REPROHEALTHLAW Updates – Autumn 2022

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DEVELOPMENTS

COLOMBIA: Corte Constitucional [Constitutional Court] February 21, 2022, Sentencia C-055-22.  27-page Spanish communicado.  27-page unofficial English translation.  Nota de Prensa (Spanish).   Download unofficial English translation.  (Abortion is decriminalized within 24 weeks of gestation.]

INTER-AMERICAN COURT OF HUMAN RIGHTS – EL SALVADOR Manuela et al. v. El Salvador,  Inter-Am. Ct. H.R. (ser. C) No 441. (November 2, 2021).  Decision in English.. Backup copy. Decision in Spanish.  Backup copy in Spanish..Comment by Centre for Reproductive Rights.  [El Salvador was held accountable for the arbitrary detention, torture, and conviction of a woman after obstetric emergency and loss of pregnancy in 2008. Convicted of “aggravated homicide.” Two years later, Manuela died from cancer, in prison.]

KENYA: PAK & Salim Mohammed v. Attorney General & 3 Others (Constitutional Petition E009 of 2020) [2022] KEHC 262 (KLR) (24 March 2022) (High Court of Kenya at Malindi)  Decision online.   Backup copy.    Press release by CRR. [Abortion care is a fundamental constitutional right. Arrests of patients and clinicians are illegal. Parliament is directed to align law and policy with the Constitution.]

MEXICO: AI 148/2017 Suprema Corte de Justicia de la Nación 2021,  Acción de inconstitucionalidad AI 148/2017, Sept 7, 2021  Decision in Spanish.   News report in English.   Official press release in Spanish.  Official press release in English.  [Criminalizing abortion is unconstitutional; state interests in protecting fetus cannot outweigh the reproductive rights of women.]

MEXICO AI 106/2018: Suprema Corte de Justicia de la Nación [Supreme Court] 2021, Acción de inconstitucionalidad AI 106/2018 and 107/2018), Sept. 7, 2021.  Decision in Spanish.  Official press release in English.  [States may not establish a right to life from the moment of conception in their local constitutions]

MEXICO AI 54/2018: Suprema Corte de Justicia de la Nación 2021, Acción de inconstitucionalidad AI 54/2018, Sept 21, 2021.   Decision in Spanish.  Decision backup.    Official press release in English.  [This ruling struck down part of the General Law regulating health services nationwide, because it established an expansive right to conscientious objection by medical personnel, without establishing the limits necessary to ensure patients’ rights to healthcare.]

NEW ZEALAND: High Court decision in NZ Health Professionals’ Alliance v Attorney-General, Sept. 24, 2021, upholds sections of the Contraception, Sterilisation, and Abortion Act 1977 (‘CSAA’), amended in the Abortion Legislation Act 2020, regarding conscientious objectors’ duty to refer and (within reason) accommodation of objecting employees. News report.  Decision online. Commentary on decision. 

NORTHERN IRELAND Judicial review by Northern Ireland Human Rights Commission: In re NIHRC (Abortion), “In the matter of an application by The Northern Ireland Human Rights Commission for Judicial Review – In the matter of the failure by the Secretary of State, Executive Committee and Minister of Health to provide women with access to Abortion and Post Abortion Care in All Public Health Facilities in Northern Ireland [2021] NIQB 91 Delivered 14 October 2021.    Decision online.  Backup copy.    Official Summary.  News story.   [Secretary of State failed to comply with 2019 Act  to “expeditiously” provide women in Northern Ireland with access to high quality abortion and post abortion services].

POLAND: Applications have been filed before the European Court of Human Rights by more than 1,000 Polish women who were denied abortions or who postponed their reproductive decisions out of fear. [because of the Constitutional Tribunal’s October 2020 ruling that disallowed abortion in cases of severe and irreversible fetal defects. Result: almost total ban on abortion.] Human Rights Watch report.

POLAND: “Izabel”, 22-weeks pregnant, died of septic shock in Sept 2021 while doctors waited for her doomed fetus to die within her.  Washington Post Nov 2021 article. Mass protests focused on the Oct 2020 abortion ban ruling, but, so far, only hospital and staff have been held accountable. Notes from Poland, Sept. 2022.

UNITED STATES: Dobbs v. Jackson Women’s Health Organization, No. 19-1392, 597 U.S. _ (2022) (Supreme Court of the United States), held that the Constitution of the United States does not confer a right to abortion. Case summary by CRR. Amicus brief by Martha Davis et al. IJGO article and other amicus briefs.

NEW INTERNATIONAL ABORTION CARE GUIDELINE

[WHO] Abortion Care Guideline (Geneva: World Health Organization, 2022). Chapter 2 discusses Law and Policy.
Download the Guideline, or see Overview and Supplementary resources.

