REPROHEALTHLAW Updates – 2023-24

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DEVELOPMENTS

[Argentina, preventable maternal death,”obstetric violence”] Britez Arce et. al. v. Argentina. (Inter-American Court of Human Rights, November 16, 2022). Decision in English. Decision in Spanish. Press Release Jan 18, 2023. Comment by CRR. [Earlier: Merits report by the Inter-American Commission on Human Rights (Report 236/19, Case 13.002. Report in English-download.)

[Bolivia, rape of a minor, revictimization] Losado v Bolivia (Inter-American Court of Human Rights, November 18, 2022) English press release Jan 19, 2023 Summary in Spanish. Decision in Spanish. The Court held Bolivia responsible for gender and child discrimination, and revictimization of an adolescent victim of sexual violence during the judicial process.

[Colombia, abortion decriminalized] Sentencia C-055-22.  Expediente D-13.956. Demanda de inconstitucionalidad contra el artículo 122 de la Ley 599 del 2000. (Constitutional Court of Colombia, February 21, 2022). Decision in Spanish (414 pages).  Backup decision in Spanish.  Unofficial English translation. 27-page Spanish press release.  English summary of Press Release.  1-page Spanish press release. [Abortion is decriminalized within 24 weeks of gestation, and thereafter permitted on specified grounds.] 

[El Salvador, abortion, anencephaly] Beatriz v. El Salvador, Case 13-378, Report No. 09/20, Inter-Am. C.H.R. (2020) (Inter-American Commission of Human Rights, January 5, 2022): Report in Spanish. Case Summary in Spanish.  Press release in English. [Woman with lupus and kidney failure denied abortion for fetus with anencephaly.] Inter-American Court of Human Rights held hearings in March 2023.

France made abortion a fundamental constitutional right. March 4, 2024. Parliamentarians voted to revise the country’s 1958 constitution to enshrine women’s “guaranteed freedom” to abort. News report in English.

[Mexico, Abortion decriminalized], Suprema Corte de Justicia de la Nación [Supreme Court], 2023..Review of Constitutional Protection. Amparo en revisión 267/2023. Sept. 6, 2023. Speaker: Justice Ana Margarita Ríos Farjat. Decided September 6, 2023. Official Press release in Spanish.   [Abortion is decriminalized throughout Mexico.]

[Northern Ireland, UN CEDAW] Report of the Inquiry concerning the United Kingdom of Great Britain and Northern Ireland under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, (2018) U.N. Doc. CEDAW/C/OP.8/GBR/1  Original CEDAW 2018 report.  Comments by Clare Pierson. [abortion, a crime in Northern Ireland following sections 58 and 59 of the Offences Against Persons Act 1861, was legalized in 2020.]
—Follow-up report submitted by the United Kingdom of Great Britain and Northern Ireland, 16 January 2023, published March 14, 2023 as CEDAW/C/OP.*/GBR/3/Add.1.  Followup report in different formats, English, French and Spanish.  [Among other reforms, Northern Ireland established a Gender Equality Strategy Expert Advisory Panel whose Report of December 2020 is online here]. 

[Peru, UN Committee on the Rights of the Child] Camila v. Peru, Communication No. 136/2021.U.N. Doc CRC/C/93/D/136/2021 (June 13, 2023) Decision online in Spanish, Arabic and Russian.  Decision in English (May 25, 2023, *unofficial draft). Case note by Godfrey Kangaude.  [Child raped by her father. Ruling: Peru violated child rape victim’s rights by failing to guarantee access to abortion and criminally prosecuting her for self-abortion.]

[Peru, child marriage] Ley N.º 31945 to prohibit and eliminate any possibility of marriage with minors under the age of 18 was promulgated on 25 November 2023. Prior to the new legislation, Article 42 of Peru’s Civil Code permitted adolescents to marry from the age of 14 under certain conditions, with consent from at least one parent, despite the minimum legal age of marriage being 18 years for girls and boys. Context in English.

[Poland, ECtHR ruled against fetal abnormality abortion ban] M.L. v. POLAND (Application no. 40119/21) (European Court of Human Rights, December 14, 2023) [Woman forced to travel for abortion of malformed fetus. Court found violation of ECHR Article 8 (right to respect for private and family life) of the ECHR, following a 2020 Constitutional Court ban on legal abortion in case of foetal abnormalities. Press release. Decision of 14 Dec 2023.

