REPROHEALTHLAW Updates – Oct 2019

October 31, 2019

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DEVELOPMENTS:

Australia – Abortion decriminalized September 26, 2019. New South Wales (NSW), the last remaining state where it was illegal, legalized abortion up to 22 weeks for any reason, and up to birth with medical committee review. BBC Report.

[homosexuality] “Botswana High Court decriminalizes homosexuality. Letsweletse Motshidiemang v Attorney General,[2019] MAHGB-000591-16, Decision of June 11, 2019. (High Court of Botswana). Decision online.   Case comment by Kutlwano Pearl Magashula, Other African court cases from our “Legal Grounds” series.

Mexico: Supreme Court abortion ruling upholds human right to health in the case of “Marisa”/”Jane Doe”:  Suprema Corte de Justicia de la Nación, Primera Sala, Amparo en Revisión 1388/2015  May 15, 2019. Decision in Spanish.   English translation. Videos from Harvard conference with 2 Mexican SC judges. Expert blogposts by Court clerks: Adriana Ortega on “risk to health” in the decision; David García Sarubbi: on Fundamental right to health and judicial review; Patricia del Arenal Urueta, on “Rights” discourse in Mexico. Estefanía Vela Barba, LL.M., comments on gender perspective, international law, and a path to decriminalization. Overview of these resources.

[Northern Ireland] Sarah Ewart v  NI Departments of Justice and Health, October 3, 2019. (High Court of Belfast)  Court followed the ruling of the UK Supreme Court  that  Northern Ireland  abortion law is incompatible with ECHR Article 8 in relation to fatal foetal abnormality (“FFA”).  Court also ruled that applicant Ms Ewart has standing to bring a challenge to the current legislation.  Official summary

[Northern Ireland] Abortion decriminalized by the United Kingdom, October 22, 2019, in absence of devolved Northern Irish government. Regulations for abortion provision must be in place by March 2020. Same sex weddings also legalized. First weddings in February 2020. BBC report.

[Tanzania, child marriage] Attorney General vs Rebeca Z. Gyumi (Civil Appeal No.204 of 2017) [2019] TZCA 348; (23 October 2019) High Court of Appeals upheld 2016 decision that Third party consent to marriage of girls under 18 is unconstitutional.] 52-page Decision onlineBlog about 2016 decision. Article about 2016 decision.

SCHOLARSHIP

[abortion and human rights] “Extending the Right to Life Under the International Covenant on Civil and Political Rights: General Comment 36,” by Sarah Joseph, Human Rights Law Review 19.2 (June 2019): 347–368. Institutional access.

[abortion law, Ireland] “The Last Holdout: Ireland, the Right to Abortion and the European Federal Human Rights System” by Federico Fabbrini. iCourts Working Paper Series, No. 142, 2018. Abstract and article.

[abortion law, Ireland] “‘The Only Lawyer on the Panel’: Anti-Choice Lawfare in the Battle for Abortion Law Reform,” by Fiona de Londras and Máiréad Enright. Forthcoming in Kath Browne & Sydney Calkin, “After Repeal: The Future of Women’s Reproductive Rights” (Zed Books, 2019) Submitted text.

[abortion law, Mexico] “The Mexican Supreme Court’s latest abortion ruling:  In between formalities, a path to decriminalization.” by Estefanía Vela Barba, Reprohealthlaw Commentaries Series, October 31, 2019.  Full comment

[abortion law, Mexico and Latin America] “Abortion Battles in Mexico and Beyond: The Role of Law and the Courts,” proceedings of conference by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School, held October 4, 2019, Videos of all presentations

[African sexual, racial and cultural diversity] Charles Ngwena interviewed on Africa Rights Talk: Aug. 19, 2019: (26-min. podcast) about his book, What is Africanness? : Contesting nativism in culture, race and sexualities (Pretoria University Law Press (PULP), 2018) 306 pages. Download Free PDF or order paperback.

[child marriage, Tanzania] “The analysis of child marriage and third party consent in the case of Rebeca Z. Gyumi v Attorney General Miscellaneous Civil Case no 5 of 2016 Tanzania High Court at Dar es Salaam,” by Norah Hashim Msuya, Ph.D, [2019] De Jure Law Journal 52 (2019): 295-315 Article online.

[conscience] “Selective Conscientious Objection in Healthcare, by Christopher Cowley in The New Bioethics 25.3 (2019): 236-247 ( Part of a special issue on Conscience in Healthcare) Abstract and Article.

“Post-abortion care:  Ethical and Legal Duties,” by Bernard M. Dickens, International Journal of Gynecology and Obstetrics 2019; 147: 273–278.   PDF at Wiley Online.    Submitted text at SSRN. FIGO guidelines and other resources.

