Denial of abortion rights as a form of ill-treatment or torture - International Campaign for Women's Right to Safe Abortion

by Pau Perez-Sales [1] and Sara Lopez-Martin [2]

1 Editor-in-Chief, Torture. Correspondence: pauperez@runbox.com

2 Senior Legal Adviser. SiRa Center

Editorial

Torture, 2024, 34(3), 3-14. https://doi.org/10.7146/torture.v34i3.152020

Abortion and the right to abortion are sensitive issues in which elements linked to the right of women to decide about their bodies are interpolated with critical cultural, ideological and religious considerations. Quite often, there is a dissociation between the jurisprudential positions in the international legal system, national legislation and civil society.

Over the past three decades, there has been a notable advancement in the recognition of abortion rights within the context of national legal systems across the globe. It is noteworthy that there have only been four instances where progress has been reversed, namely in the United States, Nicaragua, El Salvador, and Poland.

Table 1 summarizes the legal status of regulation in the world.

These advancements cannot hide that 134 countries have penalties for women who attempt abortions. It should be noted that even in jurisdictions where abortion is legally permitted, it is still subject to criminalization, including the possibility of life imprisonment at the discretion of the judge. In most cases, these are offences under the criminal code. With data updated in 2022, in 91 countries the penalties are between 0 and 5 years imprisonment, in 25 countries between 5 and 10 years and 10 countries between 10 years and life imprisonment.

According to a recent review of studies, this criminalisation has a strong negative impact on women: delayed access to abortion care, unsafe abortion or increased risks of maternal mortality or morbidity, opportunity costs with discrimination for those who have fewer resources, including travelling, paying private care, emotional distress, poor quality post-abortion care, undernalised and experienced stigma among others. Moreover, epidemiological data indicate that women with limited resources, rural women, and those with lower educational attainment, as well as those seeking abortion due to rape or for health reasons, are less likely to have access to it.

All these data provide ground for a full decriminalisation of abortion.

Epidemiology of unsafe abortions

Roughly 121 million unintended pregnancies occurred each year between 2015 and 2019. Of these unintended pregnancies, 61% ended in abortion. Significantly, abortion rates are similar in countries where abortion is restricted and those where the procedure is broadly legal.

According to the WHO, between 4.7% and 13.2% of all maternal deaths are attributed to unsafe abortions. This equates to between 13,865 and 38,940 lives lost annually worldwide, besides many more women experiencing serious morbidities. Developing countries account for 97% of unsafe abortions. Moreover, the proportion of abortions that are unsafe is also significantly higher in countries with highly restrictive abortion laws than in those with less restrictive laws. Over half (53.8%) of all unsafe abortions occur in Asia, while another quarter (24.8%) occur in Africa. An estimated 7% of women aged 15-44 years are treated every year for complications of unsafe abortion.

Relationship between abortion and mental health

One of the most contentious issues in the debate surrounding the legal framework of abortion is the question of psychological suffering, both in the context of pregnancy interruption and its denial. Those who advocate for anti-abortion positions frequently assert that abortion results in enduring psychological trauma for women. Conversely, those who support the right to abortion, also base their arguments, among other considerations, on the psychological suffering and long-lasting consequences associated with the denial of abortion.

Several longitudinal studies and reviews have sought to examine the relationship between abortion (or the refusal of abortion) and mental health. The majority of these studies have been conducted in the United States, with a particular focus on the impact of regressive legal reforms in that country. A smaller number have been conducted in Central European and Scandinavian countries using cohort studies. As a result, the findings may not apply to the majority of countries globally, where the context and conditions for women entail many more psychosocial and socioeconomic vulnerabilities and ideological, cultural and religious constraints.

A summary of key findings from these studies, relevant here, are:

There is a lack of empirical evidence to support that terminating a pregnancy causes mental health problems in terms of affective disorders, anxiety disorders, or otherwise. In the United States, the majority of authors cite the Turnaway study. The study included 1,132 women recruited from 30 abortion facilities across the United States. Participants were divided into three groups: Turnaways: Women who were denied an abortion due to gestational limits; Near-limits: Women who received an abortion close to the facility’s gestational limit; and First-trimester: Women who received an abortion in the first trimester. Participants were interviewed semi-annually from 2008 to 2016. The study concluded that: (a) Abortion does not harm mental health: Women who received abortions did not experience worse mental health outcomes than those denied abortions. Both groups experienced a decline in emotional distress over time (b) Turnaways experienced initial increases in stress and anxiety, but these declined over the follow-up period (c) Women who were denied an abortion reported worse physical health over time, including more complications from childbirth and higher rates of chronic pain (d) Women denied abortions were more likely to experience economic hardship, including lower employment rates, higher poverty rates, and greater reliance on public assistance. (i.e. Their children also faced more developmental challenges and economic disadvantages. (f) Denial of abortion was linked to a greater likelihood of remaining in abusive relationships, particularly among women experiencing intimate partner violence. (g) Existing children of women denied abortions faced greater instability, including poorer maternal bonding and household stress. Other longitudinal studies in the US population have found similar results.
There are inconclusive results regarding the relationship between abortion and suicide rates when controlling for previous mental health indicators and socioeconomic variables, as shown by a large cohort study in a sample of nearly 50.000 women followed over five years in Denmark (Steinberg et al, 2019). Nevertheless, epidemiological data show there is an increase in suicidal ideation and attempts of suicide among women of reproductive age in the US States where there are restrictive laws or abortion is forbidden and the absolute ban on abortion in Nicaragua lead to an increase in reproductive-age young women suicide deaths using organophosphate pesticides. Furthermore, ecological data from 162 countries provide significant evidence that abortion laws reduce maternal mortality due to medical complications and suicide.
Children born from unwanted pregnancies. The Prague Study examined long-term outcomes of children born from unwanted pregnancies to mothers twice denied abortions in the early 1960s in Czechoslovakia. It tracked 220 children and matched controls over three decades to assess differences in psychosocial development, educational achievement, mental health, and family dynamics. In a series of studies, the authors showed that children born from unwanted pregnancies faced more socio-emotional challenges, poorer educational outcomes, and increased psychiatric care usage compared to peers from accepted pregnancies. Family instability and socioeconomic factors partly mediated these effects.

It is important to reiterate that all of these studies have been conducted with populations from the Global North. Such findings can obscure the reality of the most vulnerable individuals and contexts where human rights are denied, and discrimination is more prevalent. An intersectional approach is crucial when examining data related to mental health, emotional distress, and abortion.

Denying women and girls abortion services as ill-treatment? The position of international human rights bodies.

Based on the aforementioned studies and ethical and medical debates, a growing number of international health and human rights bodies, including the World Health Organization, consider that abortion should be considered among unalienable women’s rights, as an integral part of Sexual and Reproductive Rights. Table 2 summarizes their foundations in international law in chronological order.

Concurrent with the advancement of SRR is a parallel evolution demanding that abortion be decriminalized and that states guarantee access to safe and legal abortion.

Table 2. Legal foundations of sexual and reproductive rights…

Table 3. Denial of abortion as a violation of sexual, reproductive and health rights…

Over the past fifteen years, a body of jurisprudence from the committees, experts, and courts has reinforced the notion that when this right is not guaranteed and this results in significant distress for women, it can be considered a form of cruel, inhuman, or degrading treatment (see Table 3). Together these bodies establish, including prior information, the existence of qualified professionals and quality resources, emergency contraception and post-exposure prevention, adequate care, post-abortion care and the management of complications that may arise, in a prompt, diligent, non-discriminatory manner, free of coercion, reprisals or criminalisation, with respect for the autonomous decisions made by women.

Denial of abortion services as torture

But in some cases, the aforementioned treaty bodies and experts and international courts have explicitly linked abortion to the right to integrity and the eradication of torture and have determined that under certain circumstances the denial of the right to termination of pregnancy could constitute torture. Table 4 provides a summary of the principal cases in which the denial of abortion is deemed to constitute a breach of articles related to torture.

The number of cases is growing and includes almost all the competent bodies in the matter. The analysis of the body of law shows a wide range of reasons why the denial of the right to abortion could constitute a form of ill-treatment or torture.

— A form of discriminatory torture based on gender stereotypes, especially when it entails criminal prosecution that adds additional psychological suffering to the victim.

— Punitive and discriminatory torture linked to restrictive laws prohibiting abortion even in cases of incest, rape, foetal harm or risk to the life or health of the woman, reinforced when there are special conditions of vulnerability, such as age, disabilities, health status, being in detention, severe illness of the foetus or foetal death.

— Situations of punitive or investigative torture in cases where information or confessions are sought for criminal purposes from women seeking emergency medical care following illegal abortions.

— Punitive torture associated with anti-abortion laws that carry prison or jail sentences that stigmatise and criminalise women, disrupting their life plans.