[Poland, fetal abnormality risk, inadmissible] A.M. and others v. Poland (application no. 4188/21, 4957/21, 5014/21,5523/21, 5876/21, 6114/21, 6217/21, 8857/21) (European Court of Human Rights, May 16, 2023) ruled these 8 cases inadmissible because each applicant could not claim to be a victim of a violation of the ECHR owing to risk of a future violation. Press Release. Decision of 16 May 2023.

[Spain, access to abortion information] Tribunal Supremo de España, Sala Tercera, de lo Contencioso-administrativo, Sección 4ª, S 1231/2022, 3 Oct. 2022 (Rec. 6147/2021)  Decision in Spanish.  Spanish backup copy.  Decision in English.  English backup copy. [The Government cannot block public access to a website containing information or opinions without judicial authorization.  This includes the site of Women on Web, which discusses access to abortion.

[Turkey, abortion for rape victim], [Case of] R.G. [GK], B. No: 2017/31619, 23/7/2020,.July 23, 2020. (Grand Chamber of the Turkish Constitutional Court)   27-page decision in Turkish. Backup copy. Official press release in English. Backup copy.  Comment  in English on IACL/AIDC Blog. Article in English from a Turkish Journal of Constitutional Law  [procrastination after rape victim applied for abortion violated the right to protect one’s corporeal and spiritual existence (provided under Article 17 of Turkish Constitution.

[UK – challenge to fetal abnormality ground for abortion] R (on the Application of Crowter and Ors) v Secretary of State for Health and Social Care EWCA Civ 1559 Case No: CA-2021-000314 (UK Court of Appeal (Civil Division) London, 25 Nov., 2022, Judgment summary. Decision online.  [UK legislation allowing abortion for substantial risk of a born child’s serious handicap (such as Down syndrome) is not incompatible with disabled persons’ human rights to respect for their private and family life and to nondiscrimination.] This was an appeal of [2021] EWHC 2536 (Admin) Case No. CO/2066/2020 (High Court of Justice, Queen’s Bench Division, London) Sept 23, 2021.  Judgment and summary.    [fetus has no established rights under the European Convention on Human Rights (ECHR), so UK abortion law allowing legal abortions in cases of severe fetal abnormalities is compatible with ECHR.]

[Venezuela, obstetric violence] Inter-American Court of Human Rights – Case of Rodríguez Pacheco et al. v. Venezuela. Preliminary Objections, Merits, Reparations and Costs. Judgment of September 1, 2023. Series C No. 504. Press release in English. Official Summary in Spanish. 82-page judgment in Spanish. Download partial dissent by Judge Sierra Porto. Download: partial dissent by Judge Pérez Goldberg. The Court ruled that Venezuela is responsible for deficiencies in Judicial Proceedings on a Complaint of acts of obstetric violence and medical malpractice that took place in a private hospital.

SCHOLARSHIP

[comparative abortion law] Rebecca J. Cook and Bernard M. Dickens, “Abortion,” in Jan M. Smits, Jaakko Husa, Catherine Valcke and Madalena Narciso, eds., Elgar Encyclopedia of Comparative Law, 3rd ed., (Cheltenham, UK: Elgar Publishing, 2023), 3-11. Abstract online here. Full text and PDF online

[abortion law, Colombia] “The new Colombian law on abortion,” by Isabel C Jaramillo Sierra, International Journal of Gynecology and Obstetrics 160.1 (January 2023): 345-350.  Abstract and Article. 

[abortion law and policy] “Self managed abortion: aligning law and policy with medical evidence,” by Patty Skuster, Heidi Moseson and Jamila Perritt, in International Journal of Gynecology and Obstetrics 160.2 (February 2023): 720-725. Abstract and Article.  

[abortion law and policy, guideline] “The WHO Abortion Care Guideline: Law and Policy–Past, Present and Future,” by Joanna N. Erdman, in International Journal of Gynecology and Obstetrics, 162.3 (Sept 2023): 1119–1124. Abstract and Article.  WHO Abortion Care guideline, 2022.

[adolescents, Africa] “Integrating child rights standards in contraceptive and abortion care for minors in Africa,” by Godfrey Dalitso Kangaude, Catriona Macleod, Ernestina Coast and Tamara Fetters, International Journal of Gynecology & Obstetrics 159.3 (December 2022): 998-1004.   Abstract and Article.