SCHOLARSHIP

[abortion law, France] [Why and how to constitutionalize abortion law]: ‘Pourquoi et comment constitutionaliser le droit à l’avortement,” par Stéphanie Hennette-Vauchez, Diane Roman et Serge Slama, La Revue des Droits de l’Homme, Actualités Droits-Libertés | 2022 Juillet 2022. Full text in French.

[abortion law, Latin America] “Pushing Past the Tipping Point: Can the Inter-American System Accommodate Abortion Rights?” by Patricia Palacios Zuloaga, Human Rights Law Review 21.4 (Dec 2021): 899–934. Abstract and Article.

“Abortion Lawfare in Latin America: Some Reading Keys for a Changing Scenario, ” special issue eds. Catarina Barbieri, Camila Gianella, Maria Defago, and Marta Machado (2021) Rev. Direito GV vol. 17 no 3, Sao Paulo, Brazil. Epub Dec 15, 2021. Overview and three articles in English.

[abortion law, Mexico] “The Decriminalization of Abortion: A Landmark Decision by the Mexican Supreme Court,” by Joy Monserrat Ochoa Martínez,and Roberto Niembro Ortega, I-CONnect Blog, Posted: 12 Oct 2021. Expert comment.

[abortion law, Poland] “The Scales of the European Court of Human Rights: Abortion Restriction in Poland, the European Consensus, and the State’s Margin of Appreciation,” by Julia Kapelańska-Pręgowska, Health and Human Rights Journal 23.2 (Dec 2021): 213-224. Abstract and article.

[abortion law, USA] “The state of abortion rights in the US,” by Martha F. Davis. International Journal of Gynecology and Obstetrics 159.1 (Oct 2022): 324-329 Abstract online. Article: free access .

[abortion law, USA] Abortion and the Law in America: Roe v. Wade to the Present, by Mary Ziegler. (Cambridge University Press, 2020). Publisher’s abstract.

“Conscientious Objection and the Duty to Refer,” by Bernard M. Dickens, International Journal of Gynecology and Obstetrics 2021; 155: 556-560. PDF at Wiley Online.  Submitted Text at SSRN.

[conscientious objection: Argentina] “Regulating Conscientious Objection to Legal Abortion in Argentina: Taking into Consideration Its Uses and Consequences,” by Agustina Ramón Michel, Stephanie Kung, Alyse López-Salm, and Sonia Ariza Navarrete, Health and Human Rights Journal 22.2 (Dec 2020): 271 – 384. Abstract and article.

[Conscientious objection: South Africa, nurses] “Power dynamics in the provision of legal abortion : a feminist perspective on nurses and conscientious objection in South Africa” by Satang Nabaneh, Doctoral Thesis (LLD)–University of Pretoria, 2020, now online: Doctoral thesis – 290 pages.

Conscientious Objection / The Right to Conscience, an annotated bibliography, updated Feb. 15, 2021 Conscience Bibiography.

[Conscientious objection] Global Map of Norms regarding Conscientious Objection, a searchable interactive map for comparative law, by Agustina Ramón Michel (coordinator) and Dana Repka (CEDES / REDAAS) with the support of Ipas and the ELA team. Updated December 15, 2022: Global Map of Norms re Conscientious Objection.

“Contested Rights: Abortion and Sexual Orientation and Gender Identity in the United Nations,” by Erin Aylward, Ph.D. thesis, University of Toronto, Canada, Nov. 2020. Abortion/SOGI thesis.

[migrants] “International migrants’ right to sexual and reproductive health care,” by Y. Y. Brandon Chen, International Journal of Gynecology and Obstetrics 2022;157: 210–215  PDF at Wiley online.  Submitted Text at SSRN. 

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 International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   See Program website for our Publications,  Research 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.

Argentina: Regulating Conscientious Objection

Congratulations to Agustina Ramón Michel, Stephanie Kung, Alyse López-Salm, and Sonia Ariza Navarrete for their 2021 publication in the Health and Human Rights Journal about a CEDES and Ipas report in Spanish about conscientious objectors in Argentina. We are pleased to circulate abstracts for both publications:

“Regulating Conscientious Objection to Legal Abortion in Argentina: Taking into Consideration Its Uses and Consequences,” by Agustina Ramón Michel, Stephanie Kung, Alyse López-Salm, and Sonia Ariza Navarrete, Health and Human Rights Journal 22.2 (Dec 2020): 271 – 384. Abstract and article.

