REPROHEALTHLAW Updates – August 2018

August 15, 2018

SUBSCRIBE TO REPROHEALTHLAW: To receive these updates monthly by email, enter your address in upper right corner of this webpage, then check your email to confirm the subscription.

DEVELOPMENTS:

Argentina:  Abortion Bill approved by Chamber of Deputies June 14, 2018, and narrowly rejected by Senate (38 to 31) August 9, 2018.  26 speakers at hearings July 31, 2018, included Argentine lawyer Mercedes Cavallo, a doctoral student at the University of Toronto’s Faculty of Law.  Cavallo oral argument (video)Cavallo editorial.   New York Times article.

Brazil: Supreme Court Considers Decriminalizing Abortion.  Public Hearings held August 3-6, 2018.  New York Times article.

Mexico’s newly elected government announces plan to decriminalize abortion in first trimester, nationwide.   EFE News report.

CALL FOR PAPERS:

“The Impact of Politics on Sexual and Reproductive Health and Rights,” for publication in Reproductive Health Matters, May 2019.  Submissions due October 31, 2018.
RHM Call for papers

SCHOLARSHIP:

[abortion] “Access to knowledge and the Global Abortion  Policies Database,”  by Joanna N. Erdman and Brooke Ronald Johnson Jr.  International Journal of Gynecology and Obstetrics  2018; 142: 120–124   PDF – Wiley online.

[abortion law, Latin America] El aborto en América Latina: Estrategias jurídicas para luchar por su legalización y enfrentar las resistencias conservadoras, por Paola Bergallo, Isabel Cristina Jaramillo Sierra y Juan Marco Vaggione, compiladores,  Buenos Aires: Siglo Veintiuno y RED ALAS, 2018. Libro de 482-paginas en linea.

[abortion law] “From Ireland to Northern Ireland: campaigns for abortion law,” by Angel Li,  The Lancet 391 (10138), 16–22 June 2018, Pages 2403-2404.  Article online.

[abortion law] “Abortion law reform: Why ethical intractability and maternal morbidity are grounds for decriminalisation,” by Andrew McGee, Melanie Jansen and Sally Sheldon. ANZJOG,  Article early view online.

[abortion law] “The paradox of access – abortion law, policy and misoprostol” by Karen Marie Moland, Haldis Haukanes, Getnet Tadele, Astrid Blystad, Tidsskriftet den Norske Legeforening 2:23 January 2018, Article online.

[abortion law, Ireland] “Reproductive Justice in Ireland: A Feminist Analysis of the Neary and Halappanavar Cases,” by Joan McCarthy,  in: Mary Donnelly and Claire Murray, eds., Ethical and Legal Debates in Irish Healthcare: Confronting Complexities (Manchester, UK: Manchester University Press, 2016).  Book information.    Submitted Text online.

Abortion Law in Transnational Perspective: Cases and Controversies, ed. Rebecca Cook, Joanna Erdman and Bernard Dickens (Philadelphia: Univ. Pennsylvania Press, 2014) 20% discount code is PH70.  Abstracts of 16 chapters.   Spanish edition by FCE/CIDE – 16 abstractsAbortion Decisions: Table of Cases in English and Spanish.

[conscientious objection, Mexico] “Abortion and conscientious objection: rethinking conflicting rights in the Mexican context,” by  Gustavo Ortiz-Millán, Global Bioethics 29.1 (2018) 15 pages,  Early view online.

“The Right to Conscience” – An Annotated Bibliography.   (Toronto: International Reproductive and Sexual Health Law Program,
Faculty of Law, University of Toronto, 2018)  .Conscientious Objection bibliography:  The Right to Conscience

Indications for abortion: new annotated bibliographies:

  • Annotated Bibliography on legal aspects of fetal anomaly and their implications for counseling, service delivery and abortion laws and policies (Toronto: International Reproductive and Sexual Health Law Program, Faculty of Law, University of Toronto, 2018).  Fetal anomaly bibliography
  • Legal and policy dimensions of rape-related abortion services (Court decisions, Treaty resources, policy guidance and publications. ) (Toronto: International Reproductive and Sexual Health Law Program, Faculty of Law, University of Toronto, 2018).  Rape or Incest bibliography 
  • Selección de doctrina y jurisprudencia latinoamericanas sobre Causal violación y/o incesto en casos de aborto (Rape or Incest bibliography in Spanish)  (Toronto: El Programa Internacional de Derecho en Salud Sexual y Reproductivas Facultad de Derecho, Universidad de Toronto, 2018)

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

______________
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.

 

 

 

 


Symposium on Chilean Constitutional Court’s Abortion Decision

August 15, 2018

Congratulations to the International Journal of Constitutional Law‘s I-CONnect Blog, which features a special symposium as we approach the one-year anniversary of the Chilean Constitutional Court’s abortion decision of August 28, 2017. The symposium was published over six days, including the following Introduction. by Professor Marta Rodriguez de Assis Machado,* Full Professor of Law at the Getulio Vargas Foundation (FGV) Law School, São Paulo, Brazil, who convened this important symposium for the benefit of the I-CONnect community and indeed for the entire field.