[Africa, Zimbabwe, rewrite abortion decision, gender equality] Charles Ngwena and Rebecca J. Cook, “Restoring Mai Mapingure’s Equal Citizenship,” In: Rebecca J. Cook, ed., Frontiers of Gender Equality: Transnational Legal Perspectives (University of Pennsylvania Press, 2023). Abstract online.  Book available here. Introduction to the book (by Rebecca Cook).

[gender equality, health, CEDAW GR 24] “Gender Equality in Health Care: Reenvisioning CEDAW General Recommendation 24,” by Joanna N. Erdman and Mariana Prandini Assis, in Frontiers of Gender Equality: Transnational Legal Perspectives, ed. Rebecca J. Cook (University of Pennsylvania Press, 2023). Abstract online in English. Portuguese translation of this chapter. Book available here. Introduction to the book (by Rebecca Cook).

[gender equality] Rebecca J. Cook, “Many Paths to Gender Equality,” Introduction to: Frontiers of Gender Equality: Transnational Legal Perspectives (University of Pennsylvania Press, 2023). Introduction online.

[infertility] “”Human Rights Approaches to Reducing Infertility,” by Payal K. Shah and Jaime M. Gher, in International Journal of Gynecology and Obstetrics.162.1 (July 2023): 368–374.  Abstract and Article. 

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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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 our blog, then check your email to confirm the subscription.

“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.

Colombia’s new law on abortion

Congratulations and thanks to Isabel C Jaramillo Sierra, a Professor of Law at the Universidad de los Andes in Bogotá. As she explains in “The new Colombian law on abortion“ published in the Ethical and Legal Issues in Reproductive Health section of the International Journal of Gynecology and Obstetrics, the new law authorizes abortions on request up to week twenty-four and on an indications model for the remaining weeks of pregnancy. We are pleased to circulate the following abstract:

“The new Colombian law on abortion,” by Isabel C Jaramillo Sierra, International Journal of Gynecology and Obstetrics 160.1 (January 2023): 345-350.  PDF at Wiley Online.  Spanish translation of abstract by CLACAI.

Abstract: On February 21, 2022, the Colombian Constitutional Court decided that the existing regulation of abortion was unconstitutional and repealed it (Sentencia C-055/2022). The new abortion law, as per the Court’s decision, considers the voluntary interruption of a pregnancy a crime only when it happens after week twenty-four and does not fall under the health, rape or malformation indications developed through precedent from 2006 to 2022. The decision is generally binding and of immediate application. The decision’s rationale builds on the right to health, substantive equality, and freedom of conscience. It acknowledges severe restrictions in access to abortion faced by Colombian women and the costs these restrictions have on their lives. It also recognizes that the indications model forces women to obtain permission from medical doctors to access abortion, and thus fails to recognize women’s freedom of conscience.

Keywords: Colombian Constitutional Law; Colombia judgment Sentencia C-055/2022; Right to health; Right to equality; Freedom of conscience; Criminal law as last resort; Reproductive health

RELATED RESOURCES:

The decision: Corte Constitucional [Constitutional Court] February 21, 2022, Sentencia C-055-22.  Expediente D-13.956. Demanda de inconstitucionalidad contra el artículo 122 de la Ley 599 del 2000. Decision in Spanish (414 pages).  Backup decision in Spanish.  Unofficial English translation. 27-page Spanish press release.  English summary of Press Release.  1-page Spanish press release.. [Abortion is decriminalized within 24 weeks of gestation, and thereafter permitted on specified grounds.] 

Abortion Law Decisions webpages, now updated in English and in Spanish.

“Recursos Jurídicos” del RepoCLACAI – For a comprehensive and searchable database of legal resources on abortion care in Latin America, visit the Legal Section of the CLACAI Repository “Recursos Juridicos” online.

Ethical and Legal Issues in Reproductive Health – more than 110 other concise articles are online here.
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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.

International migrants’ right to sexual and reproductive health care

Congratulations and thanks to Professor Y.Y. Brandon Chen, a legal scholar who teaches at the University of Ottawa’s Faculty of Law. Professor Chen’s recent article in the International Journal of Gynecology and Obstetrics‘ section on Ethical and Legal Issues in Reproductive Health notes that international law protects migrants’ right to access sexual and reproductive health care, so violation of this right by governments will attract condemnation from human rights treaty bodies, such as the UN Human Rights Committee’s 2018 ruling in the case of Toussaint v. Canada. We are pleased to circulate the following abstract.

