Sunday, February 7, 2010
This abstract is posted in collaboration with the NYU Review of Law & Social Change symposium, "From Page to Practice: Broadening the Lens for Sexual & Reproductive Rights."
Paola Bergallo, Universidad de San AndresReproductive justice remains an unfulfilled promise for Latin American (LA) women. This is particularly the case with regard to abortion. With the exception of Mexico City and Puerto Rico, the region’s laws still embrace either a model of total criminalization (i.e., Chile, Nicaragua or El Salvador) or variations of a hardly accessible model of indications (i.e., Argentina, Brazil, Colombia or Peru). Moreover, irrespectively of the regulatory approach adopted, LA abortion laws share at least two traits: (a) they are largely non-complied with by women forced to resort to backstreet abortions in significant numbers;23 and (b) they are extensively unenforced both from the point of view of criminal prosecution and from the perspective of the duty to provide legal abortion services when indications are the rule. Another common characteristic of the region’s abortion rules is the stability of the practices of noncompliance and under-enforcement. A stability that has endured the transitions to democracy underwent by a majority of LA countries since the 1980s. As it has proved to be the case with other women rights issues during such transitions, in Latin America, democratization did not equal liberalization.
Faced with the reluctance to embark or even address abortion law reform by politicians and players from all sides in the ideological spectrum, LA feminists turned to international human rights law in search of another tool to promote a liberalizing reinterpretation of domestic laws. Indeed, in the years following the UN Conferences in Vienna, El Cairo and Beijing, feminists increasingly began to explore alternative uses of what was then slowly becoming a more woman friendly international human rights law with respect to many issues, reproductive rights among them.24 As part of this shift, feminist organizations timidly began to bring cases to international forums.25 Such feminist move towards international law in the quest for reproductive justice reforms took place in a context in which the internalization of international human rights had achieved some potential26 and where transnational networks of activists were successfully building a common legal language.27
Against such backdrop, feminist advocates recurred, among others, to two different strands of normative grounds in international human rights law and imported it to domestic discussions of reproductive rights. Firstly, international human rights law provided the textual or the complementary support for sex equality arguments in favor of the decriminalization of abortion. Secondly, in recent years, right to health arguments also became part of the normative grounds for reform. Yet, so far neither strand of arguments seem to have helped much to obtain significant improvements. On the contrary, both rationales have often been trumped by the conservative use of international human rights law in defense of fetal life insistently protected “from conception.” With the remarkable exceptions of the 2007 Mexico City law28 and the Colombian Constitutional Court decision in 2006,29 the rest of the region has seen little change with regard to the reform or to the discussion of abortion law as a human rights issue. Indeed, international human rights law –actually, misinterpretations of international human rights law regarding the protection of an alleged absolute right to life of the fetus- has been more successfully used to restrict women’s rights than to realize them, at least if one bears in mind recent restrictive reforms undertaken in Nicaragua, El Salvador, Dominican Republic and a group Mexican states.
Explanations of the difficulties to advance abortion reform in the region have appealed to a diverse array of variables whose review will exceed the scope of this comment.30 Here, however, I want to consider what may be some of the argumentative limitations of the international human rights framework when applied to reproductive justice claims at the domestic level. I will argue that three resilient traits of LA legal culture may be contributing to the demise feminist expectations in international human rights law. Such features include, first, the ideological formalism that still characterizes important constitutional debates; secondly, the underdevelopment of a national and international sex equality jurisprudence to ground reproductive rights; and, thirdly, the persistence of the physiological approach to the treatment of health and reproductive rights.
1. Equality and health: arguments from international human rights law.
In the last decades, feminist advocacy has incorporated to the traditional privacy and autonomy rationales for abortion reform, appeals to sex equality and the right to health. They have also underscored such claims with multiple references to international human rights norms and some recent international precedents.
