Access to Safe and Legal Abortion- a Human Right? A study of the protection for access to Safe and Legal abortion within
Public International Law
Cornelia Frank
Faculty of Law Graduate thesis 30 HE credits Subject: Public International Law Spring term 2020 Supervisor: Jarna Petman Swedish title: Tillgång till säker och laglig abort - en mänsklig rättighet? En studie av folkrättens skydd för tillgången till säker och laglig abort.
Abortion is a highly emotional subject and one that excites deeply held opinions. However, equitable access to safe abortion services is first and foremost a human right. Where abortion is safe and legal, no one is forced to have one. Where abortion is illegal and unsafe, women are forced to carry unwanted pregnancies to term or suffer serious health consequences and even death.1
1 Human Rights Watch, Women’s Human Rights: Abortion, 12 November 2008,
Abstract
Abortion is a controversial issue. It is subject of heated debates stemming from morality and ethics. Abortion is also, however, a question of rights. Access to abortion weighs the rights of the foetus against the rights of the mother. Women being denied access to safe and legal abortion due to criminalisation and restric- tive abortion laws, is also a matter of human rights. Women die every year as the result of unsafe abortion methods. This thesis focuses on access to safe and legal abortion, and examines if and how public international law protects women’s access to abortion. It addresses the topic of reproductive rights and health, and whether this set of rights consti- tutes any protection for access to safe and legal abortion. Human rights that are actualised in relation to abortion include for example the right to life, right to privacy and right to health. Relevant provisions in CEDAW, ICCPR and ICESCR are analysed, together with general comments and reports issued by the treaty monitoring bodies of the UN. The second part of the thesis focuses on access to safe and legal abortion under the ECHR and examines relevant case-law from ECtHR on the topic. In addition to the legal dogmatic method, a feminist legal theory is used to critically evaluate whether the current protection of access to safe and legal abortion is sufficient from a women’s rights perspective. The author concludes that public international law does not offer any direct protection of access to safe and legal abortion. Instead, access to safe and legal abortion can be protected indirectly by other human rights. Restrictive abortion laws that results in risking the health and life of the mother can violate women’s human rights. Case-law from the ECtHR shows that European states are under a positive obligation to provide an effective access to abortion under the right to privacy, if the national law guarantees such a right. The result from the discussion based on feminist legal theory shows that public international law fails to recog- nise the abortion issue as a question of gender equality and discrimination against women.
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Abbreviations
CAT Committee Against Torture
CEDAW Convention on the Elimination of Discrimination
CEDAW Committee Committee on the Elimination of Discrimination Against Women CESCR Committee on Economic, Social and Cultural Rights ECHR European Convention for the Protection of Human Rights and Fundamental Freedoms ECtHR European Court of Human Rights
HR Committee Human Rights Committee
IACHR Inter-American Commission on Human Rights
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cul- tural Rights ICJ International Commission of Jurists
ICJ Statute Statute of the International Court of Justice
UDHR Universal Declaration of Human Rights
UN United Nations
U.S. United States of America
WHO World Health Organization
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Table of Content
Abstract ...... 3 Abbreviations ...... 5 1 Introduction ...... 9 1.1 Introductory remarks ...... 9 1.2 Purpose ...... 10 1.3 Research questions ...... 10 1.4 Delimitations ...... 11 1.5 Method and material ...... 11 1.6 Definitions ...... 14 1.7 Outline ...... 14 2 Access to safe and legal abortion in the world today ...... 17 2.1 Global statistics on abortion ...... 17 2.2 Legality of abortion worldwide ...... 18 2.3 Legality of abortion in Europe ...... 18 3 Reproductive rights ...... 19 3.1 Reproductive rights ...... 19 3.1.1 Reproductive health ...... 20 3.1.2 Abortion as a part of reproductive rights and health? ...... 21 3.1.3 Concluding remarks ...... 22 4 Abortion in public international law ...... 23 4.1 Abortion in public international law ...... 23 4.2 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 24 4.2.1 Restrictive abortion laws as discrimination against women ...... 24 4.2.2 The right to family planning ...... 26 4.2.3 Abortion as a part of the right to family planning? ...... 26 4.2.4 Restrictive abortion laws as a violation of CEDAW ...... 28 4.2.5 Concluding remarks ...... 29 4.3 Abortion and the right to health ...... 29 4.3.1 Concluding remarks ...... 30 4.4 International Covenant on Civil and Political Rights (ICCPR) ...... 31 4.4.1 The right to life ...... 32
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4.4.2 Restrictive abortion laws as a violation of ICCPR ...... 34 4.4.3 Concluding remarks ...... 35 5 The European Convention on Human Rights and the access to safe and legal abor- tion 36 5.1 The right to life ...... 36 5.1.1 The right to life of the unborn child ...... 37 5.1.2 The right to life of the mother ...... 38 5.2 The prohibition of torture ...... 38 5.3 The right to privacy ...... 39 5.3.1 Brüggemann and Scheuten v. the FRG ...... 40 5.3.2 Tysiac̨ v. Poland ...... 41 5.3.3 A., B. and C. v. Ireland ...... 42 5.3.4 R.R. v. Poland ...... 43 5.3.5 P. and S. v. Poland ...... 44 5.4 European jurisprudence on access to safe and legal abortion- an analysis ...... 45 5.4.1 No right to access abortion under the Convention ...... 46 5.4.2 The right to life vs. access to abortion ...... 48 5.4.3 Abortion within “the scope” of Article 8 ...... 50 5.4.4 A positive obligation to provide effective access to abortion under Article 8 ...... 51 5.4.1 Margin of appreciation ...... 51 5.5 Concluding remarks ...... 53 6 Discussion ...... 54 6.1 Abortion as a right ...... 54 6.2 Access to abortion- a matter of equality and anti-discrimination? ...... 56 6.2.1 Discrimination ...... 56 6.2.2 Abortion as a right of equality instead of privacy ...... 57 6.3 Abortion as a reproductive right ...... 59 6.4 Universalism vs. Cultural relativism ...... 60 6.5 Access to abortion- an issue suitable for public international law? ...... 62 7 Conclusions and final remarks ...... 63 7.1 Conclusions ...... 63 7.2 Final remarks ...... 64 References ...... 67
1 Introduction
1.1 Introductory remarks
From my internship last semester at the UN-Policy Department at the Swedish Ministry for Foreign Affairs, I gained insight into how Sexual and Reproductive Health and Rights is one of the most debated issues in international politics. Ac- cess to abortion is considered to be the most controversial topic within this area, where aspects of ethics, religion and political opinion influences the debate. However, the question of abortion is also a question about rights. In aspects of human rights law, the issue of abortion has historically been disputed.2 It’s an issue where the rights of the mother are weighed against the rights of the foetus. It’s a about the enjoyment of rights, but also the denial of rights in cases where women are being denied access to safe and legal abortion. With this thesis, I want to analyse how abortion relates to human rights. In some parts of the world can abortion be accessed upon request, in other parts of the world, the woman seeking it can face a criminal penalty. Globally, there are recent examples of countries legalising abortion. Examples that could be mentioned are Australia, where New South Wales as the last state removed abortion from their criminal code last year, and the referendum in Ireland voting in favour of legalising abortion.3 However, there are examples of an opposite trend where conservative opinions and anti-abortion arguments are being de- bated.4
2 See for example Shah, H. Iqbal, Åhman, Elisabeth, Ortayli, Nuriye, Access to Safe Abortion: Progress and Challenges since the 1994 International Conference on Population and Development (ICPD), 2014, p. 3–4. 3 See the Abortion Law Reform Act 2019 (NSW), which decriminalized abortion in New South Wales on September 26, 2019. Before the reform, the penalty for an illegal abortion could amount to 10 years in prison according to the Crimes Act 1900 (NSW). Regarding the referendum on Ireland, see the Thirty-sixth Amendment of the Constitution of Ireland. 4 See for example Kenny, Chaterine, Abortion — A Reproductive Right, in Widdows, H., Emaldi Cirión, A., Idiakes Alkorta, I. (ed.) Women’s Reproductive Rights. Women’s Rights in Europe Se- ries, Palgrave Macmillan, London, 2006 p. 17.
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Of all pregnancies in the world each year, 25% result in induced abortion. A lot of the abortions carried out are considered unsafe due to restrictive laws mak- ing it impossible to reach minimum medical standards for the procedure.5 Every year, around 25 million unsafe abortions are estimated to take place. 47 000 women die each year because of the lack of access to safe and legal abortions according to the World Health Organization.6 Statistics show that the legal status of abortions does not affect the number of abortions carried out. Women will still seek abortions, regardless of how the law regulates the practice.7 There is a clear connection between the lack of access to safe and legal abor- tions and the enjoyment of human rights, due to the connection to maternal mortality and morbidity. Human Rights that are affected are for example the right to health, the right to privacy, and the right to life. This thesis will analyse how access to safe and legal protection is protected by public international law.
1.2 Purpose
The purpose of this thesis is to analyse if public international law offers any pro- tection of women’s access to safe and legal abortion. This study will examine whether access to safe and legal abortion can be seen as a human right. Further- more, this thesis will add a critical feminist perspective on how access to safe and legal abortion is protected in public international law.
1.3 Research questions The main research question of the thesis is: How is access to safe and legal abor- tion protected under public international law? The following sub-questions will furthermore be analysed: Could access to safe and legal abortion be included in the protection for reproductive rights? Can restrictive abortion laws violate hu- man rights? As the leading human rights mechanism internationally, how has the European Court of Human Rights handled the question of access to safe and legal abortion under the European Convention on Human Rights? From a criti- cal perspective based on international feminist legal theory, is the protection for access to safe and legal abortions within public international law sufficient?
5 WHO, Preventing unsafe abortions, Key fact, 26 June 2019,
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1.4 Delimitations The issue of abortion is a very complex issue with many perspectives. This thesis will address the issue of abortion with a focus on women’s access to safe and legal abortion within public international law. This thesis will not examine whether the practice of abortion is right or wrong in an ethical or moral sense. Ethical and moral issues will however be addressed indirectly, since these values are closely connected with balancing of interests in relation to abortion and human rights. Aspects of conscientious objection to abortion will not be discussed in the thesis.
1.5 Method and material In order to study the right to abortion in the context of public international law, a legal dogmatic method will be used. There is no given definition of the meth- odology. However, this method is traditionally used for describing and systemis- ing the law.8 Through this method, the law as it is will be identified.9 A legal positive approach will be used in the thesis. The formally recognised sources of public international law, as listed in Article 38(1) of the Statute of the Interna- tional Court of Justice (ICJ Statute), serve as the basis for the analysis in order to answer the research questions.10 In addition to this classical legal method, a critical feminist theory will be used in the essay. The question of abortion is closely linked to equality and gender.11 Therefore, this theory is a suitable complement to the legal dogmatic method. A feminist approach to international law focus on how international law marginal- ises women by failing to take their lives or experiences into account.12 Unlike other theories, critical legal theories argue that legal analysis cannot be separate from the economic, historical and cultural context of a society. The feminist ap- proach has aspects of this critical viewpoint but is specifically focused on how the legal system creates an unequal position for women.13 With a feminist theory,
8 Jareborg, Nils, Rattsd̈ ogmatik som vetenskap, SvJT 2004 s. 4. 9 Korling, Fredrik, Zamboni, Mauro (ed.), Juridisk metodlära, 2 u., Studentlitteratur, Lund, 2018, s. 21–23. 10 United Nations, Statute of the International Court of Justice, 18 April 1946. For an explanation of the legal positive approach, see Hervey, Tamara, Cryer, Robert, Sokhi-Bulley, Bal, Bohm, Ali, Research Methodologies in EU and International Law, Hart Publishing, Oxford, 2011, p. 37-39. 11 See for example Kirilova Eriksson, Maja, Reproductive Freedom: In the Context of International Human Rights and Humanitarian Law, Kluwer Law International, The Hague, 2000, p. 303. (Cited as Kirilova Eriksson, 2000) 12 Chinkin, Christine, Feminism, Approach to International Law, in Wolfrum, Rüdiger (ed.), Max Planck Encyclopedia of Public International Law, October 2010. 13 Charlesworth, Hilary, Chinkin, Christine, Wright, Shelley, Feminist Approaches to International Law, American Journal of International Law, Volume 85, Issue 4, 1991, 613, p. 613.
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it’s possible to challenge the credibility and universality of human rights law be- cause of the failure to recognize women’s reality.14 Within feminist legal theory, there are different orientations, for example, lib- eral feminism and radical feminism. This thesis has not made a distinction be- tween such orientations. Instead, focus is on the subject of abortion, and relevant perspectives from feminist legal theory in general has been used to get a critical perspective on the subject. Charlesworth, Chinkin and Wright argue that international law traditionally doesn’t recognise aspects of gender because issues such as state sovereignty and use of force appear to be “gender-free”. The international law system is, however, a gendered system. According to the authors, one must look behind the aspects of states and instead analyse how the rules impact women within the states.15 By challenging the complete nature and the context of international law, the feminist legal theory could create a progressive change.16 The feminist legal theory applies to the subject of the thesis in many ways. The first example is a criticism of how human rights are established in international law. Feminist scholars argue that human rights are considered to be a set of “male rights”.17 Human rights are male privilege and fail to acknowledge the interests of women. This has led to a failure of recognising and protecting rights that are relevant to women. According to Anne Gallagher, a lack of reproductive choice is one of the issues that interna- tional human rights have has failed to recognise.18 Second, another major feminist critique that could be mentioned in regards to access to safe and legal abortion, is the distinction between the public vs. the private sphere in international law.19 This critique is based on the argument that international law privileges the public sphere, and therefore fails to recognise life in private sphere.20 International law is by nature state-based and focused on the public sphere. However, human rights law is an exception due to state responsi- bility for individual rights. The human rights system is focused on attacks on individuals by state action, rather than oppression of individuals in private
14 Cook, Rebecca J, International protection of women's reproductive rights. New York University Journal of International Law and Politics, vol. 24, no. 2, 645, 672. 15 Charlesworth, Hilary, Chinkin, Christine, Wright, Shelley, Feminist Approaches to International Law, American Journal of International Law, vol. 85, no. 4, 1991, 613, p. 614. 16 Ibid, p. 615. 17 This means that rights are ‘defined by the criterion of what men fear will happen to them’. Se e.g. Eisler, Riane, Human Rights: Toward an Integrated Theory for Action, Human Rights Quarterly, vol. 9, No. 3, 1987, p. 287, and Bunch, Charlotte, Women’s Rights as Human Rights: Toward a Re-Vision of Human Rights, Human Rights Quarterly, vol. 12, no. 4, 1990, p. 486. 18 Gallagher, Anne, Ending the Marginalization: Strategies for Incorporating Women into the United Nations Human Rights System, Human Rights Quarterly, vol. 19, no. 2 , 1997, 283, p. 290. 19 Edwards, Alice, Violence against Women under International Human Rights Law, Cambridge University Press, Cambridge, 2010, p. 64. (Cited as Edwards, 2010) 20 Naffine, Ngaire, Sexing the Subject (of Law), in M. Thornton (ed.), Public and Private: Feminist Legal Debates, Oxford University Press, Melbourne, 1995, p. 20.
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settings. 21 Violence against women has been excluded from the human rights agenda, since oppression of women has not been seen as something political.22 Therefore, there is a lack of rights protecting women from risks in the private environment.23 The material used in the thesis consists of both primary and secondary sources of international law, as listed in Article 38(1) of the Statute of the International Court of Justice (ICJ Statute).24 Relevant provisions from Convention on the Elimination of Discrimination (CEDAW), the International Covenant on Eco- nomic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) are analysed in order to answer the research questions.25 Furthermore, the European Convention for the Protection of Hu- man Rights and Fundamental Freedoms (ECHR) are used for analysing access to safe and legal abortion within the European context.26 As secondary sources, judicial decisions from the UN Committee on the Elimination of Discrimination of Women (CEDAW Committee) and the European Court of Human Rights (ECtHR) are used for interpretations of human rights treaties. General com- ments and recommendations from the treaty monitoring bodies are used to in- terpret the treaties.27 The material from the international conferences Cairo Pro- gram of Action and the Beijing Declaration and Platform for Action are im- portant documents for the topic of reproductive rights.28 These sources of soft law are therefore be used in order to address the topic in an international context. In addition, relevant doctrinal works are used to provide opinions and critical perspectives on the issue.
