UN Call for submissions: Women’s and girls’ sexual and reproductive health and rights in situations of crisis

Cross-posted from UN Human Rights, Office of the High Commissioner, with clarification about submissions below.

By Monday, August 31, 2020, the UN Working Group on discrimination against women and girls (WG-DAWG) requests stakeholders to contribute to a thematic report on women’s and girls’ sexual and reproductive health and rights (SRHR) in situations of crisis for the 47th session of the Human Rights Council in June 2021. The report will examine women’s and girls’ SRHR within an overarching framework of reasserting gender equality and countering roll-backs.

The Working Group will take a broad approach to crisis. In doing so, it intends not only to look at humanitarian crises, typically understood as encompassing international and non-international conflicts and occupied territories, natural disasters, man-made disasters, famine and pandemics, but it will also examine long-standing situations of crisis resulting from structural discrimination deeply embedded in histories of patriarchy, colonization, conquest and marginalization (such as in the case, for example, of indigenous women, Roma women and women of African descent), as well as other types of crisis based on the lived experiences of women, such as those induced by environmental factors, including the toxification of the planet, land grabbing, political, social and economic crises, including the impact of austerity measures, refugee and migrant crises, displacement crises, and gang-related violence, among others. The Working Group will examine how existing laws, policies, and practices can contribute to negative reproductive health outcomes for women and girls in situations of crisis and restrictions on their autonomy during their life-cycle, using an intersectional approach.

In order to inform the preparation of this report and in line with its mandate to maintain a constructive dialogue with States and other stakeholders to address discrimination against women and girls, the Working Group would like to seek inputs from all stakeholders.

Submissions should be sent by 31 August 2020 to wgdiscriminationwomen@ohchr.org and will be made public on the Working Group’s web page, unless otherwise requested. The Working Group is particularly interested in receiving information about challenges faced in ensuring that women’s and girls’ sexual and reproductive rights are respected, protected and fulfilled in times of crisis, and are adequately prioritized, as well as examples of good practices.

CLARIFICATION:
By August 31, 2020, please submit to wgdiscriminationwomen@ohchr.org:
1. responses to this 4-page Questionnaire: in English,
in French, or Spanish;
2. any relevant information (including publications, reports or academic articles)*
Reminder: All submissions will be published (or republished) on the Working Group’s website, unless confidentiality is requested.

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Cross-posted by: the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   See Program website for our Publications,  Information 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.

“The Gender Injustice of Abortion Laws” by Joanna Erdman

Congratulations to Professor Joanna N. Erdman, now Associate Director of the Health Law Institute at the University of Dalhousie, whose commentary was recently published in Sexual and Reproductive Health Matters (formerly known as Reproductive Health Matters).

Joanna N. Erdman, “The Gender Injustice of Abortion Laws,” Sexual and Reproductive Health Matters 2019; 27(1): 4–8. Abstract and article.

This commentary is a response to Katarzyna Sękowska-Kozłowska’s article on the treatment of criminal abortion laws as a form of sex discrimination under international human rights law through a study of two communications to the UN Human Rights Committee, Mellet v. Ireland and Whelan v. Ireland. The commentary offers a reading of these communications, and specifically the sex discrimination analysis premised on inequalities of treatment among women, as an engagement with the structural discrimination that characterises abortion laws, and as a radical vision for gender justice under international human rights law.

Prof. Erdman concludes that “By focusing on the gender stereotype that anchored the Irish prohibition in Mellet and Whelan, the [UN Human Rights] Committee moved beyond ideas of substantive equality to tackle the structural discrimination that characterises abortion law. These communications are not about comparing women to men, or comparison at all. They concern foremost the use of gender in law to rationalise inequality and injustice. Unconventional in its approach but radical in its vision, the Committee’s engagement with the structural discrimination of the Irish abortion prohibition opens international human rights law to a range of gender injustices. The Committee set out to remake gender from a set of fixed categories and essential identity traits into a source of equality and liberation for all. “Inherent to the principle of … gender equality,” as expressed under CEDAW [Gen Rec 28, para 22], “is the concept that all human beings, regardless of sex, are free to … make choices without the limitations set by stereotypes, rigid gender roles and prejudices.” Mellet and Whelan are important legal precedents for the decriminalisation of abortion as a human rights imperative. Yet they are also case studies in a vision of gender justice under international law.”