The Chilean Constitutional Court’s Abortion Decision: Five Perspectives

an  I-CONnect Symposium 

convened and introduced by Marta Rodriguez de Assis Machado

Last August, the Chilean Constitutional Court ruled on the constitutionality of Bill No. 9895-11. The Bill sought to decriminalize the voluntary interruption of pregnancy on three legal grounds: when the woman is at “risk to life”; when the embryo or fetus has a congenital pathology that is incompatible with independent extrauterine life; and when the pregnancy is the result of a rape. The law had been approved in Parliament one year prior, with strong support from President Michelle Bachelet and feminist social movements that have for years campaigned against the country’s very strict legislation on the issue–one of the few countries in the world at the time that still prohibited abortion in all circumstances.

In a new front in the battle over the constitutionalization of abortion in Latin America, some Senators brought before the Court two petitions challenging the constitutionality of the Bill. The petitioners based their claim mainly on Article 19, No. 1, Paragraph 2 of the Chilean Constitution, which protects the life of the unborn. They also questioned the parts of the Bill that regulated conscientious objection, allowing it for individual doctors and medical staff, but obliging medical institutions to guarantee that the woman will have access to the procedure carried out by non-objecting professionals.

In a majority decision, the Court dismissed the petition and recognized the constitutionality of each of the three grounds.

According to the Court, the unborn cannot be protected without regard to the rights of women. Moreover, the Constitution does not authorize the State to endanger the life of the pregnant woman, nor does it require her to bear duties beyond what is required of any other person.

On the other hand, the Court partially accepted the objection raised by the petitioners regarding conscientious objection by medical institutions. According to the Court, conscientious objection can legitimately be raised by legal entities or private associations. The Court extended to such institutions the same freedom of thought that the Constitution grants to individuals.

There remains much to be discussed, both on the importance of the ruling as a judicial precedent and on the hurdles to its implementation.

As we approach the one-year anniversary of the Court’s judgment, we are pleased to bring together five different views on the decision, addressing its progressive features and also its downsides, ambivalences and challenges. We are thankful to the following scholars for their contributions to this special symposium. Their perspectives were published in the 5-day symposium:

  1. Blanca Rodriguez-Ruiz, University of Seville, Spain:
    Door Opened and Left Ajar,”  I-CONnect blog, August 1, 2018.
  2. David Kenny, Trinity College Dublin, Ireland:
    Constitutional Constraints on Abortion Regulation: Chile and Ireland,” I-CONnect blog, August 2, 2018.
  3. Gabriela Rondon, Sinara Gumieri and Luciana Brito, researchers at Anis – Institute of Bioethics, Brazil,
    “Lessons for Neighboring Latin American Courts,I-CONnect blog, August 3, 2018.
  4. Isabel C. Jaramillo Sierra, coordinator of the Research Group on Law and Gender (IDEGE), Universidad de los Andes, Bogotá, Colombia. Founding member of RED-ALAS.
    Finding and Losing Women in Abortion Law Reform: The Case of the Chilean Constitutional Decision on Law 21030, I-CONnect blog, August 4, 2018.
  5. José Manuel Díez de Valdez, Director of the Centre of Constitutional Justice, Universidad del Desarrollo, Chile,
    More Questions than Answers,I-CONnect blog, August 5, 2018.

We are also extremely grateful to the International Reproductive and Sexual Health Law Program of the University of Toronto for providing an unofficial English translation of the full decision of August 28, 2017, freely available in English here.  I am grateful as well to Linda Hutjens, Sergio Verdugo and Veronica Undurraga who helped to put this symposium together.

The full decision and related materials are available in Spanish at the following weblinks:   Decision in Spanish.    Summary in Spanish.   Accompanying documents.    Other submissions.

