“Many Paths to Gender Equality” by Rebecca Cook

Congratulations to Prof. Rebecca Cook, whose edited volume, FRONTIERS OF GENDER EQUALITY: TRANSNATIONAL LEGAL PERSPECTIVES, was published in May 2023 by the University of Pennsylvania Press. Professor Cook’s entire introduction to the book is now online, as well as abstracts of each chapter through the Table of Contents below:

Rebecca J. Cook, “Many Paths to Gender Equality,” in Frontiers of Gender Equality: Transnational Legal Perspectives (University of Pennsylvania Press, 2023). (publisher’s page). Introduction now online.

In “Many Paths to Gender Equality,” Rebecca Cook shows how a chorus of voices (25 authors) can introduce new and different discourses about the wrongs of gender discrimination and explain the multiple dimensions of gender equality. The wrongs of discrimination can best be understood from the perspective of the discriminated. The book illustrates how gender discrimination persists and grows in new and different contexts, how it continues to be normalized and camouflaged, and how it intersects with other axes of subordination, such as indigeneity, religion, and poverty, to create new forms of intersectional discrimination. With the benefit of hindsight, the book’s contributors reconstruct gender equalities in concrete situations, including women who were violated sexually and physically, and those needing access to necessary health care, including abortion.

Part I of the book focuses on “Understanding Gender Inequality and Equality.” Part II concerns “Advancing Gender Equality through Human Rights Treaties”. In Part III, entitled “Looking Back to Move Forward,” Chapters 16 through 20 use a “rewriting” process to “envision more fulsome gender equalities” for the future. The authors do so by analyzing and then rewriting historic decisions, documents, and even international policy guidance:

In Chapter 16, “Gender Equality in Health Care: Reenvisioning CEDAW General Recommendation 24,” Joanna N. Erdman and Mariana Prandini Assis observe how Article 12’s goal to eliminate all forms of discrimination against women in the field of health care was interpreted in 1999 through General Recommendation 24 (GR 24), within a particular gender equality paradigm of its era. After careful analysis, the authors propose text for a future general recommendation on gender equality in health care. Abstract of Chapter 16.

In Chapter 20, “Restoring Mai Mapingure’s Equal Citizenship,” Charles Ngwena and Rebecca Cook show how the Supreme Court of Zimbabwe’s 2014 decision in the case of Mai Mildred Mapingure, denied abortion after rape, exemplifies the systemic nature of status subordination that women seeking access to safe abortion may experience, especially in the health care and criminal and justice systems. After analyzing Mai Mapingure’s position as a “gendered citizen” under Zimbabwean constitutions, they rewrite the Supreme Court’s decision in ways that would restore her equal citizenship. Abstract of Chapter 20.

For abstracts of each chapter, see the Table of Contents below:
—————————————————————————————————————–
FRONTIERS OF GENDER EQUALITY:
TRANSNATIONAL LEGAL PERSPECTIVES
ed. Rebecca J. Cook
(University of Pennsylvania Press, 2023)

Foreword by Cecilia Medina Quiroga

Introduction: Many Paths to Gender Equality Full text online.
by Rebecca J. Cook .

Part I. UNDERSTANDING GENDER INEQUALITY AND EQUALITY

1. Faces of Gender Inequality
by Sophia Moreau. Abstract online.

2. Challenging the Frontiers of Gender Equality: Women at Work
by Sandra Fredman. Abstract online.

3. A Prioritarian Account of Gender Equality
by Shreya Atrey. Abstract online.

4. Queer Rights Talk: The Rhetoric of Equality Rights for LGBTQ+ Peoples
by Daniel Del Gobbo. Abstract online.

5. CEDAW Reservations and Contested Equality Claims
by Siobhán Mullally. Abstract online.

6. Gender Equality and the Sustainable Development Goals:
Discursive Practices in Uncertain Times
by Marieme S. Lo. Abstract online.

Part II. ADVANCING GENDER EQUALITY THROUGH HUMAN RIGHTS TREATIES

International Treaties
7. Fifty Years On: The Curious Case of Intersectional Discrimination
in the ICCPR, with a Postscript, by Shreya Atrey. Abstract online.

8. Like Birds of a Feather? ICESCR and Women’s Socioeconomic Equality
by Meghan Campbell. Abstract online.

9. Gender Equality Untethered? CEDAW’s Contribution to Intersectionality
by Loveday Hodson. Abstract online.

Regional Treaties
10. Gender Equality in the European Court of Human Rights
by Stéphanie Hennette Vauchez Abstract online

11. Gender Equality within the Framework of the European Social Charter
by Karin Lukas and Colm Ó Cinnéide. Abstract online.

12. Transformative Gender Equality in the Inter-American System of Human Rights
by Verónica Undurraga. Abstract online.

13. African Gender Equalities,
by Fareda Banda. Abstract online.

14. Advancing Gender Equality through the Arab Charter on Human Rights
by Mervat Rishmawi. Abstract online.  Executive Summary in English.
Panel discussion held Oct 9, 2023.

Part III. LOOKING BACK TO MOVE FORWARD
15. Breathing Life into Equality: The Vishaka Case
by Naina Kapur. Abstract online.

