This blog was written by Dr Atina Krajewska, Senior Lecturer in Law at The University of Sheffield, and was written in September 2017 following the changes.
On the 21st of August 2017 the Constitutional Tribunal in Chile issued a decision confirming the constitutionality of a law decriminalising abortion in three circumstances, when: a) a pregnancy poses a grave risk to the woman’s life; b) the foetus suffers from a condition which is fatal or renders it non-viable; c) the pregnancy is a result of an illegal act (rape or incest). The previous law, introduced by the end of the Pinochet era, imposed an absolute ban on abortion and was among the most restrictive in the world along with Dominican Republic, El Salvador, Honduras, or Nicaragua. The judgment is an important victory for the vocal pro-choice movement in Chile. It is also a great victory for the women’s rights movement around the world, as it demonstrates the potential impact of human rights on the access to sexual and reproductive health services. However, two interesting and interrelated questions arise in the context: What are the conditions underlying these legal and jurisprudential changes? And what is the relevance of the court decision in Chile for the broader liberalisation and constitutionalisation processes in the area of global reproductive rights? This blog entry briefly addresses these questions.
The adoption of the new law decriminalising abortion in three circumstances by the Chilean Parliament in July 2017 marked the end of a long legislative battle for the advancement of women’s rights supported by the president, Michelle Bachelet. As such, it was immediately challenged by a group of right-wing Catholic MPs as unconstitutional. Providing a lengthy analysis of constitutional and international law as well as other legal systems, the Constitutional Tribunal rejected the claim that the proposed legislation violated the right to life of the foetus and other constitutional principles. The Court argued that, although the Constitution provides protection for unborn human life, the level of protection may vary before and after birth. Furthermore, Parliament is allowed a certain level of flexibility in legislating the area of abortion, because human life does not constitute not an absolute value. It must always be balanced against other constitutional principles, in particular human dignity and the right to life and bodily integrity of the mother. This flexibility can be used to decriminalise offences against life. Recent opinion polls have shown that decriminalisation within the limits established by the Court enjoys the support of the majority of the population. The ruling also falls within a broader trend marked by a series of judgments liberalising abortion laws in recent years in Latin and South America.
In 2006, the Constitutional Court in Colombia, pursuing its progressive human rights agenda lifted a general ban on abortion (C-355/06), by declaring unconstitutional the provisions of the Colombian Criminal Code (C-355/06). It went further than the Chilean Tribunal, because among the grounds for lawful abortion it included the protection of the woman’s physical or mental health among the grounds for lawful abortion. Furthermore, in its subsequent rulings the Court insisted that adding additional requirements to those set by the Court would impose a disproportionate, arbitrary burden on women. Although other courts in the region have been much slower and more modest in developing the protection of women’s reproductive rights, the last few years have seen a considerable progress. In 2012 the Supreme Court of Argentina and the Federal Supreme Court in Brazil issued judgments in which they reinterpreted the provisions criminalising abortion contained in their criminal and penal codes. As a result, in Argentina doctors should not face criminal sanction for performing abortion when the woman’s life or health is at risk or the pregnancy is a result of rape. It is still a matter of debate whether it is lawful to abort anencephalic foetuses (due to non-viability of the foetus). Alas, it is worth noting that the judgment has had relatively limited effect due to the fact that the judicial system is not based on precedence and therefore, federal courts in Argentine provinces are not bound by the decisions of the Supreme Court. The Brazilian Federal Supreme Court decriminalized abortion in cases of anencephaly, despite the fact that the Brazilian Penal Code does not include foetal malformation as an acceptable case for lawful abortion. The reason for this decision might lie in the fact that according to WHO data, Brazil has the fourth highest newborn incidence of anencephaly worldwide. This problem has been further exacerbated by the outbreak of the Zika epidemic in 2015/16, which resulted in an increased number of babies being born with diagnosed microcephaly. In response, the women’s rights organisations brought an action before the Federal Supreme Court in 2016 seeking decriminalisation of abortion in the first trimester. Although this case is still pending, in November 2016 deciding a Habeas Corpus case the Court ruled that the criminalization of abortion until the first trimester is incompatible with the Brazilian Constitution. The Court could not declare the relevant provisions of the Criminal Code unconstitutional, but ordered the release of the healthcare professionals, who had been arrested in a clandestine clinic for the alleged practice of providing abortion services. This judgment could pave the way for further liberalisation of abortion law in Brazil and, if seen together with the judgment of the Constitutional Tribunal in Chile, could herald a broader trend in the region characterised by unprecedented judicial activism.
