Northern/Irish Feminist Judgments – re-imagining court decisions

May 26, 2017

Northern/Irish Feminist Judgments: Judges’ Troubles and the Gendered Politics of Identity, edited by Máiréad Enright, Julie McCandless and Aoife O’Donoghue (Oxford: Hart, 2017) (available here) is the most recent of a series of insightful studies on re-imagining court decisions from feminist perspectives.[1]    The volume includes rewrites and commentaries on 26 cases from Ireland or Northern Ireland, including:

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

In Northern/Irish Feminist Judgments. Ruth Fletcher rewrites the Irish Supreme Court’s landmark decision in the X case.Sheelagh McGuinness writes a commentary on it, explaining the ways in which Fletcher J. illustrates how the Eighth Amendment to the Irish Constitution (acknowledging the “right to life of the unborn… with due regard to the equal right to life of the mother…”) is an instrument of gendered harms.  McGuinness contrasts the “progressive constitutionalism” of Fletcher J.’s reasoning with the “conservative constitutionalism” of the original judgment. Fletcher J. crafts a judgment that considers the text of the Eighth Amendment, examines the evidence of the substantial difference between the contingency of unborn life and the life of the pregnant woman that sustains that life to decide, consistently with the original judgment, that X is entitled to an abortion. She tries to rise above her own partiality by putting herself in X’s shoes to explain how her pregnancy in such circumstances would impose “an impracticable burden on her rightful life.”
ONLINE:  Ruth Fletcher’s imagined decision: working paper version
Sheelagh McGuinness’s commentary: peer review version

McGee v. Attorney General,[1974] I.R. 284 (Supreme Court of Ireland), which had overturned a criminal ban on the importation of contraceptives into Ireland. Actual decision online.

Emilie Cloatre and Máiréad Enright write the commentary on Enright’s rewriting of the Irish Supreme Court’s decision in the McGee case, where Enright J. reached the same decision but for different reasons. They explore the ways that Enright J. acknowledged Mrs. McGee’s experiences in trying to access effective contraception to enable her to plan her family in ways that did not seriously risk her life.  Of particular note is the way in which Enright J. elaborated how Mrs. McGee’s right to freedom of conscience was a basis for overturning the importation ban: “There can be no clearer example, in my view, of the exercise of constitutionally protected conscience than Mrs. McGee’s deliberate breach of a provision of the criminal law that imposes a particular set of moral principles on the citizenry.”

[1] Northern/Irish Feminist Judgments-Judges’ Troubles and the Gendered Politics of Identity, ed. Máiréad Enright, Julie McCandless and Aoife O’Donoghue (Oxford: Hart, 2017) (book details).  Other insightful studies on re-imagining court decisions from feminist perspectives  include:  Rewriting Equality (2006) 18(1); R. Hunter, C.McGlynn and E. Rackley (eds.) Feminist Judgments: From Theory to Practice (Oxford: Hart, 2010); H. Douglas, F. Bartlett, T. Luker and R. Hunter (eds.), Australian Feminist Judgments: Righting and Rewriting Law (Oxford: Hart, 2015); K. Stanchi, L. Berger and B. Crawford (eds.), U.S. Feminist Judgments: Rewritten Opinions of the United States Supreme Court (Cambridge: CUP, 2016).


Strategic litigation for abortion rights in Latin America

December 20, 2016

Congratulations to Dr. Alba M. Ruibal, a researcher with Argentina’s National Scientific and Technical Research Council (Conicet) who is currently working on a project about federalism and feminist legal mobilization at the subnational level in Argentina, including litigation for abortion rights.  We appreciate her excellent article, recently published in English:

Social movements and constitutional politics in Latin America: reconfiguring alliances, framings and legal opportunities in the judicialisation of abortion rights in Brazil,Contemporary Social Science 10.4(2015): 375-385,  Publication access via academic librariesOpen access to submitted text.

