2
Decriminalization of abortion – A human rights imperative

https://doi.org/10.1016/j.bpobgyn.2019.05.004Get rights and content

Highlights

  • Human rights require the withdrawal of punitive abortion measures.

  • Human rights require access to abortion atleast on grounds of life health, sexual crime, and fetal impairment.

  • Human rights require timely access to information of the pregnancy and grounds for its possible termination, written reasons for denials, and review mechanisms for denials.

  • Human rights require that abortion services be available to all, irrespective of their specific circumstance.

  • Decriminalization of abortion is the removal of abortion from the criminal law.

Abstract

This chapter reviews the evolving consensus in international human rights law, 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 to protect the health, equality, and dignity of people. This consensus is based on human rights standards or the 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 rapporteurs and working groups of the U.N. and regional human rights systems. This chapter explores the reach and influence of human rights standards, especially how high courts in many countries reference these standards to hold governments accountable for the reform and repeal of criminal abortion laws.

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

  • depenalize or withdraw punitive measures on abortion;

  • liberalize abortion on specified grounds and provide procedural protections to ensure effective access on those grounds; and now to

  • 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.

References (108)

  • C.G. Ngwena

    Inscribing abortion as a human right: the significance of the protocol on the rights of women in Africa

    Hum Rights Q

    (2010)
  • M. Upreti

    Toward transformative equality in Nepal: the Lakshimi Dhikta decision

  • C. Zampas

    Legal and political discourses on women's rights to abortion

  • J.B. Fine et al.

    The role of international human rights norms in the liberalization of abortion laws globally

    Health Hum Rights

    (2017)
  • The UN Committee on the Elimination of Discrimination against Women

    General recommendation no. 24. A/54/38/Rev. 1

    (1999)
  • The UN Human Rights Committee

    General comment no. 36. CCPR/C/GC/36

    (2018)
  • D. Pūras

    Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health

    (2018)
  • A. Zureick et al.

    Physicians' challenges under El Salvador's criminal abortion prohibition

    Int J Gynecol Obstet

    (2018)
  • Amnesty International

    The total abortion ban in Nicaragua: women's lives and health endangered, medical professionals criminalized

    (2009)
  • Isle of Man

    Abortion Reform Act 2019

    (2019)
  • The American College of Obstetricians and Gynecologists

    Decriminalization of self induced abortion: position statement

    (December 2017)
  • Amnesty International

    Body politics: a primer on criminalization of sexuality and reproduction

    (2018)
  • The UN Committee on Economic, Social and Cultural Rights

    General comment no. 14. E/C.12/2000/4

    (2000)
  • The UN Committee on Economic, Social and Cultural Rights

    General comment no. 22. E/C.12/GC/22

    (2016)
  • The UN Committee on the Elimination of Discrimination against Women

    General recommendation no. 35. CEDAW/C/GC/35

    (2017)
  • J.E. Méndez

    Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment. A/HRC/31/57. Geneva: United Nations

    (2016)
  • The UN Working Group on Discrimination against Women

    Report of the working group on the issue of discrimination against women in law and in practice. A/HRC/32/44. Geneva: United Nations

    (2016)
  • The UN Committee on the Elimination of Discrimination against Women

    General recommendation no. 34. CEDAW/C/GR/34

    (2016)
  • The UN Committee on the Rights of the Child

    General comment no. 15. CRC/C/GC/15

    (2013)
  • A. Grover

    The Report of the Special Rapporteur on the Right of everyone to the enjoyment of the highest attainable standard of physical and mental health. A/66/254. Geneva: United Nations

    (2011)
  • D. Pūras

    The Report of the Special Rapporteur on the Right of everyone to the enjoyment of the highest attainable standard of physical and mental health. A/HRC/32/32. Geneva: United Nations

    (2016)
  • World Health Organization

    Health worker roles in providing safe abortion care and post-abortion contraception

    (2015)
  • The UN Human Rights Committee

    General comment no. 28. CCPR/C/21/Rev.1/Add. 10

    (2000)
  • J.E. Méndez

    Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment. A/HRC/22/53. Geneva: United Nations

    (2013)
  • Supreme Court of Brazil

    Sentence. Claim of non compliance with fundamental Precept no.54. Judge-rapporteur: justice Marco Aurélio. Vote: justice Rosa Weber. Brasília, DF

    (April 30 2013)
  • European Court of Human Rights. Vo v. France, Application No. 53924/00.40 E.H.R.R. 12, Eur. Ct. H.R. (2004),...
  • V. Undurraga

    Proportionality in the constitutional review of abortion law

  • The UN Human Rights Committee

    General comment no. 16. CCPR/C/GC/16

    (1988)
  • European Court of Human Rights

    A, B, and C v. Ireland, ECHR

    (16 Dec 2010)
  • A. Callamard

    Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions on a gender-sensitive approach to arbitrary killings. A/HRC/35/23. Geneva: United Nations

    (2017)
  • C. Zampas et al.

    Abortion as a human right – international and regional standards

    Hum Rights Law Rev

    (2008)
  • A.F. Lavelanet et al.

    Global abortion policies database: a descriptive analysis of the legal categories of lawful abortion

    BMC Int Health Hum Right

    (2018)
  • African Commission on Human and Peoples’ Rights

    Protocol to the African charter on human and peoples' rights on the rights of women in Africa (the Maputo Protocol). AHG/Res, 240 (XXXI). African union

    (2003)
  • The UN Committee on Economic, Social and Cultural Rights

    General comment no. 16. E/C.12/2005/4

    (2005)
  • Inter-American Commission on Human Rights, letter to Nicaragua's minister of foreign Affairs

    (10 November 2006)
  • The UN committee against torture

    (2008)
  • The UN Committee on the Elimination of Discrimination against Women

    L.C. v. Peru, Communication No. 22/2009, U.N. Doc. CEDAW/C/50/D/22/2009

    (2011)
  • The United Nations

    Pathways to, conditions and consequences of incarceration for women

    (2013)
  • M. Nowak

    Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment

    (2008)
  • V.T. Corpuz
    (2015)
  • Cited by (29)

    View all citing articles on Scopus
    View full text