an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Over the last three years, the Reproductive and Sexual Health Law Programme at the Faculty of Law, University of Toronto has intervened in five abortion-related cases. We intervened before domestic courts in Colombia, Nicaragua and Mexico and before the European Court of Human Rights in cases against Poland and Ireland. Our interventions are designed to stimulate engagement with abortion regulation from perspectives of equality and non-discrimination.
Decision-makers, we are informed, are not openly hostile to these perspectives. They are confounded by them. They fail to see what the perspectives add to existing liberty and privacy claims. In many abortion cases, equality claims are not denied, but regarded as unnecessary. In the European human rights system, for example, this is in part the consequence of the accessory nature of the non-discrimination right. Article 14 of the European Convention on Human Rights requires that a discrimination claim fall within the scope of a substantive Convention right or freedom. Once a violation of the rights to life, liberty or privacy has been found, the court has considered it unnecessary to examine an applicant's separate complaint under the right to non-discrimination (see e.g. Tysiac v. Poland).
The failure to see the relevance of discrimination claims can be partly attributed to narrow or weak interpretations of equality rights. Consider the following passage in a 2004 judgment of the Northern Ireland Court of Appeal:
I do, of course, accept that financial burdens are imposed on under-privileged women who seek abortions in England which are not available under the law in force in Northern Ireland. But there is no evidence of discrimination in the provision of abortion services in Northern Ireland which are lawful under the law of Northern Ireland, save that one may have to go to a hospital in Belfast and the person who decides whether or not the abortion should be carried out may be unaware of the law. There is no evidence that Roman Catholic women will be unable to find a hospital that is available to Protestants, for example.
Discrimination in the provision of legal abortion services is an important aspect of an equality right, but does not exhaust the scope of the right. Equality claims need not accept the definition of benefits and burdens as drawn by the law, inquiring simply whether the law grants equal benefits and imposes equal burdens on all persons to whom it applies. Although even on this narrow understanding, the disparate impact of the law on young women, poor or low income women, refugees, asylum seekers or unregistered migrants and women in the care or control of the state who cannot travel to England to receive abortion care should have been relevant to the Court.
Such narrow constructions are also used to support the inadmissibility of non-discrimination claims, with findings that alleged violations are not properly substantiated, the applicant having failed to provide evidence relating to events which might confirm any type of discrimination (see e.g. Human Rights Committee, K.L. v Peru). These rulings are particularly troubling for the narrow construction of equality rights that justifies the decision of inadmissibility is often unarticulated.
While many abortion cases are not expressly decided under equality rights, principles, interests and values of equality and non-discrimination nevertheless inform the reasoning of decision-makers. In K.L. v. Peru, for example, the Human Rights Committee found no evidence to support a violation of the rights to non-discrimination (articles 3 and 26 of the ICCPR). The Committee relied, however, on the special vulnerability of the applicant as a minor girl, and the special care that she required in the specific circumstances of her case to find a violation under article 24 (“Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State”). In its 2006 judgment liberalizing the criminal abortion law, the Colombian Constitutional Court noted commitments to equality, but did not find a violation of equality rights.
These considerations lead us to question whether reluctance to speak in the language of equality rights is a function, as claimed, of failing to see the relevance, to appreciate the meaning and scope, of these rights in the abortion context, or whether it is the consequence of some broader concern, the implications, for example, of acknowledging the deeply gendered nature of many forms of state regulation, that leads to active resistance. Why are equality and non-discrimination frames in abortion regulation underutilized? Are courts insecure or resistant?
With this question in mind, we set ourselves the task of intervening exclusively on equality and non-discrimination grounds in abortion-related cases in pursuit of the following two goals.
First, we seek to articulate the relevance of equality and non-discrimination rights. We seek to demonstrate continuity with the principles, values and interests well-articulated in decision-making to date and to offer more robust conceptions of equality rights for engagement.
Our interventions in Colombia, Nicaragua, and Mexico, for example, focused on the relationship between the criminal law and public health harms, the evidence of unsafe abortion, rates of maternal mortality and morbidity. In Ireland, given relatively low maternal mortality and morbidity rates, despite a criminal restriction on abortion except where necessary to protect the woman’s life, unsafe abortion could not alone drive the argument. Given the availability of legal abortion in neighbouring countries, the vast majority of Irish women seeking abortions receive care abroad. It is important to note, however, that Irish women do experience health related harms as a consequence of receiving abortion care abroad, including for example later termed abortions and inadequate post-abortion care.
In our intervention before the European Court, we articulated the harm of the criminal abortion law in Ireland in terms other than traditional public health harms. By expanding the conceptions of harm, we sought to demonstrate the relevance of an equality frame.
Our point of departure was the statement that the criminalization of medical procedures only needed by women constitutes discrimination under a substantive theory of equality (General Recommendation No. 24, Convention on the Elimination of All Forms of Discrimination against Women). We focused on the punitive nature of the criminal law.
We did not focus solely on evidence of discrimination in the application of the law, as suggested by the decision of the Northern Ireland Court of Appeal above. This would lead to the troubling conclusion that the designation of abortion as a criminal matter is beyond review. Even if women were equal before the law (the law granting equal benefits and imposing equal burdens on all persons to whom it applies), women are not equal under the law. We argued that the regulatory scheme, the very imposition of criminal penalties on women who undergo abortion, is discriminatory.
This argument focused on what may be termed identity rather than health harms. We sought to demonstrate that criminal abortion laws derive from stereotype and stigmatization, impermissible bases of state regulation under an equality frame. We sought to explain how a state policy of tolerance, the passive exporting of Irish women abroad for abortion care or the so-called “Irish Solution to Irish Problem,” impacts women’s sense of self-worth and community membership, values of a substantive equality perspective. Such reframing of the harm also proved important for admissibility purposes. The required evidence to substantiate a discrimination claim based on an identity rather than health harm is of a significantly different nature.
Second, by developing the meaning, scope and relevance of an equality right in the abortion context, we seek to minimize decision-makers’ capacity to hide behind narrow or weak constructions of these rights, to force an articulation and to thus generate better understandings of the reasons for resistance to an equality and non-discrimination frame. What are the envisaged threats or risks of shifting the paradigm from liberty to equality? We believe that in the perceived threat of an equality frame, we will find an articulation of its greatest transformative potential.