Y. Y. Brandon Chen, “International migrants’ right to sexual and reproductive health care,” International Journal of Gynecology and Obstetrics 2022;157: 210–215.  PDF at Wiley online.. 

Abstract: International migration puts people’s sexual and reproductive health (SRH), particularly those of women and children, at increased risk. However, many international migrants are denied access to timely and adequate SRH information, goods, and services by governments and/or service providers. This article reviews relevant international human rights treaties to argue that the barriers faced by migrants in accessing SRH care constitute violations of international law. It is well established that migrants are guaranteed access to SRH care as a part of their right to health, as well as the rights enjoyed by vulnerable populations. Increasingly, hindrance of migrants’ access to SRH care is also recognized as a threat to their rights to life and equality with non- migrants. The case of Toussaint v Canada illustrates how governments may be held accountable by human rights treaty monitoring bodies when they fail to respect and fulfill migrants’ right to SRH care.

Keywords: health care access, international migrants, migrant women, non-discrimination, right to life, sexual and reproductive health and rights.

RELATED RESOURCES

“Sexual and reproductive health and rights of refugee and migrant women: gynecologists’ and obstetricians’ responsibilities,” by Margit Endler, T. Al Haidari, S. Chowdhury, J. Christilaw, F. El Kak, D. Galimberti, M. Gutierrez, A. Ramirez-Negrin, H. Senanayake, R. Sohail, M. Temmerman, K. Gemzell Danielsson, (On behalf of the FIGO Committee on Human Rights, Refugees and Violence against women). International Journal of Gynecology and Obstetrics149.1 (April 2020): 113–119. PDF at Wiley Online.   Submitted Text at SSRN.

Ethical and Legal Issues in Reproductive Health, more than 100 concise articles 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.  

UN Call for submissions: Women’s and girls’ sexual and reproductive health and rights in situations of crisis

Cross-posted from UN Human Rights, Office of the High Commissioner, with clarification about submissions below.

By Monday, August 31, 2020, the UN Working Group on discrimination against women and girls (WG-DAWG) requests stakeholders to contribute to a thematic report on women’s and girls’ sexual and reproductive health and rights (SRHR) in situations of crisis for the 47th session of the Human Rights Council in June 2021. The report will examine women’s and girls’ SRHR within an overarching framework of reasserting gender equality and countering roll-backs.

The Working Group will take a broad approach to crisis. In doing so, it intends not only to look at humanitarian crises, typically understood as encompassing international and non-international conflicts and occupied territories, natural disasters, man-made disasters, famine and pandemics, but it will also examine long-standing situations of crisis resulting from structural discrimination deeply embedded in histories of patriarchy, colonization, conquest and marginalization (such as in the case, for example, of indigenous women, Roma women and women of African descent), as well as other types of crisis based on the lived experiences of women, such as those induced by environmental factors, including the toxification of the planet, land grabbing, political, social and economic crises, including the impact of austerity measures, refugee and migrant crises, displacement crises, and gang-related violence, among others. The Working Group will examine how existing laws, policies, and practices can contribute to negative reproductive health outcomes for women and girls in situations of crisis and restrictions on their autonomy during their life-cycle, using an intersectional approach.

In order to inform the preparation of this report and in line with its mandate to maintain a constructive dialogue with States and other stakeholders to address discrimination against women and girls, the Working Group would like to seek inputs from all stakeholders.

Submissions should be sent by 31 August 2020 to wgdiscriminationwomen@ohchr.org and will be made public on the Working Group’s web page, unless otherwise requested. The Working Group is particularly interested in receiving information about challenges faced in ensuring that women’s and girls’ sexual and reproductive rights are respected, protected and fulfilled in times of crisis, and are adequately prioritized, as well as examples of good practices.

CLARIFICATION:
By August 31, 2020, please submit to wgdiscriminationwomen@ohchr.org:
1. responses to this 4-page Questionnaire: in English,
in French, or Spanish;
2. any relevant information (including publications, reports or academic articles)*
Reminder: All submissions will be published (or republished) on the Working Group’s website, unless confidentiality is requested.

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Cross-posted 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.