21 Edwards, 2010, p. 65. 22 Bunch, Charlotte, Transforming Human Rights from a Feminist Perspective, in Peters, Julie & Wolper, Andrea (ed.), Women’s Rights, Human Rights: International Feminist Perspectives, Routledge, New York, 1995, p. 14. 23 Chinkin, Christine, Feminism, Approach to International Law, in Wolfrum, Rüdiger (ed.), Max Planck Encyclopedia of Public International Law, October 2010, where abortion is mentioned. 24 United Nations, Statute of the International Court of Justice, 18 April 1946. 25 UN General Assembly, Convention on the Elimination of All Forms of Discrimination against Women, A/RES/34/180, 1979; UN General Assembly, International Covenant on Economic, Social and Cultural Rights, United Nations, Treaty Series, vol. 993, p. 3, 1966; UN General Assembly, International Cov- enant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171. 26 Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950. 27 The treaty monitoring bodies are the committees of experts that monitors the implementation of the international human rights treaties. In this thesis, material from the CEDAW, the HR Com- mittee, and the CESCR are used. 28 UN Population Fund, Report of the International Conference on Population and Development, Cairo, 5–13 September 1994, 1995, A/CONF.171/13/Rev.1; United Nations, Beijing Declaration and Platform of Action, adopted at the Fourth World Conference on Women, A/CONF.177/20, 1995.
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1.6 Definitions Abortion is defined as a termination of a pregnancy. This thesis focuses only on induced abortion. Therapeutic abortion is an induced abortion to save the health or life of the preg- nant woman.29 Abortion on request or Abortion on demand means that a woman can terminate her pregnancy on request, without showing any evidence of a particular reason or justification.30 Unsafe abortion is defined as the procedure of terminating an unwanted preg- nancy either by a person lacking the necessary skills, or in an environment lacking the minimum standard, or both.31 Safe and legal abortion is a definition commonly used by such actors as the UN and WHO when referring to how women should be able to access abortion. A safe abortion is the opposite of an unsafe abortion, meaning an abortion which is performed by a person with the necessary skills and in a safe environment. A legal abortion can be defined as a termination a pregnancy lawfully without any criminal sanctions. Reproductive rights can be defined in various ways and there is not a commonly used definition used in public international law. As defined at the International Conference on Population and Development held in Cairo 1994 (ICPD), repro- ductive rights are about the right to decide freely when to have children, to attain a high standard of reproductive health, and to make decisions about reproduction free from discrimination.32 Reproductive health can be defined well-being in all matters relating to the repro- ductive system, where access to health care and family planning is included.33
1.7 Outline This thesis is divided into seven chapters. Chapter two will give a short introduc- tion on access to and legality of abortion worldwide. Chapter three will describe the concept of reproductive rights in international law. Chapter four will analyse how access to safe and legal abortion is protected within public international law.
29 Karolinska Institutet- Svenska MesH, Abortion Therapeutic,
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Chapter five will address how access to safe and legal abortion is protected by the European Convention on Human Rights and analyse case-law on the topic from the European Court of Human Rights. In chapter six, some of the findings from the previous chapters will be discussed from a critical perspective based on feminist legal theory. In chapter seven, the research questions will be answered, and the conclusions presented.
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2 Access to safe and legal abortion in the world today
2.1 Global statistics on abortion In this chapter, a short overview of statistics and legality on abortion globally will be presented. According to statistics, 25% of all pregnancies in the world during 2010–2014 ended in abortions. An estimated total of 56 million induced abor- tions occurred worldwide each year during 2010-2014. Of these, 25 million of were estimated to be unsafe.34 The majority of the abortion-related deaths or health issues can be prevented with safe and legal abortions and other measures such as contraceptives and education in reproductive rights.35 There is a connection between legality and safety. Abortions are considered to be safer in countries with fewer restrictions. The number of abortions carried out in countries where abortions are highly restricted are similar to the number in countries where it’s more broadly legal. In countries where abortion is prohib- ited or allowed only in order to save the life of the mother, the abortion rate is 37 per 1000 women compared to 34 per 1000 women in countries that allow abortion without restrictions on women’s reasons.36
34 Ganatra B, Gerdts C, Rossier C, Johnson Jr B R, Tuncalp Ö, Assifi A, Sedgh G, Singh S, Bankole A, Popinchalk A, Bearak J, Kang Z, Alkema L. Global, regional, and subregional classification of abortions by safety, 2010–14: estimates from a Bayesian hierarchical model, The Lancet, vol. 390, 2372, p. 2372, 2017. 35 Grimes, D. A, Benson, J, Singh, S, Romero, M, Ganatra, B, Okonofua, F. E, Shah, I. H, Unsafe abortion: the preventable pandemic, The Lancet Sexual and Reproductive Health Series, vol. 368, no. 9550, 2006, p. 1908. 36 Singh S, Wulf, D., Hussain, R., Bankole, A., Sedgh, G., Abortion Worldwide 2017: Uneven Progress and Unequal Access, Guttmacher Institute, New York, 2018, p. 8.
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2.2 Legality of abortion worldwide According to a report by the Guttmacher Institute, countries can be divided into six categories.37 Category one prohibits abortion on any ground, and category six allows abortion without restrictions as to reasons. Categories five to two allow abortion on grounds such as physical and mental health and for socio-economic reasons. In the most restrictive category, we can find such countries as Malta, El Salvador, and Egypt. Of the number of women of reproductive age, 6 % lived in countries belonging to this category (2017). 37 % of women live in countries belonging to category six where abortion is available on request. Most women, therefore, live in countries where abortion is restricted but can be available for particular reasons. Worldwide, there is a trend towards amending laws and ex- panding the circumstances under which abortion is permitted. 33 countries ex- panded their circumstances between 2000 and 2017.38 As noted in the report, however, there is often a gap between laws and what services women actually can obtain in practice.39
2.3 Legality of abortion in Europe In Europe, almost all countries allow abortion on request or on broad social grounds. 95 % of the women of reproductive age live in these countries. There are six states where abortion is not allowed on request or on social grounds. These states are Andorra, Liechtenstein, Malta, Monaco, Poland, and San Ma- rino. Malta has a total ban on abortion.40 In Poland, abortion is allowed when the mother’s life or health is at risk, in cases of a sexual assault and cases of foetal anomaly.41 In several European countries there are mandatory waiting periods and requirements for mandatory counselling which can affect the access to abor- tion in practice.42
37 Singh S, Wulf, D., Hussain, R., Bankole, A., Sedgh, G., Abortion Worldwide 2017: Uneven Progress and Unequal Access, Guttmacher Institute, New York, 2018. 38 Ibid, p. 17. 39 Ibid, p. 14–16. 40 Malta, Chapter 9 of the Laws on Malta, Criminal Code, article 241. 41 Poland, 1993 Family Planning Act, Article 4 (a)(1)(2). 42 Center for Reproductive Rights, European Abortion Laws A Comparative Overview, 2019,
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3 Reproductive rights
3.1 Reproductive rights
A suitable starting point for the issue of abortion in public international law is to analyse the field of reproductive rights. Women have historically been fighting for the recognition of their reproductive rights and freedoms as a part of the women’s rights movement.43 The issue of reproductive rights is however rela- tively new within an international human rights context. The question of repro- ductive rights is closely linked with sexuality, gender, and issues of ethics and morality which makes it difficult to regulate internationally. Growing interest in the issue of reproductive rights is closely linked to an increased awareness of women’s rights, and alternative legal methods such as the feminist approach to international law.44 There is no convention specifically regulating reproductive rights. Neither is there a given definition of the term “Reproductive Rights” in any of the interna- tional human rights conventions. The scope and the content of reproductive rights are therefore disputed between scholars, where there is a wider view on hand and a narrower view on the other. This chapter will give an overview of the meaning of reproductive rights and how the concept is referenced in inter- national law. The only international human rights instrument that recognises a right to re- productive health is the International Convention on the Protection and Promo- tion of the Rights and Dignity of Persons with Disabilities.45 On a regional level, Article 14 of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol) expressly states that women’s reproductive rights should be considered as human rights.46 In 1994, the International Conference on Population and Development (ICPD) took place in Cairo. 179 countries agreed on a Program of Action which
43 Mann, Jonathan, Gruskin, Sofia, Women's Health and Human Rights: Genesis of the Health and Human Rights Movement," Health and Human Rights, vol. 1, no. 4, 1995, 309, p. 309–312. 44 Gebhard, Julia, Trimiño Mora, Diana, Reproductive Rights, International Regulation, in Wolfrum, Rüdiger (ed.), Max Planck Encyclopedias of International Law, August 2013. 45 UN General Assembly, Convention on the Rights of Persons with Disabilities : resolution / adopted by the General Assembly, 24 January 2007, A/RES/61/106. 46 African Union, Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 2003.
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set out new goals and visions for development and individual well-being. This document is considered to be a very important milestone in the area of repro- ductive rights and health. According to the 1994 Program of Action, Reproduc- tive Rights builds on human rights that exist in international laws as well as in national laws and other human rights documents.
”[R]eproductive rights embrace certain human rights that are already recognized in national laws, international laws and international human rights documents and other consensus documents. These rights rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so, and the right to attain the highest standard of sexual and reproductive health. It also includes their right to make decisions concerning reproduction free of discrimina- tion, coercion and violence, as expressed in human rights documents.”47
This formulation is considered to be the broader view of how reproductive rights should be defined. In this view, where reproductive rights “embrace other rights”, twelve human rights could be actualised. Examples are the right to life, the right to health and the right to privacy. These human rights will be discussed further below. Scholars in favour of the narrower view on the other hand, argue that reproductive rights consist only of a recognition of reproductive choice. Ac- cording to the narrower view, the only binding reproductive right can be found in the right to family planning, Article 16(1) CEDAW.48 Another important global document in the area of reproductive rights is the Beijing Declaration and Platform for Action. Article 94 in the document de- scribes reproductive health as the capacity to reproduce and the freedom to de- cide if, when, and how often to do so. This furthermore includes access to “safe, effective, affordable and acceptable” methods of family planning.49
3.1.1 Reproductive health
Reproductive health is a concept within reproductive rights. The first mention of the term “reproductive health” can be found in the Cairo Program of Action from 1994. In chapter VII Paragraph 7(2), reproductive health is described as a:
“state of complete physical, mental and social well-being and not merely the ab- sence of disease or infirmity, in all matters relating to the reproductive system and to its functions and processes.”
47 UN Population Fund, Report of the International Conference on Population and Development, Cairo, 5–13 September 1994, A/CONF.171/13/Rev.1, 1995, para. 7(3). 48 UN General Assembly, Convention on the Elimination of All Forms of Discrimination against Women, A/RES/34/180, 1979. 49 United Nations, Beijing Declaration and Platform of Action, adopted at the Fourth World Conference on Women, A/CONF.177/20, 1995, Article 94.
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This includes for example access to health care systems, family planning, coun- selling and education in reproductive health.50
3.1.2 Abortion as a part of reproductive rights and health?
The Cairo conference is the first United Nations conference that refers to unsafe abortions as a public health concern. According to the document, all govern- ments, inter-governmental and non-governmental organisations should work for strengthening the commitment to women’s health. The consequences of unsafe abortions should be seen as a “major public health concern”, and countries should reduce the need for abortion through improved access to family planning. Abortion should not, however, be seen as a method of family planning.51 This formulation indicates the common understanding of how abortion relates to family planning: abortion was not included in the term family planning. Rather, family planning was perceived as a method to prevent abortions. Abortion was, according to the Cairo Conference, considered as a part of the right to health. Through this, the controversial question of the legal status of abortion didn’t have to be addressed. The preambular Paragraph 1(15) states that the Cairo Conference does not create any new international human rights. Ac- cordingly, the document states that access to abortion only can be regulated by national law. There is no mentioning of a “right” to obtain a safe and legal abor- tion in the outcome of the conference. Instead, the document states that “In circumstances where abortion is not against the law, such abortion should be safe.”52 This can be seen as a compromise, where the question of women’s au- tonomy and the right to choose abortion was left unresolved, and has been crit- icised in the doctrine.53 According to Maja Kirilova Eriksson, the aim of the Cairo document was to promote safe abortion services to the ones in need of such services. Kirilova Eriksson holds that there was an intention by the drafters to remove the legal restrictions on abortion to ensure that all abortions taking place are safe.54 In the Beijing Declaration and Platform for Action, unsafe abortions are rec- ognised as a threat to women’s health and lives. However, the document does not identify access to safe and legal abortion as a way to prevent these deaths.
50 UN Population Fund, Report of the International Conference on Population and Development, Cairo, 5–13 September 1994, A/CONF.171/13/Rev.1, 1995, para. 7(2). 51 Ibid, para. 8(25). 52 Ibid, para. 8(25). 53 Berer, Marge, The Cairo “Compromise ”on Abortion and its Consequences for Making Abortion Safe and Legal, in Reichenbach, Laurie and Roseman, Mindy Jane (eds), Reproductive Health and Human Rights: The Way Forward, University of Pennsylvania Press, Pennsylvania, 2009, p. 153–155. 54 Kirilova Eriksson, 2000, p. 172.
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Rather, it recognises a right for women to choose methods of family planning as long as these methods are not against the law.55
3.1.3 Concluding remarks
The Cairo Program of Action and the Beijing Declaration and Platform of Action are both very important for the development of women’s reproductive rights. A majority of states have signed the documents and therefore accepted the com- mitments and standards made in the area of reproductive health and rights.56 The documents are often used to interpret international law and as a reference for legislative reforms. However, the consensus documents are non-binding.57 To- gether with the lack of any mention of reproductive rights in international human rights treaties, it’s possible to conclude that the protection for reproductive rights in an international context does not exist. Reproductive rights can, however, con- sist of already existing human rights, as mentioned above. As shown in this sec- tion, a right to abortion was not originally included in the definitions of repro- ductive rights and health. Nevertheless, access to abortion is often mentioned in the same contexts as reproductive rights and argued to be a reproductive right. The ideas behind reproductive rights are closely connected with arguments sup- porting women’s right to safe and legal abortion services, since they represent the ideas of women’s right to make choices about their reproduction free from discrimination. Even though reproductive rights are not legally codified, the ideas and expressions forming the concept of reproductive rights are crucial when ad- dressing the topic of access to safe and legal abortion. Reproductive rights have been used in the interpretation and enforcement of international human rights treaties such as CEDAW and ICESCR, which will be addressed in the following chapter.58
55 United Nations, Beijing Declaration and Platform of Action, adopted at the Fourth World Conference on Women, A/CONF.177/20, 1995, Article 95. 56 Around 180 states agreed on the Cairo Program of Action, and 189 states agreed on the Beijing Declaration and Platform for Action. See. Kirilova Eriksson, 2000, p. 172. 57 Zampas, Christine, Gher, Jaime. M, Abortion as a Human Right: International and Regional Standards, Human Rights Law Review, vol. 8, no. 2, 2008, 249, p. 253. (Cited as Zampas and Gher, 2008) 58 Albertyn, Catherine, Abortion, Reproductive Rights and the Possibilities of Reproductive Justice in South African Courts, University of Oxford Human Rights Hub Journal vol. 1, 2019, 88, p. 92. (Cited as Albertyn, 2019)
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4 Abortion in public international law
4.1 Abortion in public international law The legal status of abortion in public international law might not seem to be a complex issue since abortion is not mentioned in any of the international human rights conventions. A direct right to abortion can’t be found in any of the inter- national human rights treaties. The exception on a regional level is the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, also called the Maputo Protocol, where a direct right to access abortion can be found in Article 14(2)(a) and (c).59 The simple answer would, therefore, be that access to safe and legal abortion does not have any protection at all in public international law.60 From this perspective, states have no obligation to pro- vide any access to abortion and can regulate abortion without interference from the international community. This argument is used by nations with strict abor- tion laws as a rationale not to liberalise their laws, although human rights juris- prudence clearly calls for it based on women’s health arguments.61 The following sections will address access to safe and legal abortion in relation to human rights, and analyse how abortion is protected in public international law.
