polish ‘Black Friday’ and the Irish abortion referendum, there have been large scale pro-abortion demonstrations in Korea since 2016. ‘Action for Safe Abortion for All,’ an organized advocacy group, has highlighted the importance of abortion rights for minorities such as teenagers, sex workers, individuals with disabilities, and marriage-migrants.  

In order to meet these demands, not only the legislative body but also state administrative bodies such as the ministries of Welfare, Gender Equality, Labor and Education, ought to build policies that will guarantee reproductive rights, which should include education about sexuality and contraceptives, legal design for lawful abortions, universal support for access to medical information and services, and special support for minorities, not only for discontinuation but also for continuation of pregnancy. This would amount to a paradigm shift for Korea from the state of commodity-production to the state of human life-reproduction. Still, the government of Korea and its legislature could choose to interpret this decision of the Constitutional Court narrowly, by amending only the invalidated provisions of the Criminal Code and the Mother and Child Health Act.
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RELATED RESOURCES:

Republic of Korea [South Korea], Constitutional Court (Case on the Crime of Abortion, Apr 11, 2019 / Case No. : 2017Hun-Ba127, KCCR)
Official summary in “Major Decisions” on Court website
BBC News report.

Woong Kyu Sung, “Abortion in South Korea: The Law and the Reality,”   International Journal of Law, Policy and the Family 26.3 (2012): 278–305.  [reviews abortion law, policy, jurisprudence and incidence before Constitutional Court rulings of 2012 and 2019.] Abstract and Article.

“The 30th anniversary of the Constitutional Court of Korea” was recently commemorated in an I-CONnect Symposium convened by Prof. Kyu Ho Youm (Introduction). In Part III, Stanford law student Yoomin Won mentions two gender equality decisions that take note of CEDAW.  Part III: Influence of International Human Rights Law.
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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. TO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of our blog, then check your email to confirm the subscription.


Chile: Conscience strategy against legal abortions

June 28, 2019

Many thanks to Verónica Undurraga and Michelle Sadler, professors of law and medical anthropology (respectively) at the Universidad Adolfo Ibáñez in Santiago, Chile, whose comments on the recent Chilean Constitutional Court decision have been published in Sexual and Reproductive Health Matters:

“The misrepresentation of conscientious objection as a new strategy of resistance to abortion decriminalisation,” by Verónica Undurraga and Michelle Sadler, Sexual and Reproductive Health Matters 27.2 (2019):1–3.  Article online.

On January 18, 2019, the Chilean Constitutional Court forced the expansion of conscientious objection rights into the newly enacted law that decriminalizes abortion under three grounds.[1] The original bill, passed by the legislature in 2017 had restricted the right to health professionals; the  Constitutional Court upheld that bill, but added institutions and non-professional staff working in the surgical ward as holders of the right to object.[2]  The Court grounded institutional conscientious objection not only on the freedom of conscience clause of the Constitution, but also on the freedom granted to educational institutions, the freedom of association, and the protection of “intermediate groups” (any formal or informal association between the individual and the State).

The protection of intermediate groups, together with the doctrine of the subsidiary state, must be understood in the context of a Constitution that was enacted under the Chilean dictatorship, reacting to what it understood as the threat of a Marxist totalitarian state. The neoliberal economic logic inherited from that military era now influences the provision of health care in Chile.  Inspired by this logic {Guided by this outdated/obsolete/ logic, still embedded in the Constitution}, the Court argued {reasoned?} that private providers of gyneco-obstetric services are not obliged to provide abortion in the first place, {and therefore it} declared unconstitutional a prohibition of invoking conscientious objection that the Ministry of Health had imposed on private health institutions that hold agreements with the State to provide gyneco-obstetric services.  Thus, the Court argued that the right to conscientious objection is applicable to private institutions holding State contracts, those being the only ones that cannot refuse to provide the service without special legal permission.