— Institutional mistreatment of women causing severe physical or psychological suffering including access to abortion, violation of medical secrecy and confidentiality.

— Severe suffering and ongoing re-traumatisation of women associated with being forced to continue a pregnancy resulting from incest or rape, which is a daily reminder of the extreme violence suffered.

— Physical and psychological suffering associated with forcing the woman to resort to illegal abortions that carry a substantial risk to her life and health.

Taken together, we see the four elements of the definition of torture reflected in the above situations:

1. There is an action of the State either affirmative (i.e. criminalizing abortion) or as an omission (i.e. restricting access to abortion services)
Severity of suffering. The question arises as to what level of intensity is required for pain or suffering to be considered “severe”? This is a topic of debate in relation to any case of alleged ill-treatment or torture. Concerning abortion, there is some case law regarding extreme examples where suffering seems beyond discussion (i.e. pregnancy after incest or rape in a minor). However, in many other cases, there is a more blurred threshold. Furthermore, there is not a clear answer from epidemiological and clinical studies on the physical and mental pain and suffering that may be endured by women who are prevented from legally terminating their pregnancies. The studies demonstrate that the legal coercion of a woman to carry an unwanted pregnancy to term can have markedly disparate effects on women’s mental health. In some cases, the impact is less severe or transient. In other cases, however, it can result in significant distress, particularly in countries where there is a high level of stigma and discrimination. In some instances, this has even led to suicide. The right to abortion should be contingent upon the respect of fundamental human rights, rather than contingent upon the potential for mental suffering. From the perspective of physical suffering, there is a clear link between legal restrictions on abortion and the safety of the procedure itself. Unsafe abortions are a very relevant factor when considering the severity of suffering, both in terms of mortality and morbidity. When considering that the severity of mental or physical suffering could amount to ill-treatment and torture, we are assuming that in most women there is suffering, as we do not need to probe for all individuals that prolonged solitary confinement or continuous sleep deprivation are harmful and amount to CIDT. Sometimes the CAT or the HRC have considered that due to specific vulnerabilities and circumstances, the suffering of the woman could be considered prima facie due to the especially harmful circumstances under assessment.
Intentionality. The point of consideration here is whether the state seeks to intentionally inflict suffering on women when acting against the right to abortion. Most committees include here the foreseeability of pain and suffering within the concept of intention. When pain and suffering are a likely and logical consequence of conduct, the intentionality criteria would be met. The CAT and the HRC are especially prone to this line of interpretation.
Purpose. Since CEDAW’s creation and positioning, gender discrimination has been the most frequently cited purpose related to the denial of abortion. The prohibition and criminalisation would be deeply rooted in a cross-cutting patriarchal culture in the international human rights realm. From this point of view, restrictions on abortion would be a consequence of a male-centric organisation of social institutions imposing the policing of women’s bodies. These perspectives provide the rationale for legislation that restricts access to abortion, thereby further entrenching the subordination of women. Moreover, from an intersectional standpoint, this phenomenon must be considered alongside race-based and class-based discrimination, as women from disadvantaged socioeconomic backgrounds and those who identify as racial minorities are more likely to resort to unsafe abortion services. As some authors have argued, the meaning of abortion legislation would most likely be very different if the capacity to bear children were vested in men, given the overwhelming majority of male legislators. As only women become pregnant, legislation restrictions on abortion are in itself discriminatory. Moreover, the legislation that punishes abortions never includes male responsibility: only women must bear the consequences of unwanted pregnancies. There are also other elements of discrimination considered by the different committees. For instance, women forced to bear a child are also forced in myriad ways, including to have less paid jobs, have less opportunities to study and, in general, less opportunities to pursue their life goals.

Furthermore, in the joint document by the CEDAW, SRT, SR on Health; SRT – Disabilities and SR-VAW, the authors go further to say that more generally, it can be considered that this discrimination satisfies both the purpose and intent elements. This same line has been followed by the CAT (Table 3) which states that “[b]oth men and women and boys and girls may be subject to violations of the Convention on the basis of their actual or perceived non-conformity with socially determined gender roles.” (CAT/C/GC/2, para. 22).

The consideration of discrimination as the key element in the analysis of the denial of abortion as torture ties in with dignity and moral harm as the core element of the concept of torture.

Weight of each of the elements of the definition in the Committee’s decisions.

