by Estefanía Vela Barba

On May 15, 2019, the Mexican Supreme Court handed down its latest ruling on abortion, now available in English.  The good news is that the Court’s First Chamber held that denying women access to abortion violates their right to health. The bad news is that it still did not explicitly deem abortion criminalization unconstitutional —although it certainly laid the groundwork for it. Because of this, the ruling is worthy of revision, especially for an international audience, given its constant use of international law to underpin its arguments.

The case is related to a woman’s petition to federal health authorities to terminate her pregnancy on the grounds that it posed a risk to her health. Her petition was denied by authorities, who argued that the General Health Law did not provide access to abortion. Although she opted for an abortion in Mexico City, where it is decriminalized and provided for as a free service, she nonetheless challenged their decision through an amparo, arguing that the authorities’ denial violated her right to health.

The district court first dismissed the matter on a technicality, holding that, even if she were right on the merits, the ruling would have “no effect whatsoever because the subject matter of the government action being challenged had ceased to exist” Why? Because she had already terminated the pregnancy.  If the point of an amparo is to stop or reverse an unjust ruling, there was nothing to reverse or to stop here. The deed was done. No justice could be served. The plaintiff challenged this decision too, finally reaching the Supreme Court, who thus had to decide on two issues: could she challenge the health authorities’ refusal even though she had terminated her pregnancy? And if she could, was she right about the merits?

In Mexico, the procedural question was of paramount importance. The amparo has a long history of being interpreted in quite restrictive terms, allowing form to take precedence over substance. In the case of abortion, this interpretation made it impossible for women to ask for redress, given that no matter what they chose – ending or continuing the pregnancy – the amparo would always be rendered meaningless given that a ruling generally takes more than 9 months to materialize (the case at hand, for example, took a total of six years to be resolved).

On this first issue, the Court decided that procedural rules had to be interpreted from “a gender perspective,” which includes analyzing apparently gender-neutral provisions for the disparate impact they could have on men and women. The Court ruled, in other words, that we need to take CEDAW’s prohibition of indirect discrimination seriously.

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We are pleased to welcome Estefanía Vela Barba to International Law Girls!
Estefanía holds an LL.M. from the Yale Law School, where she is currently developing her doctoral research.  She is also Executive Director of Intersecta, a feminist research and advocacy organization committed to ending gender discrimination in Mexico, through the promotion of intersectional and evidence-based policies.

 

 

by Alisha Bjerregaard and Christina Zampas

On October 4, 2019, the UN Special Rapporteur on violence against women, its causes and consequences, Dubravka Šimonović, presented her latest report, “A human rights-based approach to mistreatment and violence against women in reproductive health services, with a focus on childbirth and obstetric violence.”  The first U.N. report of its kind, it 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.”

Women and girls have long experienced mistreatment or even violence when delivering children in healthcare facilities around the world; however, these abuses have been shrouded in silence and stigma and rarely framed as human rights violations.  As the report underscores, this is partly due to harmful gender stereotypes about “women’s decision-making competence, women’s natural role in society and motherhood[, which] limit women’s autonomy and agency,” and how such stereotypes are “further justified by the belief that childbirth is an event that requires suffering on the part of the woman.”  Essentially, her “physical and emotional health is not valued.”

Although human rights bodies have denounced some of the abusive practices in the context of childbirth as violations of human rights, their decisions and statements have often been limited to specific abuses, such as forced sterilization and the shackling of incarcerated women, leaving many types of mistreatment “unaddressed or inadequately analyzed under international human rights law” (Khosla, Zampas et al., p. 132).  They have not articulated the rights violations as part of a wide range of abuses within the context of childbirth, nor the role of intersectional discrimination.

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.

The report frames some of these abuses in the context of “violence against women,” as defined under international human rights law, while recognizing that not all mistreatment during childbirth constitutes violence against women.  Such assessment must be done on a case-by-case basis.  The report further acknowledges that some forms of mistreatment may constitute violence and may violate other human rights, such as rights to health, privacy, freedom from discrimination and freedom from inhuman and degrading treatment.

Recognizing that mistreatment and violence against women during childbirth denies women autonomy and agency, the report places special emphasis on informed consent to medical treatment as “a human right and a safeguard against such violence.” Continue reading →

We are pleased to welcome Alisha Bjerregaard, an independent consultant currently working as Acting Director of U.N. Advocacy at Women Enabled International, where she focuses on advocacy before U.N. bodies to advance the rights of women and girls with disabilities. She is also a Schell Center Visiting Human Rights Fellow at Yale Law School.

Previously, Alisha was a Clinical Lecturer in Law and the clinical teaching fellow at the Allard K. Lowenstein International Human Rights Clinic at Yale Law School. She has also worked at the Center for Reproductive Rights, where she was a Legal Adviser in the Africa Program, based in Nairobi, Kenya.  There, she worked on advocacy and litigation strategies to advance reproductive rights in Kenya, Tanzania, Uganda and Rwanda.

Alisha has authored human rights reports documenting the impact of restrictive abortion laws in Ireland and Kenya and of mandatory pregnancy testing and expelling pregnant students from schools in Tanzania. She has also undertaken reproductive rights research and advocacy as a consultant for various organizations, including Amnesty International, Ipas and the World Health Organization.