Abstract: Claims of conscientious objection (CO) have expanded in the health care field, particularly in relation to abortion services. In practice, CO is being used in ways beyond those originally imagined by liberalism, creating a number of barriers to abortion access. In Argentina, current CO regulation is lacking and insufficient. This issue was especially evident in the country’s 2018 legislative debate on abortion law reform, during which CO took center stage. This paper presents a mixed-method study conducted in Argentina on the uses of CO in health facilities providing legal abortion services, with the goal of proposing specific regulatory language to address CO based not only on legal standards but also on empirical findings regarding CO in everyday reproductive health services. The research includes a review of literature and comparative law, a survey answered by 269 health professionals, and 11 in-depth interviews with stakeholders. The results from our survey and interviews indicate that Argentine health professionals who use CO to deny abortion are motivated by a combination of political, social, and personal factors, including a fear of stigmatization and potential legal issues. Furthermore, we find that the preeminent consequences of CO are delays in abortion services and conflicts within the health care team. The findings of this research allowed us to propose specific regulatory recommendations on CO, including limits and obligations, and suggestions for government and health system leaders.

Una vuelta de tuerca a la objeción de conciencia: Una propuesta regulatoria a partir de las prácticas del aborto legal en Argentina, por Sonia Ariza Navarrete & Agustina Ramón Michel, (Buenos Aires: CEDES e Ipas, 2019.  Informe en espanol.

Sumario: En esta publicación sobre la objeción de conciencia (OC) a la ILE en Argentina, desarrollado por Ipas y la Red de Acceso al Aborto Seguro, Argentina (REDAAS), presentamos una propuesta para regular la OC en el marco de una política pública. Esto lo hacemos de manera empíricamente informada –en particular, relevando las formas que adquiere la OC, y las opiniones de profesionales de la salud sobre las causas e impacto a través de una encuesta y una serie de entrevistas– y con un encuadre conceptual que pone en juego anhelos normativos, necesidades concretas, experiencias cotidianas tanto de los equipos de salud como de las autoridades sanitarias, así como las características estructurales de la formación médica, las condiciones institucionales de los servicios de salud y el ambiente sociopolítico.

OTHER RELEVANT RESOURCES

The first global map on norms regarding conscientious objection in healthcare, by Agustina Ramón Michel (coordinator) and Dana Repka (CEDES / REDAAS), with support from Ipas and the ELA team. The map is an exercise in comparative law which houses, describes and analyzes constitutional, legal, and regulatory standards regarding CO in healthcare of 180 of the world’s countries, and includes the most relevant law cases in national, regional, and international Human Rights courts. This interactive map is searchable by categories and multiple variables, which makes it easier to do a comparative study of the regulations and analysis of specific regulatory aspects. Updated December 15, 2022: Global Map of Norms re Conscientious Objection.

“Conscientious Objection and the Duty to Refer,” by Bernard M. Dickens, International Journal of Gynecology and Obstetrics 2021; 155: 556-560. PDF at Wiley Online.  Submitted Text at SSRN.

Conscientious Objection / The Right to Conscience, an annotated bibliography, updated Feb. 15, 2021 Conscience Bibiography.

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

REPROHEALTHLAW Updates – Winter 2021

SUBSCRIBE TO REPROHEALTHLAW: To receive these updates by email, enter your address in upper right corner of this webpage, then check your email to confirm the subscription.

DEVELOPMENTS
Argentina legalized abortion within 14 weeks’ gestation, Dec. 30, 2020. Newspaper report.

South Korea decriminalized abortion, effective Jan. 1 2021, by order of the Constitutional Court of Korea
Decision of 2019 explained by Prof. Hyunah Yang.

Thailand – abortion became legal on request within 12 weeks, Feb. 7, 2021, based on Constitutional Court judgment of Feb. 19, 2020 (English summary download), and legislative amendments of Jan. 25, 2021 Newspaper report.

NEW CASE SUMMARIES:
[Kenya, abortion law, rape, training healthcare professionals] Federation of Women Lawyers (Fida – Kenya) & 3 others v Attorney General & 2 others [2019] eKLR, Petition No. 266 of 2015, Decision of June 12, 2019. (High Court of Kenya at Nairobi, Constitutional and Human Rights Division) Decision online. Case Summary by Benson Chakaya (download PDF). Overview by Bernard Dickens.

[Zimbabwe, transgender, constitutional rights] Ricky Nathanson v Farai Mteliso, The Officer in Charge Bulawayo Central Police Station, Commissioner of Police and the Minister of Home Affairs, Case no.HB 176/19 HC 1873/14 [2019] ZWBHC 135( (14 November 2019);  (Zimbabwe, High Court) Decision online.   Overview on Reprohealthlaw Blog. Case Summary by Keikantse Phele (download PDF).

SCHOLARSHIP
Access to Abortion: An Annotated Bibliography of Reports and Scholarship. (Toronto: International Reproductive and Sexual Health Law Program, 2020) 44 pages. Abortion access bibliography.

