REPROHEALTHLAW Updates — Oct 2017

October 31, 2017

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

[Brazil, religious education] STF Conclui Julgamento Sobre Ensino Religioso nas Escolas Públicas ADI No. 4439, September 27, 2017.    The Brazilian Federal Supreme Court dismissed, by a 6 to 5 majority, a Direct Action of Unconstitutionality in which the Public Prosecutor’s Office questioned the model of religious education in the country’s public school system.  In Portuguese: Initial questionConclusion of Decision
English: Comment on I-CONnect Blog.

[Europe: Italy, conscientious objectors] Confederazione Generale Italiana del Lavoro (CGIL) v. Italy (2016), Complaint No. 91/2013 (European Committee on Social Rights, Strasbourg, France)  Decision in English. 
-which builds upon this 2014 decision:  International Planned Parenthood European Network v. Italy (2014), Complaint No. 87/2012, 10 March 2014 (European Committee on Social Rights, Strasbourg, France) Decision in EnglishBoth decisions summarized by Tania Pagotto.

[Kenya] – Court of Appeal acquitted Jackson Tali, a registered nurse sentenced to death on murder charges re pregnancy complications.   October 19, 2017.   Press release by the Center for Reproductive Rights  Overturns:  Republic v Jackson Namunya Tali [2014] eKLR, High Court Criminal Case No. 75 of 2009 (High Court of Kenya at Nairobi).  Overturned decision.  Overturned decision summarized in Legal Grounds III by Godfrey Kangaude and Annagrace Rwehumbiza.

[Spain, conscientious objectors] Zurich Insurance PLC, Sucursal en España v. Doña Encarnacion y don César y Servicio Galego de Saude, Sentencia 00392/2017, Apelación 43/17 (High Court of Galicia at Coruña, Spain)   Decision in SpanishEnglish summary by lawyer F. F. Guillen.

[West Africa: Nigerian police abuse women] Suit no ECW/CCJ/APP/17/14. October 13, 2017, Community Court of Justice, Economic Community of West African States (ECOWAS) awarded 18 million naira as compensation to an actress Dorothy Chioma Njemanze and two other women for the violation of their human rights to dignity following the physical, sexual and psychological violence inflicted on them by agents of the Nigerian State.  Press release from ECOWAS Court.    Newspaper report.

EDUCATIONAL OPPORTUNITY:
Africa – Doctoral Scholarships:   LL.D/D.Phil in Sexual and Reproductive Rights in Africa:
The Centre for Human Rights, University of Pretoria, calls for applications for full-time doctoral scholarships in the field of sexual and/or reproductive rights and their intersection with culture or criminalisation in the African region.  Apply by 15 Nov 2017 Scholarship details

SCHOLARSHIP:
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 also in Spanish (see next entry) and in paperback, 20% discount code PH70.  English edition from U Penn PressTable of Contents with chapter summaries. 
Abortion Decisions Online, based on the book’s Table of Cases

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 Libreria CIDE.     Índice con resúmenes de capítulos 1-11
Tabla de Casos/Jurisprudencia sobre aborto en línea con enlaces a muchas de las decisiones judiciales

[abortion] “How Laws Fail the Promise of Medical Abortion: A Global Look,” by Patty Skuster, Georgetown Journal of Gender and the Law  18.379, 2017. Abstract and Article.

[abortion] “The Politics of Global Abortion Rights,”  by Joanna N. Erdman,  Brown Journal of World Affairs 22.2 (2016): 39-57.   Article online

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

“Abortion Travel and the Limits of Choice,” by Lisa Kelly, 12 FIU L. Rev. 27 (2016).
Article online.

[Africa] “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 (2014): 183-209  Article now online.

[Africa]  Legal Grounds III, Reproductive and Sexual Rights in Sub-Saharan African Courts (2017)   Entire book, 228-pages, online here.
Print copies available for courses, conferences or organizations.

Legal Grounds III Online now includes searchable links to entire book, individual case summaries and decisions, plus more recent cases.