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


Mexican Supreme Court’s abortion ruling affirms the human right to health

October 31, 2019

Many thanks and congratulations to Estefanía Vela Barba,* whose summary and analysis of the latest Mexican Supreme Court abortion ruling** is now published in our Reprohealthlaw Commentaries series, online here.

[Cite as:]    Estefanía Vela Barba, “The Mexican Supreme Court’s latest abortion ruling:  In between formalities, a path to decriminalization.”  Reprohealthlaw Commentaries Series, October 31, 2019.  Full comment

In the initial summary, Estefanía states that “the Court’s First Chamber held that denying women access to abortion violates their right to health.”
She then explains how by adopting a “gender perspective,” the Court overcame the usual “indirect discrimination” against pregnant women through amparo proceedings, which usually come to trial long after the injustice becomes irreversible or irrelevant.  This insight allowed consideration of the merits of the case.

In this case, she notes, “The Court conceptualized a robust right to health, relying both on constitutional and international law provisions [such as the San Salvador Protocol and CESCR’s General Comment No. 14.] to flesh it out.    Using this framework, the Court held that:

‘if a health condition – be it physical, mental or social–  appears or worsens with the pregnancy for causes directly or indirectly related to it, this state of health is sufficient to consider the interruption of the pregnancy as a therapeutic action aimed at solving the risk of a pregnant woman progressing towards a more serious health condition.’     [para 103]

Denying such a therapeutic action is denying women their right to health.”   Thus, the Court concluded that, although Mexico’s “General Health Law did not explicitly contemplate access to abortion, health authorities must  ‘apply and interpret the provisions of its regulatory framework to make them compatible’ with the right to health, thus understood. Given that authorities failed to do so, and denied the plaintiff access to abortion, the Court deemed that they violated her right to health.”

Although the ruling “did not explicitly deem abortion criminalization unconstitutional . . .  it certainly laid the groundwork for it.”  In the case of “Marisa,” the refusal of therapeutic abortion was based on the General Health Law, so the Court ignored the role played by criminalization of abortion.  Therefore, Estefanía concludes, “It seems that in order for the Court to apply its right-to-health framework to criminal law, it needs to be presented with a case in which criminal law is explicitly invoked.”
Estefanía Vela Barba’s full case comment is online here.
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Adriana Ortega Ortiz, LL.M., Director of the Supreme Court’s Gender Equality Unit served as Court Clerk for this case,  has explained “How to understand the Mexican Supreme Court’s decision regarding abortion based on health risks,” (Explanation online),  and also translated the ruling into English (translation online.)   

This English translation has fostered international legal discussion.  At the Harvard Law School’s recent conference on “Abortion Battles in Mexico and Beyond: The Role of Law and the Courts,” two of the Supreme Court judges, Justice González Alcántara and Justice Gutiérrez Ortiz Mena, delivered keynote addresses in English, amid presentations by other experts (e.g., on abortion ban in El Salvador).  Videos online.

Two other clerks of the Supreme Court of Mexico have published insights from other perspectives:
—–David García Sarubbi, “The Fundamental Right to Health and Judicial Review in México”
—–_Patricia del Arenal Urueta, “Amparo en Revisión 1388/2015 and the “Rights” Discourse in Mexico
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* Estefanía Vela Barba holds an LL.M. from the Yale Law School, where she is currently developing her doctoral research. She is also Executive Director of Intersecta, a feminist research and advocacy organization committed to ending gender discrimination in Mexico, through the promotion of intersectional and evidence-based policies.
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** Suprema Corte de Justicia de la Nación, Primera Sala,  Amparo en Revisión 1388/2015 [Case of “Marisa”/”Jane Doe”]  May 15, 2019.  Decision in Spanish.    English translation  now on updated Abortion Law Decisions webpage.
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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.


“Post-abortion care: Ethical and Legal duties”

October 31, 2019

Congratulations and thanks to Bernard M. Dickens, Professor Emeritus of Health Law and Policy at the University of Toronto’s law school, whose concise article about the new FIGO guideline has just appeared in the International Journal of Gynecology and Obstetrics‘ special section on Ethical and Legal Issues in Reproductive Health. We are pleased to circulate the author’s abstract:

“Post abortion care: Ethical and Legal duties,” International Journal of Gynecology and Obstetrics 147 (Nov. 2019) 273-275   PDF at Wiley Online for 12 months.    Submitted text at SSRN