[abortion – COVID-19] “Legal and Policy Responses to the Delivery of Abortion Care During COVID-19,” by Elizabeth Chloe Romanis & Jordan A Parsons. International Journal of Gynecology and Obstetrics 151.3 (December 2020): 479-486  PDF at Wiley online. Submitted Text at SSRN.

[abortion – Europe] “Access to Abortion in Cases of Fatal Foetal Abnormality: A New Direction for the European Court of Human Rights?” by Bríd Ní Ghráinne and Aisling McMahon, Human Rights Law Review 19.3 (November 2019, Pages 561–584, Abstract and institutional access.

[abortion laws – map] “Global Abortion laws Relating to Self-Managed Abortion,” interactive map created by Ipas with the Center for Public Health Law Research at Temple University, based on WHO Global Abortion Policies database, “displays self-managed abortion laws in 180 countries and 40 sub-national jurisdictions including Australia and Mexico, as of June 1, 2019. Self-Managed Abortion Law Map

“Bioethics training in reproductive health in Mexico,” by Gustavo Ortiz-Millán and Frances Kissling, International Journal of Gynecology and Obstetrics 151.2 (November, 2020): 308-313  PDF at Wiley Online. Submitted Text at SSRN. 
Also forthcoming in Spanish:    Bioética y derechos reproductivos de las mujeres en México, edited by Lourdes Enríquez Rosas, María del Pilar González Barreda, and Arturo Sotelo Gutiérrez (Fonde de Cultura Económica and the Programa Universitario de Bioética of the Universidad Nacional Autónoma de México (UNAM)

[Brazil] “Confidentiality and treatment refusal: conservative shifts on reproductive rights by Brazilian medical boards,” by Juliana Cesario Alvim Gomes and Corina Helena Figueira Mendes, International Journal of Gynecology and Obstetrics 152.3 (March 2021): 459-464.   PDF at Wiley online.   

[conscience, Argentina] “Una vuelta de tuerca a la objeción de conciencia: Una propuesta regulatoria a partir de las prácticas
del aborto legal en Argentina,” por Sonia Ariza Navarrete & Agustina Ramón Michel (Ipas, 2019) Descargar informe en PDF. Summario – Espanol y Ingles. 

[conscience – Argentina] “Re-thinking the Use of Conscientious Objection by Health Professionals: A regulatory proposal based on legal abortion practices in Argentina, 2019  Executive Summary – English and Spanish. 

“Conscience Wars in the Americas,” by Douglas NeJaime and Reva Siegel, Latin American Law Review 5 (2020): 1-26
English and Spanish on web.   Download English PDF      Spanish PDF.

Conscientious Objection / The Right to Conscience – annotated bibliography, updated Feb. 15, 2021.

Women’s Birthing Bodies and the Law: Unauthorised Intimate Examinations, Power and Vulnerability, new book edited by Camilla Pickles and Jonathan Herring. Hart Publishing, 2020. Publisher’s webpage.  

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 International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   See Program website for our Publications,  Research 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.

Conscience Wars in the Americas

Congratulations to Douglas NeJaime and Reva Siegel, Professors of Law at Yale University, whose article on “Conscience Wars in the Americas” was recently published by the Latin American Law Review in two languages, English and Spanish. We are pleased to circulate the authors’ abstract:

Douglas NeJaime and Reva Siegel, “Conscience Wars in the Americas,” Latin American Law Review 5 (2020): 1-26,
English and Spanish on web. Download English PDF. Download Spanish PDF.

Abstract:
Across the globe, public and private actors are now invoking conscience as a ground for objecting to laws or judicial decisions that confer on citizens reproductive and LGBT rights. Conscience claims in culture-war conflicts over reproduction and sexuality differ from paradigmatic religious accommodation claims, where an individual from a minority faith seeks to engage in ritual observance or religiously-motivated dress that runs afoul of generally applicable laws. Accommodation of culture-war conscience claims may inflict significant harms on other citizens and impose older, traditional views on citizens whose rights the law only recently has come to protect.

Our intervention is practical and critical. We offer guidance on accommodation, showing how government might promote pluralism by accommodating objectors while protecting citizens who may be affected. We suggest that when government accommodates conscience in a framework that does not preserve the other citizens’ rights, government may be employing accommodation to create a de facto public order favoring objectors’ beliefs.

Keywords: Conscience, Conscientious Objection, Religious Accommodation, Reproductive Rights, LGBT, SOGIE

RELATED RESOURCES

Conscientious Objection / The Right to Conscience: Annotated Bibliography online.

“Conscience Wars in Transnational Perspective: Religious Liberty, Third-Party Harm, and Pluralism” by Douglas NeJaime and Reva Siegel in:  The Conscience Wars: Rethinking the Balance between Religion, Identity, and Equality, ed. Susanna Mancini & Michel Rosenfeld (Cambridge Univ. Press, 2018), pp. 187-219. Online at SSRN.