Keywords: abortion, discrimination, equality, human rights, International Covenant on Civil and Political Rights (ICCPR), United Nations Human Rights Committee.

“The Gender Injustice of Abortion Laws is available online: Abstract and article.

RELATED RESOURCES:
“A tough job: recognizing access to abortion as a matter of equality. A commentary on the views of the UN Human Rights Committee in the cases of Mellet v. Ireland and Whelan v. Ireland,” by Katarzyna Sękowska-Kozłowska,  Reproductive Health Matters 26.54 (Nov. 2018): 25-31.  Article online.

“Ireland must comply with international human rights obligations, including HRC rulings in Whelan and Mellet cases, by Mercedes Cavallo, LL.M., Reprohealthlaw Blog, January 31, 2018.  Comment online,

Gender Stereotyping: Transnational Legal Perspectives, by Rebecca J. Cook and Simone Cusack (University of Pennsylvania Press, 2010) English edition: about the book. Libro en espanol, 2011, PDF.

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UN Rapporteur denounces abuses against women during childbirth

Congratulations and thanks to Dubravka Šimonović, UN Special Rapporteur on violence against women, for presenting her groundbreaking report, “A human rights-based approach to mistreatment and violence against women in reproductive health services, with a focus on childbirth and obstetric violence,” to the UN General Assembly on July 11, 2019 23-page report online.

Many thanks to legal scholars Alisha Bjerregaard and Christina Zampas, who summarized this report for the Reprohealthlaw Commentaries Series. We are pleased to excerpt certain paragraphs:

“UN Rapporteur denounces abuses against women during childbirth,” by Alisha Bjerregaard and Christina Zampas, Reprohealthlaw Commentaries Series, October 31, 2019. The full text is online here

” [ . . . This] first U.N. report of its kind . . . addresses human rights abuses experienced by women during facility-based childbirth “as part of a continuum of the violations that occur in the wider context of structural inequality, discrimination and patriarchy.”   The report states unequivocally that: “Women’s human rights include their right to receive dignified and respectful reproductive health-care services and obstetric care, free from discrimination and any violence, including sexism and psychological violence, torture, inhuman and degrading treatment and coercion.” 

“Human rights violations addressed in the report include: physical and verbal abuse; over-medicalization, including the overuse of caesarian delivery, episiotomy and oxytocin when not medically justified; symphysiotomy; forced sterilization; forced abortion; shackling of women; failure to respect privacy and confidentiality; procedures without anesthesia; a lack of autonomy and decision-making; and the post-childbirth detention of women for inability to pay their hospital bills.  This list is not exhaustive, the report notes, nor does it include violations outside healthcare facilities. [ . . . ]

“By shedding light on the rights violations experienced by women during facility-based childbirth, and the drivers of this mistreatment and violence, we hope that this report spurs states to prevent and redress these abuses.  We also hope that human rights bodies engage in robust analyses of abuses that women experience during childbirth, the context in which they occur, and the inherent discrimination of these practices, as well as the intersectional nature of the discrimination that many women face.” 

The full text is online here
(Cite as:) Alisha Bjerregaard and Christina Zampas, “UN Rapporteur denounces abuses against women during childbirth,” Reprohealthlaw Blog Commentaries Series, October 28, 2019.

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RELATED RESOURCES:

UN Special Rapporteur on Violence Against Women (Dubravka Šimonović), “A human rights-based approach to mistreatment and violence against women in reproductive health services, with a focus on childbirth and obstetric violence.”  U.N. Doc. A/74/137, 11 July 2019. 23-page Special Rapporteur report.

