top of page
  • Writer's pictureDurham Pro Bono Blog

“I have a Right to Choose for Myself”: Is Abortion a Human Right?

Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.


By Hannah Shattock




Abortion in Poland

On 22nd October 2020, the Constitutional Tribunal of Poland tightened its already strict laws on abortion, ruling abortion in the case of severe foetal abnormalities to be unconstitutional. The new law effectively represents a total ban on abortion in the country. Legal termination is now only permissible in the cases of rape, incest, or when the mother’s life is at risk (instances that only accounted for 2% of abortions in Poland in 2019).[1]


In response, Poland has seen some of its largest protests since the fall of communism, with thousands taking to the streets nationwide to express their fury. Decrying the new amendment as “a war on women”, protesters have consistently deployed the language of human rights, with demonstrators in Łódź even holding a symbolic funeral for women’s rights in the country.


However, Pawel Jablonski, the Deputy Foreign Minister explained firmly that the Polish government “reject[s] the notion that there is a human right to abortion. There is no such thing in international law” and that “this is simply wrong”.[2]


But is there a place for abortion in the language of international human rights? Or does state sovereignty ultimately reign supreme over it?


An Afterthought: Women’s Uneasy Place in International Human Rights

The history of international human rights reveals human rights to be both politically constructed and in constant revision. Women’s rights, specifically reproductive rights, alarmingly lie in even more volatile waters.


Until recently, the international human rights movement was based on a normative white male model. Consequently, the Universal Declaration of Human Rights (1948) and founding documents like the International Covenant on Civil and Political Rights (ICCPR) provide for the rights that are most often violated against white men. These rights often concern violations carried out by states, such as the right to free trial, which does not specifically take into account the vulnerability of women in a private setting.


In contrast, rights violated against women often took place within the home and private spheres, including domestic violence, rape, forced pregnancies and trafficking. Women were thus integrated into the international human rights framework through a delayed realisation that equality is not synonymous with sameness. In fact, this is a process of integration fought continually by the third world for the privileging of social and economic rights after decolonisation.


Events in the 1990s, such as the 1995 UN World Conference on Women in Beijing and Amnesty International’s first ever report on women’s rights in 1991[3] (30 years after the organisation’s creation), forced a reconsideration of “the artificial distinction between public and private spheres”.[4] It also expanded government obligations to include rights violated by private individuals. Thus, by broadening the narrow international frame, women engineered their own refuge in human rights law.


But is Abortion an Internationally Recognised Human Right?

Since the 1990s, it has been more common to adopt the concept of reproductive health internationally. A wider recognition that the access to “safe and dignified healthcare is a major human right”[5] have become commonplace within international policy as well. However, to date, there is no legally binding international human right to abortion.


Traditionally conceived as a moral, philosophical, or religious issue, as Norman Gillespie labels it, the right to abortion is reduced to a “line-drawing problem”.[6] Indeed, abortion’s place in international human rights law rests awkwardly.


On the one hand, in the historic decision of K.L. v Peru in 2005,[7] the UN Human Rights Committee found that Peru’s strict anti-abortion laws violated the prohibition against cruel, inhuman or degrading treatment (Article 7 ICCPR); the right to privacy (Article 17 ICCPR); and the right to equal protection of the law without discrimination (Article 26 ICCPR). The claimant’s inability to access abortion in the case of severe foetal abnormality was thus a violation of her human rights. Presumably then, in the very least, Poland’s latest ban can potentially violate a multitude of human rights.


Campaigners on the other side of the argument are, however, much less convinced. Poland’s most recent amendment, in fact, shares its birthday with another declaration on the issue of abortion, the Geneva Consensus Declaration, which arguably represents “a worldwide trend of tightening abortion laws”.[8] Claiming to promote women’s health and to strengthen the family,[9] the Declaration was signed by a coalition of 30 states consisting mostly of authoritarian or illiberal governments. The Declaration advocates for the rights of the ‘unborn’, as bestowed upon them from the moment of conception. The Universal Rights Group assert that the Declaration repeatedly denies women’s right to abortion under “the guise of protecting national sovereignty”.[10] Perhaps uncoincidentally, most of the signatories are among the 20 worst countries to be a woman in, according to the Women, Peace and Security Index.[11]


The historical intersection between human rights and abortion laws have thus tended toward the supremacy of national sovereignty, with few international examples of intervention.