Moreover, some voices in the medical profession are altering {misrepresenting?}  the nature of conscientious objection by conflating the personal moral nature of conscience with technical and ethical standards of the profession, arguing that abortion is a clinically inappropriate or non-beneficial treatment for patients, and claiming that doctors neither need to perform abortions nor refer the patient to a willing provider. 

It is too early to evaluate the impact of the Court’s decision on the provision of abortion by private institutions, or whether erroneous understandings of conscientious objection will expand among practitioners.  Therefore, women’s rights advocates are monitoring the situation (despite barriers to information), and educating health care providers on the legal duties of objectors to ensure women’s timely access to the procedure.

[1] Tribunal Constitucional [Constitutional Court,  2019, STC Rol N° 5572-18-CDS / 5650-18-CDS (acumuladas).  2019 Decision in Spanish Backup copy. [expands conscientious objection to other institutions.]

[2] Tribunal Constitucional [Constitutional Court,  2017,  STC Rol N° 3729(3751)-17 CPT. 2017 Decision in Spanish.  Accompanying documents.  Amicus Submissions.    Síntesis en Espanol.
English translation of decision with Synthesis and Table of Contents for both English and Spanish editions. Synthesis in English.   I-CONnect Symposium in English.

[3] Abortion Law Decisions webpage, based on the Table of Cases in Abortion Law in Transnational Perspective (University of Pennsylvania Press, 2014), is now updated with more than 145 court decisions, with links to full text where possible. English list. Spanish list.
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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 Series. TO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of our blog, then check your email to confirm the subscription.


Constitucionalização do aborto no Brasil: uma análise a partir do caso da gravidez anencefálica

June 28, 2019

[Constitutionalizing abortion in Brazil]
Congratulations to Professors Marta Rodrigues de Assis Machado, and Rebecca J. Cook, whose article is now available in Portuguese and English. Prof. Machado teaches at the Getulio Vargas Foundation School of Law (Sao Paulo), and Prof. emerita Rebecca Cook is Co-Director of our International Reproductive and Sexual Health Law Program at the University of Toronto’s Faculty of Law.

PORTUGUESE:
MACHADO, Marta Rodriguez de Assis; COOK, Rebecca J.
Constitucionalização do aborto no Brasil: uma análise a partir do caso da gravidez anencefálica. Revista Direito e Práxis, Ahead of print, Rio de Janeiro, 2019. DOI: 10.1590/2179-8966/2019/43406
Disponível em: Portugues, antes da impressão

Resumo: O Brasil tem constitucionalizado disputas pelo direito das mulheres de encerrar gestações indesejadas. O presente artigo examina como teve início esse processo, na Assembleia Constituinte nos anos de 1986-87, e como ele se desenvolveu em diferentes arenas de disputa, como o Legislativo, o Executivo e a esfera pública. Recentemente, o conflito se deslocou para o Supremo Tribunal Federal (STF), por meio da discussão sobre gravidez de fetos anencéfalos, trazida pela Arguição de Descumprimento de Preceito Fundamental (ADPF) n. 54 em 2004 e julgada em 2012. Nessa ação, pela primeira vez, o STF moveu barreiras penais estabelecidas pelo Código Penal de 1940 para possibilitar a escolha de mulheres em manter ou não uma gravidez anencefálica. O objetivo deste texto é examinar como a decisão da ADPF 54 contribuiu para a constitucionalização do aborto. Em primeiro lugar, estabeleceu o direito à vida como não absoluto, garantindo legitimidade constitucional ao sistema de excludentes de ilicitude. Em segundo, indicou a ponderação de direitos constitucionais como o modo de raciocínio paradigmático na questão. Em terceiro, ao enquadrar a controvérsia como questão de ponderação de direitos, as posições adotadas acabaram por expressar importantes avanços no reconhecimento de direitos das mulheres.
Palavras-chave: Brasil; Constituição; Anencefalia; Gravidez; Aborto; Direitos das mulheres.