FIGO Guidelines emphasized in the report:
“Guidelines Regarding Informed Consent” (Lyon, June 2007) FIGO Ethical Guidelines pp 22-24. provides human rights standards to protect the autonomy and agency of women.

“Harmful stereotyping of women in health care” FIGO’s Ethical Guidelines (pp. 40-43) is recommended as a key resource for providers.

World Health Organization. The prevention and elimination of disrespect and abuse during facility-based childbirth (Geneva, WHO, 2015) 4-page WHO statement.

WHO Recommendations. Intrapartum Care for a Positive Birth Experience. (Geneva: WHO, 2018) 210-page WHO report. 
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Human Rights-based Sex Education – article by Meghan Campbell

Congratulations to Meghan Campbell, a Lecturer in Law at the University of Birmingham, U.K., who recently published a book, Women, Poverty, Equality: The Role of CEDAW  (Hart Publishing, 2018).   More about the CEDAW book.
We are pleased to circulate an abstract and excerpt from Meghan Campbell’s earlier article, published in The International Journal of Human Rights:

Meghan Campbell, “The Challenges of Girls’ Right to Education: Let’s talk about Human rights-based Sex education,” The International Journal of Human Rights, 20.8 (2016): 1219-1243, Article online. 

The United Nations human rights framework offers new ways of conceptualising sex education. Although none of the treaties explicitly refer to sex education, an analysis of the rights contained in the core treaties demonstrates that there is a positive obligation on the state to provide sex education to fulfil the human rights of girls and women. A human rights perspective offers a framework in which to address the challenges to delivery of sex education. It is argued that due to the significance of the human rights that are fulfilled by sex education it is proportionate to limit the role of religious and cultural norms in delivery of sex education. (p.1219)

Section I [of this article] analyses the current challenges girls face in accessing human rights-based sex education. Around the world girls are not provided with comprehensive knowledge on their sexual and reproductive rights. Their ability to access sex education is often limited due to a combination of conservative religious and cultural norms and a lack of legal accountability and monitoring for the provision of sex education. Section II argues that there is an inter-woven commitment to high-quality sex education in crucial UN human rights treaties. The provision of human rights-based sex education is a necessary and positive obligation on the state to fulfil its human rights commitments. Section III evaluates how the UN treaty bodies have developed the state’s obligation to provide sex education. Although the treaty bodies have made some positive developments, they have not specifically addressed the most pressing obstacles to sex education.

The final section investigates how the state’s positive obligation to provide sex education can be fully developed. It specifically focuses on mediating the tensions between conservative religious and cultural norms and the delivery of comprehensive, human rights-based sex education. It concludes with recommendations for how the treaty bodies can address the obstacles to sex education and thereby begin to ensure that all girls are able to enjoy their equal rights to high-quality education.    (p. 1220)

Keywords:
sex education; right to education; gender equality; role of religion; UN treaty bodies

Related Resource on Sexuality Education and Human Rights, by María José Rivas Vera:

“Sexuality Education in Paraguay: Using Human Rights and International Policies to define adolescents’ right to sexuality education,”  LL.M. thesis, by María José Rivas Vera, 2015.  Abstract online.

New book by Meghan Campbell:

Women, Poverty, Equality: The Role of CEDAW  (Hart Publishing, 2018) Abstract and Table of Contents.
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Compiled by: the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   See Program website for our Publications,  Information resources, and Reprohealthlaw Commentaries Series.
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El papel del Poder Judicial en el abordaje de los estereotipos nocivos de género

Muchas gracias por este documento de antecedentes, que forma parte de una serie de documentos de la Oficina del Alto Comisionado de las Naciones Unidas para los Derechos Humanos sobre la estereotipación de género.  Agradecemos a Christina Zampas y a Johanna B. Fine por su trabajo de investigación y preparación de las versiones anteriores.