Suggested Citation: Marta Rodriguez de Assis Machado, Introduction to I-CONnect Symposium–The Chilean Constitutional Court’s Abortion Decision: Five Perspectives, Int’l J. Const. L. Blog, July 31, 2018,   http://www.iconnectblog.com/2018/07/introduction-to-i-connect-symposium-the-chilean-constitutional-courts-abortion-decision-five-perspectives/


*Marta Rodriguez de Assis Machado is also a Researcher at the Brazilian Centre of Analysis and Planning – CEBRAP; Global Fellow at the Centre on Law and Social Transformation, Norway; and Fellow at the International Reproductive and Sexual Health Law Program, University of Toronto.
_____________________________________________________________________________
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.


REPROHEALTHLAW Updates – May 2018

May 31, 2018

SUBSCRIBE TO REPROHEALTHLAW: To receive these updates monthly by email, enter your address in upper right corner of this webpage, then check your email to confirm the subscription.

DEVELOPMENTS:

[Africa – Kenya]  J O O (also known as J M) v Attorney General & 6 others [2018] Petition No 5 of 2014, (High Court of Kenya at Bungoma).  [obstetric violence – abuse of pregnant women in healthcare system] 
Decision of March 22, 2018.

[Africa – Malawi, vagrancy] Mayeso Gwanda v. the State, Constitutional Case No 5. 2015  (High Court of Malawi. [successful human rights challenge involving an itinerant male vendor] Decision of January 10, 2017
— This decision cites the unreported case of Stella Mwanza and 12 Others v. Republic, Confirmation Criminal Case No. 1049 of 2007 (Malawi) [re 13 women arrested on streets after dark] discussed Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts  (Pretoria, Pretoria University Law Press (PULP), 2017), p. 127  PDF of book, 228 pages. Online edition

[Mexico] Suprema Corte de Justicia de la Nación, Segunda Sala [Supreme Court] 2018,  Amparo en Revisión 601/2017 (Ciudad de Mexico) April 4, 2018.  [Case of “Marimar”- raped minor should not have been denied abortion by hospital]   Decision in Spanish.   News report in English.

[Mexico] Suprema Corte de Justicia de la Nación, Segunda Sala [Supreme Court] 2018,  Amparo en Revisión 1170/2017 (Ciudad de Mexico) April 18, 2018.  [Case of Fernanda – public institutions must allow abortions to raped minor]  Decision in Spanish.     Same news report in English.

CALL FOR PAPERS
 “The Impact of Politics on Sexual and Reproductive Health and Rights,” for publication in Reproductive Health Matters, May 2019.  Submissions due October 31, 2018.
RHM Call for papers

CONFERENCE

V Latin American Congress on Reproductive Rights, Santa Marta, Colombia, November 1-3, 2018.    Congress website in Spanish.  Latin American Judges and Magistrates of the highest courts will gather to foster the inclusion of a gender perspective in judicial decisions regarding reproductive rights:  Synopsis in English.

Audio-visual resources from previous IV Latin American Conference, held in Lima Peru Nov 2-4, 2015, now published online, include many talks in Spanish, and some in English:
◊   Rebecca Cook, “Gender Stereotypes: Transnational Legal Perspectives,” (Nov. 3, 2015)   Video.     Slides
◊  Marge Berer, “Violence and Reproductive Rights.” (Nov. 3, 2015)  Video
◊   Joanna Erdman, “Violence against Women and Reproductive Rights: Revealing Connections.”  Nov. 2, 2015    Video.     Slides

SCHOLARSHIP:

Abortion Law Decisions online, a Table of Cases with links, recently updated.  English.   Spanish.

[abortion] “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.  Abstract.     PDF online for 12 months.   Submitted text at SSRN.

“Abortion in Poland: politics, progression and regression,” by Julia Hussein, Jane Cottingham, Wanda Nowicka & Eszter Kismodi,  Reproductive Health Matters 26:52 (May 2018): 14-17.   Editorial online.

[conscience, Human Rights Committee, Ireland]:
“Sir Nigel Rodley’s Insights on the Feminist Transformation of the Right of Conscience,”  by Rebecca Cook,  Human Rights Quarterly 40.2 (May 2018): 255-259.   Abstract and Article.

[conscience, U.S.A.] “Divisions, New and Old — Conscience and Religious Freedom at HHS by Lisa H. Harris, New England Journal of Medicine 478.15 (April 12 2018): 1369-1371.   Article online.

[Ireland] “Conscientious Objection, Harm Reduction and Abortion Care,” by Ruth Fletcher, in: Mary Donnelly and Claire Murray eds.  Ethical and legal debates in Irish healthcare: Confronting complexities Manchester: Manchester University Press, 2016, ISBN: 978-0-7190-9946-5, Book details.     Abstract and Chapter online.

