UN Rapporteur denounces abuses against women during childbirth

October 31, 2019

Congratulations and thanks to Dubravka Šimonović, UN Special Rapporteur on violence against women, for presenting her groundbreaking report, “A human rights-based approach to mistreatment and violence against women in reproductive health services, with a focus on childbirth and obstetric violence,” to the UN General Assembly on July 11, 2019 23-page report online.

Many thanks to legal scholars Alisha Bjerregaard and Christina Zampas, who summarized this report for the Reprohealthlaw Commentaries Series. We are pleased to excerpt certain paragraphs:

“UN Rapporteur denounces abuses against women during childbirth,” by Alisha Bjerregaard and Christina Zampas, Reprohealthlaw Commentaries Series, October 31, 2019. The full text is online here

” [ . . . This] first U.N. report of its kind . . . addresses human rights abuses experienced by women during facility-based childbirth “as part of a continuum of the violations that occur in the wider context of structural inequality, discrimination and patriarchy.”   The report states unequivocally that: “Women’s human rights include their right to receive dignified and respectful reproductive health-care services and obstetric care, free from discrimination and any violence, including sexism and psychological violence, torture, inhuman and degrading treatment and coercion.” 

“Human rights violations addressed in the report include: physical and verbal abuse; over-medicalization, including the overuse of caesarian delivery, episiotomy and oxytocin when not medically justified; symphysiotomy; forced sterilization; forced abortion; shackling of women; failure to respect privacy and confidentiality; procedures without anesthesia; a lack of autonomy and decision-making; and the post-childbirth detention of women for inability to pay their hospital bills.  This list is not exhaustive, the report notes, nor does it include violations outside healthcare facilities. [ . . . ]

“By shedding light on the rights violations experienced by women during facility-based childbirth, and the drivers of this mistreatment and violence, we hope that this report spurs states to prevent and redress these abuses.  We also hope that human rights bodies engage in robust analyses of abuses that women experience during childbirth, the context in which they occur, and the inherent discrimination of these practices, as well as the intersectional nature of the discrimination that many women face.” 

The full text is online here
(Cite as:) Alisha Bjerregaard and Christina Zampas, UN Rapporteur denounces abuses against women during childbirth,” Reprohealthlaw Blog Commentaries Series, October 28, 2019.


RELATED RESOURCES:

UN Special Rapporteur on Violence Against Women (Dubravka Šimonović), “A human rights-based approach to mistreatment and violence against women in reproductive health services, with a focus on childbirth and obstetric violence.”  U.N. Doc. A/74/137, 11 July 2019. 23-page Special Rapporteur report.

FIGO Guidelines emphasized in the report:
“Guidelines Regarding Informed Consent” (Lyon, June 2007) FIGO Ethical Guidelines pp 22-24. provides human rights standards to protect the autonomy and agency of women.

“Harmful stereotyping of women in health care” FIGO’s Ethical Guidelines (pp. 40-43) is recommended as a key resource for providers.

World Health Organization. The prevention and elimination of disrespect and abuse during facility-based childbirth (Geneva, WHO, 2015) 4-page WHO statement.

WHO Recommendations. Intrapartum Care for a Positive Birth Experience. (Geneva: WHO, 2018) 210-page WHO report
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Malawi: preventable deaths, hysterectomies, and poor ob/gyn care in public hospitals

September 30, 2019

The Ombudsman of the Republic of Malawi recently released a report,
Woes of the Womb: An Investigation into allegations of medical malpractices resulting in removal of uteruses from expectant women in public health facilities , SYS/INV/2/2019 (Malawi: Office of the Ombudsman, August 2019): 37- page report.

We thank doctoral candidates Godfrey Kangaude* and Chrispine Sibande** for summarizing this report:

The Ombudsman is an independent public body with a mandate that includes investigating cases of injustice.

This investigation was triggered by media reports alleging a high rate of women undergoing hysterectomies in a public hospital due to post-caesarean wound infections.  The report reveals serious challenges in the provision of obstetric and gynaecological care in Malawi’s public hospitals. Factors contributing include; long waiting periods to receive surgical care, lack of qualified personnel, shortage of surgical materials and essential drugs, poor infection prevention practices, and negligence of health providers. Between January and July 2018 alone, three pregnant women died at one hospital because of late surgical interventions due to the hospital’s lack of capacity.