“Regulating Conscientious Objection to Legal Abortion in Argentina: Taking into Consideration Its Uses and Consequences” by Agustina Ramón Michel, Stephanie Kung, Alyse López-Salm, and Sonia Ariza Navarrete, Health and Human Right Journal 22./2 (Dec. 2020): 271 – 384. Abstract and article online. Informe en Espanol.
__________
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.  TO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of our blog, then check your email to confirm the subscription.

REPROHEALTHLAW Updates – Summer 2020

SUBSCRIBE TO REPROHEALTHLAW: To receive these updates bi-monthly by email, enter your address in upper right corner of this webpage, then check your email to confirm the subscription.

DEVELOPMENTS
[Argentina, abortion, conscience]  Argentina Ministry of Health issued a protocol expanding hospital abortion access to pregnancies resulting from rape. Raped girls 13 and over can have abortions without parental consent. The protocol also weakens a doctor’s ability to refuse to perform such abortions due to personal objection. New York Times, Dec 12, 2019.

[IACtHR, Ecuador], First standards for protection from sexual violence in schools: Paola del Rosario Guzmán Albarracín et al. v. Ecuador, Case C No. 405 (June 24, 2020) Sentencia en espanol – 85 paginas. Public Hearing Jan. 28 2020.  Resolución (Asuntos) 7 paginas. Reprohealthlaw blog summary.
Case comment in English (10 pages).

Ugandan Constitutional Court declares maternal health a constitutional right. First African court to do so. The Center for Health Human Rights and Development (CEHURD) and 3 Others v Attorney General [2020], Constitutional Petition No. 16 of 2011 (Constitutional Court of Uganda at Kampala). [Maternal health] Decision of August 19, 2020. Reprohealthlaw blogpost. Longer comment with the Court’s twelve “Declarations.”

[United Kingdom, surrogacy] Whittington Hospital NHS Trust (Appellant) v. XX (Respondent) [2020] UK Supreme Court 14. (April 1, 2020) allows paid surrogacy, where legal, in foreign countries. Decision (24 pages). Article by Prof. Bernard Dickens.

WEBINARS
“Access to medical abortion: Global South perspectives,”, with Panelists Dr. Shilpa Shroff, Prof. Dipika Jain, Dr. Sana Durvesh, and Moderator, Sai Jyothirmai Racheria. Organizers: SARJAI and SAIGE. Friday, Sept. 4, 2020, 14:30 (GMT+8, Kuala Lumpur time). Register here for Sept 4.

“Telemedicine, self-managed abortion and access to abortion in the context of the Covid-19 pandemic,” chaired by Mariana Romero (Argentina). Speakers: Jade Maina (Kenya), Maria Mercedes Vivas (Colombia), Wendy V. Norman (Canada), Rodica Comendant (Moldova), Jasmine Lovely George (India), Kinga Jelinska (The Netherlands), Marge Berer (United Kingdom), to be held: Wednesday, September 23, 2020 (2:00-3:30 p.m. British Summer Time). Register here for Sept 23.

“Telemedicine / self-managed abortion is critical to strengthening women and girls’ reproductive rights and reducing maternal mortality” FIGO webinar, chaired by Prof. Dame Lesley Regan (FIGO), with speakers: Ambassador Dr. Eunice Brookman-Amissah (Ghana), Marge Berer (UK), Christina Zampas (Switzerland), Nelly Munyasia (Kenya), Evelyn Odhiambo (Kenya). Will be available in English, Spanish and French. To be held Thursday Sept. 24, 2020 at 15:00-16:30 (British Summer Time). Register for Sept 24.

SCHOLARSHIP
“Access to Abortion: An Annotated Bibliography of Reports and Scholarship,” prepared by the International Reproductive and Sexual Health Law Program, Faculty of Law, University of Toronto, 2nd edition, 2020, 44 pages, (organized by country, focuses on barriers and recommendations, ) Annotated bibliography.

[abortion] “Abortion,” thematic chapter in Comparative Human Rights Law, by Sandra Fredman (Oxford UP, Nov. 2018). Institutional access through Oxford Scholarship Online. About the book.

[abortion, Argentina, Ireland, US] “Argentina’s path to Legalizing Abortion:  A comparative analysis of Ireland, the United States and Argentina,” by  Andrea F. Noguera, Southwestern Journal of International Law 25.2 (2019): 356-392.    Article online.