[Ireland] “Reproductive justice in Ireland: a feminist analysis of the Neary and Halappanavar cases” by Joan McCarthy, in: Mary Donnelly and Claire Murray eds.  Ethical and legal debates in Irish healthcare: Confronting complexities Manchester: Manchester University Press, 2016, ISBN: 978-0-7190-9946-5, Book details.   Abstract of Chapter.

[Ireland – medical abortion] “Empowerment and Privacy? Home Use of Abortion Pills in the Republic of Ireland,” by Sally Sheldon, Journal of Women in Culture and Society 43.4(Summer 2018): 823-849.   Abstract and Article.

[Malawi] “Adolescent sex and ‘defilement’ in Malawi law and society,” by Godfrey D. Kangaude 17 (2017) African Human Rights Law Journal 527-549.    Article online.   Abstract with other African resources.

[medical abortion]  “Medical abortion pills have the potential to change everything about abortion,” introduction by  Marge Berer and Lesley Hoggart to special issue of Contraception 97.2 (Feb 2018″ 79–81.  Sections on medical abortion potential, women’s experiences, pharmacy provision, role of health system and providers, and research agenda.   Table of Contents, Medical Abortion special issue.

[Uruguay, human rights]  “Legal barriers to access abortion services through a human rights lens: the Uruguayan experience,” by Lucía Berro Pizzarossa, Reproductive Health Matters 26.52 (2018): 1-8    Abstract and article.

US-focused news, resources, and legal developments are available  on Repro Rights Prof Blog.   View or subscribe.


NEWS:

German doctor will appeal 6000-euro fine for “advertising” abortions among other medical specialties on her website.  Comment by Stephanie Schlitt, “Criminal prohibition of abortion ‘advertising’ restricts information provision,” Brief comment.  Detailed comment.

Ireland:  May 25th 2018 Referendum voted to repeal article 40.3.3 “the eighth amendment” which had enshrined a ban on abortion.” Law reform expected.  Christina Zampas editorial in Irish Examiner: “Yes Vote would give hope to millions. . . “.     Irish Times newspaper analyzes results.

JOBS

Links to employers in the field of Reproductive and Sexual Health Law are online here

______________
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.


REPROHEALTHLAW Updates – March 2018

March 30, 2018

SUBSCRIBE TO REPROHEALTHLAW: To receive these updates monthly by email, enter your address in upper right corner of this webpage, then check your email to confirm the subscription.

SCHOLARSHIP:

“Abortion by telemedicine in Northern Ireland: patient and professional rights across borders,” by Tamara Hervey and Sally Sheldon. Northern Ireland Legal Quarterly (2017) 68.1: 1-33    Article onlineSubmitted Text.

Abortion Law in Transnational Perspective: Cases and Controversies, ed. Rebecca J. Cook, Joanna N. Erdman and Bernard M. Dickens (University of Pennsylvania Press, 2014),  Table of Contents with chapter summaries.     Table of Cases.   English edition. now  in paperback, 20% discount code PH70. —–Spanish edition:  El aborto en el derecho transnacional: casos y controversias,  ed. Rebecca J. Cook, Joanna N. Erdman y Bernard M. Dickens (Mexico: FCE/CIDE, 2016)   En espanol, 2016: Fondo de Cultura Económica y Libreria CIDE.   Índice con resúmenes de todos capítulos    Tabla de jurisprudencia.
Abortion Law Decisions online, a Table of Cases with links.  English.   Spanish.

[abortion law, South Korea]  A critical assessment of abortion law and its implementation in South Korea, by Hyosin Kim & Hyun-A Bae, Asian Journal of Women’s Studies, 24.1 (2018): 71-87, Abstract and article.

“Access to Abortion in Cases of Fatal Fetal Abnormality: A New Direction for the European Court of Human Rights?” by Dr. Bríd Ní Ghráinne,  and Dr Aisling McMahon,  (March 12, 2018). 31-page working paper

[Africa] Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts  (Pretoria, Pretoria University Law Press (PULP), 2017).  PDF 228 page bookPrevious volumes online at CRR.      Printed edition from PULP.
Online edition with links to decisions and updates.

Breaking Ground 2018: Treaty Monitoring Bodies on Reproductive Rights, 3rd edition, by the Center for Reproductive Rights, summarizes United Nations jurisprudence, especially the standards being adopted on reproductive health information and contraception, maternal health care, and abortion.  54 page report.

[Chile] Landmark abortion law ruling by Constitutional Court of Chile, August 28, 2017 is now in English with its official synthesis and a table of contents.   Decision translated to English    Amicus curiae briefs also in English:  (1)  decriminalization of abortion Spanish and English;   (2) conscience and conscientious objection:  Spanish  and English.
Spanish Decision “Descargar Sentencia”.   Accompanying documents.  Submissions.      Síntesis.