59 African Union, Protocol to the African Charter on Human and People's Rights on the Rights of Women in Africa, 2003. 60 International treaties and customary international law are the primary sources of international law according to Article 38 of the ICJ Statute, and a right to abortion is included in neither of these sources of international law. 61 Patel, Gayatri H, Women and International Human Rights Law: Universal Periodic Review in Practice, Routledge, 1 ed, New York, 2019.
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4.2 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
The CEDAW Convention is the central human rights treaty regulating discrimi- nation against women, sometimes referred to as the international bill of women’s rights.62 The Convention entered into force in 1981. The Convention requires that state parties eliminate all forms of discrimination against women and ensure that women can exercise and enjoy their human rights and fundamental freedoms in the same way as men.63 Countries that have ratified the Convention are bound to implement the provisions into practice. The implementation of the Conven- tion is monitored by the CEDAW Committee. CEDAW is the only human rights treaty that recognises women’s reproduc- tive rights and is therefore of major importance to abortion rights.64 The Con- vention directly addresses women’s reproductive role in relation to discrimina- tion. The preamble states that “the role of women in procreation should not be a basis for discrimination". Furthermore, the Convention highlights how culture and tradition restrict the enjoyment of women’s human rights. The preamble states that ”a change in the traditional role of men as well as the role of women in society and the family is needed to achieve full equality of men and women".65 CEDAW is the Convention that has been subject to more reservations than any other human rights treaty.66 This indicates that women’s rights are a controversial issue.
4.2.1 Restrictive abortion laws as discrimination against women The CEDAW Committee is a strong promoter for access to safe and legal abor- tion, and has stated that restrictive abortion laws can constitute discrimination against women. Article 12 CEDAW states that “States should take all appropri- ate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.” General Recommen- dation No. 24 from 1999, states that:
62 UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), resolution 34/180, 1979. 63 CEDAW, Article 2. 64 Shalev, Carmel, Rights to Sexual and Reproductive Health - the ICPD and the Convention on the Elimination of All Forms of Discrimination Against Women, Health and Human Rights, vol. 4, no. 2, 1998, 38, p. 40. (Cited as Shalev, 1998) 65 CEDAW, preamble, p. 1 66 United Nations, The Implementation of the Human Rights of women: Note by the Secretary General, E/CN.4/Sub/.2/19967/20, Geneva, 1996.
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“[i]t is discriminatory for a State party to refuse to provide legally for the perfor- mance of certain reproductive health services for women. 67
Criminalisation of medical procedures needed only by women, and punishment of women who undergo such procedures, should be seen as interference with women’s access to health care.68 The comments do not explicitly mention abor- tion, but since access to abortion is a medical procedure which only women need, laws that criminalise abortion are by definition included in this formulation.69 The CEDAW committee has furthermore declared that:
“Unsafe abortion is a leading cause of maternal mortality and morbidity. As such, States parties should legalise abortion at least in cases of rape, incest, threats to the life and/or health of the mother, or severe foetal impairment, as well as provide women with access to quality post-abortion care, especially in cases of complica- tions resulting from unsafe abortions. States parties should also remove punitive measures for women who undergo abortion.”70
Furthermore, in its General Comment No. 35 regarding gender-based violence against women, the CEDAW Committee calls for a repeal on all laws criminalis- ing abortion. Criminalisation of abortion can amount to torture and cruel, de- grading and inhumane punishment.71 The Committee has in several cases criticised restrictive abortion laws, and concluded that restrictive abortion laws result in women having no choice but to undergo illegal and unsafe abortions.72 Restrictive abortion laws have been con- sidered a violation of the rights to health and life.73 In its reviews and recommen- dations to state parties, the committee has requested countries to change and remove provisions that punish women choosing to undergo abortion.74
67 CEDAW, CEDAW General Recommendation No. 24: Article 12 of the Convention (Women and Health), 1999, A/54/38/Rev.1, 1999, para. 11. 68 Ibid, para. 14. 69 Cook, Rebecca J., Howard, Susannah, Accommodating Women's Differences under the Women's Anti-Discrimination Convention, Emory Law Journal, vol. 56, no. 4, 2007, p. 1053. (Cited as Cook & Howard, 2007) 70 CEDAW Committee, Statement of the Committee on the Elimination of Discrimination against Women on sexual and reproductive health and rights: Beyond 2014 ICPD review, 57th Session, 2014. 71 CEDAW Committee, General Recommendation No.35 on gender-based violence against women, CEDAW/C/GC/35, 2017, para. 29(c) and 9(i). 72 See for example CEDAW Committee’s Concluding Observations to Chile, U.N. Doc. CEDAW/C/CHI/CO/4, 2006, para. 19. 73 See for example CEDAW Committee’s Concluding Observations to Belize, U.N. Doc. A/54/38, 1999, para. 56, Chile, U.N. Doc. A/54/38, 1999, para 228, Colombia, U.N. Doc. A/54/38, 1999, para. 393. 74 See for example CEDAW Committee’s Concluding Observations to; Burkina Faso, U.N. Doc. A/55/38, 2000, para. 276, Ireland, U.N. Doc. A/54/38, 1999, para. 186.
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4.2.2 The right to family planning
As noted by the ICPD document from the conference in Cairo 1994, access to abortion should not be seen as a part of the right to family planning. This chapter will elaborate further on whether abortion can be seen as a part of the right to family planning in relation to the CEDAW Convention. There is no universal definition of family planning. The term can be found in several articles in CEDAW, where different formulations are used. Article 16(1)(e) defines family planning as:
“the same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to ena- ble them to exercise these rights”
In its General Recommendation No. 21, CEDAW has interpreted the provisions in the Convention. In regard to Article 16(1)(e), the Committee underlines the importance of women having the right to freely decide on whether to have chil- dren or not. This choice should never be limited by the partner, parents or the government. The recommendation focuses on the reproductive choice that every woman should be entitled to. It does not, however, mention anything about the possible right to terminate a pregnancy. It only recognises abortion as a measure that can have serious consequences for women.75 In the General Recommenda- tion No. 24, member states are recommended to use family planning as a way to prevent unwanted pregnancies.76
4.2.3 Abortion as a part of the right to family planning? There is an ongoing debate about whether abortion is included, or should be included, in the term family planning. If abortion is included in the definition, then access to it is protected by CEDAW and therefore by public international law. In order to assess whether abortion could be included in the definition of family planning, the preparatory works of CEDAW can be analysed to find the ordinary meaning of the definition. The preparatory works shows that the term “family planning services” was controversial in the negotiations in regard to Ar- ticle 10(h) CEDAW, which obligates states to give information and advice of family planning.77 Article 16(1)(e), the right to Family Planning, was adopted by consensus, indicating that the term family planning was generally accepted by the countries. This would not have been the case if abortion was included in the
75 CEDAW, CEDAW General Recommendation No. 21: Equality in Marriage and Family Relations, 1994, para. 21 and 22. 76 CEDAW, CEDAW General Recommendation No. 24: Article 12 of the Convention (Women and Health), 1999, A/54/38/Rev.1, 1999, para. 23. 77 CEDAW, Commission on the Status of Women, resumed 26th session : summary record of the 667th meet- ing, held at the Palais des Nations, Geneva, E/CN.6/SR.642, 1976, para. 44.
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definition, since countries in opposition of abortion didn’t have issues accepting the term of family planning.78 Another possibility under CEDAW is to argue protection for the access to abortion under Article 12. According to Article 12(1), member states are obliged to eliminate discrimination in health care, where family planning is included. Ac- cording to 12(2), member states should grant appropriate services in connection with pregnancy. Could abortion be included in the definition of “services in con- nection with pregnancies”? Once again, it’s a question of interpretation since abortion is not explicitly mentioned by the Convention. There are examples of scholars arguing that all matters which affect the control over a woman’s body should be included in the definition, such as abortion and sterilisation services.79 The possibility to terminate a pregnancy in a safe and legal way should be seen as an element of the right to family planning as well as the right to health. Ac- cording to Dixon-Mueller, abortion falls “clearly and logically under the rubrics of the right to family planning”80 Maja Kirolova Eriksson, on the other hand, concludes that there is insufficient evidence for the abortion being included in the right to family planning. Kirolova Eriksson holds that there are very few doc- uments where the definition of family planning has been given a wide interpre- tation. According to her, a right to terminate a pregnancy cannot be found in the international human rights law in relation to the right to family planning.81 It’s clear that abortion is not mentioned as a part of the right to family plan- ning in any of the recommendations made by CEDAW. Still, women are entitled to decide if, when and how many children they want. In practice, the choice to terminate a pregnancy could be seen as a way to fulfil this right, since the right to family planning focuses on the choice of the woman. This interpretation of the provision could not, however, be found in any of the sources relating to the CEDAW Convention. According to Article 31 of the Vienna Convention on the Law of Treaties, a treaty should be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”.82 The purpose of the CEDAW Convention is to eliminate discrimination of women and to promote equality between men and women, as stated in the preamble to the Convention.83 The preamble also brings up “faith in fundamental human rights, in the dignity and worth of the human person”. As brought up by Maja Kirolova Eriksson, human dignity is
78 See the conclusions draw by Malmsköld, Elin, The status of abortion in public international law and its effect on domestic legislation, Master’s Thesis in Public International Law and Human Rights, Uppsala University, 2018, p. 26, < http://www.diva por- tal.org/smash/get/diva2:1231728/FULLTEXT01.pdf>, checked 20 May 2020. 79 See for example Elder, Betty G., The Rights of Women; Their Status in International Law, Crime and Social Justice 1986, vol. 25, p. 20-21. 80 Dixon-Mueller, Ruth, Population Policy and Women’s Rights, Transforming Reproductive Choice, Praeger Publishers Inc, London, 1993, p. 110 and 164. 81 Kirilova Eriksson, 2000, p. 183. 82 United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol. 1155, p. 331. 83 CEDAW, preamble para. 3.
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closely linked with having control over reproduction. A wide interpretation of “family planning” where access to safe and legal abortion is included would be needed, if the object and purpose test were applied to the provision. The teleo- logical method gives room for a dynamic approach to human rights, where the conditions and developments of today should be considered when interpreting the provisions.84 A human rights treaty can however not be interpreted too ex- tensively. It’s not possible to include a new right through interpretation which was not intended to be included in the original meaning of the document.85
4.2.4 Restrictive abortion laws as a violation of CEDAW
On another note, restrictive abortion laws can be in violation of the CEDAW Convention. The case of L.C v. Peru was the first decision by the CEDAW Com- mittee regarding abortion.86 An 11-year old girl was raped by a man and became pregnant. The girl tried to commit suicide but survived. As a result, the girl re- ceived very serious injuries which required emergency health care. The hospital refused to perform the surgery, because of the risk of affecting the pregnancy. Rape was not a legal basis for abortion in Peru. The girl had a miscarriage, and more than three months after the accident she finally got the surgery needed. As a result of the refusal by the hospital, the girl’s body was completely paralysed. CEDAW concluded that by denying access to effective health services, Peru vi- olated the girl’s right to non-discriminative health care. The right to equal legal protection in Article (2)(c) and the obligation for states to modify laws which constitutes discrimination against women in Article (2)(f) were considered vio- lated. Furthermore, Article 3 and the right to enjoy human rights on a basis of equality with men were violated. Article 5 was also violated, where states are obliged to take appropriate measures to modify cultural patterns and stereotyped roles for women. Lastly, Article 12 and the right to access health care without discrimination was violated.87 The most ground-breaking aspect of the case is the fact that the committee called upon the state of Peru to liberalise their abortion laws and decriminalise abortion in cases of rape and sexual assault.88 This case shows that a restrictive abortion law can violate several rights guaranteed by the Convention. It’s worth noting that CEDAW only considered access to abortion in a situation of rape and sexual assault in this case. Access to abortion on request was not addressed, and it’s therefore not possible to infer any general right to access safe and legal abortion from this case.
84 Kirilova Eriksson, 2000, p. 309. 85 Harris, David John, Warbrick, Colin, O'Boyle, Michael, The Law of the European Convention on Human Rights, London, Butterworths, London, 1995, p. 8. 86 LC v Peru, UN Committee on the Elimination of Discrimination of Women, CEDAW/C/50/D/22/2009, 2011. 87 Ibid, para. 9. 88 Ibid, para. 12(b)(iii).
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4.2.5 Concluding remarks From reading the preparatory works, the Convention, the General Recommen- dations and relevant doctrine on the subject, the answer seems quite clear. The right to family planning should be seen as a right to prevent pregnancies, rather than terminate already existing pregnancies. Abortion is not included in the def- inition of family planning. Hence, there is no de lege lata right to access safe and legal abortions according to CEDAW. The CEDAW committee is however an important actor for the protection of women’s access to safe and legal abortions. The case of LC v Peru is an important example of how restrictive abortion laws can in fact be violating the rights guar- anteed by CEDAW, even if the Convention does not establish a positive right for the access to safe and legal abortion. CEDAW is furthermore an important instrument for addressing the issue of access to safe and legal abortion from a perspective of equality and discrimination. By arguing that access to safe and legal abortion should be seen as a form of health care that women are entitled to without discrimination, it would be possible to include protection of safe and legal abortion under this perspective. In a wider perspective, the CEDAW Con- vention addresses equality between women and men as necessary in order for everyone to enjoy the same level of protection for human rights. The signatory states are obliged to end discrimination against women. It would be possible by arguing that access to safe and legal abortion is a question of equality, to therefore argue for a protection for access to safe and legal abortion to be included in the state obligations. This issue will be discussed more thoroughly further on in the thesis.
4.3 Abortion and the right to health As previously mentioned under the CEDAW section, restrictions on medical procedures can discriminate and interfere with women’s access to health. The right to health, or “The right to the enjoyment of the highest attainable standard of physical and mental health” by its full name, is considered to be a fundamental human right. It was first recognised in the 1946 Constitution of the World Health Organization (WHO).89 In relation to abortion, it’s been argued that the right to health should require states to take measures preventing women from obtaining unsafe abortions risking their health. The right to health should be seen as a broad concept, where mental health is included. Thus, it’s been argued that the right to access abortion for socio-economic reasons or on request should be in- cluded in the international protection since a denial of an abortion can affect both the physical and the mental health of the woman.90
89 UN General Assembly, Entry into force of the constitution of the World Health Organization, A/RES/131, 1947. 90 Zampas and Gher, 2008, p. 269.