Documento de antecedentes sobre el papel del Poder Judicial en el abordaje de los estereotipos nocivos de género en casos relativos a la salud y los derechos sexuales y reproductivos: Una reseña de la jurisprudencia (Geneva: OHCHR, 2018)
Informe en español.   (Same report in English)

En este documento, se analiza cómo han impugnado los tribunales nacionales y subnacionales y los órganos judiciales internacionales y regionales3 la estereotipación nociva de género presente en la legislación, en las políticas o en distintas causas seleccionadas en materia de salud y derechos sexuales y reproductivos (SDSR) que fueron dirimidas en tribunales de primera instancia. Por otro lado, también se analizan casos donde estos tribunales y órganos han incurrido en una estereotipación nociva, lo que se traduce en violaciones de los derechos humanos. También se analiza la jurisprudencia pertinente de los organismos cuasijudiciales internacionales y regionales y de los mecanismos de derechos humanos. Por último, el documento intenta identificar estrategias y formular recomendaciones sobre la función que cumple la judicatura a la hora de abordar la estereotipación nociva en casos de esta naturaleza. Índice

Este informe de 45 páginas demuestra los prejuicios y las creencias acerca del sexo, los roles de los sexos y las características sexuales de los hombres y las mujeres obstaculizan el pleno disfrute de los derechos en materia de salud y derechos sexuales y reproductivos, y en consecuencia, marginan y excluyen a los individuos que no cumplen o no conforman los mandatos de género y subordinan y controlan a las mujeres y a las niñas. Por este motivo, al identificar y desarticular de manera explícita los estereotipos y al adjudicar recursos eficaces para hacerles frente, los tribunales tienen y pueden tener un importante impacto transformador para catalizar la eliminación de los estereotipos de género y garantizar la igualdad en toda la sociedad.

Índice

I. Introducción
i. Antecedentes
ii. Cómo entender los estereotipos, la estereotipación, su vínculo con los derechos humanos y el papel del Poder Judicial

II. La estereotipación y los estereotipos de género y la salud y los derechos sexuales y reproductivos
i. Estereotipos sobre la reproducción
ii. Los estereotipos sobre los roles dentro de la familia, el matrimonio y las relaciones familiares
iii. Estereotipos sobre los actos sexuales consensuales
iv. Estereotipos sobre la identidad de género

III. Estrategias para fortalecer la función del Poder Judicial en la eliminación de los estereotipos.
i. Reformar leyes, políticas y marcos regulatorios/orientativos
ii. Identificar y poner de relieve las buenas prácticas
iii. Monitorear y analizar el razonamiento judicial
iv. Hacer frente a la estereotipación judicial
v. Fortalecer la capacidad judicial
vi. Defender la diversidad dentro del poder judicial.

Recursos Relacionados:

Rebecca J. Cook y Simone Cusack, Estereotipos de Género: Perspectivas Legales Transnacionales, traducido por: Andrea Parra, 291 pp  (Bogota: Profamilia Colombia, 2011). Tabla de Contenido,  El Libro (291 pp) PDF    (Entrevista em português)

Rebecca J. Cook,  Estereotipos de Género: Perspectivas Legales Transnacionales, en:  Violencia Contra La Mujer y Justicia Reproductiva, IV Congreso LatinoAmericano Jurídico sobre Derechos Reproductivos, 2, 3, y 4 de Noviembre de 2015 en Lima Peru. (Lima:  PROMSEX, 2017):  pp. 27-74.  en línea aquí.

Rebecca J. Cook, Bernard M. Dickens and Simone Cusack, “La Estereotipación Poco Ética de la Mujer en la Salud Reproductiva,”  Discusiones sobre Genero, Sexualidad y Derecho: Taller 2010, ed. Alejandro Madrazo, Estefanía Vela, y Cecilia Garibi.  (Mexico D.F.: Fontamara, 2013) 123-134.   en línea aquí.

Otras publicaciones relevantes en español  están en línea aquí.
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ÚNETE a este REPROHEALTHLAW Blog aquí.   Participe deste blog aqui.
REPROHEALTHLAW website:  Nuestras publicaciones sobre salud reproductiva y derechos humanos en español o português están en línea aquí.