The report reveals clear violations of sexual and reproductive rights of Malawian women and girls which are expressly recognised in the Constitution and the Gender Equality Act, including the right to life, dignity, equality and non-discrimination. Further, Malawi has ratified international and regional treaties including the Convention on the Elimination of All Forms of Discrimination Against Women, and the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, without reservations. Malawi should address the problems urgently, both in the short and long term, to preserve the health and lives of women and girls.

This is the first time such an investigation has been undertaken in Malawi, although complaints of poor service delivery and deaths of women in public hospitals are common. The report has generated interest from different stakeholders on how to address the challenges women and girls are facing regarding obstetric and gynaecological care.

*Godfrey Kangaude, LLD candidate, Department of Private Law, University of Pretoria

** Chrispine Sibande, LLD candidate, Center for Human Rights, University of Pretoria
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Cite as: Godfrey Kangaude and Chrispine Sibande, “Malawi: preventable deaths, hysterectomies and poor ob/gyn care in public hospitals” Reprohealthlaw Blog, Sept 30, 2019 <https://wp.me/p1Stxd-3iC&gt;
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125 other Reprohealthlaw Blog Commentaries are online here.

Four court decisions on preventable maternal mortality in hospitals (Uganda and South Africa) are summarized in Chapter 3: “Maternal Health Care and Services,” in: Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts (Pretoria: Pretoria University Law Press, 2017)     Online edition with updates.     Earlier volumes online.
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Constitucionalização do aborto no Brasil: uma análise a partir do caso da gravidez anencefálica

June 28, 2019

[Constitutionalizing abortion in Brazil]
Congratulations to Professors Marta Rodrigues de Assis Machado, and Rebecca J. Cook, whose article is now available in Portuguese and English. Prof. Machado teaches at the Getulio Vargas Foundation School of Law (Sao Paulo), and Prof. emerita Rebecca Cook is Co-Director of our International Reproductive and Sexual Health Law Program at the University of Toronto’s Faculty of Law.

PORTUGUESE:
MACHADO, Marta Rodriguez de Assis; COOK, Rebecca J.
Constitucionalização do aborto no Brasil: uma análise a partir do caso da gravidez anencefálica. Revista Direito e Práxis, Ahead of print, Rio de Janeiro, 2019. DOI: 10.1590/2179-8966/2019/43406 Disponivel em portugues do Brasil.


Resumo: O Brasil tem constitucionalizado disputas pelo direito das mulheres de encerrar gestações indesejadas. O presente artigo examina como teve início esse processo, na Assembleia Constituinte nos anos de 1986-87, e como ele se desenvolveu em diferentes arenas de disputa, como o Legislativo, o Executivo e a esfera pública. Recentemente, o conflito se deslocou para o Supremo Tribunal Federal (STF), por meio da discussão sobre gravidez de fetos anencéfalos, trazida pela Arguição de Descumprimento de Preceito Fundamental (ADPF) n. 54 em 2004 e julgada em 2012. Nessa ação, pela primeira vez, o STF moveu barreiras penais estabelecidas pelo Código Penal de 1940 para possibilitar a escolha de mulheres em manter ou não uma gravidez anencefálica. O objetivo deste texto é examinar como a decisão da ADPF 54 contribuiu para a constitucionalização do aborto. Em primeiro lugar, estabeleceu o direito à vida como não absoluto, garantindo legitimidade constitucional ao sistema de excludentes de ilicitude. Em segundo, indicou a ponderação de direitos constitucionais como o modo de raciocínio paradigmático na questão. Em terceiro, ao enquadrar a controvérsia como questão de ponderação de direitos, as posições adotadas acabaram por expressar importantes avanços no reconhecimento de direitos das mulheres.
Palavras-chave: Brasil; Constituição; Anencefalia; Gravidez; Aborto; Direitos das mulheres.

Jurisprudência relevante:

Supremo Tribunal Federal do Brasil. Arguição de Descumprimento de Preceito Fundamental nº. 54 garantiu, no Brasil, a interrupção terapêutica da gestação de feto anencéfalo. Decisao do STF, 12 abril 2012. Copia extra.