Abstract:  One of the main innovations in the interaction between social movements and the state in Latin America since the democratisation processes is the use of courts as venues for social change and the intervention of social actors in constitutional politics. Drawing from the empirical study of the process of strategic litigation for abortion rights in Brazil, this paper aims to show what type of changes can take place when social actors set out to pursue a legal strategy on a highly controversial matter, and in a transitional context, where courts are in the midst of a redefinition of their institutional role in the political system, and movements have not yet been central actors in judicialisation processes. The study highlights how feminist organisations adapted their framing of the abortion issue and developed new alliances with legal actors in order to pursue a rights strategy and to interact with the constitutional court. It also points out how, when dealing with the abortion controversy, the Brazilian constitutional court (Supremo Tribunal Federal) expanded the legal opportunity for the participation of civil society actors and, in its 2012 decision that liberalised the abortion law, acknowledged the legal arguments advanced by social actors in this field.   Published edition, online via academic librariesOpen access to submitted text.     More about the author. 

Several of Dr. Ruibal’s earlier publications on abortion law strategy in Latin America are available online through SSRN:

“Reform and Backlash in Mexico’s Abortion Law: Political and Legal Opportunities for Mobilization and Countermobilization,”(2014)  English abstract and conference  paper.  
—See also:
Feminism, Religion and Democracy in the Process of Abortion Legalization in Mexico City (2012)  Spanish article online, with abstracts in Spanish and English.

“Movement and Counter-Movement: A History of Abortion Law Reform and the Backlash in Colombia 2006-2014” English article and abstract online.

[Legal Mobilization and Counter-Mobilization. Proposal for Its Analysis in Latin America] (2015)  Spanish article online with abstracts in Spanish and English.

[Feminism Counters Religious Fundamentalisms: Mobilization and Counter-Mobilization in the Field of Reproductive Rights in Latin America](2014) focusing on the cases of Brasil, Colombia and Mexico  Portuguese article, and abstracts in Portuguese, Spanish and English.   Spanish translation of article.

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Regarding the Brazilian decision of 2012, mentioned in Dr. Ruibal’s abstract, see also: Luís Roberto Barroso, “Bringing Abortion into the Brazilian Public Debate: Legal Strategies for Anencephalic Pregnancy,” chapter 12 in Abortion Law in Transnational Perspective: Cases and Controversies (U Penn Press, 2014)  258-78.  English edition.   Spanish paperback from FCE, 2016.
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Proportionality in the Constitutional Review of Abortion Law

August 17, 2015

Verónica Undurraga, “ Proportionality in the Constitutional Review of Abortion Law,” chapter 4 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. 77-97, 402n-404n.  A Spanish edition was published in August, 2016:  Ahora disponible en español.

Courts are increasingly becoming more sensitive to the need for principled approaches that resolve constitutional conflicts through a reasoned balance of rights. As the shape of constitutional abortion judgments shift, courts are trying different frameworks through which to articulate their reasoning.   In this fourth chapter of Abortion Law in Transnational Perspective: Cases and Controversies, Verónica Undurraga analyzes judicial methodology in constitutional abortion law, focusing on proportionality as a reasoned analytical framework, introduced by the German Constitutional Court in 1975 and refined in more recent European and Latin American judgments, that allows courts to move beyond the abstract, intuitive decision-making that characterized abortion judgments of the past.

Proportionality brings into consideration substantive issues and empirical data too often neglected in abortion law adjudication, requiring judges to assess not merely the rationale, but also the effectiveness of criminalization in protecting unborn life, the availability of alternative measures of protection. They must also account for the sacrifice that this criminalization demands of women against its alleged benefits. Using this analytical method, judges assess laws according to the three key standards of suitability, necessity and strict proportionality. Proportional analysis of constitutional questions usually results in support for approaches to abortion regulation outside of criminal law. In the final part of this chapter, Undurraga explains how courts have used proportionality to reconcile positive duties to protect unborn life with negative duties to abstain from interfering with women’s rights.

Abortion Law in Transnational Perspective: Cases and Controversies was published in August 2014.   Table of Contents and other information onlineSpanish and Portuguese translations of this article are available:   Ahora disponible en español.  Também em português do Brasil – en linea.