Abstract: Women who experience complications from abortion, whether unlawful or lawful, induced or spontaneous, need immediate post-abortion care. Delay in providing care might cause women’s avoidable disability, lost childbearing capacity, or death. Rendering care is not an abortion procedure nor illegal, and does not justify conscientious objection. Harm reduction strategies to reduce effects of unsafe abortion may legitimately inform women who might consider resort to abortifacient interventions of their rights to professional post-abortion care. Healthcare practitioners’ refusal or failure to provide available care might constitute ethical misconduct and attract legal liability, for instance for negligence. States are responsible to ensure healthcare practitioners’ and facilities’ provision of post-abortion care, including both medical care and psychological support, delivered with compassion and respect for dignity, and to suppress stigmatization of patients and/or caregivers. Mandatory reporting of patients suspected of criminal abortion violates professional confidentiality. States’ failures of indicated care might constitute human rights violations.

KEYWORDS: Abortion; Conscientious objection; Induced abortion; Lawful abortion; Post-abortion care; Spontaneous abortion; State responsibility.

PDF at Wiley Online for 12 months.    Submitted text at SSRN

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RELEVANT RESOURCES:
FIGO Committee Statement: “Ethical responsibilities in post‐abortion care,” International Journal of Gynecology and Obstetrics 146. 3 (Sept 2019): 269-270. FIGO Post-abortion care Guidelines.

The Philippines’ new post-abortion care policy, by Melissa Upreti and Jihan Jacob, International Journal of Gynecology and Obstetrics 141.2 (May 2018): 268-275  PDF at Wiley onlineSubmitted text online at SSRN.  

The Philippines rolls back recent advancements in Postabortion Care policy” by Melissa Upreti and Jihan Jacob, International Journal of Gynecology and Obstetrics 142 (August 2018): 255–256 PDF at Wiley online.  Submitted text at SSRN.
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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 SeriesTO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of our blog, then check your email to confirm the subscription.


Malawi: The duty to make abortion law transparent

January 14, 2019

Congratulations to Godfrey Dalitso Kangaude, LL.M., a doctoral candidate in Law at the University of Pretoria, and Dr. Chisale Mhango, former Director of Reproductive Health Services in Malawi’s Ministry of Health, for their recent publication in the International Journal of Gynecology and Obstetrics.   We are pleased to circulate the abstract and links below:

Godfrey Dalitso Kangaude and Chisale Mhango, “The duty to make abortion law transparent: A Malawi case study,” International Journal of Gynecology and Obstetrics 143.3 (Dec. 2018): 409–413     PDF at Wiley onlineSubmitted text at SSRN.

Abstract:    Despite adopting a progressive legal and policy framework informed by internationally recognized human rights norms and values, Malawi has not complied with the obligation to explain its abortion law in accordance with legal and human rights standards. In 1930, the colonial government adopted a Penal Code derived from English criminal law, containing provisions regulating access to abortion, but has not undertaken measures to explain when abortion is lawful. What constitutes legal abortion has never been clarified for health providers and potential clients. Consequently, eligible girls and women fail to access safe and legal abortion. The Malawi Law Commission, following its review of the colonial abortion law, has proposed liberal changes which, if implemented, would expand access to safe abortion. However, the immediate step the government ought to take is to clarify the current abortion law, and not to wait for a new law expected to materialize in the indeterminate future.

Keywords: abortion law in Malawi, Colonial abortion law, Health and human rights, Implementing abortion law, Lawful abortion, Transparency in abortion law

Download this publication here: free access for only 12 months.
Submitted typescript, before publication:  is available here at SSRN.

Related resources:

Charles G. Ngwena, “Reforming African Abortion Laws and Practice: The Place of Transparency” 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 166-186, notes 419-422.      Article abstract online.   Abortion Law book Table of Contents and abstracts.   Book in Spanish.

“Achieving Transparency in Implementing Abortion Laws” by R.J. Cook, J.N. Erdman and B.M. Dickens (2007) 99 International Journal of Gynecology and Obstetrics 157-161.  Article and abstract online.

88 other concise IJGO articles on Ethical and Legal Issues in Reproductive Health 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.

 


Understandings of self-managed abortion as health inequity, harm reduction and social change

January 14, 2019

Congratulations to Joanna N. Erdman, Kinga Jelinska and Susan Yanow, whose commentary was published in November issue of Reproductive Health Matters entitled “SRHR for all? Exploring inequities within countries.”  Professor Erdman is  Associate Director of the Health Law Institute at the University of Dalhousie; Kinga Jelinska, a cultural anthropologist, works with Women Help Women; and Susan Yanow, founding executive director of the Abortion Access Project, consults with non-governmental organizations.  We are pleased to circulate the abstract:

Joanna N. Erdman, Kinga Jelinska & Susan Yanow (2018): Understandings of self-managed abortion as health inequity, harm reduction and social change, Reproductive Health Matters 26.54 (Nov. 2018): 13-19.   Article online.

