Conscientious Objection: African reflections on Colombian abortion decision T-388/09, by Charles G. Ngwena

October 31, 2017

Congratulations to Charles Ngwena of the Centre for Human Rights, Faculty of Law, University of Pretoria, South Africa, whose 2014 article in the Journal of African Law is now available online.

Charles G. Ngwena. “Conscientious Objection to Abortion and Accommodating

Women’s Reproductive Health Rights: Reflections on a Decision of the Constitutional Court of Colombia from an African Regional Human Rights Perspective. Journal of African Law, 58 (2014): 183-209  Article now online.

Abstract and Overview:  If applied in isolation from the fundamental rights of women seeking abortion services, the right to conscientious objection can render any given rights to abortion illusory, including the rights to health, life, equality and dignity that are attendant to abortion. A transformative understanding of human rights requires that the right to conscientious objection to abortion be construed in a manner that is subject to the correlative duties which are imposed on the conscientious objector, as well as the state, in order to accommodate women’s reproductive health rights. In recent years, the Colombian Constitutional Court has been giving a judicial lead on the development of a right to conscientious objection that accommodates women’s fundamental rights. This article reflects on one of the court’s decisions and draws lessons for the African region.

After reviewing the history and status of abortion restriction in Africa, and comparing approaches to conscience clauses in South Africa, Zambia and Zimbabwe, Dr. Ngwena carefully reviews the Colombian decision in Case T-388/09 which, he concludes, “is ultimately about recognizing an overlapping consensus of the imperative of mutual co-existence in a liberal and heterogeneous society. . . .   [At the] interface between the right to conscientious objection and the right to abortion, African domestic courts and institutions can do well to look, among other juridical resources, to the Colombian decision for the development of constitutional and human rights standards that are aimed at accommodating the fundamental rights of conscientious objectors with the equally fundamental rights of women seeking abortion.  African regional treaty bodies have the same need.   . . . [In] African states, judicial interpretation has a crucial role to play in the authoritative interpretation and application of human rights protections under the African Charter system.

The Colombian decision is an important juridical resource and advocacy tool for human rights practitioners, civil society and non-governmental organisations that seek to promote women’s sexual and reproductive health,including access to abortion as a human right. In Case T-388/09, the Colombian Constitutional Court adopted a judicial approach that is gender sensitive and transcended a classical liberal interpretation of rights by avoiding the trap of enunciating abortion rights in a manner which reduces them to a mere rhetorical flourish.  Application of abortion rights requires judicial awareness that rights holders will often be unable to realize the rights in the same way for the reason that they have different capabilities and are differently situated, particularly in an environment in which gender inequalities are embedded.  Thus, imposition of state duties to provide adequate information and material resources to facilitate equitable access to healthcare services becomes a more meaningful way of vindicating abortion rights as not just tangible human rights but also human capabilities.

Abortion has a long history of being at the receiving end of moral censure by patriarchal political and religious authorities. Women remain a political minority. Unless closely interrogated, the right to conscientious objection to abortion can easily come to deny the very heterogeneity it seeks to acknowledge. Instead, it can become a Trojan horse for popular patriarchal and religious prejudices that deny women’s reproductive agency and accentuate the historical marginalization and stigmatization of reproductive healthcare services which only women need. How health care professionals understand and exercise the right to conscientious objection has implications for the realization of the reproductive rights of women seeking abortion services.
Charles G. Ngwena. “Conscientious Objection to Abortion and Accommodating
Women’s Reproductive Health Rights: Reflections on a Decision of the Constitutional Court of Colombia from an African Regional Human Rights Perspective. Journal of African Law, 58 (2014): 183-209  Article now online.
Related resources:
Colombian decision T-388/09  Corte Constitucional [Constitutional Court] 2009,  Decision in Spanish

T-388/09:  Conscientious Objection and Abortion: A Global Perspective on the Colombian Experience. (Georgetown, USA, O’Neill Institute for National and Global Health Law / Women’s Link Worldwide, 2014)    English | Español

 “Healthcare responsibilities and Conscientious Objection” by R. J. Cook, M. Arango Olaya and B.M. Dickens,  International Journal of Gynecology and Obstetrics 104 (2009): 249-252. Spanish translation.
The Scope and Limits of Conscientious Objection,” by B.M. Dickens and R. J. Cook (2000) 71 International Journal of Gynecology and Obstetrics 71-77.