Welcome, Alisha!

 

 

by Jennifer Paine, GIRE

In April 2018, the Suprema Corte de Justicia de la Nación unanimously voted in favor of two separate cases (“Marimar” and ”Fernanda” ) where a woman or girl who became pregnant due to rape was denied access to a legal abortion. Both victims received legal support from GIRE, a Mexican organization that provides information on reproductive choice.

Both rulings recognized that denial of a legal abortion after rape constitutes a violation of reproductive rights. This is important because abortion after rape is legal in all 32 Mexican states. The federal “Victim’s Law” allows a raped woman or girl to access abortion at any public health center. Modified in 2016, the law’s content is now taken directly from international treaties. For example, the law does not require court authorization, filing of a police report nor parental consent for minors over age 12. Abortion care under these circumstances is defined as “emergency medical services.”

The Court used constitutional and international law to support its rulings. The first article of the Mexican Constitution states:

. . . all individuals shall be entitled to the human rights granted by this Constitution and the international treaties signed by the Mexican State, as well as to the guarantees for the protection of these rights. Said human rights shall not be restricted or suspended, except for the cases and under the conditions established by this Constitution itself.

The provisions relating to human rights shall be interpreted according to this Constitution and the international treaties on the subject, working always in favor of the broader protection of people.

The second ruling discussed the important role of the Federal Executive Committee:

…The Committee should place sufficient emphasis so that the corresponding comprehensive reparations establish guarantees of non-repetition that eradicate the serious human rights violations such as those in the present case, in that all types and levels of authorities should treat requests for the termination of pregnancy after sexual assault effectively, immediately and without objection, privileging the rights of all women who have been victims of cruel and inhuman acts such as sexual assault; these authorities should be aware their action of carrying out the legal termination of pregnancy is derived not only from secondary law, but from the compulsory observance of constitutional mandate. ( “Fernanda” ruling, pp 32-33)

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Jennifer Paine has a Master’s Degree (1998) in International Affairs from Colombia University, with a specialization in human rights. She has been living and working in Mexico since 2000, and she is currently the Director of Institutional Development at the Grupo de Informacion en Reproduccion Elegida (GIRE, Information Group on Reproductive Choice) online here.

by Christina Zampas

On January 29, 2018, the Irish government announced that it will hold a referendum on the provision of the Constitutions 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 Eighth 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. It also announced that 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 Continue reading →

We are pleased to welcome Christina Zampas, an international human rights lawyer with extensive experience managing projects on law reform, litigation and training.  Her scholarship and advocacy focus on UN and regional human rights law, particularly on sexual and reproductive rights. She is currently an independent consultant based in Geneva working for various UN agencies and NGOs. She is also a Reproductive and Sexual Health Law Fellow in the International Reproductive and Sexual Health Law Program, Faculty of Law, University of Toronto.

Zampas has worked at Amnesty International as Senior Legal Advisor, the Center for Reproductive Rights as Regional Director for Europe, and at Parliamentarians for Global Action as Project Director for its work in West African parliaments.  She has been a Practitioner-in Residence at University of Miami Law School Human Rights Clinic and a Visiting Lecturer in Russian university law faculties with Yale University and Open Society Foundations. She has done consultancy work for the Office of the High Commissioner for Human Rights (OHCHR), UNAIDS, UNFPA and the World Health Organization (WHO).

Zampas has conducted advocacy at various UN and regional human rights bodies and in national parliaments and ministries. She has led major research missions documenting human rights violations related to abortion, forced sterilization, and sex work.  She has litigated and filed amicus briefs in groundbreaking cases before the European Court of Human Rights, the European Social Charter, the Inter-American Court of Human Rights, and at UN Treaty Monitoring Bodies.  She is also a co-founder of the Women’s Human Rights Training Institute (WHRTI), in Bulgaria, the first training program for lawyers from Central and Eastern Europe on using international and regional human rights mechanisms to seek redress for violations of women’s rights.

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

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 Continue reading →

We are pleased to welcome Mercedes Cavallo, an S.J.D. student at the University of Toronto.  For her doctoral thesis, she researches the legal construction of spatial and temporal scales from a legal geography perspective — particularly, how the different laws in the context of Buenos Aires, Argentina, unfold childcare in the private space and time of the household, shaping women’s inequality.

Cavallo received her LL.B. in 2007 (Universidad Torcuato Di Tella, Argentina), her LL.M. in Reproductive and Sexual Health Law in 2009 (University of Toronto, Canada), her Diploma in Women and Human Rights in 2011 (Universidad de Chile), and her Specialization in Criminal Law in 2016 (Universidad Torcuato Di Tella in Argentina).   From 2014 to 2016, she was an Adjunct Professor in Argentina: first in the Universidad de Palermo, where she taught “Jurisprudence” and later in Universidad Torcuato Di Tella, where she taught “Introduction to Argentine Constitutional Law” and “Gender and the Criminal Law”.  She has also served as Court Clerk at the Federal Supreme Court of Argentina, Director of the Socio-Economic Rights Program at Asociación por los Derechos Civiles (Association for Civil Rights, Argentina), and Court Secretary at the 4th National Court on Federal Criminal Law in the City of Buenos Aires. (Argentina) before returning to the University of Toronto for doctoral studies in 2016.