 

 


Abortion in Portugal: New Trends in European Constitutionalism

July 30, 2015

The first five chapters of Abortion Law in Transnational Perspective: Cases and Controversies explore “Constitutional Values and Regulatory Regimes” by illustrating how European constitutional courts came to reject the traditional assumption that women’s rights conflict with those of the unborn.   Reva Siegel’s chapter “The Constitutionalization of Abortion” provides an overview of this trend, followed by two country-specific chapters.  The first of these is abstracted below.

“Abortion in Portugal: New Trends in European Constitutionalism”, by Ruth Rubio-Marín,  Chapter 2 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. 36-55, notes 393-397. A Spanish edition was published in August 2016:  Ahora disponible en español.

In this  second chapter of Abortion Law in Transnational Perspective, Prof. Ruth Rubio-Marín explores the constitutionalization of abortion by analyzing the rich history of constitutional jurisprudence in Portugal, culminating in the 2010 decision of the Portuguese Constitutional Court validating a “periodic regime” of access to abortion within the early weeks of pregnancy, combined with the introduction of mandatory non-dissuasive abortion counseling to protect intrauterine life.  The Court recognized this new regime as protective of unborn human life but also respectful of women’s dignity and autonomy as constitutional values worthy of protection. Overall, Rubio-Marín identifies a shifting vision, underlying this evolution, of the pregnant woman, now viewed as a responsible actor who makes her own legitimate decisions informed by available means and support, suggesting an alternative, positive course of action for the state.

Abortion Law in Transnational Perspective: Cases and Controversies was published in August 2014.   Table of Contents and other information online.  A Spanish edition was published in August 2016:  Ahora disponible en español.

 


COURTS, CALLS, COURSES & RESOURCES

November 10, 2011

REPROHEALTHLAW-L
November 10, 2011

DECISIONS:

ECtHR: Case of S.H. and Others v. Austria [sperm/ova donation] application no. 57713/00, European Court of Human Rights- Grand Chamber, final judgment 3 November 2011 Austrian ban on sperm/ova donation does not violate European Convention on Human Rights.  Press release   Judgment

ECtHR: VC v Slovakia (forced sterilization- Roma) Slovakia was found in violation of inhumane and degrading treatment and the right to private life for the coerced sterilization of a Roma woman.
Press Release    Judgment   Further reading:  CRR Report: Body and Soul: Forced sterilization and other assaults on Roma reproductive freedom.
 
European Court of Justice bans patents on embryonic stem cells. News article

UN – CEDAW – LC v. Peru decision [abortion in case of rape]:   Peru must relax restrictions on abortion.  Decision forthcoming online.   CRR press release

CALLS

Call for abstracts on Reproductive Health History (any aspect), Canadian Society for the History of Medicine Annual Meeting, University of Waterloo, Ontario,  250-300 word abstract and 1-page CV due Nov. 30, 2011. More info

Call for volunteers, Resisting & Challenging Religious Fundamentalisms initiative at AWID. More info

Call for papers: Women, the Charter, and CEDAW in the 21st Century: Taking Stock and Moving Forward.  Queen’s University Feminist Legal Studies   March 2-4, 2012, Kingston Ont., Canada.   More info

Reproducing Normality: Disability, prenatal testing and bioethics Workshop, University of Sydney, Australia, Wed. Dec 7, 2011  Event info

EDUCATIONAL OPPORTUNITIES

“Global Health Law and Governance”  Summer Program at Georgetown Law School, June 18-22, 2012,  Washington DC.  USA.  More info

“Health Rights Litigation” course, Global School on Judicial Enforcement of Economic, Social, and Cultural (ESC) Rights, offered by The Health Rights of Women and Children Program at the FXB Center for Health and Human Rights, Harvard University, June 18-22 2012 in Boston, MA, USA  Save the dates.

FUNDING

Calls for Proposals re funding re sexual/repro health/rights projects offered by the European Union.  E-nEUs  Oct 28th edition now online here.