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The central instrument for protection of the right to health is the International Covenant on Economic, Social and Cultural Rights (ICESCR), where the right to health is stated in Article 12. 91 A right to reproductive health is included in the definition.92 According to the Committee on Economic, Social and Cultural Rights (CESCR), strict abortion laws undermine equality and the right to non- discrimination. It is also an interference with the right to make free, informed and responsible decisions over one’s body.93 The Special Rapporteur on the Right to Health has issued a report that ad- dresses the relationship between restrictive abortion laws and the right to health. Criminalisation of abortion is described as ”infringe with women’s dignity and autonomy by severely restricting decision-making by women in respect of their sexual and reproductive health.”94 Moreover, the special rapporteur described criminalisation of abortion as a “very clear expression of State interference with a woman’s sexual and reproductive health because it restricts a woman’s control over her body, possibly subjecting her to unnecessary health risks.”95 The report furthermore calls for states to decriminalise abortion.96
4.3.1 Concluding remarks Addressing access to abortion as a matter of health has been argued as a way to avoid the controversy over the legal status of abortion.97 As previously mentioned under the section regarding reproductive rights, it would be possible to include abortion into these rights, and thus include access to abortion in the definition of the right to health. From this perspective, criminalisation of a form of health care needed only by women would clearly constitute discrimination against on women in terms of their equal right to health care.98 The treaty bodies have, as previously shown in this section, adopted this approach of viewing right to abor- tion as part of a right to health. These statements are increase the connection between the right to health on one side, and the right to reproductive health on
91 UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 1966, Article 12. 92 Office of the United Nations High Commissioner for Human Rights, The Right to Health, Factsheet no. 31, 2008, p. 4 93 Committee on Economic, Social and Cultural Rights, General Comment No. 22 (2016) on the right to sexual and reproductive health (article 12 of the International Covenant on Economic, Social and Cultural Rights), UN Doc E/C.12/GC/22, 2016, para. 34. 94 United Nations General Assembly, Right of everyone to the enjoyment of the highest attainable standard of physical and mental health, A/66/254, 2011, para. 21. 95 Ibid, para 27. 96 Ibid, para. 65(h). 97 By focusing on the health-aspects of unsafe abortion instead of legality, such as in para. 8.20 of the Cairo Programme of Action where the objective of reducing the number of deaths and mor- bidity was stated, it’s was easier to reach an international consensus. See the reasoning by Kirilova Eriksson, 2000, p. 172. 98 As stated CEDAW, Article 12.
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the other, where criminalisation of abortion is seen to interfere with the right reproductive health. It’s been argued in the doctrine that this creates enforceable obligations for states which have signed the treaty to follow the interpretations on the right to health.99 The documents produced by the treaty bodies are, however, not legally binding. To argue that the comments on the right to health should create any obligations of the states would therefore be to take the argument a step too far. Still, the treaty bodies are the interpreters of the conventions and their views and recommendations should not be ignored by the signatory states.
4.4 International Covenant on Civil and Political Rights (ICCPR) In this section, the International Covenant on Civil and Political Rights and its relation to the access to safe and legal abortion will be addressed. The ICCPR, together with the International Covenant on Economic, Social and Cultural Rights and the Universal Declaration on Human Right, forms the International Bill of Human Rights. The ICCPR came into force in 1976.100 As of today, 173 countries have signed the ICCPR which obliges the signatory states to protect civil and political rights such as the right to life, freedom of religion, and speech. As previously men- tioned, no direct right to abortion can be found in any of the international human rights conventions. A denial of the access to safe and legal abortion can however be considered a violation of the woman’s human rights. Rights that are actualised in ICCPR in relation to abortion are the right to life in Article 6, the right to be free from torture in Article 7, the right to privacy in Article 17, and the rights of the child in Article 24.101 The implementation of the ICCPR is monitored by the UN Human Rights Committee (HR Committee). The HR Committee has been addressing the issue of abortion in cases, concluding observations and in general comments interpreting the rights of the Convention. The function of the HR Committee is to ensure the implementation of human rights established in inter- national law, monitor violations of human rights and make recommendations and guidelines on human rights. The HR Committee is not a judicial body, but its views “exhibit some important characteristics of a judicial decision” as noted in the General Comment No. 33.102 The decisions and resolutions by the HR
99 Gable, Lance, Reproductive health as a human right, Case Western Reserve Law Review, vol. 60, no.4, 2010, 957, p. 992. 100 Adopted through United Nations General Assembly Resolution 2200A (XXI) on 16 December 1966. 101 UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171. 102 UN Human Rights Committee, General comment no. 33, Obligations of States parties under the Optional Protocol to the International Covenant on Civil and Political Rights, CCPR/C/GC/33, 2009.
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Committee are, however, not legally binding.103 The HR Committee has been described as one of the leading actors in the work for promoting access to safe and legal abortion as a human rights issue.104
4.4.1 The right to life Addressing the right to life in relation to abortion is a complex matter. It’s an issue of balancing the rights of the mother’s right to life on one hand, and the child’s right to life on other hand. The balancing of rights will be discussed in further detail in relation to the ECHR in the upcoming chapter. The will to protect the child’s life from the moment of conception is closely linked to the debate regarding abortion in today’s society. The preparatory works of the ICCPR indicate that one of the first drafts of the document contained a provision where the right to life would be protected from the moment of con- ception.105 This proposal was rejected, by a vote of 31 to 20 with 17 absten- tions.106 The reasoning behind the rejection was based on differences among the member states in national.107 The Committee has not declared any protection of the unborn child’s right to be included in Article 6 ICCPR.108 In October 2018, the Committee released a new General Comment No. 36 on the right to life.109 The first draft of the comment contained the question of the applicability to the right to life of the unborn child.110 However, the Interna- tional Commission of Jurists (ICJ) together with civil society actors advocated for the right to abortion to be recognised in the General Comment. A joint sub- mission by organisations such as Human Rights Watch and Amnesty Interna- tional was submitted in 2017, arguing for the right to abortion to be recognised.111 The efforts by the ICJ and the civil society eventually paid off. Protecting women from unsafe abortion is clearly the dominating theme of this general comment.112
103 The ICCPR are binding upon the parties, and it should be performed in good faith according to Article 26 of the Vienna Convention on the Law of Treaties. 104 Sękowska-Kozłowska, Katarzyna, A tough job: recognizing access to abortion as a matter of equality. A commentary on the views of the UN Human Rights Committee in the cases of Mellet v. Ireland and Whelan v. Ireland, Reproductive Health Matters, vol. 26, no. 54, 2018, 25, p. 26. 105 UN Doc. E/CN.4/21 annex G, Drafting Committee report submitted to the Commission on Human Rights, 1st session, 1947. 106 UN Doc. A/C.3/SR.820, Third Committee, 12th session, 1957, para. 9. 107 A/C.3/SR.818, para. 6, and A/C.3/SR.819, para. 13, Third Committee, 12th session, 1957. 108 Kirilova Eriksson, 2000, p. 312. 109 UN Human Rights Committee, General comment No. 36 (2018) on Article 6 of the International Cove- nant on Civil and Political Rights, on the right to life, CCPR/C/GC/36, 2018. 110 UN Human Rights Committee, Draft General Comment no.36, CCPR/C/GC/R.36, 2015. 111 The Center for Reproductive Rights, Amnesty International, Human Rights Watch, the Inter- national Commission of Jurists and Ipas, Written Contribution to the Human Rights Committee Draft General Comment 36 on Article 6 (Right to Life) – Call for Comments, 2017. 112 Joseph, Sarah, Extending the Right to Life Under the International Covenant on Civil and Political Rights: General Comment 36, Human Rights Law Review, vol. 19, no. 2, 2019, 447, p. 351.
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The General Comment No. 36 is crucial for how the right to life in the ICCPR should be interpreted in relation to women’s access to safe and legal abortion. Nothing is mentioned regarding the perspective of the child, and how the access to safe and legal abortion relates to the child’s right to life. The exception is Ar- ticle 6(5), which addresses prohibition of the death penalty for pregnant women. The decision to not include any right to life of the unborn child in the scope of Article 6 in the General Comment No. 36 is in line with the preparatory works to the ICCPR and the standpoint taken in previous decisions and comments. It also reflects the idea behind Article 1 in the Universal Declaration of Human Rights (UDHR), which states that all human beings are born free and equal in dignity and rights.113 This formulation was intentionally chosen in order to ex- clude the foetus from the human rights.114 Instead of declaring a protection of the foetus, a different perspective on the right to life has been adopted by the committee. Paragraph 8 in the General Comment No. 36 states that states may adopt measures regulating the termina- tion of pregnancies, but the adopted measures should not violate the rights of the pregnant woman. Laws regarding abortions must therefore not violate lives, cause mental or physical pain, be discriminating or interfere with the right to privacy. Further on, the comment states that:
”States parties must provide safe, legal and effective access to abortion where the life and health of the pregnant woman or girl is at risk, or where carrying a preg- nancy to term would cause the pregnant woman or girl substantial pain or suffer- ing, most notably where the pregnancy is the result of rape or incest or is not viable.”115
Furthermore, the comment urges states to remove criminal sanctions on women undergoing abortions and decriminalise abortions in order to prevent women from resorting to unsafe and illegal abortions. The reasons behind criminalisation of abortion are also addressed by the HR Committee, such as the need for states to provide information about reproductive health and work towards ending the stigmatisation of women seeking abortion.116 With this general comment, the HR Committee recognise the access to safe and legal abortion as a right. This statement goes further than the committee has before in recognising this right.117 The HR Committee does not create a new “human right to abortion”, but it still claims that a denial of the access to safe and legal abortion may violate the woman’s right to life. By this interpretation, access to safe and legal abortion should be seen as a part of a human right pro- tected under the ICCPR. Furthermore, preventable deaths relating to a denial of
113 UN General Assembly, Universal Declaration of Human Rights, 217 A (III), 1948. 114 Zampas and Gher, 2008, p. 263. 115 UN Human Rights Committee, General comment No. 36 (2018) on Article 6 of the International Cove- nant on Civil and Political Rights, on the right to life, CCPR/C/GC/36, 2018, para. 8. 116 Ibid, para. 8. 117 Joseph, Sarah, Extending the Right to Life Under the International Covenant on Civil and Political Rights: General Comment 36, Human Rights Law Review, vol. 19, no. 2, 2019, p. 352.
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access to safe and legal abortion should be seen as a violation of the right to life. This standpoint taken by the HR Committee might not however be entirely sur- prising, due to the concluding observations and state reports criticising the crim- inalisation on abortion presented by the HR Committee.118
4.4.2 Restrictive abortion laws as a violation of ICCPR
As mentioned at the beginning of this section, several other rights in the ICCPR are actualised in relation to abortion. The HR Committee has in the following cases concluded that strict abortion laws have been violating women’s human rights. In the case of Llantoy-Huamán v Peru, a 17-year old girl was denied an abortion despite the fact that a continuation of the pregnancy would be life-threatening. The baby died four days after birth, and the girl became severely depressed. The HR Committee concluded a violation of the right to be free from discrimination in Article 2, the right to be free from torture or to cruel, inhuman or degrading treatment or punishment in Article 7, the right to privacy in Article 17 and the rights of the child in Article 24 of the ICCPR.119 The case of Mellet v. Ireland from 2016 was the ground-breaking case where Ireland's abortion-ban was considered to violate the rights of the applicant. The foetus had congenital heart defects, and abortion was considered the only option by the doctors. A termination of the pregnancy was denied, due to Ireland's strict law on abortion. Ms. Mellet had the choice to continue the pregnancy, or to travel to England in order to have an abortion. The HR Committee concluded that there had been a violation of her right to be free from cruel, inhuman or degrad- ing treatment according to Article 7, her right to privacy according to Article 17 and her right to equality before the law according to Article 26.120 In the very similar case of Whelan v. Ireland from 2017, the outcome of the case was the same where a violation of Article 7, 17 and 26 was determined by the committee.121
118 See for example UN Human Rights Committee, Concluding Observations: Equatorial Guinea, CCPR/CO/79/GNQ, 2004, para. 9 regarding the removal of restrictions on family planning lead- ing to illegal abortions, UN Human Rights Committee, Concluding Observations of the Human Rights Committee: Zambia, , CCPR/C/ZMB/CO/3, 2007, para. 18. regarding the conclusion that consent by three doctors were considered an obstacle to safe and legal abortion, UN Human Rights Com- mittee, Concluding Observations of the Human Rights Committee: Cameroon, CCPR/C/CMR/CO/5, 2017, para. 22, regarding a call for amending the legislation in order to allow access to safe and legal abortions and allow the removal of court approval for abortion in cases of rape. 119 UN Human Rights Committee, Karen Noelia Llantoy Huamán v. Peru, Communication No. 1153/2003, U.N. Doc. CCPR/C/85/D/1153/2003, 2005. 120 UN Human Rights Committee, Mellet vs. Ireland, communication No. 2324/2013, CCPR/C/116/D/2324/2013, 2016. 121 UN Human Rights Committee, Whelan v. Ireland, communication No. 2425/2014, CCPR/C/119/D/2425/2014, 2017.
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4.4.3 Concluding remarks
As shown in this section, several provisions in the ICCPR can be actualised in relation to women’s right to safe and legal abortions. The right to life does not include any protection for the unborn. In the balancing of interests between the foetus and the mother, the General Comment No. 36 gives guidance on how the life of the mother should be prioritised. It also calls for states to decriminalise abortion, and for states to ensure that existing abortion laws do not violate life and health, discriminate against women or interfere with their privacy. The Com- ment sends out clear signals to states that therapeutic abortion must be available in order to guarantee the mother’s right to life. The General Comment is, how- ever, non-binding for the signatory states and does therefore not create any ob- ligations. Still, the comment is important since it provides guidance on the inter- pretation of the right to life in relation to abortion. Furthermore, denying access to abortion in cases of rape and sexual assault and when life or health are threat- ened has been considered a breach of the ICCPR. All of the cases considered abortion in contexts of special circumstances and recognised no right to abortion due to socio-economic reasons or on request.
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5 The European Convention on Human Rights and the access to safe and legal abortion
This part of the thesis will analyse how the European Convention on Human Rights relates to the access to safe and legal abortion.122 The ECHR came into force 1953, as the first international instrument to make the rights stated in the UDHR binding.123 The Convention established the ECtHR, which today is con- sidered the most successful human rights-mechanism in the world. 124 It’s there- fore of interest to see how the Court has dealt with the abortion issue in relation to the human rights in ECHR. Three rights in the Convention are of special interest in relation to abortion: the right to life in Article 2, the prohibition of torture in Article 3 and the right to privacy in Article 8. The ECHR has in several cases ruled on abortion issues. This chapter addresses the question of whether these cases establish a right for women within Europe to access safe and legal abortion.
5.1 The right to life
As previously shown in the essay, the right to life is actualised in relation to abor- tion in two ways. The right to life of the mother on the one hand, and the right to life of the child on the other hand. According to Article 2 ECHR, states are obliged to protect the right to life by law and to protect the intentional depriva- tion of life. States should both refrain from taking life intentionally and unlaw- fully, and safeguard life within the jurisdiction. Therefore, states have a positive obligation to prevent deaths by taking operational measures.125
122 Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950. 123 Council of Europe website, European Court of Human Rights,
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5.1.1 The right to life of the unborn child
The previous chapter showed that the right to life begins at birth according to the interpretation of the ICCPR. The General Comment No. 36 clearly stated that the ICCPR protects the life of the mother in a situation where an abortion would save her life. Article 2 ECHR does not mention anything about when the right to life be- gins. Neither does it clarify the wording “everyone” or “whose life” that is pro- tected by the Convention. For the question of whether an unborn child is con- sidered to have a right to life under Article 2, the case of Vo v. France is central.126 The applicant in the case went to the hospital for a medical examination during the sixth month of pregnancy. On the same day, another woman with a similar name was scheduled to have a contraceptive coil removed at the same hospital. The two patients were mixed up, and the pregnant woman went through a sur- gery that was supposed to be performed on the other woman. As a result of the surgery, the unborn child died, and the woman had to undergo an abortion.127 The Court held that the question of when life starts and when the right to life begins, falls under the margin of appreciation of the member states. 128 There is no consensus in Europe on neither a legal nor a scientific definition of when life is considered to start129 As a result, the Court found it unnecessary to analyse whether the death of the unborn child was considered a breach of Article 2. The state had in fact not breached its positive obligations of preserving life according to the requirements in the health-sphere.130 In the case of A, B and C v. Ireland, which will be analysed in detail in upcoming sections, the Court confirmed that it would not be possible “to find in the legal and social orders of the Contracting States a uniform European conception of
126 Vo v. France, (Application no. 53924/00), ECtHR, Judgment 8 July 2004. (Cited as Vo v. France, 2004). 127 Ibid, para. 10–13. 128 In contrast to the European jurisprudence where the status of protection for the unborn is uncertain, the jurisprudence from the Inter-American system has given more clarity on the issue. In the case Baby Boy vs United States of America from the Inter-American Commission on Human Rights, Res 23/81, Case 2141, 1981, did the applicant claim a violation on the right to life under the American declaration Article 1 on the behalf of an aborted foetus. The Commission rejected the petitioners claims and held that an absolute protection on the right to life would conflict laws regulating death penalty and allowing abortions. The Commission held that laws allowing abortion did not violate Article 4 of the American Convention. According to Article 4, the right to life starts at the moment of conception. The Commission held that the right to life from the moment of conception is not absolute. 129 Vo v. France, 2004, para. 85. 130 Vo v. France, 2004, para 85. For a similar assessment, se Mehmet Senţ urk̈ and Bekir Senţ urk̈ v. Turkey, (Application no. 13423/09), ECtHR, Judgment of 9 April 2013, para. 109.
