Symposium: Croatian Constitutional Court abortion ruling of 2017

June 28, 2019

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

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

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

          “Reconciling with the Past, Looking to the Future”

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

In its crucial part, the said Act, originally enacted in 1978, prescribes that termination of pregnancy may be performed within 10 weeks of conception and after the expiration of that period only further to the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

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

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

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

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

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

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

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

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

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

Abortion Law Decisions, organized by country, with links to decisions, are online here.
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Compiled by: the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   See Program website for our PublicationsInformation resources, and Reprohealthlaw Commentaries Series.   TO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of our blog, then check your email to confirm the subscription.


REPROHEALTHLAW Updates – October 2018

October 31, 2018

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

Bulgaria:  Constitutional Court declares the Istanbul Convention against violence against women  unconstitutional.  July 27, 2018.  Oxford Human Rights Hub article.

Constitutional Court of Croatia.  Decision of March 2, 2017.  Rješenje Ustavnog Suda Republike Hrvatske, broj: U-I-60/1991 i dr. od 21.veljace 2017.  Decision online in Croatian. Backup copy.  Summary in English from CRR   Croatian Court’s Press release – 11 pages in English.

CALL FOR ABSTRACTS:

Fourth International Congress on Women’s Health and Unsafe abortion (IWAC 2019), February 19-22, 2019, Asia Hotel, Bangkok Thailand  Theme:  “We Trust Women: Universal Access to Safe Abortion.”  Submit abstracts by Nov 15, 2018  Call for Abstracts

SCHOLARSHIP:

Abortion Law in Transnational Perspective: Cases and Controversies, ed. Rebecca Cook, Joanna Erdman and Bernard Dickens (Philadelphia: Univ. Pennsylvania Press, 2014) Now in Paperback.  20% discount code: PH70.  English abstracts.   Spanish edition – abstractsTable of Cases in English or Spanish.

[Africa]  “(De)Criminalizing Adolescent Sex: A Rights-Based Assessment of Age of Consent Laws in Eastern and Southern Africa,” by Godfrey Dalitso Kangaude and Ann Skelton,  (peer-reviewed) Sage Open 2018 (Oct-Dec): 1-12.   Article online.

[Brazil – anencephaly – Supreme Court]   “The STF decision on abortion of anencephalic fetus: A Feminist Discourse Analysis” by Lucia Goncalves de Freitas, Alfa, Sao Paulo, 62.1 (2018): 11-33.   Article in English.

[Brazil – obstetric care, maternal mortality /morbidity, Alyne case]  “Implementing international human rights recommendations to improve obstetric care in Brazil,” by Alicia E Yamin, Beatriz Galli and Sandra Valongueiro.   International Journal of Gynecology and Obstetrics 143.1 (October 2018): 114-120.    Download full text PDF now, because Free Access expires in 6 months.    Abstract online in English   For Portuguese abstract, click on :Supporting Information”.  

[Brazil – zika, microcephaly]  BOOK:  Zika: from the Brazilian backlands to a Global Threat (Zed Books, 2017)  in English  and  Portuguese .

[conscience]  “Balancing Freedom of Conscience and Equitable Access,” by Wendy Chavkin, Desiree Abu-Odeh, Catherine Clune-Taylor, Sara Dubow PhD, Michael Ferber and Ilan H. Meyer, American Journal of Public Health 108.11 (Nov 2018): 1487-88.  Article online.

[conscientious objection, Ireland] “Conscientious Objection, Harm Reduction and Abortion Care,”  by Ruth Fletcher, in Mary Donnelly and Claire Murray eds., Ethical and Legal Debates in Irish Healthcare: Confronting Complexities (Manchester: Manchester University Press, 2016) pp. 24-40.  Pre-publication version.     Book information

[conscientious objection – South Africa “Let’s call ‘conscientious objection’ by its name: Obstruction of access to care and abortion in South Africa,” by Satang Nabaneh, Marion Stevens & Lucía Berro Pizzarossa,  24 October 2018, Oxford Human Rights Hub.