“This commentary explores how self-managed abortion (SMA) has transformed understandings of and discourses on safe abortion and associated health inequities through an intersection of harm reduction, human rights and collective activism. The article examines three primary understandings of the relationship between SMA and safe abortion: first SMA as health inequity, second SMA as harm reduction, and third SMA as social change, including health system innovation and reform. A more dynamic understanding of the relationship between SMA, safe abortion and health inequities can both improve the design of interventions in the field, and more radically reset reform goals for health systems and other state institutions towards the full realisation of sexual and reproductive health and human rights.”

The full text of this 6-page article is online here.

Related Resources:

Reproductive Health Matters 26.54  “SRHR for all? Exploring inequities within countries.”  (Nov. 2018)  Table of Contents online.

“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.

“Federalism, two-level games and the politics of abortion rights implementation in subnational Argentina, by Alba Ruibal, Reproductive Health Matters 54 (Nov. 2018): 137-144.  Article online.

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.


Physicians’ Challenges under El Salvador’s Criminal Abortion Prohibition

September 30, 2018
Congratulations to Alyson Zureick and her colleagues Amber Khan, Angeline Chen and Astrid Reyes at New York University for their new publication in the Ethical and Legal Issues section of the International Journal of Gynecology and Obstetrics.  A PDF of the published text is now online.  We are pleased to circulate the abstract to REPROHEALTHLAW subscribers.
Alyson Zureick, Amber Khan, Angeline Chen and Astrid Reyes “Physicians’ Challenges under El Salvador’s Criminal Abortion Prohibition.” International Journal of Gynecology and Obstetrics 143 (Oct. 2018) : 121–126.
Early view PDF online.   Submitted text  at SSRN.

El Salvador’s criminal abortion law—one of the few in the world that prohibits all abortions and that is actively enforced against women—harms women’s health and undermines the ethical duties of Salvadoran physicians and the standing of the medical profession. Under the criminal abortion regime, physicians are incentivized to disclose their patients’ confidential medical information, in violation of their ethical duties, and public health care facilities have become sites of criminal investigation. These investigations target women not only for illegal abortions but also for miscarriages and obstetric emergencies. The ban further prevents physicians from providing medical care that is often necessary to preserve a woman’s life or health. Finally, by criminalizing women’s pregnancy outcomes, the regime undermines the country’s recent public health improvement efforts and compounds the marginalization of women and girls from its most vulnerable communities, in violation of the state’s international human rights obligations.

Keywords: Abortion legislation; Criminalization, El Salvador, International human rights, Medical ethics, Reproductive health, Public hospitals.

Full text PDF is now accessible:   Early view PDF online.

Submitted text  can be downloaded through SSRN.

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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.


Access to knowledge and the Global Abortion Policies Database

September 30, 2018

Congratulations to Joanna N. Erdman and Brooke R. Johnson Jr., who recently published an article in the Ethical and Legal Issues section of the International Journal of Gynecology and Obstetrics.  Prof. Joanna Erdman teaches Law at Dalhousie University and Brooke R. Johnson the World Health Organization’s Department of Health and Research and manages the WHO’s Global Abortion Policies Database.

“Access to knowledge and the Global Abortion Policies Database,”  by Joanna Erdman, Brooke Ronald Johnson.  International Journal of Gynecology and Obstetrics  2018; 142: 120–124   PDF at Wiley online.   Submitted text online at SSRN.

Research shows that women, healthcare providers, and even policy makers worldwide have limited or inaccurate knowledge of the abortion law and policies in their country. These knowledge gaps sometimes stem from the vague and broad terms of the law, which breed uncertainty and even conflict when unaccompanied by accessible regulation or guidelines. Inconsistency across national law and policy further impedes safe and evidence‐based practice. This lack of transparency creates a crisis of accountability. Those seeking care cannot know their legal entitlements, service providers cannot practice with legal protection, and governments can escape legal responsibility for the adverse effects of their laws. This is the context for the newly launched Global Abortion Policies Database—an open‐access repository that seeks to promote transparency and state accountability by providing clear and comprehensive information about national laws, policies, health standards, and guidelines, and by creating the capacity for comparative analysis and cross‐referencing to health indicators, WHO recommendations, and human rights standards.

The published article  can temporarily be downloaded in PDF at Wiley online.
Full text, as submitted, is online at SSRN.
Ethical and Legal Issues in Reproductive Health: 85+ concise articles.


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.