Decisões sobre o aborto – página da web: em espanol. em inglês

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ENGLISH:
MACHADO, Marta Rodriguez de Assis; COOK, Rebecca J. Constitutionalizing abor-tion in Brazil. Revista de Investigações Constitucionais, Curitiba, vol. 5, n. 3, p. 185-231, set./dez. 2018. DOI: 10.5380/rinc.v5i3.60973. Published article in English. Abstract and related resources in English.

Abortion Law decisions in English. in Spanish.

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REPROHEALTHLAW Updates – April 2019

April 22, 2019

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:

[Australia] High Court upholds safe access zones near abortion clinics. High Court of Australia,  Kathleen Clubb v Alyce Edwards & Anor;  John Graham Preston v. Elizabeth Avery & Anor,  [2019] HCA 11,  Judgment of April 10, 2019. Decision online.    High Court Press ReleaseSummary and comment by Adrianne Walters, Senior Lawyer.

[Canada] Ministry of Health ruling: Doctors can now prescribe abortion pills without preliminary ultrasound.  Health Canada press release, April 16, 2019Safe Abortion Campaign report.

[Rwanda]  Ministry of Health ruling: Abortion approval requirement is reduced to one medical doctor. Ministerial Order N°002/MoH/2019 issued April 8, 2019. Details of Ministerial order. Rwandan newspaper.  In addition, 367 women imprisoned for having or assisting abortion / infanticide were also released by presidential pardon, April 5, 2019.  Safe Abortion report.   Guardian news report.

[South Korea] Constitutional Court ordered government to decriminalize abortion within 20 weeks of gestation by Dec 31, 2020.  An indicted doctor had petitioned against the law.  New York Times report, April 11, 2019. Amicus curiae submission by UN Working Group.

SCHOLARSHIP:

“Abortion, the Disabilities of Pregnancy, and the Dignity of Risk,” by Mary Anne Case, U of Chicago, Public Law Working Paper No. 705 (2019)  Working paper.

[abortion] “Abortion, law reform and the context of decision-making,” by Heather Douglas and Katherine Kerr [Australia],  Griffith Law Review 25.1 (2016) 129-145
Review Essay, discusses 3 books.:
—-Abortion Law in Transnational Perspective (Cook Erdman & Dickens)
;
—-Law, Policy and Reproductive Autonomy (Erin Nelson) ;
—-Reproductive Freedom, Torture, and International Human Rights (Ronli Sifris)

[Australia, Northern Territory] “A Reproductive Rights Framework Supporting Law Reform on Termination of Pregnancy in the Northern Territory of Australia
by Suzanne Belton, Felicity Gerry, and Virginia Stulz, Griffith Journal of Law and Human Dignity 6.2 (2018): 25-53. Abstract and Article.

[abortion, Northern Ireland]  “Abortion in Northern Ireland and the European Convention on Human Rights: Reflections from the UK Supreme Court,” by Bríd Ní Ghráinne  and Aisling McMahon, International & Comparative Law Quarterly 68.2(Apr 2019): 477-494.  Abstract and Articlealso on SSRN.

[abortion, 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): 151-158.  Abstract and article.

[abortion, stereotyping, Uruguay]   ‘“Women are Not in the Best Position to Make These Decisions by Themselves”: Gender Stereotypes in the Uruguayan Abortion Law’ by Lucía Berro Pizzarossa University of Oxford Human Rights Hub Journal 1 (2019): 25-54.  Abstract and article.

[conscience]  ‘Right of freedom of conscience is not absolute’, by Joan McCarthy, Nursing in General Practice, 12.1(2018): 27-28.  Abstract and article.

“Female genital mutilation/cutting in Africa: A complex legal and ethical landscape,”  by Satang Nabaneh and Adamson S. Muula, InternationalJournal of Gynecology and Obstetrics, 2019; 145: 253–257,  PDF at Wiley Online.   Submitted text at SSRN.

[human rights and criminal law] Beyond Virtue and Vice:  Rethinking Human Rights and Criminal Law, ed.  Alice M. Miller and Mindy Jane Roseman,  Pennsylvania Studies in Human Rights (Philadelphia: University of Pennsylvania Press, 2019)  360 pages.  It includes:
——   Abortion as treason: Sexuality and Nationalism in France, by Mindy Jane Roseman, 158-170.
——   Harm Production: An Argument for Decriminalization, by Joanna N. Erdman, 248-268.    Book abstract and information.    Intro and excerpts from pp. 3-55 online.