[Forced sterilization] “Gendered Power Relations and Informed Consent: The I.V. v. Bolivia Case,” by Martín Hevia and Andrés Constantin, Health and Human Rights JournalEarly view of full text.

[Intersex] “Management of intersex newborns: Legal and ethical developments,” by Bernard M. Dickens, International Journal of Gynecology and Obstetrics  143.2 (Nov. 2018): 255–259.  PDF at Wiley online.   Submitted text at SSRN.

[Ireland] “Reproductive Justice in Ireland: A Feminist Analysis of the Neary and Halappanavar Cases,” by Joan McCarthy,  in: Mary Donnelly and Claire Murray, eds., Ethical and Legal Debates in Irish Healthcare: Confronting Complexities (Manchester, UK: Manchester University Press, 2016).   Submitted Text online.   Book information

[Ireland and Britain] “Reproductive rebellions in Britain and the Republic of Ireland: contemporary and past abortion activism and alternative sites of care,” by Ben Kasstan and Sarah Crook, in Feminist Encounters: A Journal of Critical Studies in Culture and Politics, 2.2 (2018):  1-16.  Article online.

Annotated Bibliographies now available:  Right to Conscience
Fetal anomaly indication for abortion Rape or Incest abortion – English.  or Spanish)  Latin America:  Causal violación y/o incesto   (Toronto: International Reproductive and Sexual Health Law Program, 2018).

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


JOBS

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

 

 

 

 


REPROHEALTHLAW Updates – April 2017

April 25, 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.

DEVELOPMENT

[Croatia, abortion] Constitutional Court reaffirmed that women’s access to abortion is protected under their constitutional rights to liberty, personality, and privacy.  Rješenje Ustavnog Suda Republike Hrvatske, broj: U-I-60/1991 i dr. od 21.veljace 2017.
Decision online in Croatian     Amicus brief in English by CRR

CALLS FOR PAPERS:

“Women’s Human Rights” including theory and activism, for special issue of Canadian Woman Studies/Les cahiers de la femme, guest edited by: Jeannette Corbiere Lavell, Alda Facio, Angela Lytle, Angela Miles, and Patricia Nyaundi.  Submit by April 30, 2017    Detailed call for papers.   Submission guide.

Anti-Discrimination Law Review, newly launched, peer reviewed journal.  Submit papers 6,000-10,000 words. Information for authors.

Call for abstracts  “1997-2017: 20 years after the Oviedo Convention on Human Rights and Biomedicine: What are the achieved gains and its potential? international conference at European University (December 8-9, Nicosia, Cyprus)  Submit 300 word abstract by July 1, 2017.  Flyer with Call for abstracts.    Conference details.

Conference:  “Difficult Conversations: Thinking and talking About Women, Genders and Sexualities Inside and Outside the Academy”  The Seventeenth Berkshire Conference on the History of Women, Genders and Sexualities.  Hofstra University, Hempstead, N.Y., U.S.A.,  June 1-4, 2017

COURSES:

Summer “Program of Advanced Studies on Human Rights and Humanitarian Law,”
Academy of Human Rights, Washington College of Law, American University, Washington D.C.  Classes start May 30, 2017.  Apply by May 1, 2017.  Details.  Choose from 20 Courses, 9 in English and 11 in Spanish.  Course list.

Summer school on Health Law and Ethics (1 or 2 weeks) The Erasmus Observatory on Health Law / Institute of Health Policy & Management (Erasmus University Rotterdam)  Course details and registration.

RESOURCES

[abortion] “Taking Abortion Rights Seriously: Whole Woman’s Health v Hellerstedt” by Kate Greasley,  The Modern Law Review 80.2 (March 2017): 325-338.  Open access article.

[abortion law – Australia] Children by Choice website highlights Australian abortion law and practice –  Links to recent legal reform bills

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 paperback, 20% discount code PH70.  Available from U Penn Press.

[abortion law – Spanish]    El aborto en el derecho transnacional: casos y controversias,  ed. Rebecca J. Cook, Joanna N. Erdman y Bernard M. Dickens (Mexico: FCE/CIDE, 2016)   De venta: Fondo de Cultura Económica Libreria CIDE.

