Malawi’s first abortion ruling sheds light on law and hospital norms

Many thanks to legal scholars Lewis Bande, Ph.D, and Godfrey Kangaude, LL.D., for submitting a learned commentary on the High Court of Malawi’s first ever “Ruling on a judicial review application to access safe abortion,” decided June 15, 2021. Their 6-page summary and analysis of this decision has just been published at this link, among the online updates to the third volume of case summaries, Legal Grounds: Reproductive and Sexual Rights in Sub-Saharan African Courts. Here is a brief overview of their comments on the following case:

The State (On the Application by HM (Guardian) on behalf of CM (Minor) vs The Hospital Director of Queen Elizabeth Central Hospital & The Minister of Health: Judicial Review Cause Number 03 of 2021 (unreported) (High Court of Malawi, Zomba District Registry) Decision of 15 June 2021. Decision on Google drive. (Download:) Legal Brief by Lewis Bande and Godfrey Kangaude. 

The case centres upon a minor known as “C.M.,” a 15-year-old girl who had been “defiled,” impregnated and abandoned by a married man.  She claimed to have been refused termination of pregnancy at the Queen Elizabeth Central Hospital’s facility for survivors of sexual abuse. There, healthcare providers told her that abortion is illegal in Malawi.  From legal counsel, the girl’s family later learned that abortion is indeed illegal under the antiquated Malawi Penal Code of 1930, but prosecution can be avoided under Section 243, which provides:

A person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for his benefit, or upon an unborn child for the preservation of the mother’s life, if the performance of the operation is reasonable, having regard to the patient’s state at the time, and to all the circumstances of the case.

Healthcare providers routinely interpret this Section of the law restrictively, excluding victims of defilement or sexual assault. In this context, abortion requests and refusals normally happen orally and are not usually recorded in medical records.

The Court’s Ruling: The Court rejected the application for judicial review on the sole ground that there was no evidence that the First Defendant, as director of a public hospital, was responsible for any “decision” that could be judicially reviewed. As Bande and Kangaude observe, the Court cannot be faulted for this ruling. However, the Court proceeded to speculate that this application would probably have failed on other grounds that seem debatable. The Court’s ruling, they write, shows room for further litigation on the interpretation of the current law for girls and women who have been sexually assaulted.  In the ruling, the Court used language that suggests that it recognizes that preservation of a woman’s life entails preserving her mental and physical health. This seems progressive on the part of Court, as it conforms with the consensus in the human rights discourse that the rights to health and life are closely related.   

Significance: Although permission for judicial review was denied, this ruling is a milestone, marking the very first instance that the High Court of Malawi has acknowledged and discussed the position that abortion can be lawfully performed in Malawi. The ruling also shows that defiled or raped Malawian girls and women are being excluded from safe abortion, and they are forced to keep pregnancies that are a result of sexual assault because the Section 243 exception is interpreted restrictively by health providers. The Second Defendant in this case was, appropriately, the Minister of Health, because decisions to refuse terminations of pregnancy would be based on policies for which the Health Minister is responsible.

The Malawi Law Commission’s 2015 review of the colonial abortion law proposed liberal changes to the law which, if implemented, would eventually expand access to safe abortion.[1] Rather than waiting for law reform, the Ministry of Health should immediately provide defiled girls and rape victims with access to safe abortion by clarifying the application of the existing abortion law. In the Health Ministry’s current Standards and Guidelines for Post Abortion Care (2020)[3], section 1.2, it remains unclear whether victims of sexual violence can access safe terminations legally. Professional guidelines should clarify that any girl or woman who has been raped or defiled should have an option to terminate the pregnancy, and without being subjected to burdensome requirements such as proving severe depression or suicidal ideation. Meanwhile, health advocates should continue to champion law reforms that respect Malawi’s constitutional and international obligations toward girls and women.

Related Resources:

[1]   Malawi Law Commission. Report of the Law Commission on the review of the law on abortion (Penal Code CAP.7:01 of the Laws of Malawi). Lilongwe: Malawi Law Commission; 2015. Report online.

 [2] See also: 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, Published Version at IJGO.  Submitted text online at SSRN.

[3] Ministry of Health, Malawi, Standards and Guidelines for Post Abortion Care 2020.   43-page document. PAC Guidelines.

(Download:) Legal Brief by Lewis Bande and Godfrey Kangaude. 

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Compiled by the Coordinator of International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   See Program website for our Publications,  Research resources, and Reprohealthlaw Commentaries Series.  TO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of our blog, then check your email to confirm the subscription.

South Australian gov’t welcomes SALRI recommendations for decriminalization

Congratulations to the South Australian Law Reform Institute (SALRI), based at the Adelaide Law School. In October, 2019, after extensive research and public consultations, SALRI submitted a 506-page report commissioned by the Attorney General of South Australia. Many thanks to Katelyn Sheehan, LL.M., for providing this brief overview:

“Abortion: A Review of South Australian Law and Practice,” by John Williams, David Plater, Anita Brunacci, Sarah Kapadia and Melissa Oxlad, (Adelaide, Australia: South Australian Law Reform Institute, Oct. 2019) 560-page review.