“The Costs of Conscience,” by Micah Schwartzman, Nelson Tebbe, and Richard Schragger (March 2018) Virginia Public Law and Legal Theory Research Paper No. 2018-14.  Abstract and article. 

FIGO Bioethics Curriculum:  Introduction to Principles and Practice of Bioethics: Case Studies in Women’s Health, now in Spanish.  Table of Contents and List of Case Studies.   Curriculum in EnglishCurriculum in Spanish

“Reproductive Autonomy of Women and Girls under the Convention on the Rights of Persons with Disabilities,  by Prof. Charles Ngwena, International Journal of Gynecology and Obstetrics, 140.1 (Jan. 2018):128-133PDF online for 12 months.    Submitted Text.

Reproductive Health and Human Rights:  Integrating Medicine, Ethics and Law, (Oxford University Press, 2003)  Portuguese, 602 pages and Spanish (both now free online).    English  (through Oxford Scholarship Online)  French paperback.     Case Studies in Arabic online

US-focused news, resources, and legal developments are available  on Repro Rights Prof Blog.   View or subscribe.


NEWS:

Ireland:  May 25th 2018 date for Referendum on abortion “Voters will be asked if they want to repeal article 40.3.3 – known as the eighth amendment – which since 1983 has given unborn foetuses and pregnant women an equal right to life . . . enshrining a ban on abortion in the country’s constitution.”  If repealed, government will allow abortion within 12 weeks of pregnancy. Guardian newspaper

Paraguay’s harsh abortion law endangers adolescents.  Raped 14-year-old girl with pregnancy complications dies during caesarean section to save baby.  Human Rights Watch report

 

JOBS

Links to employers in the field of Reproductive and Sexual Health Law are online here

______________
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.


Irish Government announces referendum on abortion

January 31, 2018

Many thanks to Christina Zampas, our Reproductive Health Law Fellow,*  for preparing this expert comment for Reprohealthlaw subscribers.

On January 29, 2018. the Irish government announced that it will hold a referendum on the provision of the Constitution which limits abortion access. In deciding this, it took into consideration the recommendations issued on December 20 by the  Joint Committee of the Irish Parliament (the Oireachtas).

Ireland has one of the most restrictive abortion law regimes in the world, only allowing abortion in cases of risk to a woman’s life. The Joint Committee on the Eight Amendment of the Constitution was formed to review the  Citizens’ Assembly recommendations calling for constitutional reform of Article 40.3.3 (the Eighth Amendment) which guarantees an equal right to life of the “unborn” as to a pregnant woman.   The Eighth Amendment was inserted in the Constitution in 1983, after a bitterly contested referendum.  The intent of the Amendment was to halt the wave of liberalization of European and US abortion laws from hitting Ireland. An Amnesty International report shows how the Eighth Amendment fundamentally shaped the restrictive scope and content of Ireland’s abortion law and the quality of care received by all pregnant women and girls, not just women seeking abortion.

For three months in autumn, 2017, the Joint Committee assessed the Citizens’ Assembly recommendations and heard from scores of witnesses, including myself. I provided expert testimony on the impact of the Eighth Amendment on women and girls, the human rights violations resulting from such a draconian legal framework, and the practical reality that thousands of women from Ireland are accessing abortion either by travelling overseas or purchasing the abortion pill online.  As a result of this process, the Joint Committee recommended repeal of the Eighth Amendment, to align Ireland’s abortion law with human rights obligations and the laws of other European countries.  These recommendations will also guide the government in drafting a referendum proposal that will go to the people.  The Joint Committee’s recommendations include ensuring abortion on request in the first 12 weeks of gestation, and beyond 12 weeks for fatal fetal impairment, life and health, including mental and physical health.  They recognized that medical decisions are best made in a clinical setting, not by a legislature.  While most recommendations align with women’s and girls’ health care needs, human rights norms and the laws of other European countries, others do not–such as recommendations which do not recognize the need to allow on abortion on grounds of rape beyond 12 weeks gestation and which explicitly disallow abortion on grounds of severe fetal impairment.

The Joint Committee also made important ancillary recommendations which would prevent unwanted pregnancies and ensure quality of care to all pregnant women.  They include decriminalization of abortion (to reduce the chilling and stigmatic effect that criminal law has on provision of health care to all pregnant women), robust, evidence-based sex education, free access to contraception, equal access to high standards of obstetric care regardless of geography or socio-economic status, and improvements to counselling and support facilities surrounding pregnancy and abortion.

