Anti-Abortion Legislation: A Failure to Protect a Woman’s Right to Health

The restriction of safe access to abortion procedures has consistently been proven to have a detrimental impact on women’s health and is therefore considered by many as a violation of a woman’s right to health. Only last month the UN warned that unsafe abortions kill nearly 50,000 women each year. Despite this, countries are continuing to implement policies that criminalise abortion. This continuation has been at the forefront of discussion since the US election last week, as one of the promises of the new President-Elect, Donald Trump, is to stop funding to Planned Parenthood, an influential non-profit organisation assisting low-income earners in the US with contraception, health checks and STI screening as well as abortion procedures. In 2015 the UN Secretary General Ban Ki-moon reaffirmed the importance of reproductive rights as being crucial to achieving gender equality worldwide by stating that UN members must ‘realise women’s reproductive and health and rights, advocate for universal healthcare coverage for all and end preventable maternal, new-born and child deaths and malnutrition’. Despite international endorsement for abortion procedures to be made accessible in order to respect this right, there is still a high level of political reluctance to adhere to this and women continue to find themselves in positions where they are facing prison sentences or exclusion from society as a result of pre-existing anti-abortion laws.

One of the most restrictive countries in this respect is El Salvador, where abortion was permitted under limited circumstances up until 1998, where it was then made illegal. Existing prison sentences for abortion procedures range from two to eight years, higher than most other countries. Even though this is a strict punishment, there are forces within the country that desire to increase the minimum sentence to 50 years, demonstrating that attitudes are not changing. El Salvador is one of the only countries that has become more restrictive since women’s reproductive and sexual rights were recognised in 1994 at the International Conference on Population and Development held in Cairo. To highlight the extremity of the proposed sentencing, a comparison can be made to sentencing in the UK where the average prison sentence for rape is just over eight years and murder has an average jail time of 14 years. The fact that abortion laws in certain countries have more punitive sentences than those for rape and murder is compounding the sense of injustice for women globally. This is only exacerbated by the fact that studies are proving time and time again that restricting access to abortions does not reduce the number of abortions taking place. A study published in May this year by the Lancet cemented this with further evidence that criminalising abortion does not curb the practice.

Zambia is another country that has recently changed its stance towards abortion. Following a referendum in August 2015 amendments were made to The Bill of Rights, with one of outcomes being the implied criminalisation of abortion. This can be considered as a stark contrast to the advancements of women in politics as Inonge Wina was elected the first female Vice President that same year, making her the highest ranking female in Zambian history. For a country that seemed to be making progress in terms of gender equality, this change in policy is a step backwards in regards to sexual and reproductive health rights. Prior to the amended Bill of Rights, abortion was legal in Zambia if it preserved physical or mental health, in the case of foetal impairment or for economic and social reasons. These policies saved the lives of many women by improving access to abortion services and by helping to remove the stigma surrounding the topic.  The Medical Association of Zambia has already expressed concern over the move because of the certainty of increased maternal mortality rate as a result of the amendment.

It is not just developing countries that are violating women’s rights to health. Women living in Northern Ireland have no access to abortion except for very limited circumstances. The High Court has ruled that this is incompatible with the human rights of women yet there is no suggestion that this legislation is going to be amended in the near future. Women are refused an abortion even if they’ve been raped, suffered incest, received a diagnosis of severe foetal abnormality or their health is at risk from the pregnancy. In 2012, Savita Halappanavar, a 31 year old woman, died in Galway, Ireland due to complications of a septic miscarriage after being denied an abortion. This caused outrage in the local community, with thousands gathering to protest. It also triggered an international response with protests occurring outside Irish embassies in London, Berlin and Brussels. Partly as a response to this, the Irish government introduced the Protection of Life During Pregnancy Act 2013 which allowed for abortion if a pregnancy endangers a woman’s life. However, the implementation of this Bill has been widely criticised.

The importance of defending a woman’s right to choose whether or not to have an abortion is a principal concern for human rights activists. The consequences of the restrictive policies described above is not the reduction of abortion rates, but the increase in unsafe abortions taking place. Unsafe abortions account for an estimated 13% of pregnancy related deaths and also prevent women from seeking post-abortion care which can cause long-term health consequences.

Arguably the criminalisation of abortion is a violation of the Right to Health as enshrined in the International Covenant on Economic, Social and Cultural Rights (ICESCR) Article 12(1). This was then reinforced in Article 12(1) of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) when it was affirmed that ‘States shall take all appropriate 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’. If there was not enough clarity on the matter, the expert UN body that supervises the implementation of the right to health went even further when they stated in their General Comments that this right includes the ‘right to control one’s health and body, including sexual and reproductive freedom’ and the ‘right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health’.  This makes it perfectly clear that making abortion illegal is a violation of the basic right to health. It is also arguable that it violates the right to life. If pregnancy endangers a mother’s life an abortion may be the only way to guarantee her survival. This link between the right to health during pregnancy and the right to life has been implied by numerous international bodies such as the UN Human Rights Committee, the CEDAW committee and the CESCR. Whilst opponents to this have argued that the right to life should extend to the foetus, this has been disregarded by international law which suggests that the starting point to the right to life applies at birth and in any case, the rights of a mother should favour the rights of a foetus.

Why then, if the international community has made very clear that anti-abortion laws are a violation of human rights, do states continue to disregard these views at the expense of the health of women who are citizens of these countries?  In order to protect women, the global community must work harder to eliminate discriminatory laws that limit women’s rights and countries must move away from the political and ideological branding of abortion in order to make decision makers more responsive to the public health arguments in favour of safe abortion procedures.

Holly Watt is an Associate of the Centre of Diplomacy, Statecraft and International Security at LCILP. She holds a Bachelor of Laws in European Law from Maastricht University. Her research interests include international law, human rights and the use of law in combatting climate change.

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