Conscientious Objection-
Articles and other resources from the International Reproductive and Sexual Health Law Program at University of Toronto, online here.
Ethical and Legal Issues in Reproductive Health80 concise articles.
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REPROHEALTHLAW Updates: Developments, Resources & Jobs

March 10, 2016

REPROHEALTHLAW Blog
March 10, 2016

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DEVELOPMENTS

General Comment 22”  United Nations – Committee on Economic, Social and Cultural Rights (CESCR) adopted a new General Comment 22 (E/C.12/GC/22)  on Article 12 (Health) of the International Covenant on Economic, Social and Cultural Rights.  This new General Comment highlights the numerous legal, procedural, practical and social barriers people face in accessing sexual and reproductive health care and information, and the resulting human rights violations.  It codifies wide-ranging state obligations regarding quality maternal health care, non-discrimination, contraception, safe abortion care, sex education, disabilities, infertility care, STIs and HIV/AIDS.  It also discusses conscience issues and rural, regional or cultural disparities.  Full text of General Comment No.22.     UN Press release.

Guyana: Midwives, nurses and pharmacists can provide abortion pill.  Guyana details..

Kenya:  AIDS Law Project v Attorney General and 3 Others [2015] eKLR, Petition No. 97 of 2010 (High Court of Kenya at Nairobi). [Criminal provisions of HIV/AIDS law held unconstitutional.]  Decision online.    Case Summary by Godfrey Kangaude.  

Kenya: duty to protect rights of intersex persons (2 cases)
Baby “A” (suing through her mother, E.A.) and The Cradle the Children Foundation v Attorney General, Kenyatta National Hospital, and the Registrar of Births and Deaths [2014] eKLR, Petition No. 266 of 2013 (High Court of Kenya at Nairobi, (Constitutional and Human Rights Division)). Decision onlineFull Case Summary.
RM v The Hon. Attorney General & 4 Others, [2010] eKLR Petition no 705 of 2007 (High Court of Kenya at Nairobi, Nairobi Law Courts). R.M. Decision online.   Case summary of R.M

Uganda.  “African Commission on Human and Peoples’ Rights Calls on Uganda to Ensure The Right to Legal Abortion and Access to Reproductive Health Services.”  Recommendations call for Uganda to implement the Maputo Protocol—the only treaty, at both the international and regional levels, that explicitly guarantees the right to legal abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health or life of the woman or in cases of fatal fetal impairments.  CRR Press Release Mar.7, 2016
Background from CRR:  74-page report 2013 .  46-page guide to Ugandan abortion law/policy 2012CRR/CEHURD Shadow report 2014.

U.S.   Whole Woman’s Health v. Hellerstedt: Hearings were held in the US Supreme Court on Mar 2, 2016. The judgment is anticipated in June 2016, and it will determine whether women will have access to abortion services in Texas, and in other states with laws comparable to the restrictive Texas law.   Case history from CRR.  Official transcript, Mar 2, 2016.   Reports of the hearing: Slate article: Oral arguments.   Slate blog: “Most important question.”   Comment:  When “protecting health” obstructs choice :  SCOTUS blog.   Scholarship:  Linda Greenhouse and Reva Siegel, “Casey and the Clinic Closings: When ‘Protecting Health’ Obstructs Choice,” 125 Yale Law Journal 1428-1480 (2016) Greenhouse & Siegel article.

Zimbabwe:  Mudzuru & Another v Ministry of Justice, Legal & Parliamentary Affairs (N.O.) & Others (Const. Application No. 79/14) [2015] ZWCC 12 (20 January 2016);  Constitutional Court outlawed child marriage under 18 years old.  Decision online.   News report.

COURSES

Advanced Human Rights – short courses at the Centre for Human Rights, University of Pretoria, South Africa.
♦  Disability Rights in an African Context  March 14-18, 2016.  Disability Rights Course.
♦  Judicial Enforcement of Socio-Economic Rights in Africa,  Socio-Economic Rights
May 16-20, 2016
♦  Civil Society Law in Africa, June 8-10, 2016  Civil Society Law Course

RESOURCES

[abortion]  Common Law Fundamentals of the Right to Abortion, by Anita Bernstein. Buffalo Law Review Vol. 63, p. 1141, 2015; Brooklyn Law School, Legal Studies Paper No. 438. Bernstein article.

[abortion, Ireland]  The Geography of Abortion (December 11, 2015). by Fergus W. Ryan.  Ryan working paper.

[abortion, Latin America, Caribbean] Investigación sobre aborto en América Latina y el Caribe: Una agenda renovada para informar políticas públicas e incidencia (Research on abortion in Latin America & the Caribbean: A renewed agenda to inform public policy and incidence) Published by CLACAI (Latin American Consortium against Unsafe Abortion) with the support of CEDES Argentina, Population Council USA, and Promsex Peru.   Investigación en EspanolAlternative download link.

[abortion – UK]  British Abortion Law: Speaking from the Past to Govern the Future (March 2016). The Modern Law Review, Vol. 79, Issue 2, pp. 283-316, 2016.
Sheldon article.