16. Gender Equality in Health Care:
Reenvisioning CEDAW General Recommendation 24
by Joanna N. Erdman and Mariana Prandini Assis.
Portuguese translation of article. Abstract online in English.

17. Equality for Indigenous Women: McIvor v. Canada
by Cheryl Suzack. Abstract online.

18. Gender Equality and the Scope of Religious Freedom in S.A.S. v. France
by Ilias Trispiotis. Abstract online.

19. Institutional Dimensions of Gender Equality: The Maria da Penha Case
by Marta Rodriguez de Assis Machado and Mariana Mota Prado.
Portuguese translation. Abstract online in English.

20. Restoring Mai Mapingure’s Equal Citizenship
by Charles G. Ngwena and Rebecca J. Cook. Abstract online.

Conclusion. Taking Stock of Gender Equality
by Francisca Pou Giménez. Abstract online.

Table of Cases
Table of Legislation, Treaties, and Other Relevant Instruments
Notes
Index
Contributors
Acknowledgments

FRONTIERS OF GENDER EQUALITY: TRANSNATIONAL LEGAL PERSPECTIVES, Ed. Rebecca J. Cook, (University of Pennsylvania Press, 2023) Purchase options: North and South America, Rest of the Worl
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Contributed 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 this blog, then check your email to confirm the subscription.

India: Reimagining Reproductive Rights Jurisprudence

Congratulations to Dipika Jain and Payal Shah, whose 2020 article recently appeared in the Columbia Journal of Gender and Law. Dipika Jain is a Professor of Law and Executive Director of the Centre for Health Law, Ethics, and Technology at Jindal Global Law School. Payal K. Shah, recently acting as Regional Director for Asia at the Center for Reproductive Rights, is now a Reproductive Health Law Fellow in the International Reproductive and Sexual Health Law Program at the University of Toronto’s Faculty of Law. We are pleased to circulate the authors’ abstract and a link to their paper:

“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 K. Shah. Columbia Journal of Gender and Law 39.2 (2020): 1-53. Abstract and article online.

Despite the significant impact of decisions around pregnancy, including abortion, on a woman’s future life and enjoyment of her other human rights, the Indian judiciary has yet to clearly articulate the link between reproductive autonomy and gender equality. In the Puttaswamy decision, the Supreme Court’s recognition of the right to reproductive choice is rooted within the constitutionally protected right to privacy. While the right to privacy has been the basis for ground-breaking judgments on reproductive rights globally, feminist legal theorists have voiced significant critiques as to the limits of privacy, specifically its potential to achieve reproductive autonomy and equality. We explore the applicability of these critiques in India, including concerns voiced by legal scholars regarding the limitations of the right to privacy as a tool for meaningful enjoyment of reproductive autonomy or gender equality as a whole.

The post-Puttaswamy decisions of Navtej Johar [on homosexuality] and Joseph Shine [on adultery] mark a shift in jurisprudence, with the Supreme Court relying on equality-based arguments to reject societal stigmatization and discrimination against the marginalized group in question. In both cases, the court set forth a framework to understand how the rights to privacy, equality, and non-discrimination on the basis of sex and gender intersect. This intersection of rights gives rise to an obligation of states to eliminate laws that reflect discriminatory gender stereotypes, including those pertaining to sexuality. Limits on the right to abortion indirectly or directly marginalize women by controlling their right to bodily autonomy and denying them privacy and equality. Hence, we argue that these cases demonstrate the potential success of arguments for reproductive rights based on equal citizenship.

We first lay out the legal framework and jurisprudence of reproductive rights in India before the Puttaswamy decision. We then explore the benefits of having a constitutionally recognized right to privacy and how it can advance reproductive rights. We also examine the drawbacks of using a privacy-based analysis as a foundation for reproductive rights due to its vulnerability to restriction on grounds of compelling state interest. Further, this we engage with feminist critiques of privacy rights as well as equality-based approaches and argue for a framework that takes into consideration meaningful choice and structural barriers to the exercise of reproductive autonomy. We critically examine judgments from comparative and international law that have a strong basis in the right to equality to reflect on how recognition of reproductive rights as an issue of gender justice—beyond just individual choice—could strengthen Indian reproductive rights jurisprudence. In other words, we argue for a reimagination of reproductive rights within an equality framework. Finally, we conclude that the use of an equality-based framework could significantly benefit pregnant persons’ right to reproductive autonomy.

The full text can be freely downloaded through this webpage.]

RELATED REPORTS by Payal K. Shah:

Securing Reproductive Justice in India: A Casebook, Center for Reproductive Rights, 2019 (co-authored with Mrinal Satish and Aparna Chandra) 520-page casebook, and chapters by topic.

Ensuring Reproductive Rights: Reform to Address Women’s and Girls’ Need for Abortion After 20 Weeks in India, Center for Reproductive Rights, 2018. 56-page report.

Reproductive Rights in Indian Courts, Center for Reproductive Rights, 2016. 4-page briefing.
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REPROHEALTHLAW Updates – Summer 2020

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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.
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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.