Judicial roles in addressing harmful RSH gender stereotypes

Congratulations to our esteemed colleagues from the UN Office of the High Commissioner for Human Rights (OHCHR) who, with assistance from human rights experts Christina Zampas and Johanna B. Fine, recently issued the following publication, in English and Spanish.

Background paper on the role of the judiciary in addressing the harmful gender stereotypes related to sexual and reproductive health and rights: A review of case Law.  (Geneva: OHCHR, 2018)   in English  and Spanish

This paper analyzes how national and sub-national courts and international and regional judicial bodies have challenged wrongful gender stereotyping in legislation, policies or cases by lower courts concerning select sexual and reproductive health and rights (SRHR) issues. It also analyses cases where these courts and bodies have instead engaged in wrongful stereotyping, resulting in violations of human rights.  Relevant jurisprudence from international and regional quasi-judicial bodies and human rights mechanisms is also analyzed in the study.  The paper finally seeks to identify strategies and make recommendations concerning the role of the judiciary in addressing wrongful stereotyping in such cases.

Overall, the report demonstrates that misperceptions and beliefs about the sex, sex role and sexual characteristics of men and women obstruct the full enjoyment of SRHR, operating to marginalize and exclude gender non-conforming individuals and to subordinate and control women and girls. As such, by explicitly identifying, debunking, and awarding effective remedies to address stereotypes, courts have and can have a critically important transformative impact in catalyzing the elimination of gender stereotypes and ensuring equality throughout society.

After briefly introducng stereotypes, stereotyping, and the role of the judiciary, the authors examine stereotypes related to:

• reproduction
• family formation
• consensual sexual conduct, and
• gender identity.

It then offers strategies for strengthening the role of the judiciary in eliminating stereotyping.  These strategies are discussed under the following headings:

• Legal policy, and regulatory/guidance reforms
• Identify and highlight good practices
• Monitor and analyze judicial reasoning
• Challenge judicial stereotyping in cases
• Build judicial capacity, and
• Advocate for diversity within the judiciary.

The entire 45-page background paper is online   in English  and Spanish

Related Resources:

“The human rights impact of gender stereotyping in the context of reproductive health care,” by Ciara O’Connell and Christina Zampas,  forthcoming in International Journal of Gynecology and Obstetrics, 2019.  PDF Early View online here.

“Unethical Female Stereotyping in Reproductive Health,” by R.J. Cook, Simone Cusack and Bernard M. Dickens.  International Journal of Gynecology and Obstetrics  109 (2010) 255–258. PDF online. Alternate link.  Spanish translation.

Gender Stereotyping: Transnational Legal Perspectives, by Rebecca J. Cook and Simone Cusack, Pennsylvania Studies in Human Rights Series, University of Pennsylvania Press 2010.  Book information.  Spanish translation, 311 pages.
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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.

 

 

 

 

 

Related resources

?Gender stereotyping book 2010 EN and Spanish

Zampas blog on gender stereotyping IV Bolivia?

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.

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

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.

 

 

 

 

Mandatory Waiting Periods and Biased Abortion Counseling in Central and Eastern Europe

Congratulations to Leah Hoctor and Adriana Lamačková of the Centre for Reproductive Rights, whose article has just been published in the Ethical and Legal Issues section of the International Journal of Gynecology and Obstetrics.  The article addresses the recent retrogressive introduction of mandatory waiting periods and biased counseling and information requirements prior to abortion in Central and Eastern Europe.

Leah Hoctor and Adriana Lamačková,  Mandatory Waiting Periods and Biased Abortion Counseling in Central and Eastern Europe (2017). International Journal of Gynecology and Obstetrics, 139 (Nov. 2017): 253–258. 
PDF at Wiley Online Library.    Submitted text online at SSRN.

A number of Central and Eastern European countries have recently enacted retrogressive laws and policies introducing new pre-conditions that women must fulfill before they can obtain legal abortion services. Mandatory waiting periods and biased counseling and information requirements are particularly common examples of these new prerequisites. This article considers these requirements in light of international human rights standards and public health guidelines, and outlines the manner in which, by imposing regressive barriers on women’s access to legal abortion services, these new laws and policies undermine women’s health and well-being, fail to respect women’s human rights, and reinforce harmful gender stereotypes and abortion stigma.