Effects of Abortion Laws

In reality, we know that restrictive abortion laws only truly ban safe abortions. With 25% of the world’s population living in countries with highly restrictive abortion laws[12] – that is, laws which either completely ban abortion, or allow it only to save the mother’s life – around 25 million unsafe abortions take place each year.[13] Lack of access to safe abortion disproportionately impacts women in developing countries, women from lower socio-economic backgrounds and refugee women.


There are, however, many relevant provisions that governments can utilize to protect human rights that do not involve the total legalisation of abortion. Under the broad umbrella of the right to life, privacy and health, possible measures that provide a safeguard for women include access to medical treatment after an illegal abortion and access to sexual education and contraception, laws involving parental/spousal notification of legal abortions and the legal age of marriage. If provisions such as these are not put onto statutory footing and implemented, and abortion is banned even in extreme circumstances, such as rape or severe foetal abnormalities, we surely then arrive at our own line-drawing problem.


There are a few issues at stake here. Where do we draw the line between national sovereignty and international intervention when legal neutrality endangers the lives and rights of women? And, as a consequence of where that line is drawn, from whom can women claim human rights protection if the state nor the international community claim responsibility?


Conclusion

To understand the seemingly awkward task of applying abortion laws to the lingua franca of women’s international rights, we must revisit the fact that women’s rights were integrated into the international framework specifically under the expansion of violations between private individuals. As the international human rights framework was not built specifically for women, it is possible that it is still resistant to women who claim gender-specific violations, especially if, the perpetrator is now the state itself.


In the face of extreme anti-abortion laws, citizens are therefore forced to target their desperate cries against the state and its version of democracy which neither asked nor listened – a protestation that is clear in many Polish placards reading, I wish I could abort my government. In fighting public policy for their private rights, women must now wage a war against the state, while international human rights mechanisms catch up with the citizens it forgot for so long.




 

Sources [1] ‘Poland abortion ruling: Protests spread across the country’, BBC News (23 October 2020) <https://www.bbc.co.uk/news/world-europe-54669257> accessed 19 November 2020 [2] Sky News, ‘Poland abortion protests explained’ (YouTube, 30 October 2020) <https://www.youtube.com/watch?v=1bAekMlVHa8&ab_channel=GoodMorningBritain> accessed 18 November 2020 [3] Amnesty International, ‘Women On The Front Line: New Report Details “Barbaric” Abuses Of Women In More Than 40 Countries’ <https://www.amnesty.org/download/Documents/196000/act770041991en.pdf> accessed 18 November 2020 [4] Saba Bahar, ‘Human Rights Are Women’s Right: Amnesty International and the Family’ (1996) 11(1) Hypatia 105 [5] Rebecca J. Cook and Bernard M. Dickens, ‘Human Rights Dynamics of Abortion Law Reform’ (2003) 25(1) Human Rights Quarterly 1 [6] Norman C. Gillespie, ‘Abortion and Human Rights’ (1977) 87(3) Ethics 237 [7] CCPR/C/85/D/1153/2005 [8] Raiyah Butt, ‘Poland: Abortion bans are a huge failure to women’s rights’ (International Observatory of Human Rights, 23 October 2020) <https://observatoryihr.org/news/poland-abortion-bans-are-a-huge-failure-to-womens-rights/> accessed 19 November 2020 [9] Geneva Consensus Declaration on Promoting Women’s Health and Strengthening the Family (2020) [10] Anna Mattedi, ‘US co-host virtual signing ceremony of the Geneva Consensus Declaration in latest pushback on women’s rights’ (Universal Rights Group, 26 October 2020) <https://www.universal-rights.org/blog/us-co-host-virtual-signing-ceremony-of-the-geneva-consensus-declaration-in-latest-pushback-on-womens-equality/> accessed 19 November 2020 [11] Georgetown Institute for Women, Peace and Security, ‘Women, Peace and Security Index 2019/20: Tracking sustainable peace through inclusion, justice, and security for women’ (2019) <https://giwps.georgetown.edu/wp-content/uploads/2019/12/WPS-Index-2019-20-Report.pdf> accessed 20 November 2020 [12] Women on Waves, ‘Abortion Laws Worldwide’ <https://www.womenonwaves.org/en/page/460/abortion-laws-worldwide> accessed 20 November 2020 [13] World Health Organisation, ‘Worldwide, an estimated 25 million unsafe abortions occur each year’ (28 September 2017) <https://www.who.int/news/item/28-09-2017-worldwide-an-estimated-25-million-unsafe-abortions-occur-each-year> accessed 20 November 2020



88 views0 comments

コメント


bottom of page