“The Gender Injustice of Abortion Laws” by Joanna Erdman

Congratulations to Professor Joanna N. Erdman, now Associate Director of the Health Law Institute at the University of Dalhousie, whose commentary was recently published in Sexual and Reproductive Health Matters (formerly known as Reproductive Health Matters).

Joanna N. Erdman, “The Gender Injustice of Abortion Laws,” Sexual and Reproductive Health Matters 2019; 27(1): 4–8. Abstract and article.

This commentary is a response to Katarzyna Sękowska-Kozłowska’s article on the treatment of criminal abortion laws as a form of sex discrimination under international human rights law through a study of two communications to the UN Human Rights Committee, Mellet v. Ireland and Whelan v. Ireland. The commentary offers a reading of these communications, and specifically the sex discrimination analysis premised on inequalities of treatment among women, as an engagement with the structural discrimination that characterises abortion laws, and as a radical vision for gender justice under international human rights law.

Prof. Erdman concludes that “By focusing on the gender stereotype that anchored the Irish prohibition in Mellet and Whelan, the [UN Human Rights] Committee moved beyond ideas of substantive equality to tackle the structural discrimination that characterises abortion law. These communications are not about comparing women to men, or comparison at all. They concern foremost the use of gender in law to rationalise inequality and injustice. Unconventional in its approach but radical in its vision, the Committee’s engagement with the structural discrimination of the Irish abortion prohibition opens international human rights law to a range of gender injustices. The Committee set out to remake gender from a set of fixed categories and essential identity traits into a source of equality and liberation for all. “Inherent to the principle of … gender equality,” as expressed under CEDAW [Gen Rec 28, para 22], “is the concept that all human beings, regardless of sex, are free to … make choices without the limitations set by stereotypes, rigid gender roles and prejudices.” Mellet and Whelan are important legal precedents for the decriminalisation of abortion as a human rights imperative. Yet they are also case studies in a vision of gender justice under international law.”

Keywords: abortion, discrimination, equality, human rights, International Covenant on Civil and Political Rights (ICCPR), United Nations Human Rights Committee.

“The Gender Injustice of Abortion Laws is available online: Abstract and article.

RELATED RESOURCES:
“A tough job: recognizing access to abortion as a matter of equality. A commentary on the views of the UN Human Rights Committee in the cases of Mellet v. Ireland and Whelan v. Ireland,” by Katarzyna Sękowska-Kozłowska,  Reproductive Health Matters 26.54 (Nov. 2018): 25-31.  Article online.

“Ireland must comply with international human rights obligations, including HRC rulings in Whelan and Mellet cases, by Mercedes Cavallo, LL.M., Reprohealthlaw Blog, January 31, 2018.  Comment online,

Gender Stereotyping: Transnational Legal Perspectives, by Rebecca J. Cook and Simone Cusack (University of Pennsylvania Press, 2010) English edition: about the book. Libro en espanol, 2011, PDF.

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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 – August 2019

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.

COLLOQUIUM:

Overcoming Barriers to Safe Abortion in the African Region, 16-17 January 2020, at the University of Pretoria’s Centre for Human Rights. Details, funding, topics, and Call for Abstracts

DEVELOPMENTS:

El Salvador – Young woman acquitted of aggravated homicide after miscarriage in 2016. Evelyn Hernandez Cruz was released on appeal, July 10, 2019. News report.

Germany: Higher court overturns doctor’s conviction for “advertising” abortion among other health services, in light of recent legal reform. News report, July 3, 2019.

Kenya – Case of “JMM,” a teenager who died in 2015 after botched illegal abortion.  The High Court of Kenya at Nairobi, Constitutional and Human Rights Division, declared that abortion is permitted for rape victims. It also ruled that the Ministry of Health’s 2014 withdrawal of abortion “Standards and Guidelines” and abortion trainings for healthcare professionals, were arbitrary and unlawful. Federation of Women Lawyers (Fida – Kenya) & 3 others v Attorney General & 2 others; East Africa Center for Law & Justice & 6 others (Interested Party) & Women’s Link Worldwide & 2 others (Amicus Curiae) [2019] eKLR, Petition No. 266 of 2015.   Decision of June 11, 2019.   News report.    Press release by Center for Reproductive Rights.

Northern Ireland – U.K. bill to maintain Northern Ireland’s public services during governmental hiatus includes decriminalized abortion and same-sex marriage. Bill was signed into law July 24, 2019, to take effect October 22, 2019. Time Magazine: “After 158 Years.”

United Kingdom: Court of Appeal upholds legality of a buffer zone around a London abortion clinic.  Dulgheriu and Orthova v. the London Borough for Civil Liberties and The National Council for Civil Liberties [2019] EWCA Civ 1490, Case No: C1/2018/1699 Court of Appeal (Civil Division). (Decision of August 21, 2019)  Report by Safe Abortion.

United Nations, International Law Commission, UN 71st session, A/CN.4/L.935 May 15, 2019, adopted new edition of “Crimes against Humanity” treaty, which “removed the outdated definition of gender … [It] affirmed that the rights of women, LGBTIQ persons, and other marginalized groups are protected in international criminal law, which will have ripple effects across national laws and future legal mechanisms for years to come,” according to Jessica Stern et al. New edition of Treaty.