Engendering Reproductive Rights in the Inter-American System (2016), by Ciara  O’Connell,  in Gender, Sexuality and Social Justice: What’s Law Got to Do With It?, ed. Kay Lalor, Elizabeth Mills, Arturo Sánchez García and Polly Haste. p. 58, Institute of Development Studies, 2016 . O’Connell chapter

NEWS

Malawi – homosexuality: “Malawi government challenges the clergy on gay rights.”  The real issue is whether the pending Judicial Review should declare the anti-homosexuality law invalid under the Constitution.   News report.

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

Zambia:    Chief Justice launched the first-ever gender-based violence (GBV) fast track court in Kabwe.  News report.

JOBS

Director, new Human Rights Institute, Oxford University, UK  Oxford Directorship

Director of Programs, International Planned Parenthood Federation, Western Hemisphere Region. Apply by March 15, 2016.  IPPF Director.

Lecturer / Senior Lecturer in Gender Studies @ SOAS Centre for Gender Studies, London, UK.    Apply by March 21, 2016.  Lecturer at SOAS.

Postdoctoral research fellow, 3 years, new “Political Determinants of S&R Health” project based at University of Bergen, Norway.  Apply by March 31, 2016.  Postdoc job.

Links to other employers in the field of Reproductive and Sexual Health Law 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 hereTO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.


Africa: New book on Strengthening protection of SRH through Human Rights

February 26, 2015

Congratulations to Charles Ngwena and Ebenezer Durojaye, editors of this useful 365-page book available online here!   We are delighted to provide an overview and Table of Contents below.

Strengthening the protection of sexual and reproductive health and rights in the African region through human rights, ed. Charles Ngwena and Ebenezer Durojaye (Pretoria, South Africa:  Pretoria University Law Press (PULP), 2014) 12 chapters, 365 pages.   Entire book online!

Strengthening the protection of sexual and reproductive health and rights in the African region through human rights uses rights-based frameworks to address some of the serious sexual and reproductive health challenges that the African region is currently facing. More importantly, the book provides insightful human rights approaches on how these challenges can be overcome. The book is the first of its kind. It is an important addition to the resources available to researchers, academics, policymakers, civil society organisations, human rights defenders, learners and other persons interested in the subject of sexual and reproductive health and rights as they apply to the African region. Human rights issues addressed by the book include: access to safe abortion and emergency obstetric care; HIV/AIDS; adolescent sexual health and rights; early marriage; and gender-based sexual violence.

TABLE OF CONTENTS:
Foreword by Commissioner Soyata Maiga   (Special Rapporteur on the Rights of Women in Africa) (p. viii)
INTRODUCTION: 
1.  Strengthening the protection of sexual and reproductive health and rights in the African region through human rights: An introduction
by Charles Ngwena and Ebenezer Durojaye  (page 1)

PART I: REPRODUCTIVE AUTONOMY, ACCESS TO SAFE ABORTION AND EMERGENCY OBSTETRIC CARE:
2.  Reducing abortion-related maternal mortality in Africa:
Progress in implementing Objective 5 of the Maputo Plan of Action on Sexual and Reproductive Health Rights
          by Eunice Brookman-Amissah and Tinyade Kachika    (page 31)
3.  Access to legal abortion for rape as a reproductive health right: A commentary on the abortion
regimes of Swaziland and Ethiopia
           by Simangele Mavundla and Charles Ngwena     (page 61)
4.  Abortion and the European Convention on Human Rights: A lens for abortion advocacy in Africa
           by Christina Zampas and Jaime Todd-Gher     (page 79)
5.  Accountability for non-fulfilment of human rights obligations:
A key strategy for reducing maternal mortality and disability in sub-Saharan Africa
           by Onyema Afulukwe-Eruchalu      (page 119)
PART II: HIV/AIDS FOCUS:
6.  Adolescent girls, HIV, and state obligations under the African Women’s Rights Protocol
           by Karen Stefiszyn  (page 155)
7.  Advancing a feminist capabilities approach to HIV/AIDS in sub-Saharan Africa
           by Rebecca Amollo (page 181)
8.  The right to health and AIDS medicines in sub-Saharan Africa:
Assessing the outcomes of a human rights-based approach to medicines
           by Lisa Forman  (page 211)

PART III: SEXUAL AND REPRODUCTIVE HEALTH AND RIGHTS:
INTERSECTIONS WITH ADOLESCENCE, EARLY MARRIAGE, GENDER-BASED VIOLENCE AND POVERTY:
9.  Sexual health and rights of adolescents: A dialogue with sub-Saharan Africa
           by Godfrey Kangaude and Tiffany Banda  (page 251)
10.  Promoting sexual and reproductive rights through legislative interventions:
A case study of child rights legislation and early marriage in Nigeria and Ethiopia
           by Ayodele Atsenuwa (page 279)
11.  Gaps in gender-based violence jurisprudence of international and hybrid criminal courts:
Can human rights law help?
           by Susana Sácouto  (page 305)
12. Women, sexual rights and poverty: Framing the linkage under the African human rights system
           by Fana Hagos Berhane  (page 331)