Criminalisation under scrutiny: how constitutional courts are changing their narrative by using public health evidence in abortion cases
by Verónica Undurraga
Sexual and Reproductive Health Matters 2019;27(1) DOI: 10.1080/26410397.2019.1620552
This article explains how the strategic use of public health evidence, showing that criminalisation of abortion does not result in lower abortion rates, is changing the way judges are confronting constitutional challenges to abortion regulations. The state may have a legitimate interest – and in some legal systems, a duty – to protect prenatal life. Nevertheless, courts are upholding regulations liberalising abortion and declaring criminalisation regimes unconstitutional. This is possible given that lower abortion rates are not achieved through criminalisation, but through preventive policies. In addition, courts uphold liberalisation when the infringement of women’s rights resulting from criminalisation outweighs its purported benefits. This new legal narrative has been developed during the last decades by a series of court decisions in Europe and Latin America, and may prove useful for legal advocacy in some countries in Africa. The narrative combines the use of an analytical framework called the proportionality principle with an interpretation of constitutional rights that draws from gender-sensitive international human rights standards and factual evidence about the effects of criminalisation on women’s lives and health.
The misrepresentation of conscientious objection as a new strategy of resistance to abortion decriminalisation
by Verónica Undurraga, Michelle Sadler
Sexual and Reproductive Health Matters 2019;27(2) DOI: 10.1080/26410397.2019.1610280
…In August 2017, 23 years after the return of democracy, Congress decriminalised abortion on three grounds: risk to the life of the pregnant woman, rape, and cases where the foetus is non-viable. The law opened a strong debate about the scope and eligibility for the right to conscientious objection, not only for an individual, but also on an institutional basis. When initially approved by Congress, the bill only included the right to individual conscientious objection for the surgeon who would perform the abortion and the rest of the professional staff present in the surgical ward during the intervention. It prohibited institutional conscientious objection: “Conscientious objection is of a personal nature and in no case may it be invoked by an institution”. However, before publication of the law in 2017, the terms were modified by the Constitutional Court to recognise institutional conscientious objection. The right to object was also extended to non-professional health personnel working in the surgical ward. Moreover, the Constitutional Court eliminated, without explanation, the rule that prevented the objector from excusing himself or herself in cases of imminent expiration of the established deadline in the event of rape, and only maintained the exception in the event that the woman’s life was at risk and requiring imminent and unpostponable care….
[This discussion paper comments on this policy change and its consequences.]