Jurisprudência relevante:

Supremo Tribunal Federal do Brasil. Arguição de Descumprimento de Preceito Fundamental nº. 54 garantiu, no Brasil, a interrupção terapêutica da gestação de feto anencéfalo. Decisao do STF, 12 abril 2012. Copia extra.

Decisões sobre o aborto – página da web: em espanol. em inglês

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ENGLISH:
MACHADO, Marta Rodriguez de Assis; COOK, Rebecca J. Constitutionalizing abor-tion in Brazil. Revista de Investigações Constitucionais, Curitiba, vol. 5, n. 3, p. 185-231, set./dez. 2018. DOI: 10.5380/rinc.v5i3.60973. Published article in English. Abstract and related resources in English.

Abortion Law decisions in English. in Spanish.

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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.


Symposium: Croatian Constitutional Court abortion ruling of 2017

June 28, 2019

Congratulations and thanks to Djordje Gardašević, a professor of Constitutional Law at the University of Zagreb, for introducing and convening a Symposium for the International Journal of Constitutional Law‘s I-CONnect Blog. The Symposium provides a summary and comments by three law professors about the Croatian Constitutional Court’s abortion ruling of February 21, 2017.  The Court’s decision is now online in Croatian and English (unofficial abridged translation).

“The 2017 Croatian Constitutional Court’s Abortion Ruling” recently appeared on I-CONnect in three parts
“Reconciling with the Past, Looking to the Future,” by Prof. Djordje Gardašević, Constitutional Law, University of Zagreb, Introduction
— “A Nominal Win for Reproductive Freedom,” by Prof. Ana Horvat Vuković, Constitutional Law, University of Zagreb, June 16, 2019, Reproductive Freedom.
— “Finding Common Ground amid Differences in Approach,” by Prof. Sonia Human, Faculty of Law, Stellenbosch University, June 18, 2019, Common Ground.

The 2017 Constitutional Court ruling is now available in Croatian  and English. We thank Prof. Gardašević for his useful overview:

          “Reconciling with the Past, Looking to the Future”

Twenty-six years after it had received the first in a series of motions to start the constitutional review, on February 21st 2017 the Croatian Constitutional Court finally delivered its ruling on the constitutionality of the Act on Health Measures on the Exercise of the Right to the Freedom of Decision-Making on Giving Birth.

In its crucial part, the said Act, originally enacted in 1978, prescribes that termination of pregnancy may be performed within 10 weeks of conception and after the expiration of that period only further to the approval of a commission under the conditions and according to the procedure set out in the Act. More precisely, abortion in that subsequent period can be performed only: “where it is established on the basis of medical indications that the life of the woman could not be saved or a deterioration in health prevented during pregnancy, delivery, or post-partum; where it can be expected on the basis of medical indications and knowledge of medical science that the child will be born with serious congenital physical or mental defects; and where conception was the result of the criminal offence of rape, intercourse with a helpless person, intercourse by abuse of position, intercourse with a child, or incest.“ (See Article 22 of the Act and para 3.1 of the Ruling).

In its 2017 Ruling, the Court, although with one sharp dissent, upheld the constitutionality of the contested Act and clarified that its constitutional interpretation relied upon several crucial elements:
⊗   First, that any legislative arrangement must take into account the overall constitutional framework and especially its highest values (freedom, equal rights, national equality and equality of genders, love of peace, social justice, respect for human rights, inviolability of ownership, conservation of nature and the environment, the rule of law, and a democratic multiparty system) values which serve as the ground for interpretation of the Constitution (Constitution online in English).
⊗   Second, that the appropriate resolution of the case requires invocation of several constitutionally guaranteed rights or freedoms (human dignity, right to life, rights to liberty and personality and the right to privacy which in itself also includes the right of each person to free decision-making and self-determination).
⊗   Third, that any interference in the right of privacy must be prescribed by law, that it must pursue specific legitimate aims and that it must be necessary for the protection of such aims in a democratic society. Moreover, the notion of “necessity” stressed by the Court here, as the strictest constitutional requirement, must reflect the “pressing social need” (or “crucial societal need”) for the protection of one or more legitimate aims.
⊗   Fourth, that the right to life of the unborn in that sense “is not protected to have an advantage over or greater protection than a woman’s right to privacy“ and that “the legislator enjoys freedom of discretion in striking a fair balance between a woman’s right to free decision-making and privacy, on the one hand, and the public interest in ensuring the protection of an unborn being, on the other.“ And
⊗   fifth, that the termination of pregnancy “should not be understood as a family planning measure or as a means of contraception“. (paras 41: 1-45)