[abortion policy] “Towards a non-ethics-based consensual public policy on abortion,” by David Alvargonzález, (philosophy professor in Spain).  The International Journal of Health Planning and Management 32.1 (Jan-Mar 2017): e39-46. Article or Abstract.

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

NEWS

[abortion, Brazil] Petition to Supreme Court of Brazil March 7, 2017, seeks decriminalization of abortion on request up to 12 weeks of pregnancy. The petition was filed by the Socialism and Freedom Party (PSOL), with support from Anis – Institute of Bioethics.  Press release.

[abortion, Canada – coverage]  Expert panel endorses public coverage for abortion pill (mifepristone + misoprostol), under brand name “Mifegymiso”.  Newspaper reportExpert recommendations and reasoning

[abortion – Kenya]  Recent cases of women dying while procuring abortion, clinic proprietor arrested. Safe Abortion update.

[abortion, Uruguay]  Judge denies termination of 10-week pregnancy, siding with ex-boyfriend.  Woman miscarried due to stress, mistreatment and public exposure; she plans to sue judge.  News media.    Update from Safe Abortion campaign.

[conscience, Canada]  Doctors, pharmacists push back on medical abortion rules    Colleges of physicians and pharmacists suggest off-label workaround for Health Canada’s restrictions on dispensing the abortion drug Mifegymiso   CMAJ News

[conscience, Canada]  Christian Medical and Dental Society v. College of Physicians and Surgeons of Ontario (CPSO). objecting to rules requiring Ontario doctors to refer patients seeking abortions, etc.  Hearings scheduled June 13-15, 2017   Newspaper report.

[conscience, Ghana] Provider obstruction: a major threat to critical maternal health services in Northern Ghana, Global Doctors for Choice-Ghana study results.

[conscience, Italy]:  UN Human Rights Committee Concluding Observations CCPR/C/ITA/CO/6 criticizes Italy for lack of non-objecting doctors.  HRC report in English.
Parliamentary study found that 70% object.  Hospital in Rome advertises for non-objecting doctors. CRUX Catholic newsletter

[conscience, Sweden]: Swedish court upholds ruling against midwife (Grimmark) claiming conscientious objection.  Midwife is funded by wealthy US prochoice alliance  Article by Safe Abortion Women’s Right

JOBS

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.


Court decisions, Resources, News, Fellowships and Jobs

October 17, 2012

REPROHEALTHLAW-L
Oct 17, 2012

COURT DECISIONS

Argentina – Supreme Court approves abortion for raped woman forced into prostitution  News report   
Related criminal complaint against Buenos Aires mayor for divulging private information to delay abortion   News report

Canada:  Supreme Court:  Low-risk ARV patients need not disclose HIV positive status to sex partners if condom used.  Such deception no longer poses “significant risk of serious bodily harm”.   R. v. Mabior, 2012 SCC 47, Oct 5, 2012.  Decision online.

Colombia:  Constitutional Court  ruling reaffirms the duty of all State public employees to provide accurate information on sexual and reproductive health and rights.  In this historic decision, Sept. 12, 2012, the Court ruled against government officials who were disseminating false, incomplete or distorted information, in blatant disregard for the verifiable findings of judicial, scientific and legal authorities.  Press releases from Women’s Link Worldwide: 
English press release 
Spanish press release

European Court of Human Rights, July 24, 2012, D.J. v Croatia:
Croatia failed to adequately investigate rape claim.  Decision online 
Interights submitted a third-party brief on secondary victimization of rape victims by law enforcement and justice personnel. 
Overview & links to brief

RESOURCES

“Abortion Worldwide” – Guttmacher educational video (4 minutes)  illustrates key evidence and statistics:   
English video       Spanish video     French video

[abortion] Dignity and Sexuality: Claims on Dignity in Transnational Debates Over Abortion and Same-Sex Marriage, by Reva B. Siegel. I•CON 10 (2012), 355-379; Yale Law School, Public Law Working Paper No. 259. Working paper online

