HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Saturday, November 26, 2005

Religion, International Human Rights, and Women's Health

David E. Guinn has posted a working paper entitled "Religion, International Human Rights, and Women's Health: Synthesizing Principles and Politics" [SSRN Working Papers Series].  Here is the abstract:

For many people at the turn of the millennium, human rights have become the new language of faith resonate with great meaning and profound value. However, like all traditional religions, human rights embody great complexity. Neither coherent nor consistent, human rights cannot overcome the fallibility of its human creators. When we attempt to use rights as absolute values - Dworkin's trump cards against infringement - we find ourselves confronting the contradictions inherent in equally valued rights when they come in conflict.

As noted by many authors, nowhere is this conflict more pronounced than the conflict between women's rights and the rights of freedom of conscience/religion present in many international human rights instruments. Lest this be thought a problem of Western privilege, where women can afford the luxury of seeking political parity with men, in this paper I will confront human rights conflicts that have a direct impact on women's health. This will include both reproductive health concerns and female circumcision/female genital mutilation.

In attempting to address these conflicts, I will begin by analyzing the nature of human rights to health and the particular rights of women to health - with the problems created by their separation from non-gendered rights. Next, I will begin my principled argument by arguing against both an absolutist understanding of rights, and a "strict equality" standard of interpretation that seeks to recognize a hierarchy of rights. Such an approach fails as a matter of law, as a matter of philosophy (under the foundationalist challenge), and in the face of history. Instead, I argue that while a principled interpretation of rights can provide some guidance, its utility is limited. Instead, it is imperative to consider rights within their political context. Human rights do not stand outside politics, but instead reflect aspects of that politics. Ultimately, the goal of any rights analysis is not to determine which rights take precedence, but how to find a synthesis respectful of each.

The full paper can be downloaded through a link at the address above. [tm]

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