SCHOLARSHIP:

[abortion law, Brazil] “Why is decriminalization necessary?  by the Anis Bioethical Institute (Brasilia, 2019).  The booklet is now available in English, Spanish and Portuguese : scroll down on this webpage.

[abortion law, Chile ] “Criminalisation under scrutiny: how constitutional courts are changing their narrative by using public health evidence in abortion cases,” by Verónica Undurraga, Sexual and Reproductive Health Matters 2019;27(1) DOI: 10.1080/26410397.2019.1620552 Article and abstract

[abortion law, Mexico] “Motherhood or Punishment: The criminalization of abortion in Mexico.” English 57-page report, 2019, English executive summary. Based on “Maternidad o Castigo:  La criminalización del aborto en Mexico,”  (Mexico, GIRE, 2018)  Informe de 72 paginas. 

[abortion law – United Kingdom] “Female Autonomy, Foetal Personhood and the English Legal Stance on Abortion Practice,” by Sahra Paula Thomet, Queen Mary Law Journal 10 (2019): 27-50. Institutional Access.

[abortion pill – Canada] “To Solve Abortion Pill Prescription Problems, We need to Rethink the Prescription Itself” by Professor Joanna Erdman, Dalhousie Law School, July 17, 2019 Newspaper Comment.

[age-of-marriage, Mali] “A commentary on the African Court’s decision in the case APDF and IHRDA v Republic of Mali: why socio-cultural endemic factors of a society could never support arguments based on force majeure” by Giulia Pecorella,  International Law Blog, January 14, 2019.  Comment online. Decision PDF.

“Gender Equality, Norms, and Health” 5-part series in The Lancet Vol. 393 provides new analysis and insights into the impact of gender inequalities and norms on health, and opportunities to transform them. ArticlesGender Equality Norms and Health series.

“Integrating Gender Perspectives  in Gynaecology and Obstetrics: Engaging Medical Colleges in Maharashtra, India,” by Sangeeta Rege,  Padma Bhate-Deosthali, Pravin Shingare, Srinivas Gadappa, Sonali Deshpande, Nandkishore Gaikwad, and Shailesh Vaidya, International Journal of Gynecology and Obstetrics 146 (2019): 132–138    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.
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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.

Korean Constitutional Court holds abortion law unconstitutional

Many thanks to Professor Hyunah Yang of the Seoul National University School of Law, for sharing her insights on this landmark decision of the [South] Korean Constitutional Court (Case No.: 2017Hun-Ba127, KCCR, April 12, 2019) :

Punishment for Abortion will Vanish from Korea’s Criminal Code: the April 2019 Constitutional Court Decision

by Professor Hyunah Yang,
Seoul National University School of Law

On April 11, 2019, the Constitutional Court of Korea held that Articles 269 and 270 of the Criminal Code are not in conformity with the Constitution of the Republic of Korea, by a decision of 4 (not in conformity with the Constitution) to 3 (unconstitutional) to 2 (not unconstitutional). Accordingly, these statutory provisions should be removed or revised, no later than December 31, 2020.

Paragraph 1 of Article 269 of the Criminal Code that has criminally punished abortion in Korea provides that “[A] woman who procures her own miscarriage through the use of drugs or other means shall be punished by imprisonment for not more than one year or by a fine not exceeding two million won” [approximately US$1750].  This Article was first enacted as part of Korea’s inaugural Criminal Code of 1953, and has remained until today with only minor revisions. The majority opinion of the Constitutional Court in the above April 2019 decision held that this Article gravely restricts the women’s right of self-determination without providing proper social remedies to protect the life of the fetus.  The Court also held that it is not in conformity with the Constitution in that the Article forbids almost all abortions, with very narrow exceptions, such as serious congenital diseases, conception due to rape or incest, and danger to the mother’s life, without considering viability of the fetus and its developmental phases.  Article 270, that has criminally punished physicians who perform abortion with the agreement of a pregnant woman, was also held to be not in conformity with the Constitution.

In 2012, the Constitutional Court had rendered a decision on the same provisions, holding them to be constitutional, in that the right to life should be weighed much more heavily than “women’s right of self-determination.” The dichotomy between these two rights sways in the recent decision.  However, it is notable that the Constitutional Court paid great attention to the closely integrated relation between the two subjects, mother and fetus, although they are separate beings. In this special relationship, the fetus entirely depends on the mother, and the welfare of the mother is largely congruent with that of the fetus. Giving birth and child-rearing are fundamental to the life of a woman and, thus, her decision to continue or discontinue a pregnancy takes entire aspects of her existence into consideration, and, as such, her decision should be respected.

The reasoning of the Constitutional Court in the April 2019 decision almost exactly echoes what feminist scholars have claimed for the last couple of decades, accommodating women’s position regarding pregnancy-related conflicts. Pursuant to this Court’s decision, the legislature should revise relevant legal provisions so that a pregnant woman may have a lawful abortion within the period up to the 22nd week of her pregnancy.