While rejecting to accept its jurisdiction regarding the question of “when life begins” (para 45.1), the Constitutional Court determined that “it is up to the legislator to prescribe the procedure and period within which termination of pregnancy at the woman’s request may be performed without any limitations.” (para 46, my emphasis)

At the same time, the Court also instructed the parliament to “modernize” the Act within two years, taking into account “new legal and institutional framework for health, social, and science and educational systems” which had meanwhile developed since the adoption of the new Croatian Constitution.

Here, the Constitutional Court stressed that those new systems “are based on other [subsequently developed and accepted] values and principles, and [that] they are aligned with the Constitution and international standards as well as with advances in science and medicine, which are complemented with changes in the systems of health care, education, and social policy” (para. 49.1).

To that specific point, the Court stated that the legislature “is free to issue measures that it considers purposeful for promoting sexually responsible behaviour and the responsibility of both man and woman in the prevention of unwanted pregnancies through educational and preventive programmes”, that the legislature “in order to enable the woman to determine freely regarding pregnancy and maternity, may set an appropriate deliberation period before a decision on termination or continuation of pregnancy is made, during which she would receive all information on pregnancy and services available”, and that “it is up to the legislator to determine how the new act will regulate the question of costs resulting from the termination of pregnancy…, the question of conscientious objection of doctors who do not want to perform terminations of pregnancy, etc.”(para. 50)

And in that particular context, the majority opinion clearly stated that “It is up to the legislator to prescribe in the new act educational and preventive measures… so that termination of pregnancy is an exception.“(para. 50) [my emphasis]

At the time of writing (June, 2019), the Croatian parliament has not yet enacted the new legislation, although the “instructive” deadline set up by the Constitutional Court has already passed.  According to the most recent media information, though, the draft of the new Act is to be expected in due time.
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RELEVANT RESOURCES

Constitutional Court of Croatia.  Decision of February 21, 2017.  Rješenje Ustavnog Suda Republike Hrvatske, broj: U-I-60/1991 i dr. od 21.veljace 2017.  Decision online in Croatian.  Unofficial abridged translation into English    Summary in English from CRR.   Court’s Press release in English.

Constitution of Croatia 1991, rev. 2013: ,Constitution in English.

Abortion Law Decisions, organized by country, with links to decisions, 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 PublicationsInformation resources, and Reprohealthlaw Commentaries Series.   TO 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 – May 2019

May 27, 2019

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:

Argentina: Doctor convicted of obstructing a legal abortion for raped woman, May 21, 2019  Report from Safe Abortion Campaign.

Canada: Ontario: Top Court rules that religious doctors must offer patients an ‘effective referral’ for assisted dying, abortion and birth control.  Report from Safe Abortion Campaign.

South Korean Constitutional Court (Case on the Crime of Abortion
Apr 11, 2019 / Case No. : 2017Hun-Ba127, KCCR) held provisions of “Abortion Prohibition Law” (1953) penalizing women and doctors for abortion are inconsistent with the Constitution.  If these provisions are not amended before Dec 31 2020, the law will be automatically abolished.  Link to official summary through “Major Decisions” on Court websiteBBC News report Abstract and Article (2012) about the law.   Reprohealthlaw Blog comment by South Korean Legal Scholar.