[medical abortion access] “Realising the right to sexual and reproductive health: Access to essential medicines for medical abortion as a core obligation.” by Katrina Perehudoff, Lucía Berro Pizzarossa and Jelle Stekelenburg, BMC International Health and Human Rights, 18.1 (2018) [8 pages]. Article online.

[reproductive rights] “Here to Stay: The Evolution of Sexual and Reproductive Health and Rights in International Human Rights Law,” by Lucía Berro Pizzarossa,  Laws 7.3 (2018): 1-17. Open Access Article.

JOBS

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

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Kenyan High Court upholds human and constitutional rights to maternal dignity and reproductive healthcare

March 15, 2019

Many thanks to Naitore Nyamu, an LL.M. student in the graduate program in Sexual and Reproductive Rights in Africa at the University of Pretoria’s Centre for Human Rights, for contributing a detailed abstract of this progressive Kenyan ruling for Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts, online edition.

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), March 22, 2018.  Case summary by Naitore Nyamu.   Court decision.

The case summary by Naitore Nyamu explains how, on 5 August, 2013, a low-income pregnant woman sought healthcare for delayed labour and suffered neglect, privations and expenses from an ill-funded county hospital, and humiliating personal abuse from its nurses.  She later filed a constitutional petition alleging various violations of her rights as stipulated in the Constitution of Kenya 2010 and she also made reference to rights recognized in international human rights treaties to which Kenya is a party.

The Court held that the Petitioner’s right to maternal health care had been infringed and that the abusive actions of the nurses and the Hospital denied, derogated and demeaned the Petitioner’s worth.  Hence, the Court found a violation of her right to dignity contrary to the provisions of Article 28 and a violation of her freedom and security, including the right not to be treated in a cruel, inhuman and degrading manner, contrary to Article 29 (j) of the Constitution of Kenya 2010. Additionally, the Court held that the national and county governments had failed to devote adequate resources to healthcare services and had not established effective measures to implement, monitor and provide minimum acceptable standards of health care. This is a violation of the Constitution and the international instruments that Kenya has ratified.

As Naitore Nyamu comments in her case summary, the Kenyan Constitution of 2010 has an expansive Bill of Rights, including the right to sexual and reproductive health, but women in Kenya cannot access maternal care in a dignified manner. One of the tenets of devolving the health services was to increase accessibility of better health care services to all citizenry. The treatment the Petitioner received at the Hospital leaves a lot of questions on whether the County Governments want to make the right to health and sexual and reproductive health rights a reality.  This case highlights how deep-rooted and systemic the violations of the rights to maternal health care are in Kenya. It also illustrates the many obstacles and humiliations that women seeking maternal health care can face in public health institutions.

This High Court judgment in J.O.O. reinforces the decision in Millicent Awuor Omuya alias Maimuna Awuor & Another v. The Attorney General & 4 Others (2015), (Petition No. 562 of 2012), where it was held that the National and County Governments do not require resources to accord respect to women seeking services in public institutions such as hospitals.  The Court’s reliance on provisions of international legal instruments ensured that the Court interpreted this issue from a wide spectrum of human rights provisions, hence this is a very progressive ruling that sets high standards. The Court found that the actions and omissions of the respondents were in violation of numerous rights as provided in the international treaties that Kenya has ratified. This signifies that it is not enough to just ratify conventions; states must equally ensure realization of the rights in these conventions. It was also an indication that Kenya cannot ratify conventions and fail to effect what these provisions stipulate.

For details, see Naitore Nyamu’s full case summary, online here, or  the High Court’s decision of March 22, 2018 online here.

An earlier Kenyan case of maternal abuse is abstracted in Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts:

Other decisions from this chapter are summarized in Legal Grounds III.

Maternal Health Care and Services  – thematic highlight by Tinyade Kachika

Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts (Pretoria: Pretoria University Law Press, 2017)   54 court decisions from 2008-2016   Online edition with updates.   Entire book, 228-pages 

Legal Grounds I and II  are online at the Center for Reproductive Rights.
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Compiled by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca For Program publications and resources, see our website, online here. TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.