[abortion, Brazil, Argentina, Uruguay ] “Challenges and opportunities for access to legal and safe abortion in Latin America based on the scenarios in Brazil, Argentina, and Uruguay,” by Beatriz Galli – Cadernos de Saúde Pública, 2020 – SciELO Public Health

[abortion, Brazil] Understanding the sexual and reproductive health needs in Brazil’s Zika-affected region: placing women at the center of the discussion,” by D. Diniz, L. Brito, I. Ambrogi, AB Tavares, M. Ali. International of Gynaecology and Obstetrics 2019; 147: 17 Institutional access

[abortion, India] “Reimagining Reproductive Rights Jurisprudence in India: Reflections on the Recent Decisions on Privacy and Gender Equality from the Supreme Court of India,” by Dipika Jain and Payal Shah. Columbia Journal of Gender and Law 39.2(2020), 1-53. Article online.

[abortion law, India] “A Womb of One’s Own: Privacy and Reproductive Rights,” Arijeet Ghosh & Nitika Khaitan (2017) 52:42/43 Economic & Political Weekly, [1-9], re landmark Aug 24, 2017 privacy decision (Puttaswamy) already helped decriminalize homosexuality, adultery–potentially abortion. Article online.

Human Rights Quarterly is freely available online during the COVID-19 pandemic.  All issues.

[obstetric violence] “Operationalizing a Human Rights-Based Approach to Address Mistreatment against Women during Childbirth,” by Christina Zampas, Avni Amin, Lucinda O’Hanlon, Alisha Bjerregaard, Hedieh Mehrtash, Rajat Khosla, and Özge Tunçalp, Health and Human Rights Journal, 22(1) 2020: 251-264 Article online.

[surrogacy] “Paid surrogacy abroad does not violate public policy: UK Supreme Court,” by Bernard M. Dickens, International Journal of Gynecology and Obstetrics 150.1 (2020): 129-133. PDF at Wiley Online.    Abstract and Submitted Text.

[U.S. reproductive decisions] Feminist Judgments: Reproductive Justice Rewritten, ed. Kimberly Mutcherson, Cambridge UP, 2020. Book details.

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

Violence Against Women’s Health in International Law, new book by Sara De Vido, Manchester University Press, 2020. Abstract and Table of Contents.

JOBS
Links to employers in the field of Reproductive and Sexual Health Law are online here.
______________
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.  TO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of our blog, then check your email to confirm the subscription.

REPROHEALTHLAW Updates – April/May 2020

SUBSCRIBE TO REPROHEALTHLAW: To receive these updates bi-monthly by email, enter your address in upper right corner of this webpage, then check your email to confirm the subscription.

DEVELOPMENTS
[Ecuador] Inter-American Court of Human Rights. Caso Guzmán Albarracín y otros Vs. Ecuador. Decision (January 27 2020) against sexual abuse in educational system. Decision online. 8-hour Public hearing, Jan. 28, 2020.  Guardian newspaper report  

CASEBOOKS
[India] Securing Reproductive Justice in India: A Casebook, ed. Mrinal Satish, Aparna Chandra, and Payal K. Shah, (New York: Center for Reproductive Rights, 2019) 520-page book/chapters online.

[United States] Feminist Judgments: Reproductive Justice Rewritten, ed. Kimberly Mutcherson, Feminist Judgment Series: Rewritten Judicial Opinions. (Cambridge: Cambridge University Press, 2020). Institutional access.

SCHOLARSHIP
“Abortion in the context of COVID-19: a human rights imperative,” by Jaime Todd-Gher & Payal K Shah (2020) Sexual and Reproductive Health Matters, 28.1 Article online.

[abortion, India] “Reimagining Reproductive Rights Jurisprudence in India: Reflections on the Recent Decisions on Privacy and Gender Equality from the Supreme Court of India,” by Dipika Jain and Payal Shah. Columbia Journal of Gender and Law, 39.2(2020), 1-53. Article online.

[abortion, U.K.] “Decriminalising Abortion in the UK- What Would It Mean?” ed. Sally Sheldon and Kaye Wellings. (Bristol: Policy Press, March 23, 2020) 112 pages, Open Access book.

[abortion laws: Uruguay, South Africa] “Abortion, health and gender stereotypes: a critical analysis of the Uruguayan and South African abortion laws through the lens of human rights,” by Lucia Berro Pizzarossa, Ph.D. dissertation, University of Groningen, 2019. 304 pages. Complete thesis. Abstract.

[conscience, Europe] “Conscientious Objection under the European Convention on Human Rights: The Ugly Duckling of a Flightless Jurisprudence,” by Stijn Smet, in The European Court of Human Rights and the Freedom of Religion or Belief: The 25 Years since Kokkinakis, ed. Jeroen Temperman, T. Jeremy Gunn and Malcolm D. Evans (Brill, 2019) 282–306. Institutional access.

[conscience, Italy] “The impact of gynecologists’ conscientious objection on abortion access,” by Tommaso Autorino, Francesco Mattioli e Letizia Mencarini,  Social Science Research 87 (March, 2020): 102403  16-pages, Institutional access.

