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

October 31, 2017

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

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

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

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

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

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

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

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

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

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

April 21, 2016

Many thanks to Godfrey Kangaude, LL.M. (UFS), LL.M. (UCLA), Executive Director of the Malawi Law Society and Co-Director of Nyale Institute for Sexual and Reproductive Health Governance, and Phiwo Nyobo, an LL.M. candidate in Sexual and Reproductive Rights in the Centre for Human Rights, Faculty of Law, University of Pretoria, for collaborating on a new African case summary for our forthcoming publication, Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts.  

In the first Teddy Bear case of 2013,  a South African High Court proposed decriminalization of adolescent consensual sexual conduct.[1]   Later that year, the Constitutional Court suspended all laws criminalizing adolescent consensual sexual conduct, pending review by Parliament.  As Kangaude notes, this South African decision is “revolutionary because it affirmed adolescents as sexual beings who may engage in consensual sexual conduct, and that this was in certain circumstances normal and even critical for normal and healthy development.” ([2] p.5)

On July 7, 2015, the South African government duly amended its Criminal Law, decriminalizing consensual adolescent sexuality.[3]  The Amendment was welcomed by advocacy groups [4]  and legal specialists.[5]

“South Africa arrived at the Teddy Bear decision using its Constitution and domestic laws. Some African countries [6] [7] still cling to criminal laws that treat consensual sex between adolescents as problematic.  Invariably, this creates conditions that perpetuate the thinking that consensual sexual behaviour amongst adolescents is always harmful. Yet girls and boys still engage in some form of sexual conduct. Since the norms and laws prevent them from getting the necessary support, such as sexual and reproductive health information and services, the consequences include . . . unwanted pregnancy, STIs and unsafe abortions…” ([2] p.5)

The African Commission’s General Comment on Article 14 (1) (d) and (e) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, oblige states to realize wide ranging human rights, not only for adults, but also for adolescents. As Kangaude concludes, “It is only by respecting the rights of the adolescent in matters regarding sexuality that a society will tend towards achieving better sexual and reproductive health, not only for adolescents but for everyone.” ([2] p.6]

———————————–NOTES

[1] Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another, Case No. 73300/10 [2013] ZAGPPHC 1 (North Gauteng High Court, Pretoria).  High Court decisionCase summary by Godfrey Kangaude and Phiwo Nyobo, 2015.

[2] Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another (CCT 12/13) [2013] ZACC 35;  (South Africa: Constitutional Court).   Constitutional Court decision.  Case summary by Godfrey Kangaude and Phiwo Nyobo, 2015.

[3] Criminal Law (Sexual Offences and Related Matters) Amendment Act 5 of 2015 – Government Notice 593 in Government Gazette 38977 dated and commenced July 7, 2015. Amendment Act 5.   Entire Act.

[4] “Towards healthy adolescent sexuality”  by Suhayfa Bhamjee, lecturer in the School of Law at University of Kwazulu-Natal. Legal analysis of draft amendment.

[5] “Revised adolescent sex bill welcomed by Advocacy groups.”  News report.

[6] In our second case summary, p. 5, Kangaude discusses Uganda’s anti-defilement law, which criminalises consensual sex with girls under 18, citing SA Parikh, “‘They arrested me for loving a schoolgirl’: Ethnography, HIV, and a feminist assessmentof the age of consent law as a gender-based structural intervention in Uganda’” (2012) 74 Social Science and Medicine 1774-1782.

[7] For another negative contrast, see the Kenyan decision C.K.W. v. Attorney General & Another [2014] eKLR, Petition 6 of 2013 (High Court of Kenya at Eldoret), which not only upheld criminalisation of adolescent consensual sex, but ignored gender bias in the law.  Decision online.   Case summary by Godfrey Kangaude and Mobby Rusere.

[8] For further discussion of the legal, ethical and reproductive health issues , see Godfrey Kangaude, “Enhancing the Role of Health Professionals in the Advancement of Adolescent Sexual Health and Rights in Africa” (2016). International Journal of Gynecology and Obstetrics 132 (2016) 105-108.  Abstract and Article.


Enhancing the Role of Health Professionals for Adolescent Sexual Health and Rights in Africa

January 14, 2016

Congratulations to Godfrey Kangaude, LL.M. (UFS), LL.M. (UCLA), Executive Director of the Malawi Law Society and Co-Director of Nyale Institute for Sexual and Reproductive Health Governance, whose recently published article is now available online:

Godfrey Kangaude, “Enhancing the Role of Health Professionals in the Advancement Of Adolescent Sexual Health and Rights in Africa” (2016). International Journal of Gynecology and Obstetrics 132 (2016) 105–108.  online here.