Key words: Abortion; Abortion counseling; Central and Eastern Europe; Discrimination; Human rights; Informed consent; Waiting periods

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 other concise 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.

REPROHEALTHLAW Updates — Sept 2017

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DEVELOPMENTS
[Chile] Abortion legalized in three cases: when the woman’s life is at risk, when the fetus will not survive the pregnancy, and in case of rape).  New law ruled constitutional by the Constitutional Court of Chile on August 28, 2017:  Decision in Spanish -295 pages.  Accompanying documents.  Other Submissions  Newspaper report in English.  Decision summarized in English.

India: Supreme Court Allows Rape Survivor to Terminate Her 31-Week-Old Pregnancy, despite 20-week limit under Medical Termination of Pregnancy law, based on medical advice re health of mother, including trauma from rape.
Newspaper report.   Decision online.  Baby died 2 days after caesarean.

RESOURCES

[abortion] The Responsibility of Gynecologists and Obstetricians in providing safe abortion services within the limits of the law, by Anibal Faúndes,  International Journal of Gynecology and Obstetrics, 139.1 (Oct 2017): 1-3.  Wiley Online.

Abortion Law in Transnational Perspective: Cases and Controversies, ed. Rebecca J. Cook, Joanna N. Erdman and Bernard M. Dickens (University of Pennsylvania Press, 2014), now in paperback, 20% discount code PH70.  English edition from U Penn Press.  Table of Contents with chapter summaries.  Table of Cases
—El aborto en el derecho transnacional, 2016: Fondo de Cultura Económica y  Libreria CIDE.    Índice con resúmenes de capítulos

[Africa]  Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts, published by Pretoria University Law Press (PULP) in 2017, 228 pages.   New Online edition with links to decisions.    Flyer with Table of Contents.    Download whole book

[Canada] After Morgentaler: The Politics of Abortion in Canada, by Rachael Johnstone, UBC press, 2017, 196 pages.  Based on this doctoral thesis in Political Science.   Purchase options.

“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,” by Charles G Ngwena,  Journal of African Law 58.2 (October 2014) 183 – 209.  Abstract and article now online.      

[conscience] “The Conscience Wars in Historical and Philosophical Perspective: The Clash between Religious Absolutes and Democratic Pluralism,”  by Michel Rosenfeld, in  (Susanna Mancini & Michel Rosenfeld, eds.) The Conscience Wars: Rethinking the Balance between Religion, Identity, and Equality (Cambridge University Press 2018)   58 Pages online.

[stigma: abortion, sex work] “Perfectly Legal, but Still Bad: Lessons for Sex Work from the Decriminalization of Abortion,” by Jula Hughes, University of New Brunswick Law Journal 68 (2017): 232-252   Abstract and article at SSRN

NEWS

Northern Ireland:  Medical professionals will no longer face prosecution if they refer women to clinics in England and Wales for abortions  Newspaper report.

International news and resources for advocacy:  International Campaign for Women’s Right to Safe Abortion.

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

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

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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.

HR expert: Conscientious objection may not hinder lawful abortions

Many thanks to Christina Zampas, one of fifty international experts and policymakers who recently convened in Montevideo, Uruguay, to share findings on the legal status and harms of conscientious objection to lawful abortions.   The refusal to provide services on grounds of conscience hinders lawful abortion in countries with both liberal and restrictive laws.  The practice also stigmatizes basic reproductive health services and in some cases pushes women to carry risky or unintended pregnancies to term, or to seek illegal or unsafe alternatives, which may have dire consequences, including death.