[Zika, Brasil and Human Rights Obligations]: now in Spanish, Portuguese and English:
—“Infección por el virus de Zika en Brasil y obligaciones relacionadas con los derechos humanos,” por Debora Diniz, Sinara Gumieri, Beatriz Galli Bevilacqua, Rebecca J. Cook, y Bernard M. Dickens, Boletin FLASOG 5.2( June 2017): 6-12.
En espanol Boletin FLASOG, pp 6-12
Em português do Brasil, forthcoming in Revista Uni Brasilia Direito.
—“Zika Infection in Brazil and Human Rights Obligations,” by Debora Diniz, Sinara Gumieri, Beatriz Galli Bevilacqua, Rebecca J. Cook and Bernard M. Dickens, International Journal of Gynecology and Obstetrics 136.1 (Jan. 2017) 105-110.
PDF online.   Submitted text in English at SSRN.

NEWS

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

______________
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.


Italy: Widespread conscientious objection violates right to health and right to work in dignity

October 31, 2017

Many thanks to Tania Pagotto, a Ph.D candidate in comparative public law at Ca’ Foscari University of Venice in Italy.  She can be reached at:  tania{.}pagotto at unive.it.  We thank her for commenting on two recent decisions by the European Committee on Social Rights:

International Planned Parenthood European Network v. Italy (2014), Complaint No. 87/2012, decision published 10 March 2014 (European Committee on Social Rights, Strasbourg, France) Decision online[1]. 

Confederazione Generale Italiana del Lavoro (CGIL) v. Italy (2016), Complaint No. 91/2013 (European Committee on Social Rights, Strasbourg, France)  Decision online  [2]. 

These decisions addressed the issue of conscientious objection as an obstacle to lawful abortion in Italy, where interruption of pregnancy is regulated by Law no. 194 of 1978 [3].  The Act defines different conditions under which abortion is legal (i.e., where there is serious threat to the mother’s life, physical or mental health, or severe fetal malformation or anomaly).  The Act guarantees interruption of pregnancy as a public medical service.  However, it also provides healthcare professionals with the option to declare conscientious objection, which excuses them from involvement. In this medical field, Italian law encounters a strong conscientious objection movement, unevenly spread among different regions and hospitals.  Government statistics for 2014/15, published in 2016, show that about 70% of Italian doctors, 50% of anaesthetists, and 45% of other staff have declared conscientious objection. [4]

In International Planned Parenthood Federation – European Network (IPPF EN) v. Italy (2014),  the European Committee on Social Economic and Cultural Rights had found Italy in breach of certain provisions of the European Social Charter [5]:  the right to protection of health, both alone and in conjunction with the non-discrimination principle. The non-discrimination principle, in particular, requires the same legal treatment of individuals or groups, irrespective of their specific characteristics.  Italy could only guarantee the right to health for women who could afford to travel from hospital to hospital or from one region to another. Therefore, the Committee found a discrimination based on women’s economic and social capacities.

In a 2016 case, Confederazione Generale Italiana del Lavoro v. Italy, the same Committee confirmed the previous judgment, but went further.  It also found a violation of the right to work (paras 214-246), and the right to dignity in work (paras 282-298), because the state had failed to adequately address the burdensome workload on non-objecting doctors caused by the high percentage of objecting doctors in some areas of Italy.   Significantly, the complaint had been filed by one of Italy’s largest trade unions.  There was concrete evidence of the professional disadvantages for non-objecting medical professionals whose workload became dominated by the performance of abortions, restricting other career prospects.  This decision broke new ground in finding a violation of the right to work and the right to work in dignity of non-objecting providers.

After these two decisions against Italy, many voices are calling for an evolution of Law 194.   These two decisions suggest two legal directions.  On one hand, the territorial discrepancies regarding abortion services need to be taken into account.  The government must find adequate legal tools to distribute health services uniformly throughout the territory.  On the other hand, the supply of medical treatment concerning interruption of pregnancy by non-objecting medical personnel should not impair their right to work, nor their right to work in dignity.

Thus, the Italian government must seek a new equilibrium between patients’ fundamental rights and interests and doctors’ freedom of conscience, as well as an equilibrium among doctors, the majority of whom declare conscientious objection, and the minority of whom provide abortion services.

———————————————————-

[1] International Planned Parenthood European Network v. Italy (2014), Complaint No. 87/2012,  10 March 2014 (European Committee on Social Rights, Strasbourg, France) Decision 2014

[2] Confederazione Generale Italiana del Lavoro (CGIL) v. Italy (2016), Complaint No. 91/2013, 11 April 2016 (European Committee on Social Rights, Strasbourg, France) Decision 2016

[3] Italian abortion law:  Gazzetta Ufficiale della Repubblica Italiana, Parte I, 2 May 1978, No. 140, pp. 3642-3646.    Law 194 in English    In Italian: Legge 194,

[4]  [Italian Ministry of Health,  Report of the Health Ministry on implementation of the Law concerning norms for the social protection of maternity and for the voluntary interruption of pregnancy]  Ministero della Salute, Relazione del Ministro della Salute sulla Attuazione della Legge Contenente norme per la tutela sociale della maternità e per l’interruzione volontaria di gravidanza  (Legge 194/78)  dati definitive 2014 e 2015 (Roma, 7 dicembre 2016), page 44ff.  Online in Italian

[5] European Social Charter is online here.