Abstract:      To realize adolescents’ right to sexual health, state parties’ implementation of the obligations stipulated under Article 14 of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa should reflect the key principles of the rights of the child, articulated under the Convention on the Rights of the Child and the African Charter on the Welfare and Rights of the Child. However, societal norms that stigmatize adolescent sexual conduct constitute barriers to adolescents’ sexual health care, including their access to contraceptives to avoid unwanted pregnancies and protect themselves from sexually-transmitted infections and HIV. States should sensitize and train health professionals to provide sexual health services and care in accordance with the principles of the rights of the child, and create enabling laws and policies to facilitate their work with adolescents.

The full text of this article is online here.

For “Recommended Reading” about adolescent reproductive and sexual health law, with abstracts, see our updated information resources on Adolescents, online here.

More IJGO articles on Ethical and Legal Issues in Reproductive Health are online here.


Africa: Human Rights Advances in Women’s Reproductive Health

May 28, 2015

Congratulations to Prof. Charles G. Ngwena of the Centre for Human Rights at the University of Pretoria, South Africa, and co-authors Dr. Eunice Brookman-Amissah and Patty Skuster, J.D., M.P.P., from Ipas, whose new article has been published in the International Journal of Gynecology & Obstetrics and is now available online at SSRN.

Ngwena CG, Brookman-Amissah E & Skuster,  P.   ‘Human rights advances in women’s reproductive health in Africa’ (2015) 129 International Journal of Gynecology and Obstetrics  184-87.

The African Commission on Human and Peoples’ Rights recently adopted General Comment No 2 to interpret provisions of Article 14 of the Protocol to the African Charter on the Rights of Women. The provisions relate to women’s rights to fertility control, contraception, family planning, information and education, and abortion. The present article highlights the General Comment’s potential to promote women’s sexual and reproductive rights in multiple ways. The General Comment’s human rights value goes beyond providing states with guidance for framing their domestic laws, practices, and policies to comply with treaty obligations. General Comment No 2 is invaluable in educating all stakeholders—including healthcare providers, lawyers, policymakers, and judicial officers at the domestic level—about pertinent jurisprudence. Civil society and human rights advocates can use the General Comment to render the state accountable for failure to implement its treaty obligations.

The full text of this paper is online at SSRN.

67 other articles on “Ethical and Legal Issues in Reproductive and Sexual Health” are available online here.


Africa: New book on Strengthening protection of SRH through Human Rights

February 26, 2015

Congratulations to Charles Ngwena and Ebenezer Durojaye, editors of this useful 365-page book available online here!   We are delighted to provide an overview and Table of Contents below.

Strengthening the protection of sexual and reproductive health and rights in the African region through human rights, ed. Charles Ngwena and Ebenezer Durojaye (Pretoria, South Africa:  Pretoria University Law Press (PULP), 2014) 12 chapters, 365 pages.   Entire book online!

Strengthening the protection of sexual and reproductive health and rights in the African region through human rights uses rights-based frameworks to address some of the serious sexual and reproductive health challenges that the African region is currently facing. More importantly, the book provides insightful human rights approaches on how these challenges can be overcome. The book is the first of its kind. It is an important addition to the resources available to researchers, academics, policymakers, civil society organisations, human rights defenders, learners and other persons interested in the subject of sexual and reproductive health and rights as they apply to the African region. Human rights issues addressed by the book include: access to safe abortion and emergency obstetric care; HIV/AIDS; adolescent sexual health and rights; early marriage; and gender-based sexual violence.

TABLE OF CONTENTS:
Foreword by Commissioner Soyata Maiga   (Special Rapporteur on the Rights of Women in Africa) (p. viii)
INTRODUCTION: 
1.  Strengthening the protection of sexual and reproductive health and rights in the African region through human rights: An introduction
by Charles Ngwena and Ebenezer Durojaye  (page 1)