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morals including on the question of when life begins”.131 Furthermore, in the case of Evans v. the United Kingdom regarding a question of storage of embryos, the Court found that the embryos could not be considered to have rights or interests. Therefore, the embryos could not have any right to life according to Article 2.132 133 In conclusion, it’s not possible to claim a right to life of the unborn according to Article 2 ECHR. The member states can instead decide on this issue by them- selves, through the doctrine of margin of appreciation.134
5.1.2 The right to life of the mother In situations where the pregnancy and the need for a termination is connected with health or the life of the mother, the right to life can be actualised. The ques- tion of whether a denial of access to safe and legal abortion could amount to a violation of the right to life of the woman has not yet been subject to judgment by the Court. In the case of A., B. and C. v. Ireland, a pregnant woman in Ireland claimed that her right to life had been violated since she was denied access to abortion. The Court did not try this claim under Article 2, based on the fact that the woman could travel abroad to obtain an abortion and therefore there was no risk for her life.135 This question of the right to life of the mother under the Con- vention in relation to restrictive national abortion laws has therefore been left unanswered in Strasbourg jurisprudence. The abortion cases have instead been focusing on whether a denial of access to abortion could be considered a viola- tion of the right to privacy in Article 8.
5.2 The prohibition of torture
Article 3 of the ECHR states that no one shall be subjected to torture or to in- human or degrading treatment or punishment. There are a couple abortion cases
131 A, B and C v. Ireland, (Application no. 25579/05), ECtHR, Judgment of 16 December 2010, para 223. (Cited as A, B and C v. Ireland, 2010) 132 Evans v. the United Kingdom, (Application no. 6339/05), ECtHR, Judgment of 10 April 2007, para. 54–56. 133 The issue of the the right to life of an embryo was brought up in the case of Artavia Murillo and others vs. Costa Rica, the Inter-American Court Judgment of November 28, 2012, para. 188 and 264. The Court determined that right to life is not absolute from conception, and that an embryo can’t be considered to have full legal personhood. Instead the rights gradually apply along with the de- velopment of the foetus. 134 The doctrine of margin of appreciation was first established in the Case of Handyside v. the United Kingdom, (Application no. 5493/72), European Commission, Judgment of 7 December 1976, para. 48. The doctrine enables states to determine what is ”necessary in a democratic society”. See Bring, Ove, Klamberg, Mark, Mahmoudi, Said, Wrange, Pål, Sverige och folkrätten, 6th ed, Norstedts Juridik, 2020, p. 250. 135 A., B. and C. v. Ireland, 2010, para. 158.
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where a violation of Article 3 has been found. In the case of R.R. v. Poland, the applicant claimed that her right to be free from inhuman or degrading treatment had been violated by the state of Poland.136 The pregnant woman went to the hospital for an ultrasound scan, which indicated that the foetus had a severe ge- netic abnormality. The woman was denied a genetic test, and six weeks passed by until the abnormality of the foetus was confirmed. By that time, it was too late for the woman to decide whether or not she wanted to terminate the pregnancy because the legal time limit for abortions had expired according to Polish law. According to the applicant, she had been subjected to inhuman and degrading treatment due to the doctor’s unwillingness to provide medical treatment in time. This was an intentional and repeated denial with the aim of preventing her from undergoing a legal abortion.137 The Court held that the woman was humiliated by the doctor’s, due to the fact that she visited numerous doctors and hospitals and was denied medical help. In conclusion, the Court held that the suffering she had to endure amounted to a violation of Article 3.138 Furthermore, in the case of P. and S. v. Poland, the Court concluded that denied access to abortion in a case of rape constituted a breach of Article 3.139 The ap- plicant was only 14-years old and a victim of sexual abuse. The Court held that she was treated in a “deplorable manner” by the authorities, and that the suffer- ing reached the minimum threshold of severity under Article 3 of the Conven- tion.140
5.3 The right to privacy
The right to privacy in Article 8(1) ECHR is the most important right in the Convention in relation to abortion, as shown in the case-law from the Court. As stated in the Article, everyone has the right to respect for his/her private life, family life, home and correspondence. No interference by public authorities are allowed, with the exception of measures made in accordance with law that are
136 R.R. v. Poland, (Application no. 27617/04), ECtHR, Judgment of 26 May 2011, para. 90. (Cited as R.R. v. Poland, 2011) 137 R.R. v. Poland, 2011, para. 145–146. 138 R.R. v. Poland, 2011, para 153–162. 139 P. and S. v. Poland, (Application no. 57375/08), ECtHR, Judgment of 30 October 2012, para 168-169. (Cited as P. and S. v. Poland, 2012) 140 Ibid, para. 168. In the context of torture, it’s worth mentioning that the UN Committee against Torture (CAT) has concluded that a criminalization of abortion could lead to women experiencing severe suffering and pain if being forced to continue an unwanted pregnancy. The committee has called for governments to “allow for legal exception to the prohibition of abortion in specific cir- cumstances in which the continuation of pregnancy is likely to result in severe pain and suffering, such as when the pregnancy is the result of rape or incest or in cases of fatal foetal impairment.” See the concluding observations of the Committee against Torture on Timor-Leste, CAT/C/TLS/CO/1, 2017 and Ireland, CAT/C/IRL/CO/2, 2017.
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necessary in a democratic society with the interests of ”national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others Article 8(2).”141 The main purpose of the Article 8 is to protect the individual against arbitrary interferences by the state. States have therefore a negative obligation to not interfere with the right to privacy.142 The obligations can also be of a positive character.143 In the following section, a num- ber of cases regarding abortion will be analysed in order to understand how and if the access to safe and legal abortion has any protection within Europe under the right to privacy.
5.3.1 Brüggemann and Scheuten v. the FRG
The first case to consider access to abortion under the right to privacy was the case of Brüggemann and Scheuten v. the FRG.144 The applicant claimed the law im- posing criminal sanctions on abortions in Germany interfered with her right to private life in Article 8 ECHR.145 The Commission held that sexual life is part of private life, and a regulation of abortion is an intervention in the private life which can be justified under Article 8(2). The Commission held that termination of a pregnancy cannot be seen as only a matter of the mother’s private, and that all member states have laws regulating the termination of pregnancies146 The Com- mission furthermore states that there was no intention of the member states to bind themselves to any particular solution on abortion. Abortion was restricted in every state party when the Convention entered into force 147 This formulation shows that the legislation regarding abortion should be up to the member states to decide. In conclusion, no violation of Article 8 could be found in the case.148
141 ECHR, Article 8. 142 See the reasoning in Libert v. France, (Application no. 588/13), ECtHR, Judgment of 22 February 2018, para. 40–42. 143 See the reasoning in Barbŭ lescu v. Romania, (Application no. 61496/08), ECtHR, Judgment of 5 September 2017, para. 108-111. 144 Brüggemann and Scheuten v. the FRG, (Application no. 6959/75), European Commission, Report of 12 July 1977. (Cited as Brüggemann and Scheuten v. the FRG, 1977) The European Commission of Human Rights was established 1945 and decided on the admissibility of applications and delivered decisions. The European Court of Human Rights was established in 1959. The system with both a Commission and a Court was removed in 1988, when the Court replaced the Commission. See Bring, Ove, Klamberg, Mark, Mahmoudi, Said, Wrange, Pål, Sverige och folkrätten, 6th ed, Norstedts Juridik, 2020, p. 249. 145 Brüggemann and Scheuten v. the FRG, 1977, para. 5. 146 Brüggemann and Scheuten v. the FRG, 1977, para. 61. See also van Dijk, Pieter, van Hoof, Fried, van Rijn, Arjen and Zwaak, Leo (eds.), Theory and Practice of the European Convention on Human Rights, 4th ed, Intersentia, Antwerpen-Oxford, 2006, p. 680. 147 Brüggemann and Scheuten v. the FRG, 1977, para. 64. 148 Ibid, para. 66.
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In a Separate Opinion, three Judges added that it can’t be seen as an uncondi- tional right of the woman for the state to be guaranteed unregulated abortions. However, by arguing the woman’s right to self-determination, the state would be obligated to not interfere with her decision to terminate a pregnancy.149 The Sep- arate Opinion furthermore notes that traditional views on abortion affect the interpretation of Article 8:
”.. the reality behind these traditional views is that the scope of protection of pri- vate life has depended on the outlook which has been formed mainly by men, although it may have been shared by women as well.”150
5.3.2 Tysiac̨ v. Poland In the case of Tysiac̨ v. Poland, the applicant was refused a therapeutic abortion despite the fact that a continuation of her pregnancy would make her severe dis- ease of myopia even worse.151 After she gave birth, her eyesight severely deterio- rated.152 The applicant then argued that her rights according to Article 8 had been violated due to the failure of the state to provide a legal abortion and by ”the absence of a comprehensive legal framework to guarantee her rights by appro- priate procedural means”.153 The Court noted that the Polish Act 1993 prohibits abortion, but section 4 (a) (1)(1) of that Act provides an exception when a pregnancy poses a threat to the woman’s life or health. Therefore, the Court confirmed that it was not their task to examine whether the Convention guarantees a right to have an abortion.154 In contrast to Brüggemann and Scheuten v. the FRG, the Court found Article 8 to apply to the case. ”While the State regulations on abortion relate to the traditional bal- ancing of privacy and the public interest, they must – in case of a therapeutic abortion – also be assessed against the positive obligations of the State to secure the physical integrity of mothers-to-be.”155 The central issue in the case was the lack of an effective mechanism that could determine whether the conditions for obtaining a lawful abortion could be met. The Court concluded that the Polish law did not guaranteed access to such a mechanism. As a result, the applicant suffered severe distress. A violation of Article 8 was therefore found in the case.156
149 Brüggemann and Scheuten v. the FRG, 1977, Separate Opinion of Mr. T. Opsahl (Mr. C. Norgaard and Mr. L. Kellberg concurring), para. 2. 150 Ibid, para. 3. 151 Tysiac̨ v. Poland, (Application no. 5410/03), ECtHR, Judgment of 20 March 2007, para. 9. (Cited as Tysiac̨ v. Poland, 2007) 152 Ibid, para. 16. 153 Ibid, para. 76. 154 Ibid, para. 104. 155 Ibid, para. 107. 156 Ibid, para. 130.
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5.3.3 A., B. and C. v. Ireland
The next case from the ECtHR dealing with the question of access to abortion might be the most cited and well-known case on the subject. Abortion was pro- hibited and seen as a criminal offence in Ireland until the referendum in 2018.157 Today, abortion is allowed without restrictions up to 12 weeks of pregnancy.158 The three applicants’ in the case, A, B and C, wanted to terminate their preg- nancies but were unable to do so in Ireland. Instead, they had to travel to England to have abortions.159 Because of this, the applicant's argued the legal restrictions on abortion on Ireland interfered with their family and private lives in violation of Article 8.160 As in the previous judgment, the Court noted that a termination of pregnancy is closely linked with the woman’s private sphere, but it’s still con- nected with the foetus.161 Article 8 does not establish any right to abortion, but the prohibition on abortion in Ireland ”come[s] within the scope of their right to respect for their private lives and accordingly Article 8”. The Court distinguished between applicant A and B on the one hand, and applicant C on the other hand. A and B sought abortion on the grounds of well-being, whereas applicant C suf- fered from cancer and sought abortion because she feared the pregnancy would risk her life. 162 With regards to applicant's A and B, no violation of Article 8 could be found.163 The reasoning by the Court is quite complex. It analyses whether the prohibition should be seen as an unjustified interference with their rights under Article 8 of the Convention.164 It concludes that the interference was made ac- cording to the law, since it was predictable that abortion on the grounds of well- being could not be justified under the Irish law.165 Furthermore, the Court exam- ined how wide the margin of appreciation is and how it’s affected by the Euro- pean consensus on abortion. A broad margin should be given Ireland due to the moral and ethical issues raised by the question of abortion. The fact that abortion was available due to grounds of well-being in the majority of the states, did not affect the margin of appreciation granted to Ireland in the question of abortion.166 The outcome was different regarding applicant C, where a violation of Article 8 was found. The Government claimed that the woman had access to effective and accessible procedures whereby the woman could establish her right to a law- ful abortion in Ireland.167 The Court did not agree and criticised Ireland in several
157 Ireland, Offences Against the Person Act 1861. 158 Ireland, Health (Regulation of Termination of Pregnancy) Act 2018, Act No. 31 of 2018. 159 A., B. and C. v. Ireland, 2010, para. 13, 18 and 22. 160 Ibid, para. 113. 161 Ibid, para. 213. 162 Ibid, para. 214. 163 Ibid, para. 242. 164 Ibid, para. 216. 165 Ibid, para. 221. 166 Ibid, para. 241. 167 Ibid, para. 251.
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ways. Abortion was by the time available if there was a real and substantial risk to the life of the mother. There were, however, no criteria or procedures for how the provision should be interpreted in either legislation or case-law. The criminal provisions and the absolute prohibition on abortion had not been amended. This led to uncertainty regarding application.168 The constitutional Court was not con- sidered to be a suitable forum for the determination of whether a woman quali- fied for a lawful abortion.169
”..the uncertainty generated by the lack of legislative implementation of Article 40(3)(3), and more particularly by the lack of effective and accessible procedures to establish a right to an abortion under that provision, has resulted in a striking discordance between the theoretical right to a lawful abortion in Ireland on the ground of a relevant risk to a woman’s life and the reality of its practical implementation”170
In conclusion, Ireland failed to comply with their positive obligation accord- ing to Article 8 by not establishing an effective procedure for the woman to know whether she qualified for a lawful abortion.171
5.3.4 R.R. v. Poland
The third case, R.R. v. Poland, from 2011 was previously discussed in relation to Article 3. In addition to a violation of Article 3, the Court also found a violation of Article 8 in the case. The Court refers to the Tysiac̨ v. Poland judgement in their analysis. The court mentions the “chilling effect” which the Polish abortion law has on doctors when deciding whether the requirements of legal abortion are met. Doctors who terminate a pregnancy in breach of the conditions specified in 1993 Act face a criminal conviction with up to three years’ imprisonment. Therefore, the provisions regulating abortion should be formulated in a way where this chilling effect can be avoided.172 In contrast to Tysiac̨ v. Poland, the question in R.R. v. Poland was not primarily access to abortion. It was rather the denial of a prenatal genetic test, which would in turn make it possible to determine whether the conditions for lawful abortion had been met or not. Because of this, the Court started with analysing the indi- viduals access to information.173 Since the Polish law allows abortion in cases of foetal malformation, the state has a positive obligation to provide a framework that guarantees that pregnant women can get reliable information on the foetal
168 Ibid, para. 253. 169 Ibid, para. 258. 170 Ibid, para. 264. 171 Ibid, para. 267. 172 R.R. v. Poland, 2011, para. 193. 173 Ibid, para. 196.