[abortion, Nepal]  10th Anniversary of 2002 decriminalization of abortion.  Since then, maternal deaths have declined 78%.
(3 short videos by ASAP):
1. Nepal Before the Decriminalization Bill of 2002, interview with Dr. Anand Tamang, director of CREHPA, Nepal
about the research studies that gave activists the ammunition they needed to challenge the abortion law    5 minute video
2. The Legal Struggle to Decriminalize Abortion – interview with Advocate Sapana Pradhan Malla recalls the legal struggle to create an abortion exemption under the homicide law.  Nepal still needs a separate rights-based law   5 minute video
3.Increasing Access to Safe Abortion – interview with Dr. Indira Basnett, Director Ipas Nepal,  re strategies to improve Accessibility, Acceptability and Affordability  5 minute video 

[abortion stigma]  Ethicist Leslie Cannold’s 19-minute video explains the problem abortion stigma and suggests how to break the cycle of shame, silence and ignorance    19-minute video

[abortion UK] “Abortion: The Civilised Solution” – Dr. Ellie Lee advocates decriminalization of abortion in discussion with young people. 44-minute video

[conscientious objection] “Is there no alternative? Conscientious objection by medical students” by Robert F Card,  Journal of Medical Ethics  38 (2012):  602-604.  Abstract does not not mention abortion, but article does.   article & abstract

Conscientious Objection to Sexual and Reproductive Health Services: International Human Rights Standards and European Law and Practice, by Christina Zampas and Ximena Andión-Ibañez,  European Journal of Health Law 19 (2012) 231-256.   article online.

[assisted repro – Latin America]  The Legal Status of In Vitro Fertilization in Latin America and the American Convention on Human Rights, by Martin Hevia & Carlos Herrera Vacaflor.  Suffolk Transnational Law Review, Forthcoming.  Article online

[maternal mortality/morbidity reduction] “Technical guidance on the application of a Human Rights-based Approach to the implementation of policies and programmes to reduce preventable maternal morbidity and mortality,” submitted to UN Human Rights Council, July 2, 2012    Press Release       Guidance Document  

Gender Issues and International Human Rights: An Overview” by Dianne L. Otto, Human Rights Law Series, Edward Elgar (2012); U of Melbourne Legal Studies Research Paper No. 606.  Article online

Reproductive and Sexual Health Law – upper-year course at University of  Toronto law school – course materials available online for noncommercial educational use or adaptation to other contexts.  Course materials online

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

NEWS:

[abortion – Australia] “Politics v women’s health: RU486 and the TGA saga ”  Mifepristone (RU486) finally added to Australia Register of Therapeutic Goods (ARTG) in August 2012.   News report 

France will reimburse abortions 100%, begining 2013.  News report.

[abortion – Jamaica] CEDAW urges Jamaica to reconsider abortion laws for cases of rape, incest. News report.

[abortion – Morocco] – Abortion ship launches safe abortion hotline in Morocco.  Press release

[abortion – Northern Ireland] New Marie Stopes clinic to offer abortion services within current legal framework.  News report

[abortion – Uruguay]  Uruguay set to legalize abortion -final debate in Senate begins today.   News report

 FELLOWSHIPS

Center for Reproductive Rights/Columbia Law School Fellowship
2-year, post-graduate fellowship, to prepare recent law school graduates for legal academic careers in reproductive health and human rights.  For the 2013-2015 cycle, apply by October 29, 2012.  Fellowship details

Law Students for  Reproductive Justice – Fellowship Program for current 3Ls and recent law school graduates interested in working to advance reproductive justice through policy advocacy.  Apply by Nov  1, 2012.  Fellowship details

JOBS

Executive Director, Canadians for Choice, apply by Oct 26, 2012. 
Job details

Women’s Legal Rights Advisor – Mexico – apply by Nov 15, 2012. 
Job details

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

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Compiled by the Coordinator of the International Reproductive and Sexual Health Law Program, Email  reprohealth*law (a) utoronto*ca
For Program publications and resources, see our website, online here.