However, there is an unclear point in the reasoning of the Court, concerning the very constitutional nature of the abortion right. Abortion is a medical, physical, ethical and social experience, and a gender “difference” issue that no male person faces. The Court ought to construct the abortion right in terms of equal rights between genders in this regard. Basing the Court’s rationale solely on the notion of the right to self-determination under Article 10 of the Constitution which is about the ‘dignity of human being’ and the ‘right to pursue happiness’ neither considers the right to gender equality nor addresses the specificities of the nature of abortion rights.

Compared with other areas of feminist movements in Korean society, the cause of abortion has not been salient until recently.  This is, I surmise, because women in Korea could and did obtain illegal abortions anyways. Despite the Criminal Code sanctioning abortion, the number of abortions per woman in Korea has been estimated to be higher than that in the United States, especially during 1980s and 1990s, although there have been no official statistics about the illegal activities.

The high estimate, however, does not signify the realization of women’s self-determination.  Rather, it was more like a sign of their vulnerability. Most abortions in Korea were performed due to family planning, preference for sons over daughters, the unmarried status of the mother, poverty or other socio-economic reasons. For many women, abortion has been ‘the last resort’ in the absence of proper contraceptives, which implies insufficient information and power to control unwanted pregnancy.  During the 1970s and the 1980s, as one of the late-developing countries, Korea’s governmental control of reproduction of the population through family planning was “the invisible hand” in women’s choosing abortion. This explains the rarity of actual criminal punishment of abortion so far. Thus, the notion of women’s choice has been a very confusing notion in this regard in Korea.

In recent years, the heightened awareness of rights to sexuality, sexual self-determination, reproductive rights and the right to health among younger generations represent notable changes.  Amid transnational phenomena such as the Polish ‘Black Friday’ and the Irish abortion referendum, there have been large scale pro-abortion demonstrations in Korea since 2016. ‘Action for Safe Abortion for All,’ an organized advocacy group, has highlighted the importance of abortion rights for minorities such as teenagers, sex workers, individuals with disabilities, and marriage-migrants.  

In order to meet these demands, not only the legislative body but also state administrative bodies such as the ministries of Welfare, Gender Equality, Labor and Education, ought to build policies that will guarantee reproductive rights, which should include education about sexuality and contraceptives, legal design for lawful abortions, universal support for access to medical information and services, and special support for minorities, not only for discontinuation but also for continuation of pregnancy. This would amount to a paradigm shift for Korea from the state of commodity-production to the state of human life-reproduction. Still, the government of Korea and its legislature could choose to interpret this decision of the Constitutional Court narrowly, by amending only the invalidated provisions of the Criminal Code and the Mother and Child Health Act.
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RELATED RESOURCES:

Republic of Korea [South Korea], Constitutional Court (Case on the Crime of Abortion, Apr 11, 2019 / Case No. : 2017Hun-Ba127, KCCR) Official translation.
Court’s own summary in English.  
BBC News report.

Woong Kyu Sung, “Abortion in South Korea: The Law and the Reality,”   International Journal of Law, Policy and the Family 26.3 (2012): 278–305.  [reviews abortion law, policy, jurisprudence and incidence before Constitutional Court rulings of 2012 and 2019.] Abstract and Article.

“The 30th anniversary of the Constitutional Court of Korea” was recently commemorated in an I-CONnect Symposium convened by Prof. Kyu Ho Youm (Introduction). In Part III, Stanford law student Yoomin Won mentions two gender equality decisions that take note of CEDAW.  Part III: Influence of International Human Rights Law.
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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. 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.

The Conscience Wars: Rethinking the balances between religion, identity, and equality

Congratulations to the authors and editors of a new book,  The Conscience Wars: Rethinking the Balance between Religion, Identity, and Equality, ed. Susanna Mancini & Michel Rosenfeld (Cambridge Univ. Press, 2018)  Institutional Access. 

The book responds to “the greater demand for religions exemptions to government mandates. . . . [T]oday’s most notorious objections impinge on the rights of others, targeting practices like abortion, LGTBQ adoption, and same-sex marriage. The dramatic expansion of conscientious objection claims have revolutionized the battle between religious traditionalists and secular civil libertarians, raising novel political, legal, constitutional and philosophical challenges. Highlighting the intersection between conscientious objections, religious liberty, and the equality of women and sexual minorities, this volume showcases this political debate and the principal jurisprudence from different parts of the world and emphasizes the little known international social movements that compete globally to alter the debate’s terms.”

We are pleased to circulate the Table of Contents below.  Chapters 7, 14 and 15, marked with an asterisk, are abstracted in our annotated bibliography on “Conscientious Objection / The Right to Conscience.”

Table of Contents

Introduction, by  Susanna Mancini, Michel Rosenfeld     Institutional Access .

Part I – Conscientious Objection in a Constitutional Democracy

1 – Conscience and Its Claims, by Julie Saada and Mark Antaki,    Institutional Access.

2 – The Conscience Wars in Historical and Philosophical Perspective, By Michel Rosenfeld,  Working Paper at SSRN.      Institutional Access .