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health.174 The Court concluded that the applicant could not access any effective mechanism under the Polish law which enabled her to ”take an informed deci- sion as to whether to seek an abortion or not”.175 Poland had therefore failed to implement Article 4(a)(1)(2) of the 1993 Family Planning Act in an effective way so that the applicant could enjoy her rights according to the law.176 In conclusion, the authorities failed to fulfil their positive obligations to guarantee effective re- spect for the applicant’s private life, and a breach of Article 8 of the Convention was found.177
5.3.5 P. and S. v. Poland The last case dealing with abortion that has been addressed by the Court is P. and S. v. Poland, this case was mentioned previously under the section concerning Article 3. 178 The applicants in the case were a 14-year old girl and her mother. The 14-year old girl was raped and got pregnant as a result. The applicants de- cided to do an abortion. They unsuccessfully tried to seek abortion at two differ- ent hospitals where the doctors refused to perform an abortion. The girl was forced to talk to a Catholic priest for consulting.179 Furthermore, her mother had to sign a “declaration” acknowledging that the abortion could risk the life of her daughter.180 The case leaked to the press, and the applicants had to be escorted by police due to threats from anti-abortion activists.181 At the police station, the applicants were questioned. The family Court decided to restrict the parental rights of the mother and place the girl in a shelter.182 Furthermore, the Court opened a criminal investigation against the girl with the suspicion that she had committed a criminal offence when having intercourse with a minor.183 Eventu- ally, the girl succeeded in getting an abortion in another town.184 The applicants claimed a violation of Article 3, 5 and 8 of the Convention. This case is different from the previous cases Tysiac̨ v. Poland and R.R. v. Poland since it’s about access to abortion after a sexual assault.185 The Court held that the girl’s right according to Article 8 had been violated in two aspects. First, with respect to the applicant’s access to a lawful abortion, and second, with respect to the disclosure of the applicant’s personal and medical data.
174 Ibid, para. 200. 175 Ibid, para. 209. 176 Ibid, para. 213. 177 Ibid, para. 214. 178 P. and S. v. Poland, 2012. 179 Ibid, para. 26. 180 Ibid, para. 15. 181 Ibid, para. 28. 182 Ibid, para. 29. 183 Ibid, para. 42. 184 Ibid, para. 40. 185 Ibid, para. 100.
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To start with the first violation, the Court criticised how the two hospitals had handled the case. The Court held:
” The events surrounding the determination of the first applicant’s access to legal abortion were marred by procrastination and confusion. The applicants were given misleading and contradictory information. They did not receive appropriate and objective medical counselling which would have due regard to their own views and wishes.”186
Furthermore, the Court dismissed the argument presented by the government regarding access to an effective remedy. The civil-law remedy available to women seeking abortion is of a retroactive and compensatory character. As held in Tysiąc v. Poland and R.R. v. Poland, such retrospective measures could not provide the appropriate protection of the rights of a pregnant woman when deciding on whether she has the right to a lawful abortion or not.187 Last, the Court held that access to reliable information regarding the condi- tions for obtaining a lawful abortion is crucial. Article 8 applies to the decisions of both becoming a parent and not becoming a parent. The Court stressed the importance of the time factor when a woman is deciding whether to have an abortion or not. Therefore, the procedures available should guarantee that deci- sions about abortion can be taken in time. This was not ensured in the present case, where plenty of uncertainties arose regarding the circumstances for access- ing a lawful abortion. The applicant had in fact a theoretical right to access abor- tion under Polish law but could not enjoy this right due to the lack of practical implementation. In conclusion, the authorities failed to comply with their posi- tive obligations under Article 8.188 Regarding the leaked information about the abortion, the Court held that this as well was a breach of the applicants right to privacy. The protection of medical data is of fundamental importance, as held by the Court.189 The disclosure was not lawful and did not serve any legitimate interest.190
5.4 European jurisprudence on access to safe and legal abortion- an analysis
In the previous sections, the relevant provisions and case-law on the subject have been presented. The cases from Poland and Ireland can be said to make up the current jurisprudence on abortion in Europe. Behind these cases, there were
186 Ibid, para. 108. 187 Ibid, para. 110. 188 Ibid, para. 111. 189 Ibid, para. 128. 190 Ibid, para. 135.
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advocacy groups representing both sides of the abortion debate trying to influ- ence the Court. On the one hand, the Centre for Reproductive Rights advocated for access to abortion as a right that should be recognised under the Conven- tion.191 On the other hand, groups such as the Society for the Protection of Un- born Children and the Family Research Council argued against abortion.192 The Irish government argued that the Court would overstep its jurisdiction if it rec- ognised access to abortion as a right protected under the Convention.193 The Polish government argued that access to abortion was not an issue that should be protected under Article 8.194 In the following sections, the European jurispru- dence on abortion will be analysed in further detail.
5.4.1 No right to access abortion under the Convention After reading the cases, it’s clear that the Court has not recognised any free- standing right to abortion under the Convention. Speaking of a right to access safe and legal abortion through the protection of the Convention is therefore not possible. European women can’t claim a right to access abortion, and the Euro- pean states have no obligation according to the Convention to provide safe and legal abortion to their citizens. The legality of abortion is entirely regulated by the national laws. However, if a country decides to allow abortion according to their legislation, then the Convention can be used to ensure there is practical effective access to abortion. This aspect as well as margin of appreciation will be discussed further on. Abortion was in theory legal in all of the cases or could be obtained abroad. The Court has therefore not tried the question of whether a total ban on abortion risking the life of the mother would be in violation of the Convention. A woman living in Malta where abortion is completely banned can therefore not success- fully claim that her rights have been violated based on the protection guaranteed by the Convention. What would happen if a woman died in Malta as a result of being denied access to abortion? Would the Court still argue that access to abor- tion is a prerogative of the state? As argued by Daniel Fenwick, it would be un- likely that the Court would still argue that the principle of subsidiarity would apply.195 How the right to life relates to a total ban on abortion is a very interesting question, but it won’t be addressed any further in this context.
191 See A, B and C v. Ireland, 2010, para. 208–211. 192 Ibid, para. 196–205. 193 Ibid, para. 180. 194 R.R. v. Poland, 2011, para. 163. 195 Fenwick, Daniel, The Modern Abortion Jurisprudence under Article 8 of the European Convention on Hu- man Rights, Medical Law International, vol. 12, no. 3–4, 2012, 249, p. 272. (Cited as Fenwick, 2012)
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5.4.1.1 Reproductive rights in a European context
In 2008, the Parliamentary Assembly of the Council of Europe (PACE), adopted the resolution Access to safe and legal abortion in Europe. The resolution addresses access to safe and legal abortion as a right that should be guaranteed to every woman living in Europe.196 Furthermore, the resolution recognises a right for every woman to control their bodies and to be respected for their physical integ- rity.197 Member states are called on to decriminalise abortion and remove any restrictions on access to safe and legal abortion.198 This resolution is cited in the case-law of the European Court of Human rights.199 The PACE resolutions is a progressive document which sets up an ambitious agenda for reproductive rights and access to abortion in Europe. The resolution is not legally binding but serves as a political interpretation of the Convention. The resolution has been described as the “most progressive pronouncement on the right to abortion by any inter- national or regional human rights system.”200 The ECtHR has not recognised or issued any support for reproductive rights in its case-law or in other statements in relation to ECHR.201
5.4.1.2 Access to abortion as a right under the Convention
Before the release of the judgement A., B. and C. v. Ireland,, there were some expectations for the Court to recognise a right to abortion under the Convention, based on reproductive rights. As shown by the European the case-law, this was not the case. 202 There are clearly different opinions on whether the Court should or could recognise access to safe and legal abortion as a” right” under the Con- vention. These opinions vary because of a different moral view on abortion and how women’s rights should be prioritised. For example, Chiara Cosentino argues
196 Council of Europe Parliamentary Assembly, Access to safe and legal abortion in Europe, Resolution 1607 (2008), 2008, para. 7(2). 197 Ibid para. 6. 198 Ibid para 7(1). 199 See for example R.R. v. Poland, 2011, para. 82. 200 Zampas and Gher, 2008, p. 251. 201 In contrast to this approach, the Inter-American Commission on Human Rights have several times announced its support for reproductive rights. In a statement from 2017, the Commission declared “Denying access by women and girls to legal and safe abortion services or post-abortion care can cause prolonged and excessive physical and psychological suffering to many women, es- pecially in cases involving risks to their health, unviability of the fetus, or pregnancies resulting from incest or rape. Without being able to effectively exercise their sexual and reproductive rights, women cannot realise their right to live free from violence and discrimination.” Inter- American Commission on Human Rights, IACHR Urges All States to Adopt Comprehensive, Immedi- ate Measures to Respect and Protect Women’s Sexual and Reproductive Rights, October 23 2017,
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that the resolution is “the most progressive political statement on the matter ever issued by any human rights system so far”. According to her, the Court should take the words in the resolution into account in their judgements.203 To the con- trary, Gregoŕ Puppinck argues that it’s impossible for the Court to follow the PACE resolution since this would be against the original writing of the Conven- tion. To include any right to abortion would be in conflict of the original meaning and purpose of the Convention.204 In this context it’s necessary to very briefly mention the European Committee of Social Rights that monitors the European Social Charter, a so-called “sister treaty” to the ECHR.205 This charter contains a right to health in Article 11, and a prohibition on all forms of discrimination in Article E. The Commission de- termined in the case of International Planned Parenthood Federation – European Net- work (IPPF-EN) v. Italy (2014), that Italy violated the right to health by not im- plementing abortion rights effectively. Additionally, failure to ensure effective access to lawful abortion in Italy amounted to discrimination by gender, health status, and social and economic status and therefore violated the principle of non-discrimination.206 In the case of Federation of Catholic Families in Europe (FAFCE) v. Sweden (2014), the Committee held that Article 11 does not give states a positive obligation to provide a right to conscientious objection for health care workers in relation to abortion.207 This jurisprudence shows that the European states have obligations to provide access to abortion based on the right to health and non-discrimination.
5.4.2 The right to life vs. access to abortion
The Court has not given any guidance on how the conflicting rights between the foetus potential right to life and the right to respect of the woman’s private life should be weighed against each other. As mentioned previously, no right to life of the foetus can be recognised under the Convention since there is no European consensus on this matter. By using a quite vague formulation, the Court has avoided to take a standpoint in the question.208 The Court has held that a termi- nation of a pregnancy falls within the sphere of the private life of the woman. However, termination of a pregnancy could be not only a matter of her private life. The Court notes:
203 Cosentino, Chiara, Safe and Legal Abortion: An Emerging Human Right? The Long-lasting Dispute with State Sovereignty in ECHR Jurisprudence, Human Rights Law Review, vol 15, no. 3, 2015, 569, p. 589. 204 Puppinck, Gregor,́ Abortion and the European Convention on Human Rights, Irish Journal of Legal Studies, vol. 3, no. 2, 2013, p. 158-159. 205 Council of Europe, European Social Charter, 1996. 206 Council of Europe, International Planned Parenthood Federation – European Network (IPPF-EN) v. Italy, No. 87/2012, 2014. 207 Council of Europe, Federation of Catholic Families in Europe (FAFCE) v. Sweden, No. 99/2013, 2014. 208 Fenwick, 2012, p. 271.
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“the court emphasising that Article 8 cannot be interpreted as meaning that preg- nancy and its termination pertain uniquely to the woman’s private life as, whenever a woman is pregnant, her private life becomes closely connected with the devel- oping foetus. The woman’s right to respect for her private life must be weighed against other competing rights and freedoms invoked including those of the un- born child”209
By this statement, the Court finds that the two aspects are closely connected. This reflects the view of the ruling in Vo v. France regarding Article 2 where the Court held that the question of the life of the foetus can’t be answered in isolation from the right to life of the pregnant woman.210 Since states have a margin of appreciation regarding the protection of the unborn, this translates into a margin of appreciation on how the states choose to balance the conflicting rights of the mother.211 In conclusion, the case-law does neither provides any right to life of the foetus nor a right to access abortion under the Convention. It only recognises that these two aspects must be considered together and that the balancing of rights belongs to the states under margin of appreciation. This position reflects an unwillingness by the Court to take a standpoint on the matter. As a conse- quence, ECtHR’s ambivalence on the question regarding foetal life makes it pos- sible for member states to peruse with anti-abortion arguments under the Con- vention.212 The ruling in Vo v. France indicates that ECtHR is unwilling to chal- lenge the abortion laws of the member states.213 However, in RR v. Poland, the Court recognises that:
“there is indeed a consensus amongst a substantial majority of the Contracting States of the Council of Europe towards allowing abortion and that most Con- tracting Parties have in their legislation resolved the conflicting rights of the foetus and the mother in favour of greater access to abortion.”214
This statement by the Court did not affect the judgement in the case. Ireland was granted a wide margin of appreciation unaffected by the European view on the matter. Still, it shows that the Court is fully aware of the fact that almost all coun- tries in Europe share the same view on the issue. The Court has through this approach successfully avoided dealing with the issue of abortion in relation to the right to life in Article 2, and instead handled the issue as a matter of the right to privacy under Article 8.
209 A., B. and C., v. Ireland, 2010, para. 213. 210 Vo v. France, 2004, para. 77. 211 R.R. v. Poland, 2011, para. 186. 212 Zampas and Gher, 2008, p. 266. 213 Hewson, Barbara, Dancing on the Head of a Pin? Foetal Life and the European Convention, Feminist Legal Studies, vol. 13, 2005, 363, p. 372. 214 R.R. v. Poland, 2011, para 186. See also the reasoning in A., B. and C. v. Ireland, 2010, para. 235 and 237.
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5.4.3 Abortion within “the scope” of Article 8 Even though there is no explicit right to access abortion under the Convention, the Convention is still actualised in relation to abortion. This is a question of how laws on abortion can be in violation of the rights protected by the Convention. As previously show, Article 3 and 8 of the Convention were violated in cases where women were denied access to abortion. The reasoning by the Court in the context of how the right to privacy relates to access to abortion is especially in- teresting. As held in A., B. and C. v. Ireland, Article 8 can’t be interpreted as provid- ing a right to abortion.
“While Article 8 cannot, accordingly, be interpreted as conferring a right to abor- tion, the Court finds that the prohibition in Ireland of abortion where sought for reasons of health and/or well-being about which the first and second applicants complained, and the third applicant’s alleged inability to establish her eligibility for a lawful abortion in Ireland, come within the scope of their right to respect for their private lives and accordingly Article 8.”215
Accordingly, abortion is included in the protection of the right to privacy life to some extent. In the three Polish cases, the reasoning is similar. Article 8 is appli- cable in the cases where women were denied access to abortion. The definition of “private life” is a broad concept according to the Court, where personal de- velopment and personal autonomy is included.216 Private life concerns issues of sexual life.217 As held previously by the Court, the decision to continue a preg- nancy or not is included in the sphere of private life. As a consequence, legislation regulating the termination of pregnancies “touches upon the sphere of private life”.218 It’s clear that the Court believes that there is a connection between private life and access to abortion. But this “connection” doesn’t create any right for the woman to control the decision of terminating her pregnancy. Article 8 of the Convention guarantees a broad protection for the private life in many other as- pects, but it does not protect the choice of terminating a pregnancy in states where abortion is unlawful. Since legislation regulating the termination of preg- nancies is connected with the private sphere, and the choice of becoming a parent or not is protected by the right to privacy, it would be possible for the Court to address the issue of abortion as a question of a choice that should be protected. Instead, the Court focused on the medical access to abortion in the cases, on how the state must ensure that the practitioners involved can provide an effective procedure to access abortion. It did not address the question of access to
215 A, B and C v. Ireland, 2010, para. 214. 216 See for example the reasoning in ECtHR, Bensaid v. the United Kingdom, application no. 44599/98, 2001, para. 47. 217 Dudgeon v. the United Kingdom, (Series A no. 45), ECtHR, 1981, pp. 18–19, para. 41; Tysiac̨ v. Poland, 2007, para. 106–107; A, B and C v. Ireland, 2010, para. 212.