Even if right to health arguments have gained force later, they have received a significant support in some of the latest initiatives.31 The purpose of feminist advocates prompting health claims was two fold. In the first place, they wanted to profit from the late trend that has bended the public health and the human rights paradigms both at the international and the domestic level.32 These, some understood, may contribute to build bridges with the conservative medical and public health communities while appealing to politicians willing to endorse the public health agenda as a more neutral and less confronting one. Secondly, feminist advocates saw the chance to move back from their old –and for years inefficacious- efforts in search of a model of repeal laws to insist on two more moderate claims: (a) the change from a total ban to the creation of a model of indications as the one obtained in Colombia,33 or (b) the request of the enforcement of de facto inaccessible laws endorsing an indication model.34 These two advocacy initiatives sought to reduce polarization and to advance some modest reforms. They were inspired by the perception that feasible changes will probably have to begin by following the successful early European trend towards a truly enforceable model of indications.35
Persistent high maternal mortality rates, due in a relevant proportion to the incidence of unsafe abortion figured prominently as part of this argumentative endeavor. An endeavor that could hopefully profit from the important international shift to conceptualize maternal mortality as a human right violation and from the commitments to reduce it part of the Millennium Development project.36 Moreover, the right to health strategy was also to be supported by the extensive work on reproductive health carried forward by the UN Special Rapporteur on the Right to Health.37
Additionally, in certain countries of the region, where the judicialization of health was a prominent phenomenon,38 feminists expected that abundant court decisions on the right to health were also to contribute to expand the basis both accessing legal abortion in case of danger for the health of the woman (when indications were formally established though practically inaccessible). Feminist also acknowledged that in the context of the new right to health litigation courts had developed a profuse set of precedents guaranteeing access to drugs and medical treatments. Such jurisprudential developments were also expected to help to underscore states’ duty to offer free or subsidized abortion services for more marginalized women. In addition, as such body of judgments was using broader judicial constructions of the right to health, feminist advocates speculated with extending its protection to its physical, mental and social dimensions as a ground for abortion.39 In effect, feminists saw the opportunity to seize such interpretative developments as a tool to broaden traditionally restrictive interpretations of health indications for abortion. In doing so, they began to work to expand the construction of the health indication as a door to expand access to legal abortions hoping to reach the liberalizing setting achieved in countries such as Spain in the late 1980s with the mental health indication.
Before these recent uses of right to health arguments, feminists have appealed -and continue to do so- to international human rights law in support of the recognition of a right to have an abortion as a sex equality claim. The insistent prohibition of sex discrimination in the wording of the main human rights treaties and the relative expansion of the international sex equality jurisprudence contributed to shape this practice.40 LA feminists thought that such international developments have the potential to offer the textual and interpretative arguments that they could not found in their own domestic legal traditions where sex discrimination law remained highly underdeveloped in general and practically absent from specific reproductive rights discussions.41
Lastly, in some instances, feminists were also able to combine right to health arguments with sex equality rationales forbidding discrimination in health.
2. The elusive use of international human rights law in the quest for reproductive justice.
Even if it is too early to assess their success, Mexico City’s and the Colombian recent experiences in the liberalization of abortion laws remained the only cases of the region where significant argumentative improvements seemed to have been achieved. Despite some minor changes, in the rest of the continent, international human rights law has not helped much the feminist fight for reproductive justice when it comes to foster access to safe abortion. Moreover, in certain cases, misuses of international law have unfortunately been a powerful tool in the hands of those seeking to restrict women’s rights. As it is apparent, a complex web of ideological, cultural, institutional and political barriers may be obstructing the path towards liberalizing abortion laws in the region and international human rights law necessarily operates against such backdrop. Yet, certain traits of LA legal cultures may have also contributed to the failure or the marginal effects of the feminist recourse to international human rights law in the quest for abortion laws’ reform.
In the first place, one should point to the resilience of formalism in LA legal cultures. Such formalism has been extensively diagnosed and promises of democratization have not helped to eradicate it yet.42 Even if some important changes have been observed as a result of what some identify as the neo-constitutionalization of the region’s legal systems developed in the last twenty years,43 reproductive rights are a realm where formalism still reigns. The domestic reception of international human rights law has not escaped such formalism and, in some cases, it has even helped to its development. In fact, the defense of abortion restrictions on the ground of an absolute right to life protected by domestic and international law is generally accepted as overriding sex equality or right to health justifications. Formalist interpretations of this sort are allegedly founded on the Preamble of the Convention of the Right of the Child and a restrictive reading of Section 4.2. of the Inter-American Human Rights Convention. This line of formalist arguments even denies the Convention’s affirmation that it protects “life, in general, from conception.”44
Formal approaches not only recognize an impossible “absolute” right, but they also deny the possibility of its conflicting with other rights and interests. This happens to the extreme that a significant number of actors still contends that, when provided in criminal codes, indications are unconstitutional because they violate the right to life of the unborn as recognized by international human rights law. Moreover, while formally arguing in this sense, so-called defenders of a right to life fail to recognize all the instances in which LA laws and international law in particular do render a differentiated treatment of unborn life vis a vis the human rights of born individuals.45
Secondly, sex equality arguments have confronted domestic legal traditions with an important underdevelopment of sex discrimination law and a poor penetration of feminist legal critiques. In such context, the use of an unsophisticated line of domestic arguments to ground reproductive rights claims has proved more difficult. However, international human rights law has not been of great help either. So far international human rights law has not produced a significant body of precedents addressing reproductive rights issues and abortion, in particular, from a sex equality rationale. At the regional level, and in spite of some new decisions as regards women’s rights, the Inter-American system has not offered much in this connection either.46 Furthermore, from a domestic point of view, the internalization of human rights norms in other areas of women’s rights has not provoked the development of a strong line of cases citing CEDAW, sex equality and other women rights related quotes.47 Against this backdrop international law based sex equality arguments have not yielded much impact.