Body Politics: Criminalization of sexuality and reproduction – Amnesty’s new primer

March 30, 2018

Congratulations to Amnesty International’s Criminalization of Sexuality and Reproduction Project Team for this useful new reference book:

Body Politics: Criminalization of sexuality and reproduction. (London: Amnesty International, 2018) 220 pages.  PDF online.

This book “aims to motivate and equip the organization’s global movement to challenge unjust criminalization of sexuality and reproduction in local, national, regional and international contexts.”  It is part of an Amnesty International series, which includes this Primer, a Toolkit and a forthcoming Training Manual (see links below).
As noted in the Introduction, “This Primer gives an overview of sexual and reproductive rights that states must respect, protect and fulfil and how states punish and prevent people from exercising these rights. . . . [It] looks at these issues from a human rights perspective, in particular through the lens of “bodily autonomy” – the entitlement to decide what we do with our bodies, what we allow, desire and/or forbid others to do with our bodies, and to make essential decisions about our bodies. The Primer includes discussion of seven issue areas where overreaching laws and policies criminalize sexual and reproductive actions, decisions and gender expression thereby violating our bodily autonomy and denying us our dignity and human rights.” (p.19)  The seven focus issues are:   Criminalizing pregnancy, abortion, adolescent sexual activity, same-sex sexual activity, sex outside marriage and sex work, as well as HIV non-disclosure, exposure and transmission. The book also contains a useful glossary.
As Anand Grover comments: “Amnesty International’s Primer and Toolkit – Body Politics: Criminalization of sexuality and reproduction – is a timely, meaningful and welcome contribution that can enable activists to both comprehend and challenge illegitimate criminalization of sexuality and reproductive decisions. It is vital to understand the extent to which criminalization has permeated states today and the damage which is done by such measures masquerading as legitimate public health or public morality initiatives. This Primer details the major areas of concern and the harm which both direct and indirect criminalization inflict on an individual’s human rights and the health of society as a whole. It is not enough, however, to simply understand the problem of criminalization of sexuality and reproductive decisions; steps must also be taken to challenge it. The Toolkit provides concrete campaigning techniques such as mapping stakeholder participation and power, identifying advocacy targets, and building capacity. The [forthcoming] Training Manual can be used to build understanding and capacity around these issues for a range of audiences and activists.”  (p. 9, our emphases)

Body Politics: Criminalization of sexuality and reproduction”
220-page Primer
See also:  Toolkit:  38-page PDF
Rationale for this Amnesty International’s campaign  is explained here.


“El tratamiento de las narrativas del sufrimiento inocente en el litigio transnacional del aborto,” por Lisa Kelly

December 20, 2017
 [“Narratives of Innocent Suffering in Transnational Abortion Litigation”]

Los  capítulos  de  la  cuarta  parte  El aborto en el derecho transnacional: Casos y controversias se focaliza en las “Narrativas y significado social.” En este parte del libro, los capítulos de Lisa Kelly, Alejandro Madrazo y Rebecca Cook identifican las  narrativas  recurrentes  que surgen en los debates jurídicos sobre el aborto. Exploran el significado de las narrativas producto de las leyes, los litigios y el lenguaje sobre el aborto, así como el sentido social que éstas conllevan. Los autores nos alientan a considerar las consecuencias de las historias que se relatan mediante los litigios sobre el aborto, y los significados sociales que expresan respecto de las mujeres,  su  sexualidad,  sus  embarazos,  y  lo  que  estas  implicaciones  pueden presagiar para las estrategias jurídicas. Entender las narrativas más amplias dentro  de  las  cuales  se  ubican  los  argumentos  jurídicos  presenta  oportunidades para repensar las estrategias tradicionales y reimaginar nuevas estrategias.

Lisa Kelly, “El tratamiento de las narrativas del sufrimiento inocente en el litigio transnacional del aborto” El aborto en el derecho transnacional: Casos y controversias, editoras/es  Rebecca J. Cook, Joanna N. Erdman, y Bernard M. Dickens (FCE/CIDE, 2016) págs. 383-414.  en españolen inglés.