3 – Conscientious Objections,  by Bernhard Schlink,     Institutional Access .

4 – Egalitarian Justice and Religious Exemptions, by Cécile Laborde,    Institutional Access .

5 – Is There a Right to Conscientious Objection?   By Lorenzo Zucca,    Institutional Access .

6 – Affect and the Theo-Political Economy of the Right to Freedom of “Thought, Conscience and Religion”  by Marinos Diamantides,    Institutional Access .

Part II – Conscientious Objection or Culture Wars?

*7 – Conscience Wars in Transnational Perspective by Douglas NeJaime, Reva Siegel.  Proofs online at Yale.   Working draft at SSRN.     Institutional Access .

8 – Transatlantic Conversations, by Susanna Mancini and Kristina Stoeckl,  Abstract and Proofs at SSRN.     Institutional Access .

9 – The Geopolitics of Transnational Law and Religion, by Pasquale Annicchino,    Institutional Access .

Part III – Objecting to Antidiscrimination Laws in the Name of Mainstream Religious Convictions

10 – Objections to Antidiscrimination in the Name of Conscience or Religion, by Eva Brems.  Abstract and Working paper at SSRN.     Institutional Access .

11 – The Role of the European Court of Human Rights in Adjudicating Religious Exception Claims, by Helen Keller and Corina Heri,     Institutional Access .

12 – When Do Religious Accommodations Burden Others? by  Nelson Tebbe, Micah Schwartzman, and Richard Schragger    Abstract and working paper at SSRN.     Institutional Access .

Part IV – Conscience, Accommodation and Its Harms

13 – The Missing Children in Elite Legal Scholarship, by Marci A. Hamilton     Institutional Access .

*14 – Religious Refusals and Reproductive Rights, by Louise Melling,   Abstracted  in Conscience Bibliography.     Institutional Access .

*15 – Seeking to Square the Circle:  Conscientious objection in Reproductive Healthcare by Emmanuelle Bribosia and Isabelle Rorive, Abstract and working paper.      Institutional Access .

16 – Marriage Registrars, Same-Sex Relationships, and Religious Discrimination in the European Court of Human Rights, by Christopher McCrudden     Institutional Access.

Part V – Concluding Perspectives on the Conscience Wars

17 – Mission Still Impossible, by Stanley Fish     Institutional Access .

18 – The Politics of Religion, by Robert Post.     Institutional Access .

USEFUL LINKS:

The Conscience Wars: Rethinking the Balance between Religion, Identity, and Equality, ed. Susanna Mancini & Michel Rosenfeld (Cambridge Univ. Press, 2018)  Publisher’s website and Institutional Access to all chapters.

Annotated Bibliography on the Right to Conscience, and Conscientious Objection, updated May 9, 2019, is 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.

Uruguay: Gender stereotypes in the abortion law

Congratulations to Lucía Berro Pizzarossa, LL.M., a doctoral candidate in International Law at the Faculty of Law, University of Groningen, The Netherlands, who has published several articles about abortion law.  We are pleased to circulate the abstract of her latest article, and links to some others by the same author.

Lucía Berro Pizzarossa,‘“Women are Not in the Best Position to Make These Decisions by Themselves”: Gender Stereotypes in the Uruguayan Abortion Law’ (2019) University of Oxford Human Rights Hub Journal 25-54.  Article online.

Abstract:     Efforts to protect women’s rights can cast dark shadows. Dangerous and often unnoticed stereotypes can motivate and infiltrate legal reforms. Recent changes to the law on abortion in Uruguay have been held out as a best practice model in South America.  Recognising the power of the law to shape our understandings of how people are and should be, this article aims to unpack the stereotypes on women seeking abortions in the Uruguayan legal discourse and map how the law on abortion gives legal force to these harmful stereotyped ideas.  This article analyses the parliamentary proceedings on the Voluntary Termination of Pregnancy Act. It asks: Do the debates on abortion in Uruguay reveal a cultural shift? Do members of parliament’s arguments hinge on harmful stereotypes?

In asking these questions, this article explores the extent to which a fairly liberal and widely praised domestic abortion law complies with the national and international human rights obligations to eradicate harmful gender stereotypes. Mining the rhetoric used in the parliament debates reveals the stereotyped images of women that seek abortion services that—rather than reflecting the true complexity and diverse experiences of women that seek abortion—are grounded in women’s perceived degree of deviance from gendered stereotypes, particularly those surrounding motherhood. Uruguayan abortion law, while seemingly protecting women’s rights, in fact hinges on traditional gender attitudes and stereotypes. This article provides the foundations to further develop sophisticated legal and political strategies for fulfilling women’s sexual and reproductive health and rights.

Other articles authored by Lucía Berro Pizzarossa:

“Here to Stay: The Evolution of Sexual and Reproductive Health and Rights in International Human Rights Law,” by Lucía Berro Pizzarossa, Laws, 7.3 (2018): 1-17. Open Access Article.

“Realising the right to sexual and reproductive health: Access to essential medicines for medical abortion as a core obligation.” by Katrina Perehudoff, Lucía Berro Pizzarossa and Jelle Stekelenburg BMC International Health and Human Rights, 18.1 (2018) [8 pages]. Article online.

