12th Greek Australian Legal and Medical Conference
Samos, Greece 2009

LAWS PROHIBITING ABORTION:
A VIOLATION OF THE RIGHT TO HEALTH?

Ronli Sifris

Introduction

Given that this is a legal and medical conference, I thought it might be interesting to talk about the relationship between law and medicine; the intersection between law and health. As you know, this is an enormous topic with many dimensions. I could talk about the duty of care that a doctor owes to his or her patient. I could talk about the laws relating to involuntary treatment of people with mental illnesses. I could talk about the negative health implications of young lawyers being compelled to work excessively long hours (and before anyone jumps down my throat I know that the same complaints apply to older lawyers and to most doctors!).

What I am actually going to talk about is the international legal right to health and the ways in which prohibitions on access to abortion violate this right. This presentation does not in any way address the issue of morality and abortion which many people feel quite strongly about. One may agree that regulations restricting access to abortion violate the international legal right to health and still take issue with abortion on moral grounds. In my view, discussion of the morality of abortion is more properly the subject of a philosophy conference or a theology conference. So I will restrict my presentation to the question of whether restrictions on abortion violate the right to health. I am going to move from the general to the specific. I will start off talking about the right to health in international law. I will then discuss the right to reproductive health and will then proceed to discuss why I believe prohibitions on abortion violate the right to reproductive health.

The Right to Health

Broadly speaking, international law divides human rights into two categories:

  1. civil and political rights
  2. economic, social and cultural rights

Civil and political rights are enshrined in the International Covenant on Civil and Political Rights (ICCPR). Examples of civil and political rights include the right to life (article 6), the right to be free from torture (article 7), and the right to liberty and security of person (article 9). Economic, social and cultural rights are enshrined in the International Covenant on Economic, Social and Cultural Rights (ICESCR). Examples of economic, social and cultural rights include the right to an adequate standard of living (article 11), the right to education (article 13) and the right to the enjoyment of the highest attainable standard of physical and mental health (article 12).

The focus of this paper is the right contained in article 12 of the ICESCR – that being the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. I should point out that the ICESCR is not the only international legal document which stipulates that there is a right to health. This right is set out in other general human rights instruments such as the Universal Declaration of Human Rights1 and is also enumerated in more specific documents such as the treaty aimed at eliminating racial discrimination,2 the treaty stipulating the rights of children,3 the convention on the rights of persons with disabilities4 and (of particular relevance to this discussion) the treaty whose object is the elimination of discrimination against women.5

So, the notion of a ‘right to health’ is mentioned in many international legal documents. But what do we actually mean when we say that everyone has the right ‘to the enjoyment of the highest attainable standard of physical and mental health’? In 2000 the Committee on Economic, Social and Cultural Rights commented on the meaning of the right to health. It stated that ‘[t]he right to health contains both freedoms and entitlements. The freedoms include the right to control one’s health and body, including sexual and reproductive freedom’ and ‘the entitlements include the right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health.’6

I am going to focus on the reproductive health component of the general right to health.

Right to Reproductive Health

What do we mean when we talk about “reproductive health”? The international legal community has only recently begun to pay proper attention to the issue of reproductive health. The 1994 Report of the United Nations International Conference on Population and Development defines reproductive health as ‘a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity, in all matters relating to the reproductive system and to its functions and processes.’7

In 1999 the Committee on the Elimination of Discrimination against Women issued what is known as a ‘General Recommendation’ on women and health. In this General Recommendation it specifically clarified in the introduction that ‘access to health care, including reproductive health, is a basic right under the Convention’.8 In recent years, other international committees such as the Committee on Economic, Social and Cultural Rights have also clearly articulated the right to reproductive health.9 This recent emphasis on the right to reproductive health as part of the general right to health is also evident in the reports of the independent expert appointed by the United Nations to focus on the right to health. In his 2003 report he specifically included maternal, child and reproductive health in his assessment of the specific entitlements included in the right to health.10 So it seems as though the right to reproductive health has become firmly ensconced in the general understanding of the meaning of the right to health, even though the international system has only begun to focus on this issue in recent years. The question which remains to be asked as part of this presentation is whether laws which severely restrict access to abortion violate the right to reproductive health.