The various UN committees focus on different motivations as part of the teleological element (punitive, based on discrimination, in the case of CEDAW, the HRC and CAT, as well as some cases of interrogational or indagatory torture in the case of the CAT). However, it is the severity of the physical and psychological suffering caused by the restrictions that are, in most cases, the determining factor in understanding the right to integrity to have been violated, without specific vulnerability factors being required. In fact, they only appear in cases where the absolute prohibition forces women to decide cases of foetal malformations incompatible with life or in cases of rape.

However, in the case of the regional courts (mainly the ECtHR or the IACHR), attention is paid not only to the seriousness of the suffering but especially to the victim’s conditions of vulnerability. Consequently, in regional Courts, determining whether the threshold for ill-treatment has been reached would necessitate, in most cases, a context-specific approach that considers individual characteristics and circumstances. By contrast, the tendency of the Joint Document and HRC is that the consideration of discrimination as amounting to torture would be met regardless of specific contextual factors, especially when there is the additional social or economic burden of belonging to a marginalised or disadvantaged group.

Conditions that are afforded particular consideration concerning severe suffering. Relevance to forensic assessment using the Istanbul Protocol.

The Istanbul Protocol does not mention in any of its sections the violation of the right to abortion nor does it illustrate or provide specific indications for its forensic assessment. The review of jurisprudence shows that there are seven groups of elements that contribute to the particular suffering of victims and that should consequently be considered in an Istanbul Protocol in a case linked to the right to abortion.

In seeking accountability for violations that predominantly result in severe mental suffering, petitioners may encounter substantial obstacles in demonstrating the extent of their distress to the court. In contrast to physical injuries, mental harm may be overlooked by healthcare professionals, perceived as more subjective, and may be less visible. A lack of understanding of, or sensitization to, mental health and trauma may result in courts undervaluing such injuries.

There is no document, to our knowledge, that addresses redress for these types of ill-treatment. Alongside medical and psychological rehabilitation, it is essential to take into account reparation linked to family and community impact and harm linked to stigma and marginalisation. Courts should consider measures that address the whole of society and the communities to which they belong as well as measures to compensate for the moral and dignity damage suffered.

Furthermore, the State’s responsibility is often engaged not only by the application of restrictive and discriminatory laws or policies, but also by actions by medical professionals who fail to meet ethical standards, by the failure to appropriately regulate private healthcare settings, or the failure to sanction violence by private individuals, such as a spouse or intimate partner, elements that require proper documentation. All these aspects can be considered in the framework of reparation measures.

Denial of abortion services as torture

— A form of discriminatory torture based on gender stereotypes, especially when it entails criminal prosecution that adds additional psychological suffering to the victim.

—Punitive torture associated with anti-abortion laws that carry prison or jail sentences that stigmatise and criminalise women, disrupting their life plans. Institutional mistreatment of women causing severe physical or psychological suffering including access to abortion, violation of medical secrecy and confidentiality.

—Severe suffering and ongoing re-traumatisation of women associated with being forced to continue a pregnancy resulting from incest or rape, which is a daily reminder of the extreme violence suffered.

—Physical and psychological suffering associated with forcing the woman to resort to illegal abortions that carry a substantial risk to her life and health.

Taken together, we see the four elements of the definition of torture reflected in the above situations:

There is an action of the State either affirmative (i.e. criminalizing abortion) or as an omission (i.e. restricting access to abortion services).
Severity of suffering. The question arises as to what level of intensity is required for pain or suffering to be considered “severe”? This is a topic of debate in relation to any case of alleged ill-treatment or torture. Concerning abortion, there is some caselaw regarding extreme examples where suffering seems beyond discussion (i.e. pregnancy after incest or rape in a minor). However, in many other cases, there is a more blurred threshold. Furthermore, there is not a clear answer from epidemiological and clinical studies on the physical and mental pain and suffering that may be endured by women who are prevented from legally terminating their pregnancies. The studies demonstrate that the legal coercion of a woman to carry an unwanted pregnancy to term can have markedly disparate effects on women’s mental health. In some cases, the impact is less severe or transient. In other cases, however, it can result in significant distress, particularly in countries where there is a high level of stigma and discrimination. In some instances, this has even led to suicide. The right to abortion should be contingent upon the respect of fundamental human rights, rather than contingent upon the potential for mental suffering. From the perspective of physical suffering, there is a clear link between legal restrictions on abortion and the safety of the procedure itself. Unsafe abortions are a very relevant factor when considering the severity of suffering, both in terms of mortality and morbidity. When considering that the severity of mental or physical suffering could amount to ill-treatment and torture, we are assuming that in most women there is suffering, as we do not need to probe for all individuals that prolonged solitary confinement or continuous sleep deprivation are harmful and amount to CIDT. Sometimes the CAT or the HRC have considered that due to specific vulnerabilities and circumstances, the suffering of the woman could be considered prima facie due to the especially harmful circumstances under assessment.
Intentionality. The point of consideration here is whether the state seeks to intentionally inflict suffering on women when acting against the right to abortion. Most committees include here the foreseeability of pain and suffering within the concept of intention. When pain and suffering are a likely and logical consequence of conduct, the intentionality criteria would be met. The CAT and the HRC are especially prone to this line of interpretation.
Purpose. Since CEDAW’s creation and positioning, gender discrimination has been the most frequently cited purpose related to the denial of abortion. The prohibition and criminalisation would be deeply rooted in a cross-cutting patriarchal culture in the international human rights realm. From this point of view, restrictions on abortion would be a consequence of a male-centric organisation of social institutions imposing the policing of women’s bodies. These perspectives provide the rationale for legislation that restricts access to abortion, thereby further entrenching the subordination of women. Moreover, from an intersectional standpoint, this phenomenon must be considered alongside race-based and class-based discrimination, as women from disadvantaged socioeconomic backgrounds and those who identify as racial minorities are more likely to resort to unsafe abortion services. As some authors have argued, the meaning of abortion legislation would most likely be very different if the capacity to bear children were vested in men, given the overwhelming majority of male legislators. As only women become pregnant, legislation restrictions on abortion are in itself discriminatory. Moreover, the legislation that punishes abortions never includes male responsibility: only women must bear the consequences of unwanted pregnancies. There are also other elements of discrimination considered by the different committees. For instance, women forced to bear a child are also forced in myriad ways, including to have less paid jobs, have less opportunities to study and, in general, less opportunities to pursue their life goals.

The consideration of discrimination as the key element in the analysis of the denial of abortion as torture ties in with dignity and moral harm as the core element of the concept of torture.

Weight of each of the elements of the definition in the Committee’s decisions.

Based on the aforementioned studies and ethical and medical debates, a growing number of international health and human rights bodies, including the World Health Organization, consider that abortion should be considered among inalienable women’s rights, as an integral part of Sexual and Reproductive Rights.

Conditions that are afforded particular consideration concerning severe suffering. Relevance to forensic assessment using the Istanbul Protocol.

Reflections on the future

The impact of self-managed abortion.

Historically, abortion was criminalized to protect women from unsafe procedures performed by unqualified individuals. However, the advent of medical abortion using drugs has enabled safer and less stigmatized options, particularly in early pregnancy stages. Integrating these methods into primary healthcare can reduce discrimination and eliminate the risks associated with clandestine abortions. International networks promoting “autonomous abortion” now provide mutual support, emphasizing autonomy, solidarity, and compassion. These networks challenge punitive abortion laws, advocating for health systems to adopt these safer methods rather than penalize past unsafe practices.

Conclusion: Revolutionary changes need time

Sexual and reproductive rights are considered second-generation rights, linked to the International Covenant on Social, Economic, and Cultural Rights (1966). Since that time, there has been a growing body of legal foundations that support, strengthen, and further develop these rights reviewed here. Nevertheless, there is a significant disparity in the pace of implementation between countries and regional areas due to the religious and cultural diversity that presents a challenging context. The process is expected to continue evolving until a more unified approach is achieved. This indicates that international health organizations such as the WHO and the UN treaty bodies that advocate for non-compliance with these rights to be considered cruel, inhuman, or degrading treatment have a vision that, to some extent, may still be considered to be somewhat detached from the sociological and political reality of some of the signatory countries, particularly in certain regions of Latin America, Africa, and Asia, and now the US.

This can sometimes give rise to impassioned discussions. Ireland held a referendum in 2018, resulting in the legalization of abortion, influenced in part by the Human Rights Committee’s decisions. After being urged to implement legal and policy changes, on December 30, 2020, Argentina’s Senate passed a law legalizing abortion during the first 14 weeks of pregnancy. The law was passed following years of advocacy by feminist and human rights groups, including the “Green Wave” (Marea Verde) movement, which became a symbol of reproductive rights in Latin America. The combined action of women’s activism, political initiatives and the concurring views of international bodies succeeded in pushing an agenda that, while not completely decriminalising abortion, opens the door to full recognition of women’s rights.

EDITOR’S NOTE: There are many pages of notes and references with this article that were omitted for space reasons.