Postdoctoral fellowships Women & Gender Studies, 2012-2014  Rice University.  More info

RESOURCES

[abortion, Brazil]  Negative Impacts of Abortion Criminalization in Brazil: Systematic Denial of Women’s Reproductive Autonomy and Human Rights, by Maria Beatriz Galli Bevilacqua, University of Miami Law Review 2011, 65: 969.  article

[abortion, counseling, informed consent] Abortion and Informed Consent: How Biased Counseling Laws Mandate Violations of Medical Ethics, by Ian Vandewalker, forthcoming in Michigan Journal of Gender & Law. article

[abortion, counseling, informed consent] Abortion Counselling and the Informed Consent Dilemma, by Scott Woodcock in Bioethics 25.9 (Nov 2011), pp 495-504 article

[abortion, counseling, informed consent] Sawicki, Nadia N., The Abortion Informed Consent Debate: More Light, Less Heat by Nadia N. Sawicki. Cornell Journal of Law and Public Policy, Vol. 21, p. 1, 2011. article
  
[abortion, Mexico] Abortion Legalization in Mexico City – 7 articles in special section in Studies in Family Planning, 42.3 (Sept 2011). table of contents with links

[abortion, Morocco] Government plans to legalize abortion in cases of rape or incest, currently allowed to save mother’s life. News article

[abortion, telemedicine] Effectiveness and Acceptability of Medical Abortion Provided Through Telemedicine, D. Grossman et al.,  Obstetrics & Gynecology 18.2, pt 1, Aug 2011, pp 296-303. article

[abortion] Russia’s parliament adopted a law limiting abortions but rejected tougher restrictions backed by the country’s conservative Orthodox Church.  news article

[abortion] The Criminalization of Abortion is an Abuse of State Power, by Meghan Doherty, Action Canada for Population and Development (ACPD), October 25, 2011 – RH Reality Check blog
 
[abortion] The World’s Abortion Laws  poster and new interactive format here.

[abortion] Amicus curiae brief to tje Mexican Supreme Court, 2009 written comments by the International Reproductive and Sexual Health Law Programme, Faculty of Law, Univesity of Toronto, re unconstitutionality claim for Article 7 amendment by the state of Baja California, contends that the Right to Life, as protected under Article 4(1) of the American Convention on Human Rights, permits legal abortion.  Now online in English and Spanish.

[access to medicines, patents] Intellectual Property and Public Health: Two Sides of the Same Coin by Yahong Li,  AJWH, Vol. 6, No. 389, 2011; article.

[anti-abortion] “San Jose articles” against abortion being promoted by celebrity signatories. Online here.
—Critique by Global Rights Watch, PPFA, online here.

[Argentina]  Women’s Rights at the Argentine Supreme Court: Innovative Non-Jurisdictional Offices for Women and a Conservative Jurisprudence on Reproductive Rights, by Alba Ruibal working paper

ASEAN: Making the fair choice: Key steps to improve maternal health in ASEAN, based on case studies in Indonesia and the Philippines. 13 page Amnesty International report, download here

[assisted repro]  Synthetic Cells, Synthetic Life, and Inheritance by Kristine S. Knaplund, Valparaiso University Law Review, Vol. 45, 2011.  article

[assisted repro, cross-border]  Assisted Reproduction on Treacherous Terrain: The Legal Hazards of Cross-Border Reproductive Travel, by Richard F. Storrow, Reproductive Biomedicine Online, Vol. 23, pp. 538-545, 2011.  article.

[assisted repro]  “Legislation for assisted reproductive technologies,” by Bernard Dickens,  in Joseph G. Schenker, ed.  Ethical Dilemmas in Assisted Reproductive Technologies (Germany: De Gruyter,  2011)  15-28.  Book info

[assisted repro] Capacity and Autonomy: A Thought Experiment on Minors’ Access to Assisted Reproductive Technology by Michele Goodwin & Naomi Duke, Harvard Journal of Law and Gender, Vol. 34, 2011. article

[assisted repro]  Psycho-Social, Ethical and Legal Arguments for and Against the Retrospective Release of Information About Donors to Donor-Conceived Individuals in Australia, by Sonia Allan, Journal of Law and Medicine, Vol. 19, No. 2, 2011.  article
 