PART I: REPRODUCTIVE AUTONOMY, ACCESS TO SAFE ABORTION AND EMERGENCY OBSTETRIC CARE:
2.  Reducing abortion-related maternal mortality in Africa:
Progress in implementing Objective 5 of the Maputo Plan of Action on Sexual and Reproductive Health Rights
          by Eunice Brookman-Amissah and Tinyade Kachika    (page 31)
3.  Access to legal abortion for rape as a reproductive health right: A commentary on the abortion
regimes of Swaziland and Ethiopia
           by Simangele Mavundla and Charles Ngwena     (page 61)
4.  Abortion and the European Convention on Human Rights: A lens for abortion advocacy in Africa
           by Christina Zampas and Jaime Todd-Gher     (page 79)
5.  Accountability for non-fulfilment of human rights obligations:
A key strategy for reducing maternal mortality and disability in sub-Saharan Africa
           by Onyema Afulukwe-Eruchalu      (page 119)
PART II: HIV/AIDS FOCUS:
6.  Adolescent girls, HIV, and state obligations under the African Women’s Rights Protocol
           by Karen Stefiszyn  (page 155)
7.  Advancing a feminist capabilities approach to HIV/AIDS in sub-Saharan Africa
           by Rebecca Amollo (page 181)
8.  The right to health and AIDS medicines in sub-Saharan Africa:
Assessing the outcomes of a human rights-based approach to medicines
           by Lisa Forman  (page 211)

PART III: SEXUAL AND REPRODUCTIVE HEALTH AND RIGHTS:
INTERSECTIONS WITH ADOLESCENCE, EARLY MARRIAGE, GENDER-BASED VIOLENCE AND POVERTY:
9.  Sexual health and rights of adolescents: A dialogue with sub-Saharan Africa
           by Godfrey Kangaude and Tiffany Banda  (page 251)
10.  Promoting sexual and reproductive rights through legislative interventions:
A case study of child rights legislation and early marriage in Nigeria and Ethiopia
           by Ayodele Atsenuwa (page 279)
11.  Gaps in gender-based violence jurisprudence of international and hybrid criminal courts:
Can human rights law help?
           by Susana Sácouto  (page 305)
12. Women, sexual rights and poverty: Framing the linkage under the African human rights system
           by Fana Hagos Berhane  (page 331)

REPROHEALTHLAW Updates: Decisions, Resources and Opportunities

January 28, 2015

REPROHEALTHLAW BLOG

January 28, 2015

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 developments in 2014, month-by-month overview by FIAPAC, is online here.

Argentina – groups file suit due to state’s failure to comply with 2012 “FAL” Supreme Court ruling allowing access to abortion to cases of rape.  News report 

Botswana – Landmark ruling gives Freedom of Expression to African LGBT advocacy group:
Thuto Rammoge and 19 others v Attorney General [2014] MAHGB-000175-13 (High Court of Botswana) November 14, 2014  Decision onlineAbstract by Law student.

Canada:  New Brunswick (province) removes barriers to abortion.  Press Release.

El Salvador – Woman exonerated from 30-year sentence for abortion; provides hope for another 16 imprisoned women.  News report.

Ireland – Brain dead woman kept alive (against family wishes) in the interests of her 18-week fetus, must be withdrawn from life support.
P.P. v Health Service Executive, [2014 No. 10792P]  29-page judgment delivered December 26, 2014, High Court of Ireland.  29-page decisionAnalysis by Mairead Enright

 

RESOURCES

Abortion Law in Transnational Perspective:  Cases and Controversies, ed. Rebecca J. Cook, Joanna N. Erdman and Bernard M. Dickens, 16 chapters.  University of Pennsylvania Press, 2014, 482 pages.
Table of Contents online here.   Introduction by the editors: online through SSRN.
Table of Cases with links to decisions, online here, Purchase from: U Penn Press.
A Spanish translation is in progress.  To be notified when it is published, send your email address to reprohealth.law at utoronto.ca with subject line “Spanish abortion book”

Abortion policies and reproductive health around the world, by  United Nations, Department of Economic and Social Affairs, Population Division, 2014. 52-page report online.

[abortion – U.S. (book)] Every Third Woman in America: How Legal Abortion Transformed our Nation, by David Grimes,  Lulu, 2014. First 29 pages including ContentsPurchase or download book.

[abortion] Storehouse for Abortion Law and Policy, from Ipas,  links advocates and policymakers to publications: primary human rights documents, World Health Organization recommendations, materials by expert organizations, and key journal articles in the following categories:  Drafting abortion laws; Health and life grounds, Provider authorization, Conscientious Objection, Medical abortion, Adolescent rights, Privacy and confidentiality, and Right to Life.   Online here.

[African Women’s Protocol]  “Policing bodies, punishing lives: The African Women’s Protocol as a tool for resistance of illegitimate criminalisation of women’s sexualities and reproduction” by Jaime Todd-Gher, (2014) 14.2 African Human Rights Law Journal 735-756.  Online here. 