Thirdly, another trait of LA reproductive rights arguments has been the overtly physiological approach centered on gestation and the beginning of fetal life48 and the subsequent denial of the social conditions affecting women’s exercise of their sexual and reproductive rights. Such physiological trait could be found both in the fundamentalist defense of fetal life but also in the limitation of women’s right to health arguments to its physical dimension. Arguments that remain, in turn, subordinated to the biological definition of fetal life. The conjunction of both restrictive conceptions of life and health to the physical body may explain the limited penetration of right to health arguments pointing to its non physical and social dimensions in women reproductive rights issues.
Biologically driven accounts of gestation and fetal life have been present in all the restrictive abortion reforms undertaken in Nicaragua, Dominican Republic and some Mexican states. They have also been present in the opposition mounted against the enforcement of the model of indications where states were trying to guarantee access to legal abortion. 49This approach has also been particularly characteristic of the arguments and the evidence used in the abortion-connected debate that lead to the prohibition of emergency contraception in some countries. Physiological arguments have reached their maximum exposition in the judicial decisions of the supreme courts of Argentina, Ecuador, Chile and Peru denying access to emergency contraception on the ground that the potential inhibition of the impregnation of the embryo by EC represents an abortion and hence a violation of the un-implanted embryo’s right to life. In their decisions in these cases courts deployed arguments centrally concerned with the biological development of unborn life and the scientific proof of its beginning, totally avoiding women’s presence in contraception decisions. Moreover, in such decisions courts were completely oblivious to the social dimensions of gender, sex equality grounds and their counterbalancing power vis a vis the state interest in the protection of unborn life. In their brutal omission of women’s subjectivity the majority votes in such decisions epitomize the precarious state of the development of LA legal arguments for reproductive justice. Such judgments also exemplify skewed domestic uses of international human rights law biased in defense of the unborn and absent from the consideration of women’s rights.
This relative failure of international human rights law to advance reproductive rights claims, when compared to other areas where the contributions of international law seem greater, has not discouraged feminist advocates. They will continue to resort to what they believe is the array of shared normative grounds to fight for women’s rights across the region, normative grounds that found support both in LA constitutional principles and in international human rights law. In so far international law offers ways to supplement the toolkit of domestic based claims for decades so ineffective, feminist will still recur to the international legal framework. At the same time, LA feminists are not naïve. They know that the use of international norms to support right to health demands or sex equality claims will be devoid of costs. They know that that the fight against formalism, denials of sex equality and mischaracterizations of the rights to life and to health impose argumentative barriers difficult to surmount. Furthermore, feminists do not underestimate the difficulties of using international law to achieve substantive sex equality and a clear anti-subordination doctrine –allowing of an unconditioned access to abortion (i.e., resources and services widely available for women of all ages and class status willing to abort). Neither do they misjudge the limitations of the overtly medicalized and physiologically reinforcing paradigm that could emerge from certain interpretations of the right to health. The risks entailed by such normative frameworks have been exposed by feminists’ critiques of early liberalizing strategies in the North. LA feminists are aware of such objections and are willing to learn from what feminists in central democracies have learned over the years of the struggle for reproductive justice.50 However, feminists in Latin America also know that they face new and more recalcitrant obstacles not confronted by their reformist predecessors in the United States or Europe. This is in part a result of the counter-mobilization that spurred liberalizing experiences in the North. Yet, LA feminists also know that when the resilience of conservative power over women’s bodies remains so strong, they are pressed to take hold of every reasonably normative tool available to continue the struggle ahead.