Abortion, health and gender stereotypes: Uruguayan & South African laws

Congratulations to Dr. Lucia Berro Pizzarossa, whose doctoral dissertation at the University of Groningen in the Netherlands has just become available online: Lucia Berro Pizzarossa, “Abortion, health and gender stereotypes: a critical analysis of the Uruguayan and South African abortion laws through the lens of human rights,” Ph.D. dissertation, University of Groningen, 2019. 304 pages. Complete thesis. Despite being a very common and relatively safe procedure, abortion is subjected to extensive regulation, worldwide. Using the framework of human rights, this thesis critically engages with national legislative responses—considered to be ‘good abortion laws’— to assess the extent to which they comply with states’ international obligations. This study grapples with the instrumental and constructive approach of the law, insofar as the law impacts both the enjoyment of sexual and reproductive health (by restricting access to abortion), and the regulation of the procedure in ways that foster stereotyped ideas about women’s roles in society. It also engages with human rights in their dual role: as a regulation of states’ powers (as a limit to, and framework for, states’ legislative choices on abortion), and as a challenge to the structures of thought that drive inequalities (the eradication of gender stereotypes, reflected in and perpetuated by the abortion laws). This dissertation concludes that certain models for abortion law, although widely praised and featured as liberal, often fail to comply with human rights. By critically analysing the ‘requirements’ set by these laws, and the stereotypes that emerge from parliamentary debates, this thesis unveils the myriad of human rights violations that often go unseen, and are currently inadequately addressed under international human rights law. The full text (304 pages) is online: Complete thesis. RELATED RESOURCES: “‘Women are Not in the Best Position to Make These Decisions by Themselves’: Gender Stereotypes in the Uruguayan Abortion Law” by LB Pizzarossa (2019) University of Oxford Human Rights Hub Journal 1 (2019): 25-54.  Article online. “Realising the right to sexual and reproductive health: access to essential medicines for medical abortion as a core obligation,” by K Perehudoff, LB Pizzarossa, J Stekelenburg, International Health and Human Rights 18.8(2018): 1-7. Open access article. LB Pizzarossa,”Legal barriers to access abortion services through a human rights lens: the Uruguayan experience,” Reproductive Health Matters 26.52(2018), 151-158. Full text. ______________ 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 – January 2020

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DEVELOPMENTS
Colombian Constitutional Court grants “victim” status to member of armed rebel group suffering from forced and unsafe abortion, Sentencia SU-599/19, Communicado No. 50, December 11, 2019 (Constitutional Court of Colombia) “The decision is one of very few in the world to specifically recognise reproductive violence as a form of harm committed against women and girls in times of conflict” (Case comment by Dieneke de Vos).  Decision in Spanish.

Nigerian High Court upheld failure to register an organization to protect lesbian women: Pamela Adie v. Corporate Affairs Commission, Suit No. FHC/ABJ/CS/827/2018.  Decision of November 16, 2018   (Federal High Court of Nigeria at Abuja)  Decision online.  Case comment by Obiagbaoso Maryanne Nkechi.

SCHOLARSHIP:
“Abortion: Global Perspectives and Country Experiences,” edited by Iqbal H. Shah, Special Issue of Best Practice & Research Clinical Obstetrics & Gynaecology, includes:

— “Abortion: Professional responsibility beyond safe healthcare,”
by Mahmoud F. Fathalla, Best Practice & Research Clinical Obstetrics & Gynaecology 62 (Jan. 2020): 1-2) Editorial

— “Decriminalization of abortion – A human rights imperative,” by
Joanna N. Erdman and Rebecca J. Cook, Best Practice & Research Clinical Obstetrics & Gynaecology 62 (Jan. 2020): 11-24) Abstract and article

—“When there are no abortion laws: A case study of Canada,”
by Dorothy Shaw and Wendy V. Norman, Best Practice & Research Clinical Obstetrics & Gynaecology 62 (Jan. 2020): 49-62. Abstract and article.

Sexual and Reproductive Health Matters just published three issues for 2019:
— “The gender injustice of abortion laws,” by Joanna N. Erdman, Sexual and Reproductive Health Matters 27:1 (Feb 2019): 4-8, Abstract and article.
— “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 27.1 (Feb 2019): 41-51. Abstract and article.
— “Politics, power and sexual and reproductive health, by Sarah Pugh, Sexual and Reproductive Health Matters 27.2 (Oct. 2019): 1-5, Table of Contents. Editorial.
— “Eliminating stigma and discrimination in sexual and reproductive health care: a public health imperative,” by Julia Hussein and Laura Ferguson, Sexual and Reproductive Health Matters 27.3 (Dec 2019): 1-5 Table of Contents. Editorial.