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abortion as a matter of choice or as a part of women’s right to self-determina- tion.219 It would not, however, be possible to include any “right” to or protect the “choice” of abortion under Article 8, due to the conflicting rights of the foe- tus as previously explained, and the unwillingness by the Court to rule on this matter. Instead, the Court used a quite unclear formulation when addressing how Article 8 is applicable to access to abortion in order to avoid any possibility of interpreting abortion as right under the Convention.
5.4.4 A positive obligation to provide effective access to abortion under Article 8
After reading the cases, it’s clear that the Court took a similar approach in all of the four cases. As previously explained, access to abortion is not protected as a right under the Convention. However, when abortion is permitted nationally, states are under a positive obligation under Article 8 to provide an effective pro- cedure which allows access to abortion in practice. In Poland, abortion was legal according to the national law but there was no real possibility to obtain it. The Court held that states must structure their legal framework in a way where women can exercise their right to access lawful abortions.220 As held by the Court, this finding should not be interpreted as creating any “abortion rights”.221 Article 8 does not explicitly contain any procedural requirements, but in order to enjoy the rights guaranteed by it, the decision-making process must be fair as held by the Court.222 The right to access a lawful abortion according to the law must be im- plemented in practice.223 To conclude, if abortion is legal in the national legisla- tion, then the state has a positive obligation under Article 8 to provide effective access to it.
5.4.1 Margin of appreciation
As previously explained, the Court found no violation of Article 8 in the cases of applicant A and B in the case A., B. and C. v. Ireland. Their experiences of traveling abroad in order to obtain an abortion were viewed as falling within the sphere of Article 8(1), since the restrictions affected their private lives.224 This interference was, however, found to be justified under Article 8(2), since Ireland’s view on
219 Fenwick, 2012, p. 265. 220 R.R. v. Poland, 2011, para. 200 and Tysiąc v. Poland, 2007, para. 116 -124. 221 Tysiąc v. Poland, 2007, para. 105-106. 222 P. and S. v. Poland, 2012, para. 99. 223 A., B. and C. v. Ireland, 2010, para. 258 and 264. 224 A., B. and C. v. Ireland, 2010, para. 212-215.
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the right to life of the unborn needs to be respected.225 Ireland was given a broad margin of appreciation in the case. The doctrine of margin of appreciation makes it possible for the ECtHR to avoid taking sides on controversial issues. This has been criticised, since it enabled Ireland to keep its restrictive abortion legisla- tion.226 This was also criticised by the six dissenting Judges in the case and shows how the Strasbourg jurisprudence on abortion is far from harmonised. According to the dissenting Judges, the majority were wrong in granting Ireland such a wide margin of appreciation in the balancing of rights between the applicant’s health and the life of the unborn.
”This seems to us a reasonable stance for European legislation and practice to take, given that the values protected – the rights of the foetus and the rights of a living person – are, by their nature, unequal: on the one hand there are the rights of a person already participating, in an active manner, in social interaction, and on the other hand there are the rights of a foetus within the mother’s body, whose life has not been definitively determined as long as the process leading to the birth is not yet complete, and whose participation in social interaction has not even started.”227
The dissenting Judges argued that a strong European consensus in fact exists, where the rights of the pregnant woman are prioritised over the protection of the unborn child. The question of when life begins does not matter in the context of the case, since the majority of countries in Europe believe the right to life of the mother, her health and well-being are more valuable than the right to life of the unborn. Because of this consensus, the Court should have restricted Ireland’s possibility to ban abortion based on the argument of moral values. The dissenting Judges also underlined the role of European case-law:
” Indeed, one of the paramount functions of the case-law is to gradually create a harmonious application of human rights protection, cutting across the national boundaries of the Contracting States and allowing the individuals within their ju- risdiction to enjoy, without discrimination, equal protection regardless of their place of residence.”228
225 Ibid, para. 237. 226 See for example Daly, Brenda, "'Braxton Hicks" or the Birth of a New Era? Tracing the Development of Ireland's Abortion Laws in Respect of European Court of Human Rights Jurisprudence, European Journal of Health Law, vol. 18, no. 4, 2011, 375, p. 375. 227 ECtHR, A., B. and C. v. Ireland, Dissenting opinion of Judges Rozakis, Tulkens, Fura, Hirvelä, Malinverni and Poalelungi, para. 2. 228 Ibid, para. 5.
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5.5 Concluding remarks
After analysing case-law from the ECtHR, it’s possible to draw a few conclusions. Access to abortion is undoubtedly a sensitive issue in the political debate. The Court has, as shown by the case-law, taken a neutral standpoint on the matter in order to avoid political conflicts. The European jurisprudence on abortion can be summarised as giving no protection for a direct right to access safe and legal abortion as a freestanding right under the Convention. Rather, access to abortion is a matter regulated by the member states. By the use of margin of appreciation, the member states are free to interpret the balancing of interests in cases of conflicting rights of the mother and the unborn child. Since there has been no case dealing with a full ban on abortion, it’s not possible to conclude how the Court would interpret the right to life of the mother in this situation. Considering interpretations made by the treaty bodies on the right to life, it would be very unlikely for the Court to not prioritise the health and the life of the mother as the main interest to be pro- tected. A denied access to abortion has been considered a violation of Article 3. Access to abortion has been considered as a matter of privacy, and access to abortion falls under the scope of right to privacy. If the member states allow access to abortion, then the states are under a positive obligation to ensure effec- tive access to the procedure guaranteed by law. It can definitely be questioned whether Poland is respecting this obligation. The decisions by the Court are binding for the member states, as identified by Article 46 of ECHR. Since the judgement, Ireland has amended its legislation but the Polish legislation on abortion remains the same. It would be interesting to analyse whether the cases before the ECtHR actually had any impact on the ac- cess to abortion in Poland. The question of abortion and reproductive rights is currently a debated topic in Europe due to the proposal for removing possibilities to obtain a legal abortion in Poland.229 The ECtHR has most probably not ruled on its last case regarding abortion, and it’s going to be interesting to see how the jurisprudence on abortion will develop in the future.
229 See for example Human Rights Watch, Poland: Reject New Curbs on Abortion, Sex Ed, 14 April 2020,
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6 Discussion
After analysing protection for access to safe and legal abortion within public in- ternational law, there are a few points that can be brought up for discussion with the feminist legal theory as a basis. This chapter will discuss the findings from the previous chapters from a more critical point of view.
6.1 Abortion as a right A conclusion that can be drawn from the studied material is that access to safe and legal abortion cannot be seen as a direct right that is protected within the public international law.230 Having access to termination of a pregnancy can therefore not constitute a direct human right in the current international legal framework. However, restrictive abortion laws can constitute a violation of hu- man rights protected by public international law.231 The main concern in a human rights context is whether the abortion can constitute a risk for the woman’s health or life. In these cases, denial of access to abortion can violate the right to life, the right to be free from torture or degrading treatment, or the right to equal treat- ment.232 Access to abortion may also be protected by the right to privacy. As shown by the ECtHR case-law, access to abortion can be considered as a human right under the right to privacy, but only if the national law of the country guar- antees a right to obtain an abortion.233 Access to safe and legal abortion can there- fore be said to be protected indirectly by public international law.
230 The only exception as mentioned before is the Maputo Protocol, where access to abortion is formulated as a direct right. 231 See the case-law by the CEDAW committee, HR Committee and the ECtHR presented in the previous chapters. 232 See the cases previously mentioned of UN Human Rights Committee,: Karen Noelia Llantoy Huamán v. Peru, Communication No. 1153/2003, CCPR/C/85/D/1153/2003, 2005.UN Human Rights Committee, Mellet vs. Ireland, communication No. 2324/2013, CCPR/C/116/D/2324/2013, 2016, and Whelan v. Ireland, communication No. 2425/2014, CCPR/C/119/D/2425/2014, 2017. See also the case UN Committee on the Elimination of Dis- crimination of Women, LC v Peru, CEDAW/C/50/D/22/2009, 2011. 233 See the ECtHR cases mentioned previously: R.R. v. Poland, Tysiąc v. Poland, 2007 and and S. v. Poland, 2012.
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Despite the fact that access to abortion is not protected directly by human rights treaties, access to safe and legal abortion is clearly a prioritised issue on the international political agenda. NGOs such as the ICJ, Human Rights Watch and Amnesty International are constantly working towards a better access to abortion services and recognises abortion as a human right that should be protected by international law.234 The UN and WHO are also strong advocates for the need for better protec- tion for access to safe and legal abortions. The UN treaty bodies, which monitors state compliance with international human rights treaties, criticise states on a yearly basis for restrictive abortion laws in their concluding observations and rec- ommendations.235 It can be concluded from the analysis that the treaty bodies are working for establishing access to safe and legal abortion as a right that should be respected and protected by the member states. Their agenda is often driven by a “health-perspective” on abortion. It can be questioned whether these inter- pretations of the international human rights treaties are too extensive, since the documents are in sense creating rights and obligations that can’t be found in the original wording of the conventions. This perspective has been argued by schol- ars in the doctrine.236 The general comments are however not binding and don’t create any obligations in practice for the member states. Arguing that these doc- uments create new rights would be to take it too far. Nevertheless, the treaty monitoring bodies have been and still are important actors in the advancement of women’s reproductive rights.237 As shown by the analysis, access to therapeutic abortion is clearly the main focus in an international human rights context. Abortion on request or for socio- economic reasons, on the other hand, is a much more controversial aspect of the issue, since this form of abortion is not as closely connected with such funda- mental human rights such as the right to life of the mother. Women are more likely to get access to abortion if there is a danger to life or health, the choice to choose an abortion is justified in these cases. The protected value regarding ther- apeutic abortion is not the woman’s choice, but her life or health. Abortion on request is more an issue of a right to self-determination and a right to bodily
234 Human Rights Watch, Q&A: Human Rights Law and Access to Abortion, April 2018, < https://www.hrw.org/news/2017/07/24/qa-human-rights-law-and-access-abortion>, checked 20 May 2020, and Amnesty International, Key Facts on Abortion, < https://www.am- nesty.org/en/what-we-do/sexual-and-reproductive-rights/abortion-facts/>, checked 20 May 2020. 235 See the concluding observations made by the CEDAW Committee and the UN Human Rights Committee. 236 See for example Finnegan, Tomas, International Human Rights Law and the Unborn: Texts and Travaux Preparatories, Tulane Journal of International and Comparative Law, vol. 25, no. 1, 2016, 89, p. 124. 237 Zampas and Gher, 2008, p. 253, and for an overview of the treaty monitoring bodies, see Center for Reproductive Rights, Bringing Rights to Bear: An Advocate’s Guide to the Work of UN Treaty Monito- ring Bodies on Reproductive and Sexual Rights, 2006, < https://www.reproductiverights.org/sites/crr.ci- vicactions.net/files/documents/pub_bp_BRB.pdf>, checked 20 May 2020.
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autonomy.238 This difference reflects how the international community values ac- cess to abortion. Access to abortion cannot be seen as a freestanding right, but only as a right based on other rights which in some cases may create some form of right to access a safe and legal abortion. Abortion is not handled as a question of what the woman is entitled to or not. It’s not a right based on the right to self-determination, or a right to bodily autonomy – It’s not a right that women have naturally. Rather, access to safe and legal abortion is handled as a question on how restrictive abortion laws may constitute a violation of her human rights. From a perspective based on feminist legal theory, it would be possible to argue that the focus should change towards a discourse of abortion as a right, rather than focusing on whether restrictive abortion laws may violate human rights.
6.2 Access to abortion- a matter of equality and anti- discrimination? When analysing how access to abortion is regulated in public international law, it’s necessary to address equality and discrimination aspects of the issue.
6.2.1 Discrimination
The debate about access to abortion lacks a discrimination perspective. This per- spective is needed not only regarding restrictions on abortion, but also to address the overall system in which women’s reproductive health is being neglected.239 In order to achieve gender equality and fulfil the goals stated in CEDAW, it can be argued that women must be able to make their own reproductive choices free from stigma. Meeting the goals would require access to safe abortion services, without discrimination or punishment for failure to fulfil the traditional role of motherhood.240 Restrictions on abortion is often defended with arguments about protecting foetal life. However, the pregnant woman’s health and her right to control her life is subordinated when access to abortion is restricted in order to protect foetal life.241 The foetal rights discourse tends to forget the systematic disadvantages that women can face. Women that prioritise their own choices and interests over the child, are portrayed as ignorant. 242
238 The fact that the CEDAW Committee has not recognised abortion on request as necessary for the recognition of women’s self determination has been criticesed in the doctrine, see for example Albertyn, 2019, p. 94. 239 Cook & Howard, 2007, p. 1040–1041. 240 Ibid, p. 1045. 241 Ibid, p. 1075. 242 Ibid, p. 1090.
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Allowing abortion only on certain grounds, such as to save the life of the mother, shows that states are not respecting the choice of the woman. States that allow only therapeutic abortion, indicate that abortion is only justified if her health or life is in danger. Such laws can be discriminatory, because the re- strictions are aiming at limiting women’s agency. This is not in line with Article 3 CEDAW, which claims that women should ensure the same rights as men.243 Criminalisation of abortion is incompatible with states obligations according to CEDAW, since they prevent women from accessing health care needed by women. If states are to comply with the Convention, criminal provisions on women seeking medical treatment in form of abortion must be removed.244 Crim- inalisation on abortion is only one form of punishment of women who under- goes abortions. Even where abortion is legal, women can face humiliation and other forms of punishments from, for example, the hospital staff.245 An equality analysis reveals how laws are used in order to restrict the life and autonomy of women. Criminal sanctions and restrictions on abortion are not seen as suitable measures for protecting values of human life and family when an equality analysis is applied to the abortion issue.246
6.2.2 Abortion as a right of equality instead of privacy
The right to abortion is most commonly discussed as a negative right of privacy, as a right to obtain abortion without interference by the state.247 This position has been criticised by scholars, arguing that the right to abortion should instead be protected under the right to equality. This issue is mostly debated in the context of American law where a constitutional right to abortion is regulated under the right to privacy.248 Since access to abortion has been handled under the right to privacy by the ECHR, arguments for abortion as an equality issue can be applied to add a critical perspective on the European abortion context. Abortion and equality are closely linked, since the woman’s ability to control whether she has child or not is crucial to her possibilities to live and participate equally in society.249 The controversy about abortion is often addressed in terms of the conflicting rights of integrity of the individual, and the interest of the state
243 Ibid, p. 1049. 244 Ibid, p. 1080–1081. 245 Ibid, p. 1078. 246 Siegel, Reva B., Sex equality arguments for reproductive rights: Their critical basis and evolving constitutional expression, Emory Law Journal, vol. 56, no. 4, 2007, 815, p. 822. 247 Siegel, Reva B, Abortion as a Sex Equality Right: Its Basis in Feminist Theory, in Fineman, Martha Albertson, Karpin, Isabel (eds) Mothers in Law: Feminist Theory and the Legal Regulation of Motherhood, Columbia University Press, New York, 1995, p. 43–72. (Cited as Siegel, 1995) 248 Roe v. Wade, 410 U.S. 113 (1973). 249 Metzger, Gillian E., Abortion, Equality, and Administrative Regulation, Emory Law Journal, vol. 56, no. 4, 2007, 865, p. 865.