23 See, Guttmacher Institute; World Health Organization, www.guttmacher.org, 2008, http://www.guttmacher.org/pubs/fb_IAW.html (accessed January 2010). Even if women of all social backgrounds resort to ilegal abortions, it is generally aknowledged that poorer women are disproportionally affected by the criminalization of abortion and the ineficacy of the model of indications, when available.
24 Latin American feminists and their organizations have also turned to international law forums looking for more friendly jurisdictions to file their claims for women rights and reproductive justice. In this note, however, I do not deal with the moderately successful experiences in these forums. I will concentrate in the use of international human rights law in the argumentative domestic defense of reproductive justice claims.
25 In this connection, see for instance, the pioneer international litigation work conducted by the Center for Reproductive Rights (CRR) and the Latin American and Carribean Committee for the Defense of Women Rights (CLADEM).
26 Among others, Harold Koh had described the internalization of human rights as a stage in what he described as a transnational legal process, a style of international human rights law enforcement. See, Harold Hongju Koh, “Transnational Legal Process,” 75 Neb. L. Rev. 181 (1996); Harold Hongju Koh, “The 1998 Frankel Lecture:Bringing International Law Home,” 35 Hous. L. Rev. 623 (1998), and Harold Hongju Koh, “Why Do Nations Obey International Law?,” 106 Yale L. J. 2599 (1997). For an example of the internalization of human rights law that followed the 1994 constitutional reform in Argentina, see Janet Koven Levit, “The Constitutionalization of Human Rights in Argentina: Problem or Promise?,” 37 Colum. J. Transnat’l. L. 281 (1999).
27 Margaret E. Keck and Kathryn Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics, Ithaca, N.Y.: Cornell University Press, 1998.
28 Comprehensive information regarding the Mexican abortion reforms can be found at www.gire.org.mx. For a short English review of the latest reforms, see “Mexico’s Abortion Wars,” available at: http://www.theatlantic.com/doc/200910u/mexico-abortion (accessed January 2010).
29 See, Colombia Constitutional Court Decision of C-355 of May 10, 2006. An English excerpt of the decision and other documents submitted to the Court in the case are available at:. www.womenslinkworldwide.org (accessed January 2010).
30 Explanations of the Latin American polity’s resistance to changes and to debate the abortion question have pointed to the extended catholic culture, the double morality typical of such catholic culture, the power of the Catholic Church, a conservative political culture with pseudo progressive undertones that builds ties with or feared to challenge the church and Catholics, or prevailing inequality resulting in elites and middle classes being able to access safe abortion services -and so lacking incentives to challenge the status quo See, for instance, Mala Htun, Sex and the State: Abortion, Divorce and the Family Under Latin American Dictatorships and Democracies, New York: Cambridge University Press, 2003; Merike Blofield, The politics of moral sin: abortion and divorce in Spain, Chile and Argentina, New York: Routledge, 2006.
31 The right to health move has also spurred important critiques from players that assessed the turn as a conservative one in feminist advocacy for reproductive justice in the region. A major initiative in this regard has been the Causal Salud project put forward by networks of physicians and their organizations, feminist organizations, scholars, sexual and reproductive rights providers, and public health experts. See, in this connection the webpage of the initiative available at: http://www.causalsalud.org/ (accessed January 2010).
32 Jonathan M. Mann, Sofia Gruskin, Michael A. Grodin and George J. Annas, Health and Human Rights, New York: Routledge, 1999.
33 The right to health of the woman was one of the arguments appealed to by the Colombia Constitutional Court in its 2006 decision. In its judgment the Court found that the model of total ban formally provided in the criminal laws was unconstitutional and established a system of indications that includes a permission for abortion in case of risk for the mental and physical health of the woman. See, Verónica Undurraga and Rebecca Cook, "Constitutional Incorporation of International and Comparative Human Rights Law: the Colombian Court Decision C-355/2006," in Constituting equality: Gender equality and comparative constitutional rights, Cambridge: Cambridge University Press, 2009.
34 An un-enforced system of indications decriminalizing abortion in cases of rape or danger to the health and/or life of the woman was provided for in several Latin American criminal codes since early in the twentieth century. In Argentina, for instance, the 1922 Criminal Code provides for the decriminalization of abortion in case of “danger for the life or the health” of the women and in case of rape. See, Section 86, points i) and ii) of the Argentine Criminal Code.