“Abortion Law Reform” Special section of: Health and Human Rights Journal vol. 21.2 (December 2019), online here, includes:
— “Progress towards decriminalization of abortion and universal access to safe abortions: National Trends and Strategies,” editorial by Marge Berer and Lesley Hoggart
— “Abortion in Chile: The Long Road to Legalization and its Slow Implementation,” by Gloria Maira, Lidia Casas, and Lieta Vivaldi. Abstract and article.
—“Denial of Safe Abortion to Survivors of Rape in India,” by Padma Bhate-Deosthali and Sangeeta Rege. Abstract and article.

“Abortion in the Middle East and North Africa” another special section of: Health and Human Rights Journal 21.2 (December 2019), online here, introduced by:
— “The Limits of the Law: Abortion in the Middle East and North Africa,” by Irene Maffi and Liv Tønnessen, Introduction by guest editors.

Abortion Law Decisions webpage, with links to court decisions, updated January 2020, is online here.

[Inter-American] “Women’s Reproductive Rights: Repairing Gender-Based harm in the Inter-American System of Human Rights,” by Ciara O’Connell, PhD diss., University of Sussex, U.K., School of Law, Politics and Sociology, March 2017. Doctoral thesis online. Abstract and overview of case studies.

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.

Nigerian Court denies lesbian group registration

Many thanks to Obiagbaoso Maryanne Nkechi, an LL.M student in Sexual and Reproductive Rights in Africa, at the Center for Human Rights of the University of Pretoria’s Faculty of Law. We thank her for summarizing and commenting on this 2018 High Court decision for our online updates to the three-volume series: Legal Grounds: Reproductive and Sexual Rights in Sub-Saharan African Courts, available here.

We are pleased to circulate excerpts from her overview and some of her comments on the decision.

Pamela Adie v. Corporate Affairs Commission, Suit No. FHCI ABJICSI82712018, Decision of November 16, 2018 Federal High Court of Nigeria (Abuja Judicial Division)  Decision online.  6-page overview and comments by Obiagbaoso Maryanne Nkechi.

COURT HOLDING                          
The Court dismissed the case of the Applicant on the ground that the existing and operative Same Sex Marriage (Prohibition) Act of 2013 (SSMPA) does not support such association and for as long as the Act has not been repealed, the case of the Applicant failed.

Summary of Facts
In October 2017, the Applicant [Pamela Adie] founded an association with the name ‘Lesbian Equality and Empowerment Initiatives’ with the main objective of advocating for the rights of sexual minority women in Nigeria. She had sought to register the name of the association with the Corporate Affairs Commission, but was refused registration on the ground that the proposed name violated section 30 of the Companies and Allied Matters Act (CAMA) for being misleading, offensive and contrary to public policy. Additionally, registration was refused on the basis that the association violated the SSMPA, which prohibits same sex marriages and associations in Nigeria. The Applicant undertook her right of appeal as provided in section 36(2) of CAMA by petitioning the Registrar General of the Corporate Affairs Commission to overrule the decision. The Registrar General declined to do so, making the rejection final.

Dissatisfied with the decision of the Corporate Affairs Commission, Pamela Adie applied to the Federal High Court of Nigeria, seeking redress. She alleged that the refusal to register her association violated her fundamental rights to freedom of expression and association as contained in section 39 and section 40 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) (CFRN) and Articles 9(2) and 10(1) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (ACHPRA) of 1986 respectively.

“The case of the Applicant failed because Section 45(1)(a) [of the Nigerian Constitution] provides for the limitation of a right where the right is in conflict with public safety, public order and public morality . . . [and] the exercise of fundamental rights is not absolute — these rights can be curtailed by relevant laws. The Court . . . [noted] section 4 of the SSMPA is an example of the laws that prohibit the registration of same-sex associations in Nigeria. . . . “

Significance (excerpts):
The Court chose to remain within the confines of its own Constitutional jurisprudence . . . that allows for the overriding of rights in certain circumstances as an acceptable limit on the human rights of Nigerians. . . . It missed an opportunity to look more broadly into the realm of international law . . . [and] also did take cognizance of the ACHPRA that was brought to its attention by the Applicant’s counsel. . . .