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in protecting the unborn. However, there is a dimension of the issue that is lack- ing in this perspective. Laws criminalising abortion doesn’t just regulate women’s bodies, they also regulate women’s role. Restrictive abortion laws reflect stereo- typical prejudices regarding the role of women, as expected to perform the role of motherhood. Abortion-bans reflect the “natural duty” of women to have chil- dren. Restrictive abortion laws do not fulfil the intended purpose of protecting the foetus. Instead, restrictive abortion laws force women, especially financially vulnerable women, to go through unsafe abortion procedures. Abortion re- strictions should therefore be seen as gender discriminatory. If the state really has an interest in protecting the unborn, this should be done through supporting women and their choices regarding child bearing. 250 Restrictions on abortion should therefore be treated as a violation of the right to equal protection under the American constitution.251 By doing this, it’s possible to understand the social conditions of motherhood and how discriminatory bias affects the regulation of women’s reproduction.252 Women’s reproductive lives needs to be addressed in a wider context where all aspects of reproduction and its consequences are rec- ognised, such as adequate health care and child care and other aspects which affect women’s possibilities to reproduce. These additional aspects are not pos- sible to address in a context of privacy rights.253 A strong supporter for equality argument is Ruth Bader Ginsburg, Associate Justice of the U.S. Supreme Court. As early as 1985, she questioned the fact that access to abortion was treated as a question of privacy, rather than as a question of discrimination against women.254 As a dissenting Judge in the case of Carhart, Bader Ginsburg held that:
"legal challenges to undue restrictions on abortion procedures do not seek to vin- dicate some generalized notion of privacy; rather, they center on a woman's au- tonomy to determine her life's course, and thus to enjoy equal citizenship stature”
The arguments from the American “equality discourse” can be used to critically review how the ECHR handled the question of access to abortion. From a fem- inist perspective, should access to abortion instead be seen as a question of gen- der equality and therefore be treated as an issue under Article 14 and the right to be free from discrimination? This is only a hypothetical question, but it would be possible to argue in favour of a change in the European abortion discourse. Clearly, the question of access to abortion is not treated as a matter of equality or discrimination by the ECtHR. In fact, in the case of Tysiac̨ v. Poland, a claim of a breach of Article 14 was made by the applicant. The ECtHR declined to
250 Siegel 1995, p. 65. 251 Ibid, p. 66. 252 Ibid, p. 77. 253 Ibid, p. 68. 254 Ginsburg, Ruth Bader, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, North Carolina Law Review, vol. 63, no. 2, 1985, 375, p. 376.
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examine the question of access to abortion in a discrimination context, based on the findings of a violation of Article 8.255 The case-law from ECtHR implies an unwillingness to treat access to abortion as a form of discrimination against women. The judgements on abortion focus on access as a procedural question. If the issue of access to abortion were addressed in a context of equality, it would be possible for the Court to create a new discourse where access to abortion could be treated more as a positive right of equality and less as a negative right of privacy. Such change of discourse would have several advantages from a feminist per- spective. It would make it possible to address abortion as a reproductive right, and to rule on restrictive abortion laws as discrimination of women. It would be possible to focus on self-determination, since women would be seen as a rational human beings fully capable of making their own choices without being discrimi- nated against by the law.256 Such a sudden change of the abortion discourse is not imaginable, but it’s possible to wonder how the unwillingness to rule on the ac- tual matter of the abortion issue can last. As brought up by the dissenting Judges in the case A., B. and C. v. Ireland, a European consensus actually exists where the majority of countries allows abortion. Only the future can answer whether the ECtHR will recognise this possible consensus and change its discourse in its up- coming rulings.
6.3 Abortion as a reproductive right As analysed previously in chapter 3, the concept of reproductive rights and free- doms is closely connected with the abortion issue. Abortion is undoubtedly the most controversial issue within reproductive rights discourse. Since there are no binding definition of reproductive rights, it’s not possible to conclude that access to safe and legal abortion is included or not since it depends on interpretation of the concept. If reproductive rights are interpreted only as “family planning” ac- cording to Article 16 CEDAW, there is no evidence of access to abortion being included in the protection. If reproductive rights are interpreted in a wider per- spective, access to safe and legal abortion can be included. Reproductive rights as a concept serve as a basis for the idea of protecting access to safe and legal abortion within public international law. Ideas of self-determination, the right to decide over number and spacing of children and the right to control and decide over reproduction are all values supporting a right to access abortion as a choice. It’s important to stress that reproductive rights are not necessarily “new” rights. Rather, reproductive rights build on already existing rights codified in in- ternational human rights treaties as expressed in the 1994 ICPD document. By applying this perspective, it’s possible to address all the human rights that have
255 Tysiac̨ v. Poland, 2007, para. 55–61 and 144. 256 For a similar approach, see Shalev, 1998, p. 59.
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been analysed in this thesis and understand how the rights are connected. The right to privacy, the right to health and the right to non-discrimination and equal- ity are together forming a protection for reproductive rights and freedoms. This concept of a broad range of human rights where reproductive rights are included, can be used to promote access to safe and legal abortion as right. From this perspective, both the privacy aspects and the equality aspects of the issue can be addressed.257 Access to safe and legal abortion is a matter of privacy, since it’s possible to argue that the choice to obtain an abortion is private and laws crimi- nalising abortion constitute an interference with the individual’s right to privacy. This perspective is, however, not enough, as shown by the criticisms regarding abortion as a matter of equality. Access to abortion is not only about decriminal- isation of abortion laws and to be “let alone” by the state, it’s also a matter of how inequalities and discrimination affects women’s access to abortion services. It’s about supporting and recognising women’s choice and self-determination. It’s about access to abortion in practice, not only about whether abortion is legal or not in theory. It’s about women’s possibility to access abortion without being punished and stigmatised by the society. Access to safe and legal abortion is also a matter of health, since women are entitled to safe abortion procedures and to access health care on the same basis as men. All these different aspects of safe and legal abortion can be addressed under the concept of reproductive rights.
6.4 Universalism vs. Cultural relativism
A feminist critique that can be used to discuss how access to abortion is protected within public international law, is the question of culture and human rights. The debate about culture considers the question of whether the values behind human rights are of a universal character or if these values should contain a cultural rel- ativism. Scholars have questioned why culture seems to be a defence only regard- ing gender and the denial of women’s fundamental human rights. 258 Cultural norms in society can and should be respected, but these norms should not be used as an excuse for denying women’s rights.259 The abortion debate can be seen through two perspectives on human rights: universalism on one side and cultural relativism on the other. In the abortion debate, cultural arguments are used to justify restrictive abortion laws. Speaking of a universal “right” to access abortion would simply not be possible, since all
257 See the reasoning by Albertyn, 2019, p. 100–101. 258 Binon, Gayle, Human Rights: A Feminist Perspective, Human Rights Quarterly, vol. 17, no. 3, 1995, 509, p. 521. 259 Freeman, Marsha A, Women, Development and Justice: Using the International Convention on Women's Rights, Ours By Right, in Kerr, Johanna (eds) Women’s Rights as Human Rights, Zeed Books, London, 1993, p. 100.
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countries are sovereign and can therefore refer to arguments of ethics and reli- gion when maintaining restrictions on access to abortion. As a consequence, the respect for reproductive rights is dependent on the national laws of a country. This protection is dependent on how courts and institutions choose to interpret the human rights treaties, since there is no explicit mentioning of a right to safe and legal abortion. This means that abortion rights have a weak protection in an international legal context. As shown by the analysis of protection for access to safe and legal abortion within international law, many of the reports, general comments and recommen- dations etc. contain formulations about how important it is to decriminalise abor- tion and ensure that women have access to both safe and legal abortions. How- ever, they do not legally bind states to actually implement these measures. Inter- national human rights treaties don’t provide any positive obligation for states to actually guarantee its citizens any right to access safe and legal abortion. Since the right to access a safe and legal abortion is created through interpretations of hu- man rights treaties and through recommendations by UN-institutions, it’s easy for states to simply ignore this kind of soft law and opinions, using the cultural argument as an excuse. The same goes for the protection of reproductive rights and health, these rights don’t create any obligations for states to implement any specific measures. In Europe, the margin of appreciation makes it possible for countries such as Malta and Poland to keep restrictive abortion laws without interference. Access to safe and legal abortion is a matter of the state, even if the consequences of being denied an abortion can result in a human rights violation. Adopting a more universal approach to the question of access to abortion would increase the need for creating protection even for the women living in states where abortion is heavily restricted. In that reality, women in need of an abortion would not have to risk their lives, travel to other countries or be forced to continue unwanted pregnancies. Women would not have to obtain abortion onboard a vessel on international waters or wait for abortion pills being delivered by drones. The debate regarding access to abortion tends in a sense to be very black and white. The interest of the woman to decide about her body and her reproductive ability is sometimes forgotten in the debate. Indeed, abortion is a sensitive and complex issue and the perspective of the life of the foetus can’t be forgotten. However, if the focus would shifted towards the question of access to abortion, then the moral and ethical aspects of the practice of abortion could be answered by the woman herself instead of the state.260 This would erase the sharp line be- tween the two sides in the abortion debate, since focus would shift from whether the practice of abortion is right or wrong, towards a debate where the woman and her choices are the main focus. Culture would not be used as an excuse to deny women of their right to choose and decide over their bodies. Instead,
260 The case-law from the European Committee of Social Rights have focused more on how access to abortion should be protected in its case-law, with the right to health as a basis.
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different family values and opinions on when life of the foetus starts could be respected since the woman would have a possibility to decide upon these values of culture herself.
6.5 Access to abortion- an issue suitable for public international law?
The feminist criticism regarding the distinction of private vs. public sphere within public international law can also be used to critically review the protection for access to safe and legal abortion. Traditionally, public international law aims to at regulate and protect interests of sovereign states. Protection for human rights can be seen as an exception. However, this criticism can still be applied to analyse which rights are protected in human rights law and therefore considered to be part of the public sphere. Protecting interests of women’s self -determination and reproduction have not been prioritised, since these issues are considered private and therefore not valued as human rights worthy of any international protection. This criticism can therefore be used to explain why there is no binding instrument protecting women’s reproductive rights. The topic of reproductive freedom and rights in a human rights context is a relatively new focus area. Access to abortion is, as shown by the analysis, not a topic regulated directly by international human rights law since it belongs to the private sphere and therefore to the sovereign states. It would definitely be possible to argue that new international instruments would be necessary in order to recognise reproductive freedom and protect ac- cess to abortion as a freestanding right, based on the feminist criticism of public international law. Considering the complex nature of the abortion issue, it would however be extremely unlikely for the states to unite on the issue and agree on a binding instrument similar to for example CEDAW.
.
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7 Conclusions and final remarks
7.1 Conclusions In this thesis, protection for access to safe and legal abortion within public inter- national law has been analysed. After analysing human rights treaties, judgements, general recommendations and a few doctrinal sources, it’s possible to answer the research questions of the thesis. The first research question regarding how access to safe and legal abortion is pro- tected within public international law can be summarised as the following: Access to safe and legal abortion is not protected as a direct human right within public international law. Instead, access to safe and legal abortion can be protected in- directly by interpretation of already existing human rights. It’s therefore possible to conclude that access to safe and legal abortion is indirectly protected by public international law. Furthermore, the analysis regarding the second question of whether access to safe and legal abortion can be included in the concept of reproductive rights, has shown that access to safe and legal abortion can be included in the concept of reproductive rights, but since there is no binding definition, it depends on the interpretation. If reproductive rights are interpreted only as “family planning” according to Article 16 CEDAW, there is no evidence of access to abortion being included in the protection. From a wider perspective, reproductive rights can be seen as a broad concept based on already existing human rights, where it’s pos- sible to include access to safe and legal abortion. The third question regarding whether a denied access to safe and legal abortion can violate human rights law, has the analysis proven that several human rights have been violated in cases of denied access to abortion. As shown in the case- law of the CEDAW, a denied access to therapeutic abortion violated obligations to eliminate discrimination in Articles 2 (c) and (f), the right to enjoy human rights equally in Article 3, state obligations to modify cultural patterns an stereo- types in Article 5 and the right to health care without discrimination in Article 12 of the CEDAW Convention. Furthermore, the case-law from HR Committee has shown that denied access to therapeutic abortion violated the right to be free from discrimination in Article 2, the right to be free from torture in Article 7, the right to privacy in Article 17, the rights of the child in Article 24 and the right to equality before the law in Article 26 of the ICCPR. Interpretations on the right to life in Article 6. ICCPR concludes that states must provide access to abortion when the woman’s health or life is in danger. Interpretations made on the right
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to health concludes that restrictive abortion laws violate the right to health in Article. 12 ICESCR. Furthermore, the ECtHR has shown that a denied access to abortion may violate the right to privacy in Article 8 of the ECHR. In conclusion, restrictive abortion laws can therefore violate human rights. The fourth question regarding how the ECtHR has handled the question of ac- cess to abortion can be summarised as the following: European jurisprudence on access to safe and legal abortion shows that the balancing of rights between the unborn child and the mother is left to the member states to decide. A denied access to abortion can violate the right to be free from torture in Article 3. No right to access safe and legal abortion can be derived directly from the Conven- tion. However, if the state does allow abortion in some form, then the state is under a positive obligation under Article 8 of the ECHR to ensure effective ac- cess to abortion in practice. The analysis of the fifth question regarding whether the protection for access to safe and legal abortion can be considered sufficient, has shown that the protec- tion can be criticised in several aspects. The discussion of international protection of access to safe and legal abortion from a critical perspective based on a feminist legal theory shows that the current protection is not sufficient. Access to safe and legal abortion has a weak protection in international law, since the protection is dependent on interpretations of human rights treaties. Arguments of culture are used as an excuse for not regulating access to abortion as a universal human rights issue. Equality and anti-discrimination perspective on the issue is clearly lacking. The focus of access to therapeutic abortion is not enough, since this focus does not address access to abortion on request, and therefore ignores the important factors of reproductive self-determination. If access to abortion was recognised as a reproductive right, both privacy and equality aspects of the matter could be addressed.
7.2 Final remarks The issue of access to safe and legal abortion within public international law is a complex subject with many different aspects. Abortion is often discussed from a moral point of view. While this perspective is important, this thesis has shown that access to abortion also needs to be considered as a human rights issue. While not being protected as a direct human right within public international law, access to safe and legal abortion is still addressed in interpretations of human rights treaties, by courts and by the monitoring committees in its case-law. It’s however important to make a distinction between de lege lata, and de lege ferenda. While the human rights law is dynamic and dependent on interpretation, it would be a too extensive interpretation to declare access to abortion as a free- standing human right protected under international law. Nevertheless, women have a right to health, a right to life, a right to privacy, and a right to equality,
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which all are rights that can be used for arguing a protection for access to safe and legal abortion. Even if there are indications of improvements in the area of women’s repro- ductive rights, some women still face criminal convictions for illegal abortions and risk their health because of unsafe abortion procedures. While the health aspect of the issue is important to address in a human rights context, it’s not enough. As shown by this study, access to abortion needs to be considered in a wider perspective where equality and non-discrimination are crucial. In order to fully recognise women’s right to reproductive self-determination where access to safe and legal abortion can be included, it’s necessary to fulfil the fundamental purpose of the CEDAW Convention: to eliminate discrimination against women.
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CEDAW Committee, CEDAW General Recommendation No. 21: Equality in Marriage and Family Relations, A/49/38, 1994 CEDAW Committee, CEDAW General Recommendation No. 24: Article 12 of the Convention (Women and Health), 1999, A/54/38/Rev.1, 1999 CEDAW Committee, Statement of the Committee on the Elimination of Discrimination against Women on sexual and reproductive health and rights: Beyond 2014 ICPD review, 57th Session, 2014 CEDAW Committee, General Recommendation No.35 on gender-based violence against women, CEDAW/C/GC/35, 2017
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Australia Crimes Act 1900 (NSW). Law Reform Act 2019 (NSW)
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CEDAW Committee UN Committee on the Elimination of Discrimination of Women, LC v Peru, CEDAW/C/50/D/22/2009, 2011
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