2Decriminalization of abortion – A human rights imperative
Introduction
At the 1994 International Conference on Population and Development, governments agreed that the devastating public health impact of unsafe abortion was a global priority, but that otherwise, abortion was a matter “only [to] be determined at the national or local level” [1]. This compromise was softened one year later at the Fourth World Conference on Women, where governments agreed to “review laws containing punitive measures against women who have undergone illegal abortions.” [2]. The international consensus on abortion laws has continued to evolve, first supporting the liberalization of criminal abortion laws to improve access to care, and now supporting their repeal or decriminalization as a human rights imperative [3]. Nonetheless, abortion remains governed within criminal or penal codes in most countries worldwide [4].
This chapter reviews the evolution of international human rights law on the criminalization of abortion, specifically a progressive consensus to
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depenalize or withdraw punitive measures on abortion;
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liberalize abortion on specified grounds and provide procedural protections to ensure effective access on those grounds; and now to
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decriminalize abortion to reduce unsafe abortion and to protect the health, equality, and dignity of people.
This consensus is based on human rights standards or the formal and authoritative interpretations of U.N. and regional human rights treaties in general comments and recommendations, individual communications and inquiry reports of treaty monitoring bodies, and in the thematic reports of special procedures (special rapporteurs and working groups) of the U.N. and regional systems. Human rights treaties, as legal texts, are written in broad and open language and, rarely if ever, make specific textual reference to abortion, or even reproduction. Human rights standards explain what any general provision of a human rights treaty means as applied to a specific issue, in this case, criminal abortion laws. These standards “are particularly important for providing interpretive guidance in areas where human rights remain unprotected as is the case with … safe abortion care.” [5].
The chapter also seeks to show the reach and influence of human standards on abortion decriminalization. The World Health Organization (hereinafter WHO) has incorporated these standards into its Safe Abortion: Technical and Policy Guidance for Health Systems [6] (hereinafter WHO Safe Abortion Guidance), to illustrate the ways in which they can inform concrete actions of health care providers and policy makers to improve the health and lives of people. The chapter further identifies how high courts in countries of Africa [7], Asia [8], Europe [9], and Latin America [10] increasingly reference human rights standards in their review of national abortion laws [11]. The chapter seeks overall to show how these standards are used to support efforts to reform or repeal criminal abortion laws, to protect against retrogressive measures of recriminalization, and to remedy and redress the harms of abortion criminalization as a human rights imperative.
Section snippets
Depenalization or withdrawal of punitive measures
Early international human rights standards called for the depenalization of abortion, specifically the removal of criminal penalties related to abortion offenses. For example, in 1999, an early standard under the Convention on the Elimination of All Forms of Discrimination against Women (hereinafter the CEDAW Convention) advised that “[w]hen possible, legislation criminalizing abortion could be amended to remove punitive provisions imposed on women who undergo abortion.” [12, ¶31c]. Later
Criminal abortion law liberalization
Human rights standards recognize that criminal abortion laws can serve legitimate ends, including the protection of morals, of which the protection of unborn life as a public interest may be one aspect. Given, however, that criminal law represents the most onerous, intrusive, and punitive power of the state, many courts including the Supreme Court of Brazil [32] have required that criminal law only be used as the last resort. Moreover, international human rights law also sets limits on the
Abortion decriminalization
With a growing acceptance of the deep and enduring dysfunctions of criminal abortion laws, no matter how liberal or with what procedural protections, the international human rights consensus has moved toward the decriminalization of abortion, that is, the repeal of criminal abortion laws and, generally, the removal of abortion as a legitimate subject of criminal law [91].
This consensus is supported by an increased recognition of the inherent, diverse, and complex harms of abortion
Summary
International human rights standards on abortion have evolved from the withdrawal of punitive measures imposed on women for undergoing abortion to the expansion of grounds for lawful abortion and procedural protections to ensure actual access on those grounds and ultimately to the decriminalization of abortion as a human rights imperative. Human rights standards require access to abortion, at a minimum, on grounds of life and health, rape or sexual crime, and fetal impairment. Procedural
Conflicts of interest statement
The authors have no conflicts of interest.
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