So far, all Australian states and territories except South Australia have fully decriminalised abortion, starting with Western Australia in 1998. South Australia’s current abortion laws, based on the UK Abortion Act 1967, date back to its Criminal Law Consolidation Amendment Act of 1969, in which abortion is deemed a criminal offence, except with the approval of two physicians who deem that continuance of the pregnancy endangers the woman’s life, physical or mental health, within her actual or reasonably foreseeable environment, or that the resulting “child would suffer from such physical or mental abnormalities as to be seriously handicapped.” (p.15) Half a century later, many provisions of this law no longer reflect best clinical practice, nor significant advances in health care provision, such as medical abortion (using pills) outside medical facilities. These outdated provisions now obstruct equal access, particularly for South Australian citizens who are disabled or who live in rural areas.

In February 2019, the Attorney-General of South Australia commissioned SALRI “to consider changes to the State’s abortion laws with a view to improve access and modernise the practice in the State and with a view to making abortion a regulated medical procedure under health legislation as opposed to a criminal law issue.” (p.11)

SALRI then undertook extensive community consultation on the inadequacies of the current law, and analyzed recent reports and legislation in other Australian regional jurisdictions, as well as New Zealand.  SALRI’s 66 recommendations (outlined pp.17-22, cf. 24-36) include:
— Allow abortion on request within 24 weeks, with the same informed consent that is already integral to health law and practice, but without any mandatory waiting period.
— After 24 weeks’ gestation, require approval from two medical practitioners, an approach which reflects current clinical practice and also ‘recognises that terminations at this later stage often involve disadvantage, distress, complexities and higher risks to the pregnant woman’. (pp.18-19). Late-term procedures should be “very rare and only undertaken after careful consideration by all parties and in the most compelling circumstance.”(p.20)
—Disability or ‘fetal abnormality’ should no longer be mentioned as a ground for abortion.
— Exempt the woman and her qualified healthcare provider from criminal liability, but an unqualified person who performs or assists in an abortion commits an offence.
— Remove outdated restrictions as to where a pregnancy can be terminated, and by whom, which impede equitable and effective access, especially for regional, rural, remote and Aboriginal communities.
—Conscientious objection should be limited to those health practitioners directly involved in the procedure, except in an emergency situation.  Objectors must provide timely referral to a willing and able provider nearby.
—Counselling, including genetic counselling, should be impartial and non-directive, at the request of the woman.
—Safe access zones are needed to prevent harassment of women or healthcare providers.  Base such provisions on the law in Victoria, recently upheld by the High Court of Australia (Clubb v. Edwards – see our blogpost)

One month after the Attorney-General received the report, South Australia’s Ministry of Health and Well-being responded individually to SALRI’s 66 recommendations, accepting the majority of them, and noting 15 recommendations to which they would defer to the Crown for specific legal advice.

We look forward to hearing which of SALRI’s recommendations will be addressed in the South Australian health ministry’s proposed plan for decriminalization, now openly discussed on the ministry’s new “Abortion Legislation Reform” webpage.

RELEVANT RESOURCES:
SALRI’s 2019 independent report on the operation of South Australia’s existing abortion laws, with 66 recommendations for decriminalization:. 506-page review.

Response to SALRI Report by South Australia, Ministry of Health and Well Being – Nov. 2019. 15-page response. “Abortion legislation reform” webpage.”

“Access to Abortion: An Annotated Bibliography of Reports and Scholarship.”  Second edition 2020, 44 pages, analyzes reports and other resources, focusing on hidden barriers to abortion access and recommendations for reform. Annotated Bibliography.
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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.

Global Zoom: “COVID-19 and the Politics of Repro Health” Wed. 29 July

Please join the upcoming virtual discussions with panelists and participants at this upcoming Zoom webinar, hosted by Harvard Law School’s Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics:

“COVID-19 and the Politics of Reproductive Health: Global Perspectives,” ZOOM webinar, Wednesday July 29th, 2020 at 11:00 am Eastern Daylight Time (EDT). Event details. REGISTER HERE.

The COVID-19 pandemic has challenged health systems around the world, displacing attention to other much-needed services and conditions. It has particularly impacted access to sexual and reproductive health goods and services around the globe. While in some places governments have made concerted efforts to mitigate the displacement of sexual and reproductive health services by telehealth and other means, in many other places the pandemic has provided cover for policies that neglect and even undermine reproductive health and rights. Reproductive rights movements and mobilizations (including around abortion) have been interrupted; contraception access has been affected; and sexual and obstetric violence have increased. Join us for a discussion of the impact that COVID-19 has had on sexual and reproductive health and rights around the world.

Panelists include:
* Paola Bergallo, Associate Professor of Law, Universidad Torcuato di Tella, Argentina;
* Ruth Fletcher, Senior Lecturer in Medical Law, Queen Mary’s University of London, School of Law, United Kingdom;
* Camila Gianella, Executive Director, Centre for Social Science Research (CISEPA), Pontificia Universidad Católica del Perú;
* Nerima Were, Program Manager, Sexual Reproductive Health Rights, The Kenya Legal & Ethical Issues Network on HIV and AIDS (KELIN).
* Alicia Ely Yamin, Senior Fellow in Global Health and Rights, The Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School (will moderate).

Event details
REGISTER HERE.

REPROHEALTHLAW Updates – Oct 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 online.  Blog 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 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.

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

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 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.

“Post-abortion care: Ethical and Legal duties”

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 online.  Submitted 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 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.

Malawi: The duty to make abortion law transparent

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 online.  Submitted 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

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

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

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.

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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.