Related Resources:
Conscientious Objection: Articles and resources from the International Reproductive and Sexual Health Law Program – updated online here.

“The Right to Conscience,” by Bernard M. Dickens, in Abortion Law in Transnational Perspective: Cases and Controversies, ed. Rebecca J. Cook, Joanna N. Erdman and Bernard M. Dickens (University of Pennsylvania Press, 2014), 210-238  Abstract online
About the book_
_____________
The REPROHEALTHLAW BLOG is managed by 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.


“‘Protection of Life during Pregnancy Act 2013’: Suicide, Dignity and the Irish Discourse on Abortion” by Claire Murray

August 31, 2017

Congratulations and thanks to Dr. Claire Murray of the School of Law, University College Cork in Ireland, for her useful article, published in a special issue of Social & Legal Studies,  guest-edited by Siobhan Mullally, on “Regulating Abortion: Dissensus and the Politics of Rights.”  We are pleased to circulate this abstract and links to the full text:

Claire Murray, “The Protection of Life During Pregnancy Act 2013: Suicide, Dignity and the Irish Discourse on Abortion”, Social and Legal Studies 25.6 (Dec 2016): 667-698   PDF onlineAccepted version.

Abortion is an issue that exposes deep divisions in Irish society and this was apparent during the debates on the Protection of Life During Pregnancy Act 2013.  This introduced a framework regulating abortion into Irish law for the first time, but maintained the existing position where abortion is only available where the life of the woman is at risk. This article focuses on the centrality of suicide within the Irish discourse on abortion and the impact this had on the shape of the legislation ultimately introduced, in particular the inclusion of a more onerous process with which a woman must engage before she can obtain an abortion where the risk to her life is from suicide.  It highlights the practical consequences of this for the small number of very vulnerable women in Ireland who will be required to engage with the new statutory process which is deeply damaging.  The 2013 Act reinforces the two-tier approach to healthcare that exists in Ireland in the specific context of reproductive healthcare, as those with sufficient resources will be able to bypass the difficult and undignified statutory procedure and those who lack the socioeconomic capital will be compelled to remain.
PDF onlineAccepted version.

Keywords:  Abortion, dignity, Ireland, regulation, risk to life, suicide.

See also:
Attorney General v. X, [1992] I.E.S.C. 1, (Supreme Court of Ireland) had decided that an attempt to prevent a 14-year old girl who was pregnant as a result of being raped, from traveling from Ireland to England in order to access abortion care was not justified.  She was at real risk of committing suicide. Decision online.

Re-imagined judgment of Attorney General v. X  by Ruth Fletcher, with Commentary by Sheelagh McGuiness, in: Northern/Irish Feminist Judgments: Judges’ Troubles and the Gendered Politics of Identity, edited by Máiréad Enright, Julie McCandless and Aoife O’Donoghue (Oxford: Hart, 2017)  This book re-imagines, re-writes and comments on 26 court decisions from feminist perspectives.  Table of Contents and details
Reprohealthlaw blog comments, and links to full text

A referendum on Irish abortion law has been promised before June 2018. Irish Times.

 

 

 

 

 


REPROHEALTHLAW Updates – June 2017

June 29, 2017

 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

[Ireland]  Siobhàn Whelan v. Ireland, Comm. No. 2425/2014:  Ireland 12/06/2017, U.N. Doc. CCPR/C/119/D/2425/2014 (UN Human Rights Committee), 12 June 2017, [Woman forced to travel to the UK for an abortion after fatal fetal abnormality diagnosis.  Abortion laws are “cruel and inhumane.”]   English decision.   Newspaper report. Press release from Center for Reproductive Rights.

[Northern Ireland]  R (on the application of A and B) v Secretary of State for Health, decision of  [2017] UKSC 41, June 14, 2017 (Supreme Court, U.K.) [ruled that girl from Northern Ireland, aged 15, was not entitled to NHS-funded abortion in England] Decision onlineComments by Sheelagh McGuinness and Keith Syrett.  Newspaper report.