In my work I argue that these developments form a part of a broader process of constitutionalisation of global health law (GHL). My research so far has shown that a GHL constitution is slowly emerging from a complex and multicentric process of juridification, punctuated by several constitutional moments, the most recent of which occurred in the area of biomedical law and reproductive rights. Constitutionalisation has not yet reached the density required for an autonomous (constitutionally mature) system to arise. However, a closer look into this issue reveals that constitutional norms are not captured in one document or a treaty, but that they are hidden in different international and national court decisions, administrative acts, and transnational norms. My research has indicated that the development of global health constitutional principles, especially in the area of reproductive rights is a process driven by a nuanced and complex correlation between the private and the public law. In particular, I argue that the recent advances and victories in the area of sexual and reproductive rights, including the CESCR General Comment No. 22 (2016) on the Right to sexual and reproductive health, the SDG goals, or the recent decisions of the Human Rights Commission in Mellet v Ireland (2016) and Whelan v Ireland (2017) would not have been possible without certain changes at the national level, brought about by the intensive judicialisation and constitutionalisation of health rights across the world. Health rights litigation has helped to bridge the gap between public and individual health and basic (constitutional) rights. This elevated and reinforced constitutional status of health rights has also helped bring sexual and reproductive rights into the foreground of international politics. It created additional pressures and enabled governments to more readily engage with the formulation of global goals and objectives. In that, my work questions the often-assumed resistance of the national actors to changes brought from above, especially in the field of reproductive rights.
However, this development is clearly not a one-directional process. Rather the advancements of sexual and reproductive rights at the international and domestic level are mutually reinforcing. The domestic courts in Latin and South America have relied heavily on international law and comparative legal analysis of other jurisdictions. They have paid particular attention to the ICCPR, ICESCR, CEDAW, IACHR, ECHR and the jurisprudence of different adjudicative human rights bodies. Interestingly and uniquely, in the judgments discussed above the domestic courts have spent less time analysing the legal personhood and the right to life of the foetus and instead focused on the dignity and physical and psychological integrity of the woman. However, unlike the courts in Europe (e.g. the European Court of Human Rights) to date, they have gone beyond considerations of procedural justice and the right to access lawful abortion services. Together with other courts in the so-called Global South they have used human rights in a innovative way which paved the way towards the renewed recognition of sexual and reproductive rights at the international level.
Of course, this is not to say that these developments are tantamount with a free and open access to abortion services on the ground. The implementation gap poses a significant challenge across the globe and renders many of the judgments and laws unenforceable in practice. Furthermore, in many respects and in many regions of the world there has been a clear push towards circumventing women’s autonomy during pregnancy. Conservative undertones are still to be found in the ruling of the Chilean Constitutional Tribunal, which held that the conscientious objection is a fundamental right that can be invoked not only by individuals, but also by institutions and that this form of freedom of thought can only be restricted in very exceptional situations, e.g. where there is an immediate risk to the woman’s life. In 2015 the Polish Constitutional Tribunal also substantially widened the scope of the health care professional’s right to raise conscientious objection. The same year the Polish Parliament discussed a legislative proposal, according to which abortion would constitute a crime in all circumstances but one, when a termination aims to avert a direct threat to the woman’s life. In the USA there are systematic attempts to restrict access to abortion services through administrative law. Women’s autonomy has been limited in many states through laws criminalising ‘irresponsible’ or immoral behaviour such as alcohol or drug use during pregnancy.
The extent to which these attempts to restrict access to abortion services are successful depends largely on the interpretation of the law and the implementation of judicial decisions by lawyers and healthcare professionals. The attitudes, dynamics, and composition of these professions will determine any developments in the area of reproductive health in future. This is why, in addition to the study of the political power struggles or cultural conditions that shape legal changes it is paramount to analyse the evolution of the medical and legal professions and the way in which they have influenced the development of abortion laws. The impact of national, international, and transnational professional regulations on the growing congruence of legal principles concerning reproductive healthcare across the globe should form an important part of the future research into global health and human rights.