The government in announcing the referendum decided wording that effectively repeals the Eighth Amendment. Alongside this, the government announced that the Minister for Health will prepare legislation in line with the Joint Oireachtas Committee’s recommendations on abortion access, which includes a 12-week ‘on request’ period for abortion access.

This is a significant step for Ireland, where the abortion debate raged for decades with little government response until 2012, when the tragic and unnecessary death of Savita Halappanavar provoked large public protests.  Her death was due, in part, to the Eighth Amendment’s role in the clinical decision not to provide her with appropriate care during miscarriage.  This tragic case, combined with a judgment from the European Court of Human Rights in A, B and C v Ireland (2010), which had found Ireland in violation of the European Convention for lack of legal clarity on risk to life, the only ground on which women can access abortion,  the Protection of Life During Pregnancy Act (PLDPA) was passed in 2013.  This PLDPA replaced the 1861 Offences against Persons Act, a complete ban on abortion penalized by lifetime imprisonment.  Over 150 years later, the new law was limited by the Eighth Amendment and the Supreme Court’s interpretation (in Attorney General v. X (1992)) that the Constitution only permitted abortion where there is a “real and substantial risk to the life, as opposed to the health, of the mother.”  Within these confines, the 2013 law offers surprisingly little clarity on allowable circumstances and places formidable barriers, including multiple provider authorizations, to exercising the “life” exemption from criminal prosecution.  It continues to impose a criminal penalty on abortion: 14 years imprisonment.

The reformed law has changed nothing; every day, 10-12 women or girls travel from Ireland to England for an abortion.  These may include victims of rape, schoolgirls, women who cannot afford to have another child and those faced with fatal fetal diagnoses.  These women travel because they cannot access safe and legal abortion in Ireland.  Meanwhile, marginalized women, such as migrants, asylum seekers or impoverished women, are trapped in Ireland, unable to access abortion by travel.  For all these women and girls, their human rights are being violated, as criticized by international and regional bodies for over 20 years, most recently by the UN Human Rights Committee in Mellet v Ireland (2016) and Whelan v Ireland (2017)

Ireland’s draconian abortion law is part of its notorious history of strict punitive social controls over female sexuality, both in law and in practice, amid the socio-religious stigma that drove women and girls to the infamous “mother and child homes” or “Magdalene Laundries,” and subjected pregnant women to the medical practice of Symphysiotomy during childbirth.  It’s about time that such abuses and human rights violations are not only prevented from happening in the future but that the State recognized its role in this wrongdoing.

Related Links:

*Christina Zampas, a Reproductive Health Law Fellow in the International Reproductive and Sexual Health Law Program at the University of Toronto’s Faculty of Law and an independent human rights consultant, provided expert testimony on international human rights standards related to abortion to the Joint Committee on the Eighth Amendment to the Constitution on October 4, 2017  Video of testimony (at 2:27-2:45)

Ireland must comply with international human rights obligations, including HRC rulings in Whelan and Mellet cases, by Mercedes Cavallo Reprohealthlaw Blog, January 31, 2017.  Commentary online.

These are #115 and #116 in our Reprohealthlaw Commentaries Series. online here.

______________
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.

 

 

 

 


Ireland must comply with international human rights including HRC rulings in Whelan and Mellet cases

January 31, 2018

Many thanks to Mercedes Cavallo, a doctoral candidate in the University of Toronto’s Faculty of Law, and a Reproductive Health Law Fellow,  for analyzing these two key Irish cases for readers of this blog:

On October 18, 2017, the Irish Oireachtas (Parliamentary) Joint Committee on Abortion recommended 15-2-2 not to fully retain the Eighth Amendment restrictions on abortion.   Irish abortion laws are among the most restrictive in the world and have been condemned by the UN Human Rights Committee in the cases of Whelan v. Ireland and Mellet v. Ireland.  Under the Irish Constitution’s Eighth Amendment, as interpreted by the Supreme Court of Ireland in Attorney General v. X and Others, abortion is a crime and is only permissible when it is established, as a matter of probability, that there is a real and substantial risk to the life, as distinct from the health, of the pregnant woman.

In addition, the “Abortion Information Act” 1995 restricts circumstances in which individuals (including health professionals) can provide information about legal abortion services in Ireland or abroad, and criminalizes “advocating or promoting” the termination of pregnancy.  Due to the constraints of this legal framework, women who need abortions in Ireland usually travel to the United Kingdom, with little information and no financial or psychological support from the State.

In the Whelan and Mellet. cases, the UN’s Human Rights Committee found Ireland non-compliant in denying abortion services and grief counselling to two women who had each been pregnant with a doomed foetus.