RESOURCES

[abortion law: gestational age]  “Theorizing Time in Abortion Law & Human Rights,” by Joanna N. Erdman, in: Health and Human Rights Journal 19.1 (June 2017): 29-40.  Theorizing Time text. Download PDFSpecial issue on “Abortion and Human Rights.”

Abortion Law in Transnational Perspective: Cases and Controversies” ed. Rebecca J. Cook, Joanna N. Erdman, and Bernard M. Dickens (University of Pennsylvania Press, 2014)  Penn Press (discount code: PH70).   Review by Francisca Pou Giménez.    Spanish edition: (FCE/CIDE, 2016)     Reseña por Diego Garcia Ricci.
Traduções para portugues:
Capítulo 2: “Aborto em Portugal: novas tendências no constitucionalismo europeu,” por Ruth Rubio-Marín, Revista Direito GV São Paulo 13.1(jan./abr. 2017): 356-379 DOI: 10.1590/2317-6172201714  Tradução para o português.
Capítulo 4: “O princípio da proporcionalidade no controle de constitucionalidade das leis sobre aborto, por Verónica Undurraga, Publicum 2.2 (2016)   Tradução para o português.

[abortion law, Spain]  “Gender in Constitutional Discourses on Abortion: Looking at Spain from a Comparative Perspective,” by Blanca Rodriguez-Ruiz, Social & Legal Studies 2016, Vol. 25(6) 699–715, DOI: 10.1177/0964663916668251. ” PDF for academic subscribers.    Submitted Version.  (from special issue on “Regulating Abortion: Dissensus and the Politics of Rights” by Siobhàn Mullally, (Introduction to special issue).

[conscientious objection, Latin America]  “Refusing Reproductive Health Services on Grounds of Conscience in Latin America:  Challenging policies and practises based on human rights standards,” by Diya Uberoi and Beatriz Galli in  SUR International Journal on Human Rights, 24 (Dec 2016)  [special issue on “Women: Movements, successes and obstacles” Overview.  English edition.    Spanish edition.    Portuguese edition.

—-See also:  Conscientious objection:  Articles and projects of the International Reproductive and Sexual Health Law Program, Faculty of Law, University of Toronto.  Download Conscientious objection resources.

[contraception, Uganda]  “Controlling Women’s Fertility in Uganda,” by Sylvia Tamale in SUR International Journal on Human Rights, 24 (Dec 2016)  [special issue on “Women: Movements, successes and obstacles”]  English edition.   Spanish editionPortuguese edition.

“Female Genital Cutting (Mutilation/ Circumcision): Ethical and Legal Dimensions,” by  R. J. Cook,  B.M. Dickens, and M.F. Fathalla (2002) 79 International Journal of Gynecology and Obstetrics : 281-287.  English abstract and article.
new Turkish translation: “Kadın Sünneti (Sakatlama/Sünnet): Etik ve Hukuki Boyutlar,” trans. Mustafa Erçakıca, in Beykent Üniversitesi Hukuk Fakültesi Dergisi 2.4 (Dec. 2016): 111-121.  Turkish download.

“Gender Stereotyping in the Military: Insights from Court Cases,” by Rebecca Cook and Cornelia Weiss, in Stereotypes and Human Rights Law, ed. Eva Brems and Alexandra Timmer (eds.), (Antwerp, Belgium: Intersentia, 2016) 175-198.  Submitted text.    PDF (online after June 2018)  About the book.

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

______________

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 – May 2017

May 26, 2017

 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:  Juzgado Nacional en lo Criminal de Instrucción 16, Secretaría 111 de la Capital Federal, causa 28.580/2015, “M.N.N.”  (28 de Junio de 2016).  National Criminal Court held a woman and the doctors who prescribed her abortion medications, not guilty of any crime because the woman’s health was at risk. The woman was pregnant because her partner raped her.  English summarySpanish summary.   Download decision in Spanish.

Colombia:  Constitutional Court blocked sterilization of a disabled girl who was too young to consent.   English summarySpanish summary with link to decision.

India:   Indu Devi v the State of Bihar [2017] No(s.) 14327, decided May 9, 2017 (Supreme Court of India). Destitute HIV+ woman, pregnant from rape, refused abortion past legal limit of 20 weeks, but State held responsible for delay that prevented legal abortion.  Summary by H. Kofman forthcoming on this blog  Judgment onlineAbstract by law student H. Kofman

Uruguay:  Woman refused legal abortion after former partner intervenes.   Summary in EnglishSpanish summary with link to decision. Safe Abortion Campaign report.