“Legal barriers to access abortion services through a human rights lens: the Uruguayan experience,” by Lucía Berro Pizzarossa, Reproductive Health Matters 26:52(2018): 151-158.  Abstract and article.

“Global Survey of National Constitutions: Mapping Constitutional Commitments to Sexual and Reproductive Health and Rights,” by Lucía Berro Pizzarossa and Katrina S. Perehudoff,  Health and Human Rights 19.2 (2017): 279-293. Abstract and Article.  Also published in Healthcare as a Human Rights Issue: Normative Profile, Conflicts and Implementation, ed. Sabine Klotz, Heiner Bielefeldt, Martina Schmidhuber, Andreas Frewer (Bielefeld, Germany:  Transcript Verlag, 2017) 321-346  Open Access chapter.

See also:
Gender Stereotyping: Transnational Legal Perspectives, by Rebecca J. Cook and Simone Cusack, (University of Pennsylvania Press, 2010),  Book in English.
Spanish edition online: PDF

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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.

“What is Africanness?” Contesting nativism in race, culture and sexualities, new book by Prof. Charles Ngwena

Congratulations to Professor Charles G. Ngwena from the Centre for Human Rights, Faculty of Law, University of Pretoria, whose peer-reviewed monograph is now freely available for download through the open-access Pretoria University Law Press.

Charles Ngwena,  What is Africanness?  : Contesting nativism in culture, race and sexualities,  (Pretoria University Law Press (PULP), 2018) 306 pages.     Download free PDF or order paperback.

This important book contributes to the ongoing scholarly conversation about who is African and what is African.  It aims to implicate a reductive sameness in the naming of Africans (‘nativism’) by showing its teleology and effects, then offers an alternative liberating and decentred understanding of Africa as the land of diverse identifications.   As the author states in the opening chapter: “The intention of this book . . . is to offer a discourse on how Africans can name themselves in the present and in the future without succumbing to nativist impulses requiring a homogeneous past and establishing a transcendental ontology as essential elements of Africanness.  The book seeks to develop a plausible account of African identifications, but ultimately leaves the question Who/what is African? open to debate.”  (p.17)  Accordingly, the book ends with an epilogue, rather than a conclusion.

The book has three major parts:

1: BACKGROUND TO THE HERMENEUTICS OF HETEROGENOUS AFRICANNESS

2: AFRICANNESS, RACE AND CULTURE

3: HETEROGENEOUS SEXUALITIES
The third part of the book “comprises three chapters organised around interrogating representations of African sexualities and ultimately suggesting a philosophical way forward in the manner sexual citizenship is contested.” (p. 14)  The REPROHEALTHLAW Blog is pleased to circulate brief overviews of these chapters, as excerpted from the author’s introduction to the book:

Chapter 6.   Representing African Sexualities: Contesting Nativism from Without     PDF online 
This chapter “speaks to nativism from without. It highlights that narratives which represent African sexualities should always be understood as being culturally and historically situated. They are representations constructed within the knowledge and power system(s) of a given polity at a particular historical time and location, together with a social and political dynamics for social stratification, domination and status subordination. The chapter uses the representation of African sexualities in colonial discourses to make this point. I do not argue that colonial discourses tell us everything we need to know about African sexualities or that, historically, they are the single most important archive on the representation of African sexualities.
“Rather, the value of colonial discourses lies in their stubbornly persistent power, which continues to summon ‘Africans’ into place. In many ways, the construction of stereotypical representations of African sexualities is anchored in the nativisation of African cultures by colonial discourses. The argument in this chapter draws in part on Edward Said’s ‘orientalism’ and Mahmood Mamdani’s ‘nativism’. The works of Said and Mamdani serve as important resources in implicating ‘surface regularities’ in colonial discourses and their effects in typologising Africans as ‘natives’.
“I argue in this chapter for the importance of understanding the representation of Africanness in colonial discourses as an effect of the construction of colonial whiteness.”  (pp. 14-15)

Chapter 7.  ‘Transgressive’ Sexualities:  Contesting Nativism from within and Overcoming Status Subordination.      PDF online
“[F]rom time to time, ‘African values’ are invoked by political and cultural authorities to continentalise sexuality and to prescribe a regimented and homogenised African sexuality that specifically excludes sexualities outside heterosexuality and, more specifically, delegitimises non-heteronormative and same-sex sexualities. I advance counter-arguments to the legitimacy of claims that heterosexuality is the only culturally acceptable sexuality for Africans. The chapter develops a framework for recognising diversities of sexuality in ways that are informed by a transformative understanding of sexuality and, ultimately, of an inclusive equality. The framework seeks to deconstruct scripted knowledge about sexuality in order to build an understanding that reveals the complexity, diversity and ultimately political nature of sexuality. I argue that recognising difference in the realm of sexuality requires a radical epistemology that is capable of moving beyond the raw physicality of the body, the genitalia, biological impulse and a capacity for language in order to take cognisance of how sexuality is socially constructed in historical time and place. Necessarily, representations of African sexualities ought to acknowledge that norms and frameworks which give coherence to heterosexuality and its congruent gender binaries are but one cultural variant that exists in juxtaposition with pluralistic articulations of sexualities.” (pp. 15-16)

