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
Abbe Gluck abbe.gluck 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
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Transnational debates on abortion fit into three general frames: crime and punishment, public health, and human rights. These frames overlap, their elements ebb and they flow depending on the context, and their contours evolve over time depending on developments, such as medication abortion, or backlash strategies.
The crime and punishment frame uses the criminal law to control reproductive and sexual morality, or to stigmatize women who do not conform to a society’s modesty, behavior or chastity codes. This approach is most starkly exemplified by the Nazi control of women’s bodies. The Nuremberg trials addressed cases where women were punished for conceiving a child of mixed race when they were forced to have an abortion, or when the pregnancy was pure, but unwanted, they were forced to carry the pregnancy to term.
The crime and punishment frame persists today in many incarnations, such as women being treated in punitive ways by health care professionals, such as by denying them anesthesia during the abortion procedure, or forcing a woman to carry a pregnancy to term even though the fetus is afflicted with a fatal anomaly, such as anencephaly (having all or most of the brain congenitally absent). The anencephaly cases have been percolating in many countries, such as Argentina, Brazil, and Ireland. Anencephaly became an international issue when the Human Rights Committee held Peru responsible because a public hospital forced an adolescent girl to carry an anencephalic fetus to term and to breast feed the child until it died predictably a few days after birth, despite the fact that the Peruvian criminal law allowed for abortion in such cases.
The transnational context of the public health approach to abortion is framed by the work of the World Health Organization (WHO), other UN agencies and public health organizations. The Cairo Programme of Action, developed at the 1994 International Conference on Population and Development, built on the WHO definition of health to define reproductive health as “a state of complete physical, mental and social well-being and not merely the absence of disease and infirmity, in all matters relating to the reproductive system and to its functions and processes.” The Beijing Platform for Action, developed at the 1995 Fourth World Conference on Women, urged countries to “deal with the health impact of unsafe abortion as a major public health concern.”
WHO puts unsafe abortion in the context of maternal mortality- that is death to women who are or have been pregnant, within 42 days of pregnancy. Every year, over a half a million women die of pregnancy-related complications, most in the process of giving birth. In countries where abortion is legally restricted, the next greatest cause usually is unsafe abortion. Maternal mortality statistics (available by country on the WHO website) and the much higher maternal morbidity statistics, show that the burden of reproductive ill-health is born disproportionately by the developing world. In the past 25 years, there have been significant efforts through the work of WHO, and, for example, the World Bank, to promote safe motherhood. These efforts have generally not addressed the problem of abortion due to its stigmatized nature, but at least the world is now talking about maternal mortality, even if it does not want to address one of its major causes.
Another important element of the public health frame is the social science research initiatives to understand the reasons behind the unsafe abortion numbers. One such initiative addressed high rates of adolescent unintended pregnancy. The research showed that much of such pregnancy was due to non-consensual sex, transactional sex, and unavailability or prohibitive costs of contraceptives.
An emerging strand in the public health approach is the access to the essential medicine, called misoprostol that can prevent hemorrhage in childbirth. This same medication also causes early abortion. After much transnational wrangling, this drug was placed on the WHO Essential Drug List, facilitating its inclusion in national drug formularies. As more courts order Ministries of Health to provide essential medicines in other areas of health, such as HIV/AIDS, the tactics of facilitating supply of essential drugs are beginning to be applied to ensure access to means for the reduction of maternal mortality, albeit through efforts by non-governmental organizations to make available, for instance, the medical abortion drugs via the internet, using the techniques of telemedicine.
Transnational debates on human rights and their social justice dimensions are framed by the potential and actual application of international and regional human rights treaties, and by comparative constitutional law. This debate includes how the interests in life, in liberty, security and privacy, including the right to be free from inhuman and degrading treatment, and in equality have been applied, both domestically and internationally. There have been many attempts to introduce constitutional provisions to protect life “from the moment of conception.” Some of the successful amendment efforts, such as those in Ireland and the Philippines, require that the right to life of the fetus has to be balanced with the life of the woman. The rationale of protection of life from conception has been applied to outlaw abortion, as was done in 2006 by the legislature in Nicaragua, and to prohibit emergency contraception as abortion by a court decision this year in Chile. A trend is emerging to shift the debate to how best to protect prenatal life in ways that are consistent with women’s rights, such as improved prenatal care, and reduction of intimate partner violence during pregnancy.
The right of privacy was applied in 2007 by the European Court of Human Rights to hold Poland accountable for denying an abortion to a woman who suffered from severe sight impairment. As a result of being compelled to give birth to a third child, her sight deteriorated, placing her within the most disabled category where she is advised against any physical effort including the care of her children, lest she may become blind. The Court explained that where the procedures for accessing a lawful abortion are not transparent, there is a denial of the right of privacy. This holding, along with other similar holdings, particularly a 2004 judgment of the Northern Ireland Court of Appeal, have generated transnational debates about applying the principle of transparency, whether found in the right of privacy or principles of administrative law, to ensure that women can access abortion when they are legally entitled.
Equality provisions are is slowly being applied. The Committee on the Elimination of Discrimination against Women, established to monitor observance of the Convention on the Elimination of All Forms of Discrimination against Women, has explained that members states have an obligation not to “criminalize medical procedures only needed by women,” and not punish women who undergo these procedures. Underlying the 2006 decision of the Colombian Constitutional Court, legalizing abortion for therapeutic reasons and in cases of rape and incest, and the 2007 decision of the Slovakian Constitutional Court, upholding a liberal law, were commitments to equality. Translation of the 2008 judgment of the Supreme Court of Mexico, upholding permissive abortion Mexico City law, is needed to determine if or how they apply women’s rights to equality.
Backlash strategies emerge from opponents of reproductive rights with regularity in the transnational context. In post-reform periods, whether reform comes from a legislature or a court, strategies to limit the effect of the reform generally aim to reduce women’s choice, and their moral agency. Strategies include third party authorization requirements, and abuse of conscientious objection. Unsuccessful attempts to limit women’s access to abortion by putative fathers seeking injunctions against their partners’ abortions have been made through 3 international human rights tribunals and 9 domestic courts, most recently the Supreme Court of Nepal in 2008.
The abuse of conscientious objection by health care providers takes many forms, including failure or refusal to provide appropriate information, refusal to refer a request to a willing provider, and refusal to perform a procedure in the case of emergency. Some countries, such as Poland, are now awarding damages to women who have been wrongfully denied access to legal abortion services, and some are changing their disciplinary proceedings to ensure greater fairness and transparency in accessing remedies. The Colombian Constitutional Court, responding this year to a claim on behalf of a 13 year old rape victim who was denied an abortion to which she was entitled, held that doctors could not abuse their rights of conscience, and as professionals have to provide necessary information and refer an applicant to a willing provider, and that hospitals have to ensure that there are providers who will perform abortions.
One might ask what can be made of these transnational debates. An answer is that they widen visions and understandings through exchanges of experiences of addressing how best to address the causes and consequences of unsafe. The trend is towards liberalization of restrictive laws, although it is by no means uniform. The transnational debates help to legitimize public and private discussion of a much stigmatized subject, and expand the focus of concern to include not only fetal interests, but women’s human and constitutional rights. The debates put restricted access to abortion in a context of global injustice, where the burden of maternal mortality and morbidity due to prohibited and unsafe abortion is borne disproportionately by the world’s poorer and younger women. Posted
by Guest Blogger [link]