[consent] Types of Consent in Reproductive Health Care, by Bernard M. Dickens and Rebecca J. Cook.  International Journal of Gynecology and Obstetrics 128 (2015) 181–184.  abstract and full text.

[ethics – pre-natal screening]  Bioethics 29.1  (Jan 2015) several articles abstracted online, including:
–“Psychological Aspects of Individualized Choice and Reproductive Autonomy in Prenatal Screening”  by Jenny Hewison, pp 9-18  abstract
–“Prenatal Screening, Reproductive Choice, and Public Health”  by Stephen Wilkinson, pp. 26-35  abstract
–“Prenatal Screening: An Ethical Agenda for the Near Future” by Antina de Jong, pp. 46-55   abstract

[human rights] “Advancing sexual health through human rights: The role of the law” by  Eszter Kismödi, Jane Cottingham, Sofia Gruskin & Alice M. Miller.  Global Public Health: An International Journal for Research, Policy and Practice.  2014, pp. 1-16.  Online here.

[Maternal mortality, Brazil, CEDAW] “Human Rights and Maternal Health: Exploring the Effectiveness of the Alyne Decision” by Rebecca Cook.  Journal of Law, Medicine and Ethics, Spring 2013,103-123, Original text in EnglishRepublished in SpanishNew edition in Portuguese:  “Direitos humanos e mortalidade materna: explorando a eficácia da decisão do Caso Alyne. Interesse Público [Recurso Eletrônico], São Paulo , v. 16, n. 86, jul./ago. 2014.   Full text in PortugueseRepublished in Portuguese journal.

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

 OPPORTUNITIES

—  EDUCATION

MHSc in Bioethics,  University of Toronto, accepting applications till March 1, 2015   Factsheet,   Website.

Graduate Programs in Law at the University of Toronto, application deadlines online.

JOBS

Executive Director, Center for Women’s Global Leadership, Rutgers University, New Jersey, USA.  Job Details 

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


Stereotyping Women in the Health Sector: Lessons from CEDAW

October 24, 2013

Congratulations to Simone Cusack, an LL.M. graduate at the University of Toronto’s Faculty of Law, and Rebecca Cook, Co-Director of our International Reproductive and Sexual Health Law Program, whose useful article is now available online here.  The Introduction (with footnote references omitted) is excerpted here:

“Stereotyping Women in the Health Sector: Lessons from CEDAW”

by Simone Cusack and Rebecca Cook,
Journal of Civil Rights and Social Justice 16.1 (Fall 2010): 47-78.

Lessons from the Convention on the Elimination of All Forms of Discrimination against Women (“CEDAW”) for the interpretation and application of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa  (“African Protocol”) are multiple, and will vary according to the issue.  This article argues that article 12 of CEDAW, which guarantees women’s right to the highest attainable standard of health, including reproductive health, has to be interpreted in light of that treaty’s foundational articles, particularly articles 2(f) and 5(a), which require the elimination of wrongful gender stereotyping.  Since the African Protocol also requires States Parties to ensure women’s right to the highest attainable standard of health and to eliminate wrongful gender stereotyping, it is hoped that some insights might be derived from CEDAW that are useful to the interpretation and application of that Protocol.

This article examines how stereotyping women can impair or nullify their access to reproductive health care, in violation of CEDAW.  In so doing, it argues that in order to eliminate discrimination against women, and indeed to prevent other violations of their human rights in the reproductive health context, greater priority needs to be given to combating wrongful stereotyping of women.  The article begins in Part II by examining some of the most socially pervasive and persistent gender stereotypes that impact the availability, accessibility, acceptability and quality of reproductive health care for women.  It explores the contextual factors of those stereotypes, and examines how their application, enforcement, or perpetuation in various laws, policies and practices can discriminate against women, or violate other human rights and fundamental freedoms.  Using the framework set forth in CEDAW, Part III explores States Parties’ obligations to eliminate wrongful gender stereotyping that violates women’s access to reproductive health care.  It continues by canvassing some of the measures that States Parties might take in order to dismantle the stereotypes that continue to thwart women’s equal exercise and enjoyment of the right to the highest attainable standard of health.  The article concludes in Part IV by reflecting on some of the lessons learned under CEDAW regarding States Parties’ obligations to eliminate stereotyping.

The full text of this article is online here.

——————–

Related Resources:

“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.
Article in English.    Spanish translation.


Gender Stereotyping:  Transnational Legal Perspectives
, by Rebecca J. Cook and Simone Cusack (University of Pennsylvania Press, 2010).