Conscientious Objection / The Right to Conscience – annotated bibliography, updated March 17, 2020. Download here.

Human Rights Quarterly is freely available online during the COVID-19 pandemic.  All issues.

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

WEBINAR:
“COVID-19: What implications for SRHR globally?” by Sexual and Reproductive Health Matters, webinar March 27, 2020. 100-minute video.

JOBS
University of Toronto, Faculty of Law @UTLaw seeks new Director, International Human Rights Program. Apply by June 17, 2020. Details and application information.

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

European Court dismisses Swedish midwife’s complaint

Many thanks to Bernard M. Dickens, Professor Emeritus of Health Law and Policy at the University of Toronto’s Faculty of Law, for abstracting the main issue decided by the European Court of Human Rights.

Grimmark v. Sweden,   App. No. 43726/17, European Court of Human Rights. (2020)  Decision of March 12, 2020.  Backup copy.

This decision on conscientious objection addressed a complaint against Sweden by Elinor Grimmark, a woman who had qualified as a midwife, but was denied employment as such. Because of her religious convictions, she refused to perform medical (i.e. non-surgical) abortions, but was willing to care for women requesting the procedure. In seeking employment, she disclosed her objection, which she claimed had resulted in positions being withheld or withdrawn from her, in violation of her right to freedom of thought, conscience and religion under Article 9(1) of the European Convention on Human Rights. Article 9(2) of this Convention sets limits on manifestation of religion or belief when necessary for the protection, among other interests, of the rights and freedoms of others.

Employment laws may require employers’ reasonable accommodation of employees’ conscientious objection, but Swedish law allows employers to require employees to perform all tasks naturally falling within the scope of their employment. This includes requiring midwives to perform medical abortions. Exemption for one midwife would unfairly burden another. The Court noted that Sweden provides nationwide accessible abortion services.

The Court’s task was to determine whether measures taken in Sweden, by its Discrimination Ombudsman and its Labour Court, both of which had found no violation of the complainant’s Article 9 rights, were proportionate to the interests at stake. The Court echoed its previous language on abortion services, in R.R. v. Poland (2011), that a state is obliged “to organize its health system in a way as to ensure that the effective exercise of freedom of conscience by health professionals in the professional context does not prevent the provision of such services” (para.26). The Court accordingly found that any infringement of the complainant’s freedom of religion did not violate Article 9 of the European Convention on Human Rights.
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The European Court’s 9-page decision is online here:
Decision of March 12, 2020.   Backup copy.

Related Resources:
“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) pp. 210-238, 425-429n. Abstract online. About the book in English y en español.

Conscientious Objection / The Right to Conscience – annotated bibliography, updated March 17, 2020.
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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.  TO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of our blog, then check your email to confirm the subscription.

REPROHEALTHLAW Updates – Nov/Dec. 2019

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DEVELOPMENTS:
Canada (Ontario): Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2019 ONCA 393, Doc. no. C65397, Decision of May 15, 2019. (Canada: Ontario Court of Appeal)  Decision online.  Case summary by Bernard M. Dickens.

Ecuador:  National Assembly fails to decriminalize abortion for rape victims. Guardian newspaper report.

[U.S. – conscience]  Federal Judge holds Trump-Backed ‘Conscience Rule’ for Health Workers unconstitutional. Nov. 6, 2019  Washington Post Report.

SCHOLARSHIP:

[abortion and miscarriage] “The Law and Ethics of Fetal Burial Requirements for Reproductive Health Care,” by Dov Fox, I. Glenn Cohen and Eli Y. Adashi, JAMA 322. 14(Oct 8, 2019): 1347-8. Abstract and institutional access.

[abortion law, Ireland] “Intersectionality, Repeal, and Reproductive Rights in Ireland,” by Fiona de Londras, forthcoming in: Shreya Atrey and Peter Dunne (eds), Intersectionality and Human Rights, Abstract and chapter.

[conscience] Abortion Care in Ireland: Developing Legal and Ethical Frameworks for Conscientious Provision, by Mary Donnelly and Claire Murray, International Journal of Gynecology and Obstetrics 148 (Jan. 2020): 127–132. PDF at Wiley Online for 12 months.  Abstract and article on SSRN.

European Abortion Laws: A Comparative Overview, Center for Reproductive Rights, Nov. 2019. 9-page Fact Sheet,

Feminist Judgments in International Law, ed. Loveday Hodson and Troy Lavers (Oxford: Hart, 2019), 279-302 (511 pages). Publisher’s abstract. About feminist rewrite of ECtHR’s A, B. & C v. Ireland.

[homosexuality] “Nigerian High Court avoided constitutional scrutiny of anti-gay laws : Mr. Teriah Joseph Ebah v. Federal Republic of Nigeria (2014),” Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts, Reprohealthlaw Blog, Dec. 10, 2019 Decision online.    6-page Case Comment by Ovye Affi.