En el decimo cuarto capitulo del libro, Lisa Kelly estudia las narrativas de la adolescencia y la sexualidad en los litigios contemporáneos transnacionales sobre el aborto en América Latina.  La autora señala una idea recurrente en estos casos que invoca la inocencia sexual, la violación y la beneficencia parental como fundamento del aborto legal que, en caso de ser denegado, señala al Estado como el antagonista vergonzoso. Sin embargo, Kelly nos advierte que, con estas aperturas jurídicas y discursivas, los defensores de los derechos reproductivos se enfrentan a un dilema. La narración empática de casos de niñas violadas corre el riesgo de reforzar la idea del merecimiento en las normativas de aborto.   Al movilizar el poder cultural y jurídico de la familia, los defensores del derecho al aborto pueden conferir mayores derechos a los padres, lo que les permitirá actuar en contra de los deseos e intereses de sus hijas menores de edad. Si se utiliza el sufrimiento y la vulnerabilidad de la juventud como tropos, los defensores del aborto corren el riesgo de reforzar los discursos proteccionistas que restringen el acceso de las adolescentes a los servicios legales que ellas quieren.

Este capítulo está dividido en dos secciones. En la primera sección, la Prof. Kelly describe la génesis de estos casos en América Latina, analizando algunas de las opciones estratégicas y tácticas de los defensores, haciendo un seguimiento de la trayectoria de los casos ante los organismos internacionales de derechos humanos y considerando su contribución a la jurisprudencia internacional sobre los derechos del aborto. En la segunda sección Lisa Kelly analiza una serie de narrativas acerca del “sufrimiento del inocente” que fueron parte de litigios contemporáneos del aborto, al dividir la narrativa en sus partes constituyentes e interpretar cada una de ellas de acuerdo con su significado integral. Finalmente, la autora evalua los costos y beneficios de este tipo de litigios, en particular para las jóvenes, protagonistas de gran parte de estos casos.

 El aborto en el derecho transnacional: casos y controversias:  en español    en inglés.      Sumario y Índice General
Descargar: Reseña del libro en Andamios, por Diego Garcia Ricci      
Introducción y Prólogo. 

Otros capitulos de la cuarta parte del libro:
—Alejandro Madrazo, “Narrativas sobre la personalidad jurídica prenatal en la regulación del aborto,” págs. 415-437  Resumen.

—Rebecca Cook, “Significados estigmatizados del derecho penal sobre el aborto,” págs. 438-467  Resumen.

Tabla de Casos/Jurisprudencia sobre aborto, con enlaces a muchas de las decisiones judiciales

Other Program Resources about Adolescents are online here.
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“ProChoiceLife: Asking Who Protects Life and How—And Why It Matters in Law and Politics” by Reva Siegel

December 20, 2017

Congratulations to Prof. Reva Siegel of the Yale Law School, for her insightful article, which has relevance beyond the United States.

Reva Siegel, “ProChoiceLife: Asking Who Protects Life and How—And Why It Matters in Law and Politics” forthcoming in the Indiana Law Journal vol. 93 (2018), Yale Law School, Public Law Research Paper No. 613.  Typescript online.

Government can protect new life in many ways. It can restrict a woman’s access to abortion, help a woman avoid an unwanted pregnancy, or help a pregnant woman bear a healthy child. Yet in debates about abortion we often speak as if restricting abortion is the only way to protect new life, and further, as if governments that restrict abortion are committed to protecting new life and advocates of abortion rights are not.

If we expand the frame and analyze restrictions on abortion as one of many ways government can protect new life, we observe facts that escape notice when we debate abortion in isolation. Jurisdictions that support abortion rights may protect new life in ways that jurisdictions that restrict abortion rights will not. One jurisdiction may protect new life by means that respect women’s autonomy, while another protects new life by means that restrict women’s autonomy.

In this essay I reason from a prochoicelife perspective that asks whether government protects new life by means that respect women’s reproductive decisions. I develop a framework that allows us to compare the policies for protecting new life that governments choose and the values they demonstrate. The essay’s critical framework connects policies on sexual education, contraception, abortion, health care, income assistance, and the accommodation of pregnancy and parenting in the workplace. It shows that some jurisdictions protect new life selectively, favoring policies for protecting new life that restrict women’s reproductive decisions over policies that respect women’s reproductive decisions. Fresh description generates new prescription. Asking who protects life, and how, matters in enforcing the Constitution and in forging coalitions across divided communities.

The full text is online here.
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Compiled by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca For Program publications and resources, see our website, online here. TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.