Restrictions on Abortion: A Violation of the Right to Health?

So far, I have pointed out that there is a right to health and that this right includes the right to reproductive health. The content of the right to reproductive health is somewhat murky. Many of the United Nations documents seem at least to imply that the right to reproductive health includes the right to choose to terminate a pregnancy. Yet there are many countries, particularly those that retain laws restricting access to abortion, which object to such an interpretation of the right to health. I argue that laws restricting access to abortion violate the right to health. The skeleton of my argument is as follows: When a woman finds herself having to deal with an unplanned and unwanted pregnancy, she has two options. The first option is to terminate the pregnancy and the second option is to continue with the pregnancy. When a woman decides to terminate her pregnancy, she will frequently do so irrespective of the legality of accessing such abortion services. In circumstances where abortion is illegal, the consequence is often that the woman is forced to undergo an unsafe abortion with the concomitant negative health implications that such a procedure entails. While it is clear that women who undergo unsafe abortions may be severely traumatised by that experience, the focus of my discussion relating to unsafe abortions will be on the physical health implications. Nevertheless, Article 12 of the ICESCR makes it clear that the right to health includes both physical and mental health. So damage to a woman’s mental health is just as relevant as damage to her physical health. This leads me to discuss the ramifications of a woman continuing with an unwanted pregnancy. I argue that when a woman feels compelled to continue with an unwanted pregnancy, her mental health frequently suffers as a result.

Termination of Pregnancy

The first part of this discussion begins with the premise that legal restrictions on abortion do not eradicate abortion, they simply drive it underground. This creates the space for unsafe abortions to flourish. To be clear, I am not saying that legal restrictions on accessing abortion are the only predicators of unsafe abortion. There are numerous other factors which may combine to influence the safety of abortion procedures.11 That said, it is clear that there is a strong link between the legality of abortion and the safety of abortion services. According to the World Health Organization, the ‘incidence of unsafe abortion is influenced by the legal provisions governing access to safe abortion, as well as the availability and quality of legal abortion services. Restrictive legislation is associated with a high incidence of unsafe abortion.’12 I would now like to move on to discuss the actual physical health effects of unsafe abortion.

I realise that I am talking to doctors and other health professionals as well as lawyers so it is at this point that I make a disclaimer (something the lawyers in the room will be all too familiar with) – I am not a doctor or a health professional. As such, all of the information which I have obtained regarding the health effects of unsafe abortions I have obtained through research in an area which is not my expertise. Nonetheless, it seems to me that the facts speak for themselves. So what is actually meant by the term ‘unsafe abortion’? Unsafe abortion may be defined as ‘a procedure for terminating an unintended pregnancy either by individuals without the necessary skills or in an environment that does not conform to minimum medical standards, or both.’13 Common mechanisms for carrying out an unsafe abortion include treatments taken by mouth (such as turpentine or acid); treatments placed in the vagina or cervix (such as herbal preparations); intramuscular injections; foreign objects placed into the uterus through the cervix (such as a knitting needle or coat hanger); enemas and direct trauma.14

According to the World Health Organization, in the year 2003 nearly 20 million unsafe abortions took place globally. Of those 20 million, 98% took place in developing countries with restrictive abortion laws. As a result of this high global rate of unsafe abortion, every year approximately 70,000 women die and close to five million women suffer from temporary or permanent disability.15

Common medical complications associated with unsafe abortions include haemorrhage, sepsis, peritonitis and trauma.16 The most common cause of death is septic shock with multi-organ failure, with or without haemorrhage.17 Other potential consequences of unsafe abortions include bowel injury and acute renal failure.18 Long term complications include infertility and chronic pelvic pain.19

I could continue to describe the consequences of unsafe abortion in an objective and detached way. But I think that to only discuss this issue in a dispassionate and disconnected way is a mistake. It is a mistake because adopting such an approach prevents us from truly empathising with the women whose lives and wellbeing are at stake; it reduces the women involved to mere statistics thereby in some ways objectifying them. So I want to read you an extract from the testimony of a woman who was a nurse at the Old Melbourne Hospital in the 1920s when abortion was illegal in Victoria (where I live).