Siobhán Whelan, at 20 weeks pregnant, was informed that her foetus had a congenital malformation and would likely die in utero, during labor, or soon after birth. Her obstetrician mentioned that “in another jurisdiction [she] would be offered a termination but obviously not in this country due to Irish law.” The obstetrician expected Ms. Whelan to “continue with the pregnancy, attend ante-natal appointments ‘as normal’ and wait for nature to take its course.” Another doctor gave her a report of the scan, “in case [she] wanted to travel.”  She sought further information about travel, but most agencies could only assist women who were less than 13 weeks pregnant, so she learned about the Liverpool Women’s Hospital through a friend. At significant expense, she arranged babysitting, leave from work and farm relief.  Afterwards, she felt very isolated, and suffers from complicated grief and trauma.

Amanda Jane Mellet was 21 weeks pregnant when she was told that her foetus had congenital defects and would die in utero or shortly after birth.  Hospital staff said only that abortions were not available in Ireland and that some people “choose to travel.” The midwife advised her to contact an Irish family planning organization for information and counseling. Her doctor attempted to dissuade her from travelling to the UK for abortion. Only 12 hours after the abortion, she travelled to Ireland because she could not afford a longer stay in the U.K.  Upon her return, she was denied access to grief counselling. She still suffers from complicated grief and unresolved trauma.

In both cases, the Committee ruled that Ireland had violated the women’s rights to privacy (article 17), equality/non discrimination (article 26) and freedom from cruel, inhuman and degrading treatment (article 7), under the International Covenant on Civil and Political Rights.  To make amends, the Committee required Ireland to pay full reparations to both women, make psychological treatment available to them, and take measures to prevent similar violations in the future.  According to the Committee, “the State party should amend its law on voluntary termination of pregnancy, including if necessary its Constitution, to ensure compliance with the Covenant, ensuring effective, timely and accessible procedures for pregnancy termination in Ireland, and take measures to ensure that health-care providers are in a position to supply full information on safe abortion services without fearing they will be subjected to criminal sanctions” (Mellet, para. 9).

In Mellet, Judge Nigel Rodley concurred that “the refusal of the State party to allow for terminations even in the case of fatal foetal abnormality cannot even be justified as being for the protection of the (potential) life of the foetus. In addition, not only has article 7 [prohibition of inhuman and degrading treatment under ICCPR] been violated cumulatively … but by the very requirement that a pregnant woman carrying a doomed foetus is subjected to the anguish of having to carry the pregnancy to term.”(Mellet p.25).

As human rights expert Christina Zampas testified (2:27-2:45) before an Irish  parliamentary committee, Ireland is obligated to comply with international human rights law, including these two decisions: “The urgency of the human rights concerns in Ireland is reflected in serious human rights violations amounting to cruel, inhuman and degrading treatment, as found in the Mellet and Whelan cases. The UN Human Rights Committee held in these two cases that prohibiting and criminalising abortion in situations of fatal foetal impairment subjected these women to conditions of intense physical and mental suffering, and that no justification could be invoked, nor were there extenuating circumstances to excuse such harm.”

 So far, these decisions only represent a victory for the two victims.  The Human Rights Committee ignored that the criminalization of abortion in Ireland discriminates against women on grounds of sex and gender. The Committee decided that the women’s right to equality was violated only because other women who had had spontaneous miscarriages in Ireland could access counselling services, but they could not.

Equal treatment on grounds of sex and gender demands accommodation of the biological differences between men and women in reproduction,2 not endorsement of a false legal equality created by men for men.  Both decisions overlooked that the criminalization of abortion discriminates against women because it is a medical procedure that only women need, whereas the Irish legal system does not criminalize any medical procedure that only men need. Fortunately, concurring opinions by Committee members Yadh Ben Achour and Sarah Cleveland exemplify jurisprudence that strives to understand the perspectives of women in difficult situations.

It remains to be seen whether Irish government initiatives and a referendum this year, will bring Irish law into compliance with international human rights law.

Related resources:

Ireland:  Irish Government announces referendum on abortion, by Christina Zampas, Reprohealthlaw Blog, January 31, 2017.  Commentary online.

These are #115 and #116 in our Reprohealthlaw Commentaries Series. online here.
______________
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.

 


REPROHEALTHLAW Updates – Jan. 2018

January 31, 2018

SUBSCRIBE TO REPROHEALTHLAW: To receive these updates monthly by email, enter your address in upper right corner of this webpage, then check your email to confirm the subscription.