CALLS

Gender Justice Uncovered Awards: Nominations for best and worst court decisions.  Many striking cases and decisions summarized, e.g., Argentina, Colombia and Uruguay decisions mentioned above.    Vote before May 31, 2017

Call for Submissions: “Gender Violence and International Human Rights Law” for the 2018 Human Rights Essay Award, organized by Academy on Human Rights and Humanitarian Law, Washington College of Law, American University, Washington DC.   Submission Information and form.

Open Call for Submissions, McGill Journal of Law and Health, peer-reviewed. Details and Editorial Guidelines.

EDUCATIONAL OPPORTUNITIES

Graduate study in Health Law now available at the Centre for Health Law, Policy and Ethics, University of Ottawa, currently accepting LLM and PhD applications on a rolling basis for the 2017-2018 academic year.    Brochure online.

RESOURCES

“Abortion by telemedicine: an equitable option for Irish women,” by Wendy V. Norman and Bernard M. Dickens,  BMJ May 16, 2017; 357 Article online.

[abortion, Canada] “A Constitutional Future for Abortion Rights in Canada,” by Joanna Erdman, Alberta Law Review 54.3(2017):727-752   Article online.

[abortion, Europe]  “Legal and Political Discourses on Women’s Right to Abortion,” by Christina Zampas,  chapter 1 in:  A Fragmented Landscape: Abortion Governance and Protest Logics in Europe, ed.  Silvia De Zordo, Joanna Mishtal, and Lorena Anton   (New York: Berghahn, 2016)  Details from Publisher

[abortion law] “Regulating Abortion: Dissensus and the Politics of Rights” by Siobhan Mullally, introduction to special issue of Social & Legal Studies: An International Journal, 2016, Vol.25(6) . Introduction online.

[abortion law]  “Book Review: Francisca Pou Giménez on Rebecca J. Cook, Joanna Erdman and Bernard M. Dickens’s Abortion Law in Transnational Perspective: Cases and Controversies”, on I-CONnect, Blog of the International Journal of Constitutional Law and Constitution Making, May 17, 2017  Book review online.   (Penn Press discount code: PH70).    Spanish edition, FCE/CIDE, 2016

[abortion law pedagogy] “The Social Life of Abortion Law: On Personal and Political Pedagogy,” by Nicky Priaulx, Medical Law Review 25.1(2017):73-98.  Download abstract and PDF.

[abortion travel]  “The Law of Stigma, Travel, and the Abortion-Free Island,” Columbia Journal of Gender & Law 33.1(2016): 29-37.  PDF online.

[conscience]  “Physicians, Not Conscripts — Conscientious Objection in Health Care,” by Ronit Y. Stahl and Ezekiel J. Emanuel, New England J Medicine 376 (April 6, 2017):  1380-85.  Full text for institutional subscribers

[Ireland]  The Citizens’ Assembly – Draft Bill [recommendations for Irish abortion law reform] by Lawyers for Choice, Human Rights in Ireland, April 25, 2017  Draft Bill online.

[Nigeria]  “Accountability for Maternal Healthcare Services in Nigeria,” by Onyema Afulukwe, International Journal of Gynecology and Obstetrics 137.2(May 2017) 220-226.  Abstract.  PDF temporarily online for 12 months   Submitted text (typescript) online.

Northern/Irish Feminist Judgments: Judges’ Troubles and the Gendered Politics of Identity, edited by Máiréad Enright, Julie McCandless and Aoife O’Donoghue (Oxford: Hart, 2017)   re-imagines, re-writes and comments on 26 court decisions from feminist perspectives.  Our commentsTable of Contents and details

[South Africa]  Pregnancy Law in South Africa: Between Reproductive Autonomy and Foetal Interests, by Camilla Pickles (South Africa: Juta, 2017), (based on thesis from University of Pretoria,  Thesis abstract   Book details from publisher

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

REPORTS

“The Law, Trials and Imprisonment  for Abortion in [individual countries].”  International Campaign for Safe Abortion.  MexicoArgentina,  Kenya .

JOBS

Associate Professor/Professor and Assistant Director, Center for Human Rights, Faculty of Law, University of Pretoria.  Position details.

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

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