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 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.

Abortion Care in Ireland: Legal and Ethical Frameworks for Conscientious Provision

Congratulations to Professors Mary Donnelly and Claire Murray of University College Cork’s Law Faculty, for their new publication in the “Ethical and Legal Issues in Reproductive Health” section of the International Journal of Gynecology and Obstetrics. We are pleased to cite their abstract below:

Mary Donnelly and Claire Murray, “Abortion Care in Ireland: Developing Legal and Ethical Frameworks for Conscientious Provision,”   International Journal of Gynecology and Obstetrics, Jan. 2020; 148: 127–132.  DOI: 10.1002/ijgo.13025. PDF online for 12 months.   Abstract and Submitted Text.

This article celebrates the remarkable changes which have occurred in the provision of abortion care in Ireland following the vote to remove the restrictive Eighth Amendment to the Constitution of Ireland in May 2018. However, it also identifies ways in which the emerging legal, ethical and clinical landscape is still impeding the conscientious provision of abortion care. It argues that in order to address these impediments, more attention needs to be paid to the ethical context for conscientious provision. This requires political leadership as well as ongoing leadership by professional bodies to develop both the clinical and the ethical guidance for conscientious provision.

Key Words: Abortion, Abortion law reform, Conscientious provision of abortion, Ethical guidance for conscientious abortion provision, Ireland

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The full text is available online. PDF online for 12 months.      Abstract and Submitted Text on SSRN.

Ethical and Legal Issues in Reproductive Health – 90+ concise articles.

Conscientious Objection / The Right to Conscience, updated May 9 2019 Annotated Bibliography online
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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.
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.

Ontario Court: Conscientious objectors must provide effective referral

Many thanks to Bernard M. Dickens, Professor Emeritus of Health Law and Policy at the University of Toronto’s Faculty of Law, for summarizing a recent Canadian judgment by the Ontario Court of Appeal:

In the case of Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario (2019 ONCA 393) [decision online], the Ontario Court of Appeal unanimously upheld the lower court ruling that the Policies of the College requiring physicians who invoke rights of conscientious objection in order not to participate in procedures that violate their religious beliefs must provide a patient seeking such a procedure with an “effective referral.” Objected procedures included abortion, contraception (including emergency contraception, tubal ligation and vasectomy), infertility treatment for heterosexual and homosexual patients, prescription of erectile dysfunction medication, gender re-assignment surgery and medical assistance in dying. The Policies defined effective referral as “a referral made in good faith, to a non-objecting, available, and accessible physician, other health-care professional, or agency.”

The objectors complained that such referral constitutes complicity, which is as wrongful as direct participation, in the procedures which violate their religious beliefs. The Policies were therefore claimed to be in breach of the complainants’ right to “freedom of conscience and religion”, protected under section 2(a) of the Canadian Charter of Rights and Freedoms, under which CPSO is bound by discharging functions delegated by government. Charter section 1 guarantees rights and freedoms subject to reasonable limits that “can be demonstrably justified in a free and democratic society”.

The Court accepted the complainants’ evidence that effective referral offends their religious convictions, and (without addressing secular conscience) found that the Policies restrict their Charter right to freedon of religion. Restriction was found demonstrably justified under section 1, however, because the purpose of medical services is to serve patients’ access to medical care. The Court endorsed the lower court’s observation that “[a]s members of a regulated and publicly-funded profession, they [the complainants] are subject to requirements that focus on the public interest, rather than their own interests. In fact, the fiduciary nature of the physician-patient relationship requires physicians to act at all times in their patients’ best interests, and to avoid conflicts between their own interests and their patients’ interests” (para. 187). The Court supported this finding by noting patients’ vulnerability regarding access to medical services of personal sensitivity, and dependence on medical professionals to guide them through otherwise obscure or obstructed pathways to other professionals who will provide the effective care patients seek.

Effective referral preserves a proportionate balance between professionals’ rights of conscientious objection to conduct procedures and patients’ rights of timely access to appropriate health services.

RELATED RESOURCES

[Original ruling] Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2018 ONSC 579, File no. 499/16/ 500/16, Decision of Jan 31, 2018 (Ontario: Superior Court of Justice, Divisional Court). Decision online. 

[Court of Appeal Ruling] Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2019 ONCA 393, Doc. no. C65397, Decision of May 15, 2019. (Canada: Ontario Court of Appeals)  Decision online.  

Conscientious Objection / The Right to Conscience, updated May 9 2019 Annotated Bibliography online.

Abortion Law Decisions websites in English — y en espanol.

“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 (Philadelphia: University of Pennsylvania Press, 2014) 210-238. Abstract of chapter. English edition. Spanish edition.
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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.
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.