Brazil: Conservative mobilization and adolescent pregnancy in Latin America

November 30, 2017

Many thanks to scholars  Camila Gianella, Marta R. de Assis Machado, and Angélica Peñas Defago, for sharing their research with readers of the Reprohealthlaw Blog.

On September 27, 2017, the Brazilian Supreme Court – in a 6 to 5 judgmentdecided that public schools can have “confessional” (Catholic) religious teaching in their curriculum. The constitutional case had been proposed by the Attorney General, who argued that current practice – that privileges Roman Catholic indoctrination – would violate the separation between Church and State as well as religious freedom. Although the judgment brings severe consequences to education rights in Brazil, it is only one example of the recent battles by conservative religious groups to influence Brazilian public education. The Catholic church has a long history of interference in Roman Catholic countries, aiming to block comprehensive sex education in schools. More recently, other churches and conservative groups have adopted similar strategies to influence educational policies in Brazil and elsewhere in Latin America.

In 2011, a school booklet advocating “Schools without Homophobia,” prepared by the Brazilian Ministry of Education, was recalled after strong pressure from conservative movements, evangelical and Catholic leaders. It was denounced as an instrument to promote homosexuality among children and to destroy families. In 2014, the debate over Brazil’s National Education Plan was the battlefield of conservative and religious groups against what they called “gender ideology”.  Supported by civil society mobilization,  including a organization (ironically) called Escola sem Partido [Schools without Politics] conservative members of congress overruled a clause in the Brazilian National Education Plan that stated, among the goals of the public educational system, overcoming educational inequalities, with emphasis in the promotion of equality among races, regions, genders and sexual orientations. Vocal critics of anti-discriminatory public policies in education also applied political pressure during the discussion and passing of state and municipal education plans.

Brazil is only one example of a new wave of conservative mobilization that is sweeping Latin America, characterized by the gathering of powerful old economic elites and religious conservative groups.  Among its central political strategies, this new wave fights against the inclusion of a gender equality approach in public policies, including school curricula among their principal battlegrounds.   Across the region, this movement has won many major disputes with significant impact.  They have succeeded on blocking gender approaches and comprehensive sexual education not only in Brazil, but in the Argentinian provinces of Mendoza and Entre Rios, in Monterrey (Mexico), Panama, Paraguay, Peru, and even in the most secular country in the region, Uruguay.

As our forthcoming letter to the Editor of The Lancet (2017) explains, this new wave of conservative mobilization has tangible health effects. By opposing sexual education in the schools as well as the introduction of a gender equality approach within the school curricula, they hinder a core element of public health strategies to empower girls and adolescents, and consequently to prevent teenage pregnancies, which have a devastating negative impact on women, by, for example, contributing to female poverty.

Latin America is already the only region in the world where adolescent pregnancies are not decreasing.  A recent analysis of global health progress, published by The Lancet, has shown that if the current trends continue, Latin American countries will not be able to reach their Sustainable Development Goals for reduction of teen pregnancy.  The adolescent fertility rate in Latin America (73.2 per 1000) is very high when compared with the worldwide rate of 48.9 and even the rate in developing countries (52.7).

The new wave of conservative mobilization in Latin America aggravates this situation and must therefore be taken seriously by those interested in preventing and reducing female poverty, and promoting gender equality not only in Latin America, but worldwide.  If there is something to be learned from Latin America, it is that the battle against gender equality can be strategically used by political groups aiming to gain or retain political power.   In this scenario, public health advocates must shift the discussion to public policies rather that moral battles, and urge governments to implement measures to empower women of all ages and grant girls and adolescents reproductive autonomy, which includes access to information through public education.

About the authors: 
Camila Gianella, M.Sc, Ph,H. has worked as researcher and consultant for projects on sexual and reproductive rights, the right to health, tuberculosis, mental health and transitional justice. She has been a counselor in HIV and Tuberculosis services, and also worked with asylum seekers.   She now works as a researcher at the Chr. Michelsen Institute (CMI), Bergen, Norway,

Marta Rodriguez de Assis Machado has Master’s (2004) and PhD (2007) degrees  in Philosophy and Theory of Law at University of Sao Paulo.  Since 2007, she has served as full time professor at the Getulio Vargas Foundation Law School in Sao Paulo, researcher at the Brazilian Center of Analysis and Planning (CEBRAP); and global fellow at the Centre on Law & Social Transformation (CMI) at the University of Bergen, Norway.