United Nations and regional human rights bodies have recognized the harmful effects of conscientious objection on the health and human rights of women.  They have articulated state obligations under the rights to health, to privacy and to non-discrimination, to ensure that women can access reproductive health services that they are lawfully entitled to receive.  For decades, human rights bodies have recommended that to comply with human rights obligations, states should decriminalize abortion, liberalize restrictive laws and remove barriers that hinder access to safe abortion.[1] “[I]n cases where abortion procedures may lawfully be performed, all obstacles to obtaining them should be removed,” including the unregulated practice of refusing to provide services based on conscience. [2]

UN treaty bodies have expressed concern about the harmful impact of the exercise of conscientious objection and have repeatedly urged those states that permit the practice to adequately regulate it to ensure that it does not limit women’s access to abortion services. [3]  The UN Special Rapporteur on Health, for example, has recognized that “conscientious objection laws . . . make safe abortions and post-abortion care unavailable, especially to poor, displaced and young women. Such restrictive regimes, which are not replicated in other areas of sexual and reproductive health care, serve to reinforce the stigma that abortion is an objectionable practice.” [4]   He has also recommended that states “[e]nsure that conscientious objection exemptions are well-defined in scope and well-regulated in use and that referrals and alternative services are available” and urged states to ensure that conscientious objection cannot be invoked in emergency situations. [5]

Human rights bodies have called on states to prohibit the improper use of conscientious objection by medical professionals.  And while human rights law does not require states to allow conscientious refusals to abortion, these human rights bodies have noted that where states do allow for it, they must regulate it, to ensure that it does not deny or hinder women access to lawful abortion.  They have explicitly specified that the relevant regulatory framework must ensure an obligation on healthcare providers to refer women to alternative health providers [6] and must not allow institutional refusals of care. [7]   The CESCR Committee, which monitors state compliance with the International Covenant on Civil and Political Rights,  has specifically recommended that states should also ensure that “adequate number of health-care providers willing and able to provide such services should be available at all times in both public and private facilities and within reasonable geographical reach.” [8]

This first International Convening on Conscientious Objection and Abortion, held August 1-3, 2017 in Montevideo, Uruguay, was sponsored by Mujer y Salud Urugay (MYSU) and the International Women’s Health Coalition (IWHC).  Participants agreed to further legal, ethical, health, and policy objectives that can mitigate the damaging effects of conscientious objection and reduce the immense burden on women who seek a legal, professional service that must be rendered without prejudice.
About the International Convening on Conscientious Objection and Abortion
Report on the meeting, and its declarations in English and Spanish
Report by South African delegation.

Conscientious Objection – List of resources from members of the International Reproductive and Sexual Health Law Program are online here.

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, by Charles G Ngwena,  Journal of African Law 58.2 (October 2014) 183 – 209  now online here.

Christina Zampas is a Reproductive and Sexual Health Law Fellow at the University of Toronto’s Faculty of Law.  Short bio

ENDNOTES:
[1]  See, e.g., Human Rights Committee, Concluding Observations: Jamaica, para. 14, U.N. Doc. CCPR/C/JAM/CO/3 (2011) (urging the state to “amend its abortion laws to help women avoid unwanted pregnancies and not to resort to illegal abortions that could put their lives at risk. The State party should take concrete measures in this regard, including a review of its laws in line with the Covenant.”); Human Rights Committee, Concluding Observations: Mali, para. 14, U.N. Doc. CCPR/CO/77/MLI (2003); Human Rights Committee, Concluding Observations: Djibouti, para. 9, U.N. Doc. CCPR/C/DJI/CO/1 (2013); Human Rights Committee, Concluding Observations: Ireland, para. 13, U.N. Doc. CCPR/C/IRL/CO/3 (2008). See also Human Rights Committee, General Comment No. 28: Article 3 (The Equality of Rights Between Men and Women), (68th Sess., 2000), para. 10, U.N. Doc. CCPR/C/21/Rev.1/Add.10 (2000).