Chapter 8. Mediating Conflicting Sexuality Identifications through Politics and an Ethics of Pluralism.   PDF online.
This chapter “concludes Part 3 with a discussion of how we might mediate conflicting sexuality identifications through first promoting an understanding of the politics and ethics of pluralism. The discussion is predicated on an assumption, regardless of contradictory praxis, that African states in their independence as well as post-independence constitutions formally commit themselves to political pluralism. Against this backdrop the overarching premise is that in political communities committed to liberal democracy, differences are an ordinary part of our political lives.  Even if we agree as to how we should be governed and share political space, it is not necessary or warranted that we should also reach agreement on all moral issues, including conceptions of our sexual and reproductive selves.
“Chapter 8 builds its arguments partly by appropriating to the concept of ‘equality’ two political notions: the notion of an ‘overlapping consensus’ as advocated by John Rawls, and the notion of ‘dissensus’ as advocated by Nicholas Rescher.  In part the chapter builds its arguments by linking equality with participatory democracy using mainly Iris Young’s argument for recognising difference in a heterogeneous public in which there is mutual recognition between different sexuality identifications, and Hannah Arendt’s concept of citizenship in a plural political community.
“The main thesis in Chapter 8 is that overcoming an impasse which arises where there is strong communitarian opposition to a given sexuality does not lie in dismissing such opposition as without a rational political foundation. Rather, it lies in accepting the legitimacy of the opposition through a democratic polity that  is committed to non-hierarchical inclusiveness and relations of cooperation in matters of moral and religious controversy.”   (pp. 16-17)

Download free PDF book or order paperback from the Pretoria University Law Press.

“African Rights Talk”: 2019 Interview with Prof. Charles Ngwena about this book:  26-minute podcast

Recent publications by Prof. Charles Ngwena:
“Reproductive Autonomy of Women and Girls under the Disabilities Convention.”  International Journal of Gynecology and Obstetrics. 140.1 (Jan. 2018): 128-133.  Article abstract.

“Taking Women’s Rights Seriously: Using Human Rights to Require State Implementation of Domestic Abortion Laws in African Countries with Reference to Uganda,” Journal of African Law 60.1 (Feb 2016): 110-140.   Article abstract

“Human Rights Advances in Women’s Reproductive Health in Africa” by Charles G. Ngwena, Eunice Brookman-Amissah,  and Patty Skuster,  International Journal of Gynecology and Obstetrics 129.2 (May 2015): 184-187.    Article download from SSRN.  Article online.

“Reforming African Abortion Laws and Practice: The Place of Transparency,” (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) Article abstract.

“Conscientious Objection to Abortion and Accommodating Women’s Reproductive Health Rights: Reflections on a Decision of the Constitutional Court of Colombia from an African Regional Human Rights Perspective.” Journal of African Law, 58 (2014): 183-209. Article abstract.

“A Commentary on LC v Peru: The CEDAW Committee’s First Decision on Abortion.” Journal of African Law, 57.2 (Oct 2013): 310-324;   available online here.”  Abstract online.

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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.

Argentina: Historic opportunity to legalize abortion

 

Many thanks to Mercedes Cavallo, a doctoral student at the University of Toronto’s Faculty of Law, for updating REPROHEALTHLAW subscribers about current developments in her home country of Argentina, based on the Opinion piece she published in Clarin, a Spanish periodical, on March 10, 2018. Op-ed  in Spanish. 

In Argentina, since 1921, abortion is only legal when the health or life of the woman is in danger, or when the pregnancy results from rape. Although efforts to guarantee access to legal abortion under these three grounds were implemented in the last decade, estimates show that between 370,000 and 520,000 clandestine abortions are performed annually in Argentina. Unsafe illegal abortion has been the leading cause of maternal morality for the past 30 years, amounting to an annual average of 47 maternal deaths due to unsafe abortion.
This year, after six failed attempts to make the Congress debate a bill to decriminalize and legalize abortion on request until the 14th week of gestation, a bill is finally being debated. During April and May 2018, public hearings are being held, where speakers in favour and against the bill present their viewpoints before legislators. After that, the bill will be formally debated in Congress. Hopefully, by the end of the year, Argentina will join the group of countries that respect reproductive and sexual rights.

In her Opinion piece entitled “Aborto legal, oportunidad histórica,” Mercedes Cavallo cogently argues that the parliamentary debate should not hinge on personal opinions about the morality of the practice. Instead the Argentine Congress should focus on whether abortion should remain criminalized or not. Given the practical absurdity of prosecuting 370,000 to 520,000 women and their helpers as criminals every year, and the State’s longstanding commitments to non-discrimination and gender equality under international law, she argues that Argentina should decriminalize abortion under 14 weeks’ gestation to honor the republican principle of equality.

The Opinion piece by Mercedes Cavallo, published in Clarin, March 10, 2018 is online here in Spanish.

An updated Spanish version is online here. Revised Spanish op-ed.