35 This was the regulatory framework embraced by Germany and France in 1970s, and has been replaced in the last decades by repeal models or versions of what some have termed the model of counseling. See, McBride, Dorothy E. Abortion Politics, Women's Movements, and the Democratic State: A Comparative Study of State Feminism, Oxford: Oxford University Press, 2001.
36 See, for instance, Alicia Ely Yamin and Deborah P. Maine, "Maternal Mortality As a Human Rights Issue: Measuring Compliance with International Treaty Obligations," in Sofia Gruskin, Perspectives on Health and Human Rights, New York: Routledge, 2005. But see adverting about the elusive connection, Alicia Ely Yamin, "Promising but Elusive Engagements: Combining Human Rights and Public Health to Promote Women's Well-Being," 8 Health and Human Rights 1: 62-92.
37 See for instance, Hunt, Paul, Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Geneva: UN, 2006; Hunt, Paul, and Judith Bueno de Mesquita, The Rights to Sexual and Reproductive Health, Colchester: Human Rights Centre, University of Essex, 2000s.
38 This has been a phenomenon identified in the region for countries such as Argentina, Brazil and Colombia. For accounts an account of this process in Brazil, see Varun Gauri and Daniel M. Brinks, Courting social justice: judicial enforcement of social and economic rights in the developing world. Cambridge: Cambridge University Press, 2008; in Argentina, see Victor Abramovich and Laura Pautassi, "Judicial Activism in the Argentine Health System: Recent Trends," Harvard Human Rights Journal 10, no. 2 (2008): 53.
40 For a comprehensive review of the reports, commentaries, judgments and decisions of treaty monitoring bodies and some jurisdictional entities with regard to reproductive rights see, Center for Reproductive Law & Policy, and University of Toronto. Bringing Rights to Bear: An Analysis of the Work of UN Treaty Monitoring Bodies on Reproductive and Sexual Rights. New York: Center for Reproductive Law and Policy (CRLP), 2002; Bringing Rights to Bear Anew, 2008 Update, Center for Reproductive Rights, available at: http://reproductiverights.org/en/press-room/bringing-rights-to-bear-anew-2008-update (accessed January 2010).
41 This is the case in a majority of Latin American domestic laws. The only significant exception in the region’s case law articulating sex equality principles can be found in the decisions of the Colombian Constitutional Court. For a selection of relevant judgments regarding gender, see Mónica Roa, Luisa Cabal, and Julieta Lemaitre, Cuerpo y derecho: legislación y jurisprudencia en América Latina, Bogotá, Colombia: Editorial Temis, 2001; Cristina Motta and Macarena Sáez, La mirada de los jueces, Biblioteca universitaria, Bogotá: Siglo del Hombre Editores, 2008.
42 See the recurrent reference to the formalism of LA legal cultures in Lawrence M. Lawrence and Rogelio Pérez Perdomo, Legal culture in the age of globalization: Latin America and Latin Europe, Stanford, Calif: Stanford University Press, 2003.
43 See, for instance, César A. Rodríguez Garavito, Globalización del estado de derecho: el neoconstitucionalismo, el neoliberalismo y la transformación institucional en América Latina, Bogotá: Universidad de Los Andes, Centro de Investigaciones Sociojurídicas, CIJUS, 2009.
44 Rhonda Copelon, Christina Zampas, Elizabeth Brusie, and Jacqueline deVore, "Human Rights Begin at Birth: International Law and the Claim of Fetal Rights," 13 Reproductive Health Matters. 26: 120-129, 2005.
45 Christina Zampas and J. M. Gher, "Abortion As a Human Right—International and Regional Standards," 8 Human Rights Law Review 2: 249-294, 2008.
46 See, Luisa Cabal, Mónica Roa, and Lilian Sepúlveda-Oliva, “What Role Can International Litigation Play in the Promotion and Advancement of Reproductive Rights in Latin America?,” 7 Health and Human Rights 1 (2003).
47 See Motta and Sáenz, supra note 18.
48 By the physiological approach to reproductive rights in Latin America I refer to legal accounts centered on the protection of fetal life grounded on allegedly neutral biological discussions about the beginning of life that avoid the social dimensions of life, health and gender. For an elaboration of physiological naturalism in US jurisprudence of reproductive regulation, see Reva Siegel, "Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection," 44 Stanford Law Review 2:261-381,1992.
49 This has been the case in the opposition to regulatory initiatives undertaken in Brazil, Peru and Argentina to guarantee medical provision of legal abortions as provided in the countries criminal codes.
50 See McBride, supra note 12.