This extract is published in a book edited by Dr Jo Wainer, wife of Dr Bertram Wainer who was one of the leading advocates for reform of Victorian laws which prohibited abortion.

I remember one case. We never really knew the exact history of it, but I remember this one because the husband was crying afterwards and he told me that she was on the floor, she was in agony, and he didn’t know what to do, so he called the doctor and the police, and they brought her in. The policeman sat beside the woman and just asked her to tell him who did it. He’d let her rest for a few minutes, and go through the questioning again. The woman was either groaning or lapsing into a coma and then coming out of it and so on, the smell was dreadful. It must have been hard for the policeman, too. It was an offence for anyone to be involved with abortion then.

The woman the policeman was questioning had septicaemia. She’d been done in a backyard somewhere, possibly with knitting needles. Some women were done with those and some were even done with hat pins, those great long hat pins that women wore then. They did the abortions themselves with these things – they simply pierced the thing in and hoped, but it never all came away fully, they would nearly always need to be curetted. But often, it would be too late for them by the time they got to a hospital.

That woman died, and without telling the police who did it, too.

It took about two days for the women to die usually, and only their husbands came in to see them.20

This is the testimony of a nurse who witnessed the physical health effects of unsafe abortions. I will spare you the testimony of women who themselves survived such an experience.

To summarise the discussion so far, I have talked about the right to health under international law and about the right to reproductive health which forms a part of this general right to health. I then moved on to put forward my view that laws which restrict access to abortion violate the right to reproductive health. I have just discussed the negative physical health ramifications of unsafe abortions and the connection between unsafe abortions and laws which restrict access to abortions. I will now move on to discuss the negative mental health ramifications of forcing a woman to continue with a pregnancy to term.

Continuation of Pregnancy

If a woman confronted with the reality of an unwanted pregnancy is understandably unable or unwilling to procure an illegal abortion (or to procure her own miscarriage), she is left with one option: to continue with the pregnancy. A study of over 500 mothers conducted in 1999 found that mothers with unwanted children were ‘substantially more depressed’ than other mothers.21

A 2005 decision of the Human Rights Committee shows an international dispute settlement body recognising for the first time the potential negative mental health effects of forcing a woman to continue with a pregnancy that she wishes to terminate. The Human Rights Committee is the committee which administers the ICCPR, the treaty containing the core civil and political rights. Unfortunately, the committee established to hear disputes arising from the ICESCR is not yet operational so there is a lack of international jurisprudence interpreting the right to health. This case involved a 17 year old Peruvian girl named Karen who became pregnant. The scan showed that she was carrying an anencephalic fetus. Karen wanted to terminate the pregnancy. The hospital refused to terminate the pregnancy on the basis that termination in such circumstances would be illegal. During her pregnancy, a psychiatrist drew up a psychiatric report concluding that the so-called principle of the welfare of the unborn child has caused serious harm to the mother, since she has unnecessarily been made to carry to term a pregnancy whose fatal outcome was known in advance, and this has substantially contributed to triggering the symptoms of depression, with its severe impact on the development of an adolescent and the patient’s future mental health.