María Angélica Peñas Defago obtained her PhD in Law and Social Sciences at the National University of Cordoba (UNC), Argentina, where he is now Assistant Professor of Legal Sociology, and a  Researcher and Professor in the Sexual and Reproductive Rights Program, School of Law, UNC, Post-doctoral Fellow of the National Council of Scientific and Technical Research, Argentina (CONICET / CIJS-UNC).
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Related resources: 
Maria Jose Rivas Vera, “Sexuality Education in Paraguay: Using Human Rights and International Policies to Define Adolescents’ Right to Sexuality Education” (LL.M. thesis, University of Toronto, 2015) thesis online.   

Julieta Lemaitre, “Catholic Constitutionalism on Sex, Women, and the Beginning of Life,” Abortion Law in Transnational Perspective: Cases and Controversies ed. Rebecca J. Cook, Joanna N. Erdman, and Bernard M. Dickens (University of Pennsylvania Press, 2014) pp 239-257, notes pp. 430-434. Abstract in English.   Resumen en espanolLibro en español.

 


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.

 


South Africa: Expulsion of pregnant students violated constitutional rights

September 29, 2017

Many thanks to Godfrey Kangaude, LL.M. (UFS), LL.M. (UCLA), an LL.D. candidate at the University of Pretoria and Executive Director of Nyale Institute for Sexual and Reproductive Health Governance in Malawi, for summarizing this decision with Y. Kakhobwe in Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts, published by Pretoria University Law Press (PULP) in 2017.  228-pages online     Flyer with Table of Contents.     New online edition with links to decisions and analyses.

Head of Department, Department of Education, Free State Province v. Welkom High School & anotherHead of Department, Department of Education, Free State Province v. Harmony High School & another (CCT 103/12) [2013] ZACC 25, 2013 (9) BCLR 989(CC); 2014 (2) SA 228 (CC) (10 July 2013)   Constitutional Court of South Africa  Decision online.    Case summary by G. Kangaude and Y. Kakhobwe.

Two South African high schools had adopted policies that provided for automatic
exclusion of any student from school if it is found that she is pregnant. When in two separate instances the schools applied the policies to pregnant students, the Head of the provincial department of education intervened in the decisions of the school’s governing bodies and ordered them to ignore the pregnancy policy and reinstate the students. The respondents took the matter to the High Court which ruled that this official had no authority to tell the principals not to implement their adopted policy.  The
Supreme Court upheld the High Court’s decision.  The Constitutional Court of South Africa ruled that if school policies were unconstitutional, as these were, the Head of the provincial education department should have intervened, using the proper mechanisms provided by the Schools Act.
The Constitutional Court opined that these pregnancy policies prima facie violated constitutional principles, and violations should be addressed by the scheme of powers under the School Act.  The Court held that, first, the policies unjustifiably discriminated on the basis of pregnancy and sex.  Second, the policies limited the right to education by requiring that the student repeat an entire year.  Third, the policies prima facie violated students’ rights to human dignity, privacy, and bodily and psychological integrity by requiring them to report their own pregnancy or that of others.  Finally, the policies violated the best interests of the child because they failed to take into account the health and other needs of the pregnant student.
The Court did not make a declaration on the constitutional validity of the pregnancy policies since this issue was not placed properly before it, and also because the Court respected the scheme of powers in the School Act. However, the Court ordered the school governing boards to review their pregnancy policies.
The Court’s opinion follows several older African judgments such as Student Representative Council of Molepolole College of Education v. Attorney General [1995] (3) LRC 447), where the Botswana Court of Appeal held that a regulation that required a student to report pregnancy to the authorities, and would be obliged to leave the College or be expelled if this was a second occurrence, was unconstitutional as it was discriminatory on the basis of sex. Similarly, in Mfolo and Others v. Minister of Education,  [1992] (3) LRC 181,Bophuthatswana (South Africa, Supreme Court, Bophuthatswana and General Division), and in Lloyd Chaduka and Morgenster College v. Enita Mandizvidza, Judgment No. SC 114/2001; Civil Appeal No. 298/2000 (Zimbabwe, Supreme Court),   two African Supreme Courts held that regulations that required pregnant students to withdraw from college were unconstitutional.

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Compiled by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   For Program publications and resources, see our website, online here.     TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.