The Court did not align with international human rights standards that protect the rights of all persons, irrespective of gender identity or sexual orientation [although] Nigeria had ratified African Charter of Human and Peoples’ Rights in 1986 and its Maputo Protocol in 2004, as well as the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) in 1993. Nigeria is therefore bound by CESCR’s General Comment 20 and ICCPR Article 17, which, according to the Human Rights Committee’s decision in Toonen v. Australia (1994), is violated by laws criminalizing homosexual activity between consenting adults, and more recently, the African Commission on Human and Peoples’ Rights Resolution 275, which notes that acts of violence against an individual as a result of gender identity or sexual orientation violates a person’s right to dignity and right to be free from discrimination.

The full text of this commentary is online here: Case comment by Obiagbaoso Maryanne Nkechi.
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RELATED RESOURCES:
“Nigeria avoided constitutional scrutiny of anti-gay laws,” Teriah Joseph Ebah v. Federal Government of Nigeria, Suit No. FHC/ABJ/CS/197/2014.  Decision of October 22, 2014 (Federal High Court of Nigeria at Abuja) Overview on Reprohealthlaw Blog.   Case comment by Ovye Affi.

Successful LGBT registration cases from other African courts:

• Eric Gitari v Non-Governmental Organizations Co-Ordination Board & 4 Others [2015] eKLR, Petition No. 440 of 2013 (High Court of Kenya at Nairobi)  [LGBT organizations can be registered.]  Decision online.
• Thuto Rammoge & 19 Others v The Attorney General of Botswana [2014] MAHGB-000175-13 (High Court of Botswana). [Homosexual rights advocacy society received official recognition.]  Decision online.
• Attorney General of Botswana v. Thuto Rammoge & 19 Others [2016]  CACGB-128-14 (Botswana Court of Appeal at Gaborone)  [Appeal dismissed]  Decision online
• Republic v Non-Governmental Organizations  Co-ordination Board & another ex-parte Transgender Education and Advocacy & 3 Others [2014] eKLR, JR Miscellaneous Application No. 308a of 2013 (High Court of Kenya at Nairobi (Milimani Law Courts) [Ordered transgender organization to be registered]. Decision online.

For overviews of African jurisprudence. see Legal Grounds: Reproductive and Sexual Rights in Sub-Saharan African Courts, freely available and updated 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.

Decriminalization of abortion: a human rights imperative

Congratulations and thanks to Professors Joanna N. Erdman, MacBain Chair in Health Law and Policy at the University of Dalhousie, and Rebecca J. Cook, Professor Emerita, Faculty Chair in International Human Rights, and Co-Director of the International Reproductive and Sexual Health Law Program at the University of Toronto’s Faculty of Law. Their co-authored article was recently published in a special issue of Best Practice & Research Clinical Obstetrics & Gynaecology. We are pleased to circulate their abstract and highlights:

Joanna N. Erdman and Rebecca J. Cook, “Decriminalization of abortion – A human rights imperative,” Best Practice & Research Clinical Obstetrics & Gynaecology 62 (Jan. 2020): 11-24. Abstract and article.

Decriminalization of abortion is the removal of abortion from the criminal law. This chapter reviews the evolving consensus in international human rights law, first supporting the liberalization of criminal abortion laws to improve access to care and now supporting their repeal or decriminalization as a human rights imperative to protect the health, equality, and dignity of people. This consensus is based on human rights standards or the authoritative interpretations of U.N. and regional human rights treaties in general comments and recommendations, individual communications and inquiry reports of treaty monitoring bodies, and in the thematic reports of special rapporteurs and working groups of the U.N. and regional human rights systems. This chapter explores the reach and influence of human rights standards, especially how high courts in many countries reference these standards to hold governments accountable for the reform and repeal of criminal abortion laws.

Human rights require:
— the withdrawal of punitive abortion measures,
— access to abortion, at least on grounds of life, health, sexual crime, and fetal impairment,
— timely access to information about the pregnancy and grounds for its possible termination, written reasons for denials, and review mechanisms for denials, and
— that abortion services be available to all, irrespective of their specific circumstance.

“Decriminalization of Abortion: a human rights imperative,” is now available here: Abstract and article.

Related Resources:
Rebecca J. Cook, Joanna N. Erdman and Bernard M. Dickens, eds., Abortion Law in Transnational Perspective: Cases and Controversies (University of Pennsylvania Press, 2014), 480 pages  English edition.   En español, 2016. Table of Contents, with abstracts of all chapters.

Joanna N. Erdman and Rebecca J. Cook, Amicus Curiae brief to the Constitutional Court of Chile, about the international consensus on decriminalization of abortion, August 9, 2017
Download Spanish and English briefs in one 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.