[2]  Human Rights Committee, Concluding Observations: Argentina, para. 14, U.N. Doc. CCPR/CO/70/ARG (2000); see also CESCR, Concluding Observations: Argentina, para. 22, U.N. Doc. E/C.12/ARG/CO/3 (2011); Poland, para. 28, U.N. Doc. E/C.12/POL/CO/5 (2009); CEDAW, Concluding Observations: India, para. 41, U.N. Doc. CEDAW/C/IND/CO/3 (2007); Poland, para. 25, U.N. Doc. CEDAW/C/POL/CO/6 (2007).

[3]  ESCR Committee, Concluding Observations: Poland, para. 28, U.N. Doc. E/C.12/POL/CO/5 (2009); CEDAW Committee, Concluding Observations: Poland, para. 25, U.N. Doc. CEDAW/C/POL/CO/6 (2007); Slovakia, para. 29, U.N. Doc. CEDAW/C/SVK/CO/4 (2008); Human Rights Committee, Concluding Observations: Poland, para. 12, U.N. Doc. CCPR/C/POL/CO/6 (2010).

[4] Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Interim rep. of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, transmitted by Note of the Secretary-General, para. 24, U.N. Doc. A/66/254 (Aug. 3, 2011), para. 24.

[5] Id. Para 65(m), and Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Anand Grover – Mission to Poland, U.N. Doc. A/HRC/14/20/Add.3 (2010). paras. 50, and 85(k).  See also: CESCR Gen. Comment 22 in note 8 below.

[6]  See, e.g., CEDAW, General Recommendation No. 24: Article 12 of the Convention (Women and Health), para. 11, U.N. Doc. A/54/38/Rev.1, chap. I (“It is discriminatory for a State party to refuse to legally provide for the performance of certain reproductive health services for women. For instance, if health service providers refuse to perform such services based on conscientious objection, measures should be introduced to ensure that women are referred to alternative health providers.”); CESCR, Gen. Comment No. 22, paras. 14, 43; HRC, Concluding Observations,: Italy, U.N. Doc. HRC/C/ITA/CO/6, paras 16-17 (2017); CEDAWConcluding Observations: Croatia, para. 31, U.N. Doc. CEDAW/C/HRV/CO/4-5 (2015) (urging the State party to “ensure that the exercise of conscientious objection does not impede women’s effective access to reproductive health-care services, especially abortion and post-abortion care and contraceptives”); Hungary, paras. 30-31, U.N. Doc. CEDAW/C/HUN/CO/7-8 (2013) (urging the State party to “[e]stablish an adequate regulatory framework and a mechanism for monitoring of the practice of conscientious objection by health professionals and ensure that conscientious objection is accompanied by information to women about existing alternatives and that it remains a personal decision rather than an institutionalized practice”); CESCR, Concluding Observations: Poland, para. 28, U.N. Doc. E/C.12/POL/CO/5 (2009) (“The Committee is particularly concerned that women resort to clandestine, and often unsafe, abortion because of the refusal of physicians and clinics to perform legal operations on the basis of conscientious objection…. The Committee calls on the State party to take all effective measures to ensure that women enjoy their right to sexual and reproductive health, including by enforcing the legislation on abortion and implementing a mechanism of timely and systematic referral in the event of conscientious objection.”).

[7]  See, e.g., CEDAW, Concluding Observations: Hungary, para. 31(d), U.N. Doc. CEDAW/C/HUN/CO/7-8 (2013); CRC, Concluding Observations: Slovakia, paras. 41(f), U.N. Doc. CRC/C/SVK/CO/3-5 (2016).

[8] UN CESCR, Gen. Comment No. 22, paras. 14, 43 (“Unavailability of goods and services due to ideologically based policies or practices, such as the refusal to provide services based on conscience, must not be a barrier to accessing services. An adequate number of health-care providers willing and able to provide such services should be available at all times in both public and private facilities and within reasonable geographical reach. … Where health-care providers are allowed to invoke conscientious objection, States must appropriately regulate this practice to ensure that it does not inhibit anyone’s access to sexual and reproductive health care, including by requiring referrals to an accessible provider capable of and willing to provide the services being sought, and that it does not inhibit the performance of services in urgent or emergency situations”).

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