Austria – Court of Appeal confirms fines for 4 anti-choice activists who bullied abortion doctor. Article in German

[contraception, Africa] Access to Contraception for Adolescents in Africa: A Human Rights Challenge, by Ebenezer Tope Durojaye, Comparative International Law Journal of Southern Africa, Vol. 44, No. 1, pp. 1-29, 2011. article

[consent, pregnant women] Recalcitrant Vessels: In Search of the Justifications for Compelled Medical Care of Pregnant Women (December 20, 2010)  by Carolyn Anne McConnell working paper

[emergency contraception (EC)]  How Do Emergency Contraceptive Pills Work to Prevent Pregnancy?  Mechanism of Action –  3 page explanation endorsed by FIGO and ICEC, in EnglishSpanishFrenchGermanPortuguese
Access to fact sheets and related policy papers here.
 
[EC, Hungary] No over-the-counter emergency contraception for Hungary. news article

Emergency Contraception: Catholics in Favor, Bishops Opposed (ICEC/CFC)  (8 page fact sheet) English & Spanish

[gender equality] Is the Right to Health a Necessary Precondition for Gender Equality? By Hilary Hammell,  New York University Review of Law & Social Change, Vol. 35, No. 1, 2011.  article

[gender equality] Gender Justice and CEDAW: The Convention on the Elimination of All Forms of Discrimination Against Women, by Sally Engle Merry,  Journal of Women of the Middle East and the Islamic World 9 (2011) 49-75, not online.

[HIV, Canada] Criminalization of Non-Disclosure of HIV Status to Sexual Partners, special section in McGill Journal of Law and Health 5.1 (Sept 2011), table of contents  links to:
— HIV/AIDS Introduction, by David Parry
— Prosecution of Non-Disclosure of HIV in Canada: Time to Rethink Cuerrier, by Isabel Grant
— Criminalization of the Intended Transmission or Knowing Non-Disclosure of HIV in Canada by Matthew Cornell

[HIV, family planning] What does family planning have to do with HIV? 2 page fact sheet

[HIV, India]  Rights of Persons Living with HIV/AIDS and Article 21 of the Indian Constitution by Sameer Boray, working paper

[HIV, patents]   Driving a decade of change: HIV/AIDS, patents and access to medicines for all [including low income countries.  Discusses “patent pools” among other tools.  by Ellen ‘t Hoen, Jonathan Berger, Alexandra Calmy and Suerie Moon. Journal of the International AIDS Society 2-11. 14:15  article

[HIV, patents] The Global Governance of HIV/AIDS and the Rugged Road Ahead: An Epilogue, by Peter K. Yu.  In: The Global Governance of HIV/ AIDS: Intellectual Property and access to essential medicines, by Obijiofor Aginam, et al, eds., Edward Elgar Publishing, 2012. article

[HIV, Uganda] Proposed HIV And AIDS Legislation Is A Setback To The Fight Against The Pandemic In Uganda.  AWID analysis

Ireland – contraception for adolescents – ambiguous laws  news article

Marriage as Punishment [for seduction. Historical analysis of state regulation of sex and sexuality] by Melissa E. Murray. Columbia Law Review, Vol. 100, No. 2, 2012. article.

[MSM] Sex in Your city (IPPF, 36 page report)   MSM case studies re Kuala Lumpur, Singapore, Hong Kong, Taipei, Seoul & Busan.  Survey results and gaps re sexual health.  IPPF report

[patents, stem cell] The European Court of Justice bans stem cell patents. news article

[rape of child- fatal]  “Idowu: The Nigerian Supreme Court Erred!”  by Chinua Asuzu.  working paper.

Reproductive Health and Human Rights: Integrating Medicine, Ethics and Law – book by R. Cook, B Dickens & M. Fathalla (Oxford University Press, 2003).  Full text now available online, to institutional subscribers only:  link

The Right to Health in International Law [book], by John Tobin, Oxford University Press, 2011; U of Melbourne Legal Studies Research Paper No. 562. Introduction

[rights-based] UN OHCHR  Report on Good and Effective Practices in Using a Human Rights Based Approach to preventable Maternal Mortality & Morbidity [following up on UN HRC second resolution.] Report.