LEGAL DEVELOPMENTS
Africa:  Madagascar – New Family Planning Act enacted Jan. 18, 2018 sweeps away the old colonial-era policy that prohibited any promotion of contraception, and recognizes reproductive health and family planning as basic human rights says Family Planning 2020.   However, planned inclusion of therapeutic abortion “sabotaged” at Senate level.   Summary by Safe Abortion.   News report in French.


CALL FOR PAPERS
Reproductive Health in Latin America (Ethical and Legal Issues welcome)
, for publication in the International Journal of Gynecology and Obstetics (IJGO): Re: the XXII FIGO World Congress of Gynecology and Obstetrics in Rio de Janeiro in October 2018.  Submit by February 28, 2018 for peer review. IJGO guidelines and call for papers.

SCHOLARSHIP:

Abortion by telemedicine in Northern Ireland: patient and professional rights across borders, by Tamara Hervey and Sally Sheldon. Northern Ireland Legal Quarterly (2017) 68.1: 1-33    Article online

[abortion law, conscientious objection, Chile]   “A critical review of conscientious objection and decriminalisation of abortion in Chile,” by Adela Montero and Raúl Villarroel,  Journal of Medical Ethics, preview online Jan. 6, 2018 

[abortion law in Sweden, Norway and Finland]  Dropping the ball or holding the line? Challenges to abortion laws in the Nordic countries, Heli Askola (Faculty of Law, Monash University)  Women’s Studies International Forum 66 (Jan-Feb 2018): 25-32.
Institutional access

[abortion Law, Uruguay]  Legal barriers to access abortion services through a human rights lens: the Uruguayan experience,” by Lucía Berro Pizzarossa, Reproductive Health Matters 26.52 (2018): preview online Jan. 17, 2018

Abortion Law in Transnational Perspective: Cases and Controversies, ed. Rebecca J. Cook, Joanna N. Erdman and Bernard M. Dickens (University of Pennsylvania Press, 2014), now also in Spanish (see next entry) and in paperback, 20% discount code PH70.  English editionTable of Contents with chapter summaries. 
Abortion Decisions Online
El aborto en el derecho transnacional: casos y controversias,  ed. Rebecca J. Cook, Joanna N. Erdman y Bernard M. Dickens (Mexico: FCE/CIDE, 2016)   En espanol, 2016: Fondo de Cultura Económica Libreria CIDE.   Índice con resúmenes de capítulos 1-16
Decisiones Judiciales sobre aborto en línea

[Africa] Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts  (Pretoria, Pretoria University Law Press (PULP), 2017).  PDF 228 page bookPrevious volumes PDF online at CRR.      Printed edition from PULP.
Online edition with links to decisions and updates.

FIGO Bioethics Curriculum:  Introduction to Principles and Practice of Bioethics: Case Studies in Women’s Health.  Table of Contents and List of Case Studies    Curriculum in EnglishCurriculum in Spanish    Ahora en Español!

“Freedom of conscience in Europe?  An analysis of three cases of midwives with conscientious objection to abortion,” by Valerie Fleming, Beate Ramsayer, Teja Škodič Zakšek, Journal of Medical Ethics (2018) 44: 104-108  Article online.

Portuguese edition online: Reproductive Health and Human Rights:  Integrating Medicine, Ethics and Law, (Oxford University Press, 2003)  English  (Oxford Scholarship Online)  en Francais    en Portugues, 602 pages\Spanish / Español    Case Studies in Arabic

US-focused news, resources, and legal developments are available on Repro Rights Prof Blog.   View or subscribe.


NEWS:

New “Framework Convention on Global Health Alliance aims to facilitate a coordinated global treaty for the Right to “the highest attainable level of health.”  For an overview, see: “Turning the Right to Health into the Lived Reality for Everyone” by Dr. Martin Hevia (Founding Chair):  Overview online.

Canada:  Court dismisses anti-abortion group’s injunction request about refusal of Canada Summer Jobs funding.  News report.

Germany:  Doctor fined 6000 euros for illegally “advertising” abortions, having listed “abortion” among other medical specialties on her website.   It is illegal to advertise abortion services in a way that is to one’s own economic advantage.  News articleSection 219a of the German criminal code, in German.     See new comment by Stephanie Schlitt, “Criminal prohibition of abortion “advertising” restricts information provision,” Brief comment.     Detailed comment.

Ireland:  Government announces referendum on the 8th Amendment of the Constitution which limits abortion access, following recommendations of the Joint Committee of the Irish Parliament (the Oireachtas).  Jan. 30, 2018 newsComment by Christina Zampas.
Comment by Mercedes Cavallo.

JOBS

Links to employers in the field of Reproductive and Sexual Health Law are online here

______________
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.