SCHOLARSHIP:

[abortion – Northern Ireland] “Standing and the Northern Ireland Human Rights Commission,” by Jane M. Rooney,  Modern Law Review 82.3 (May 2019): 525-48.  Abstract and Institutional access to article.

[abortion – South Africa] “International human rights norms and the South African choice on termination of pregnancy act: an argument for vigilance and modernisation,”  Lucía Berro Pizzarossa & Ebenezer Durojaye, South African Journal on Human Rights 35.1 (April 2019): 50-69.  Abstract and Article.

[abortion – South Korea, before 2019 ruling] “Abortion in South Korea: The Law and the Reality, by Woong Kyu Sung,  International Journal of Law, Policy and the Family 26(3), (2012), 278–305.  Abstract and Article

The Conscience Wars: Rethinking the Balance between Religion, Identity, and Equality, ed. Susanna Mancini & Michel Rosenfeld (Cambridge Univ. Press, 2018)  Publisher’s websiteTable of Contents with Links.

[Conscience, Italy, ESCR ruling]  “Objection ladies! Taking IPPF-EN v Italy one step further,” by Emmanuelle Bribosia, Ivana Isailovic and Isabelle Rorive, in Integrated Human Rights in Practice-Rewriting Human Rights Decisions, ed. Eva Brems and Ellen Desmet (Cheltenham, U.K.: Edward Elgar, 2017) 261-285. About the bookWorking paper PDF online.

[Conscientious Objection] “Seeking to Square the Circle:  Conscientious objection in Reproductive Healthcare by Emmanuelle Bribosia and Isabelle Rorive, in: Susanna Mancini & Michel Rosenfeld, eds., The Conscience Wars: Rethinking the Balance between Religion, Identity, and Equality,  (Cambridge Univ. Press, 2018)    Institutional Access working paper PDF online.

[Sex education] “The Challenges of Girls’ Right to Education: Let’s talk about Human Rights-based Sex education,” by Meghan Campbell, The International Journal of Human Rights, 20.8 (2016): 1219-1243, Online here

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

 


ECSR conscience decision vs Italy: taking it one step further

May 27, 2019

In IPPF-EN v Italy (2017) the European Committee of Social Rights addressed widespread conscientious objection as an obstacle to lawful abortion in Italy. Congratulations and thanks to three legal scholars, Emmanuelle Bribosia, Ivana Isailovic, and Isabelle Rorive, all from the Université libre de Bruxelles (ULB), whose reconsideration of this decision has been published in an anthology of rewritten decisions.  We are pleased to circulate the abstract and link to the working paper on which the chapter is based:

“Objection ladies! Taking IPPF-EN v Italy one step further,” by Emmanuelle Bribosia, Ivana Isailovic and Isabelle Rorive, in Integrated Human Rights in Practice-Rewriting Human Rights Decisions, ed. Eva Brems and Ellen Desmet (Cheltenham, U.K.: Edward Elgar, 2017) 261-285. About the book.
Working paper PDF online.

Abstract:  This paper proposes to reconsider the decision of the European Committee of Social Rights in International Planned Parenthood Federation European Network (IPPF-EN) v. Italy which addresses the regulation of the practice of the conscientious objection, using an integrated approach to human rights. More specifically, it argues that the use of different human rights instruments – broadly defined — could have led the Committee to adopt a gendered approach to the legal questions it had to tackle. By adopting this approach, we intend to challenge Committee’s reasoning on two fronts: first, we argue that its interpretation of the right to health fails to account for the specific violation of women’s right to access to health services. Second, we show how this gendered approach could have modified Committee’s approach to discrimination raised by the plaintiff.

RELATED RESOURCES

Summary of IPPF-EN v. Italy decision:  in Reprohealthlaw blog

Annotated Bibliography on the Right to Conscience:  May 2019 update, 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 PublicationsInformation resources, and Reprohealthlaw Commentaries Series.
TO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of our blog, then check your email to confirm the subscription.