[sex work & trafficking laws, Spain] Iglesias Skulj, Agustina, El Control Penal De Las Trabajadoras Del Sexo En El Ambito De Las Politicas Contra La Trata De Mujeres Con Fines De Explotaci�n Sexual (El Caso Espanol) (Law Enforcement and Control of Sex Workers in the Field of Policies Against Trafficking in Women for Sexual Exploitation (Special Reference to Spanish Criminal Policy))  by Agustina Iglesias Skulj. Derecho Penal y Criminologia, 32(2011)  92.  article in Spanish

[sex work, Canada] Sex Work By Law: Bedford’s Impact on the Municipal Regulation of the Sex Trade , by Elaine Craig, Review of Constitutional Studies, Vol. 16, No. 1, 2011. article

[sex work, Canada] Why anti-john laws don’t work [ineffective in Sweden], by Lisa Kelly & Katrina Pacey newspaper op-ed

[sex work, UK, London] Most migrant sex workers are not forced to sell sex, ESRC study by Dr. Nick Mai, London Metropolitan University press release

[sterilization] Conceptualising Involuntary Sterilisation as “Severe Pain or Suffering” for the Purposes of Torture Disclosure, by Ronli Sifris (2010). 28 Netherlands Quarterly of Human Rights 523 article

[surrogacy, Australia]  The New Surrogacy Parentage Laws in Australia: Cautious Regulation or “25 Brick Walls”  by Jenni Millbank, Melbourne University Law Review, 35.1 (2011) article

[surrogacy] A Tale of Many Cities: Using Bioethics to Deconstruct Baby Stories from the Wild World of Commercial Surrogacy, by Seema Mohapatra,  Berkeley Journal of International Law (BJIL) article

US:   Reproductive Rights Prof Blog provides US-focused scholarship and news. Subscribe here:

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Compiled by the Coordinator of the International Reproductive and Sexual Health Law Programme,
For Programme publications and resources, see our website.


REPROHEALTHLAW listserve, Oct 22, 2011

October 23, 2011

COURT DECISIONS, NEWS & RESOURCES

COURTS:

Canadian Supreme Court – historic decision for harm reduction – Ministry of Health ordered to exempt Insite (safe injection site for drug users to reduce HIV transmission) from federal drug laws.  Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, Docket  33556
decision online 

CEDAW –  maternal death in Brazil:   Alyne da Silva Pimentel Teixeira (deceased) v Brazil, CEDAW, UN Doc CEDAW/C/49/D/17/2008 (2011)  decision online  Commentary

Mexican Supreme Court dismisses unconstitutionality claim against constitutional amendments in 2 states protecting life from moment of conception. News item

New Zealand Court of Appeal and Supreme Court.  Abortion Supervisory Committee v. Right to Life New Zealand Inc.  [2011] NZCA 246.  Decision online    Commentary

CALLS:

[fellowship] Petrie-Flom Academic Fellowship 2012-2014, Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics,  Harvard Law School, USA, Apply by Nov 14, 2011.  More info

[fellowship] John Peters Humphrey Fellowship in International Human Rights, 2012, for students in Canadian law & political science (or equivalent) faculties. Apply to Nov 15, 2011  More info

[papers] Journal of Health Politics, Policy and Law, special issue on public health law research.  submit paper by Mar 15, 2012. More info

[project funding] Calls for Proposals re funding re sexual/ repro health/rights projects offered by the European Union.  E-neus: Oct 17 edition  online here

EVENTS

(Canada) Reference Re Assisted Human Reproduction Act: Implications of the Supreme Court’s Decision,  symposium, November 4-5, 2011, Bennett Lecture Hall, Flavelle House, Faculty of Law,University of Toronto,Canada.  More info

NEWS:

Indonesia: Safe abortion hotline launched by Women on Waves.  More info

 Mexican president wants change in abortion stance under 1981 Pact of San Jose on Human Rights .  More info

RESOURCES

[abortion] Access to Information on Safe Abortion: A Harm Reduction and Human Rights Approach, by Joanna Erdman, Harvard Journal of Law & Gender, Vol. 34, pp. 413-462, 2011 . online at SSRN
 
[abortion, in Spanish] Special issue on abortion in “Cuestión de Derechos” with articles by Mercedes Cavallo and Paola Bergallo. online here

[access to medicines] IDPC Drug Policy Guide – global evidence & best practices on policy & program design
Executive Summary: English, Arabic, Chinese, Czech, French, ItalianRussian & Spanish
Full text (124 pages): English, French, Spanish, Russian, Georgian & HTML. .

[access to medicines, patents, India] “Freedom under TRIPS: India as an Example. By Cynthia M. Ho, in book: Access to Medicine in the Global Economy: International Agreements on Patents and Related Rights, Oxford University Press, 2011 online at SSRN
 
[access to medicines, patents, Latin America]
—The Influence of the Andean Intellectual Property Regime on Access to Medicines in Latin America, by Laurence R Helfer & Karen J. Atler, in book: Balancing Wealth and Health: Global Administrative Law and the Battle over Intellectual Property and Access to Medicines in Latin America, ed. Rochelle Dreyfuss, César Rodríguez Garavito, 2011. online at SSRN

—-The Rights-Based Approach to Intellectual Property and Access to Medicine: Parameters and Pitfalls, by Smita Narula, in book: Balancing Wealth and Health: Global Administrative Law and the Battle over Intellectual Property and Access to Medicines in Latin America, ed. Rochelle Dreyfuss, César Rodríguez Garavito, 2011.  online at SSRN

[Africa] Health Care Challenges in Africa: Is Millennium Development Goal 8 an Adequate Panacea? (2011 working paper by Obiajulu Nnamuchi  & Simon Uche Ortuanya, suggests solutions to structural/operational difficultlies re international assistance). online at SSRN

[Conscience – individual, institutional]  Whose Conscience Counts? by Elizabeth Sepper, (2011).  working paper online

[homosexuality -Botswana,India,South Africa, US, Zimbabwe] Morality Tales in Comparative Jurisprudence: What the Law Says About Sex by Allison L. Jernow, analyzes use of public morality justifications in constitutional challenges to laws that criminalize same-sex sexual relationships, use of privacy and equality as counter-arguments to morality. AmsterdamLaw Forum, Vol. 3, No. 2, p. 4, 2011 .  online

Legal Perspectives on Gender and Sexual Equality, Amsterdam Law Forum, Vol 3, No 2 (2011). online

[rape] The Crime of Rape Under the Rome Statute of the ICC (with a Special Emphasis on the Jurisprudence of the Ad Hoc Criminal Tribunals) by Nicole Brigitte Maier, Amsterdam Law  Forum, Vol. 3, No. 2, p. 146, 2011 . online 

[same-sex rights] The Miraculous Year 2010 in United States’ Gay Rights Law: Anomaly or Tipping Point? By Arthur S. Leonard,  Amsterdam Law Forum, Vol. 3, No. 2, p. 176, 2011 .  online

Same-Sex Relationships in Europe: Trends Toward Tolerance?  By Ian Curry-Sumner,   Amsterdam Law Forum, Vol. 3, No. 2, p. 43, 2011 .  online

[same-sex marriage] The Institution of Marriage and Other Domestic Relations [re flaws of legalizing same-sex marriage] by Lynn D. Wardle, Amsterdam Law Forum, Vol. 3, No. 2, p. 160, 2011.  online

[sex-trafficking, Africa] Human Slavery’s New Era in Sub-Saharan Africa: Combating the Trafficking of Women and Girls for Sexual Exploitation, Report of Findings for Equality Now-Nairobi (August 13, 2010). By Kimberly Marie Brown   Online.

[sex work – India]  Legal Measures Towards Mainstreaming Indian Sex Workers: Would the Swedish Model Work in India? Working paper by Ankita Gulati online

Sexual And Reproductive Rights: More Than Just Health – analysis of Anand Grover’s report to the UN General Assembly, which  focuses on women’s freedom, decision-making, process, and autonomy – by Sandra Dughman Manzur with Shareen Gokal  Online analysis

Unequal in Exile: Gender Equality, Sexual Identity and Refugee Status(2011). By Dale Buscher,  Amsterdam Law Forum, Vol. 3, No. 2, p. 92, 2011 .  Online

 [VAW during wars] Contextualizing Sexual Violence Committed During the War on Terror: A Historical Overview of International Accountability [evolution of international norms re rape & sexual violence] by Alexa Koenig, Ryan S Lincoln & Lauren Groth. University of San Francisco Law Review, Vol. 45, No. 4, p. 911, 2011. online at SSRN

 US:   Reproductive Rights Prof Blog provides US-focused scholarship and news. Subscribe here.


Brazil: landmark CEDAW decision re maternal death

October 23, 2011

Many thanks to Beatriz Galli, a graduate of our International Reproductive and Sexual Health Law Programme, for preparing this legal comment for the REPROHEALTHLAW listserve.  Beatriz currently works for Ipas Brazil as a Policy Associate for the Latin America and Caribbean regions. 
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Comment on Alyne da Silva Pimentel Teixeira Case: landmark decision for womens human rights related to maternal mortality in Brazil

Committee on the Elimination of Discrimination against Women (CEDAW) Communication No. 17/2008

by Beatriz Galli

On August 10 2001, the Committee on the Elimination of Discrimination against Women (CEDAW) issued its landmark decision on the Communication No. 17/2008. The case was filed by the organization Advocaci – Advocacia Cidada pelos Direitos Humanos and the Center for Reproductive Rights against the state of Brazil on November 30th 2007. This is the first decision establishing states’  international responsibility on preventable maternal death case within the UN Human Rights System.

Alyne da Silva Pimentel Teixeira was twenty years old, was married and had a five-year-old daughter when she died in the state of Rio de Janeiro, on November 16 2002. She was six months’ pregnant when she felt severe nausea and abdominal pain. She was examined in a health center and scheduled two days later for medical tests. Her health situation worsened and she went back and was told that her fetus was dead. 14 hours after she delivered a still birth in a private health facility,  she underwent curettage surgery and became disoriented. With no transportation available, she had to wait 8 hours  to be transferred to a public health hospital, where no beds were available.  She had been left unattended in the hallway of the hospital for 21 hours when she died, due to the lack of appropriate medical treatment and timely emergency obstetric care.

Regarding the merits, the Committee�s decided that her death was a maternal death.  It established: the state�s neglect of its due diligence obligation to ensure appropriate services in connection with pregnancy; the state�s neglect of its duty to regulate and monitor private health care institutions; the state’s failure to address  the multiple forms of discrimination against a woman of African descent and poor socio economic background; and the state’s failure to ensure effective judicial protection for the family. The Committee considered that the state party violated its obligations under article 12 (access to health), article 2 (c) (access to justice), article 2 (e) (states parties’ due diligence obligation to regulate the activities of private health service providers), in conjunction with article 1 (discrimination against women), of the Convention, read together with general recommendations No. 24 and 28 It made several recommendations to Brazil to comply with its international human rights obligations including appropriate compensation to her family, and more generally ensuring women�s rights to safe motherhood and affordable access to emergency obstetric care.
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Scan of this new CEDAW decision: Alyne da Silva Pimentel Teixeira (deceased) v Brazil, CEDAW, UN Doc CEDAW/C/49/D/17/2008 (2011)  Online here

Amicus Curiae Brief by CLADEM:  English version    Portuguese version

Press release from the Centre for Reproductive Rights: online here

Further background from Center for Reproductive Rights: online here

“Invoking Human Rights to Reduce Maternal Deaths,” by Rebecca J. Cook & Maria Beatriz Galli Bevilacqua (January 3, 2004). The Lancet 2004; 363(9402): 73 . Abstract online here.