As predicted, Karen gave birth to an anencephalic baby who survived for four days. After the baby’s death, Karen fell into a state of deep depression. The Human Rights Committee accepted that she suffered severe mental health consequences as a result of being compelled to continue with her pregnancy. It found that the action of Peru, in implementing laws which prohibited abortion in these circumstances, was the cause of her suffering. As a consequence, the Committee found that Peru had violated Karen’s right to be free from torture or cruel, inhuman or degrading treatment.22

If the Committee went so far as to find a violation of this right, it is implicit that injury caused to Karen’s mental health is also a violation of the right to health. Admittedly, this decision involves quite an extreme set of facts. It is unclear whether the Human Rights Committee would have reached the same decision if it was presented with a less extreme set of facts. What is clear is that the Committee accepted that there are circumstances in which the mental health effects of compelling a woman to continue with a pregnancy are so grave as to constitute torture or cruel, inhuman or degrading treatment. This case is just one example of the potential mental health consequences of restricting access to abortion.

The Discrimination Component of the Right to Health

I would now like to spend the last few minutes discussing the issue of discrimination. The right to health has been interpreted so as to include the principle of non-discrimination. In other words, the evolution of the right to health is such that it has been interpreted to include the principle that the right to health is to be implemented without discrimination.23 There has been increased recognition at the international level that for the right to health to be implemented on the basis of equality and non-discrimination, it is essential that the non-discrimination principle be specifically applied in the context of women’s reproductive health.24 The notion that restricting access to abortion services violates the non-discrimination component of the right to health has been hinted at by the Committee on the Elimination of Discrimination against Women and by the Committee on Economic Social and Cultural Rights.25

But there has nevertheless been some reluctance at the international level to categorise restrictions on access to abortion services as violating anti-discrimination principles.

In my view, abortion restrictive regulation is a clear example of gender-based discrimination on the part of the State – only women become pregnant therefore women are clearly disproportionately affected by such regulation. Secondly, as has been discussed throughout this presentation, such restrictive regulation causes serious damage to women’s health. Thirdly, it negatively affects women from an economic standpoint. The effect of compelling a woman to continue with an unwanted pregnancy is that she is coerced to engage in the work of motherhood – work which is uncompensated and undervalued. Frequently, any prospects which such a woman had in the paid work force are also damaged as a result. On this view, laws which restrict access to abortion are discriminatory in their effect.26 Such a view is expressed in the dissenting judgment of the recent United States Supreme Court decision of Gonzales v Carhart.27 In the opening paragraph the dissenting judges state that ‘legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they cente on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.’28

Laws which restrict access to abortion services are intrinsically discriminatory – they are discriminatory in that they disproportionately affect women. They are discriminatory in that they negatively affect women in a multi-dimensional way which ranges from effects on women’s health to effects on women’s economic position to effects on a woman’s control over her own life. Therefore, not only do such laws prima facie violate the right to health, but they also violate the requirement that this right be implemented without discrimination of any kind

These new mechanisms are bearing some fruit.

Coverage rates for the original 6 EPI vaccines are increasing, although not rapidly enough to achieve the MDG’s. Disappointingly there are some areas, like India and much of sub Saharan Africa, where coverage remains extremely low and little is being done to seek novel solutions.

Coverage of newer vaccines, such as HB and HIb, is increasing, albeit slowly: it is chastening that 25 years after its licensure, when HB vaccine is now available for about 20 cents a dose, only 50% of the world’s children are being immunized.

If we are still having trouble with the introduction of HB, its hard to think that the long list of vaccines like Japanese B, HRV or HPV which are lining up behind it and are likely to be significantly more expensive, will be any easier – let alone what will happen if we are able to develop vaccines against HIV, malaria or TB.

The Global Financial Crisis makes it uncertain to whether countries will be able to meet their pledges to the Global Fund – especially where the promises are based on spending a certain proportion of GDP. Of the US$3B pledged to the fund, only 20% has been received to date.

If we are to just maintain the current level of immunization and cope with a global population growing at 80m per annum, at a minimum, we need reliable and increasing funding, a greater focus on improving infrastructure, better means of accessing children in hard to reach areas and a more realistic time frame for introduction of new vaccines.

Perhaps the greatest challenge is to ensure that the Elephant in the Room – the Gates Foundation – which has undoubtedly reenergized the field, doesn’t distort its priorities.

The Foundation, which with the addition of Warren Buffets donation is now the biggest in the world, has an annual Health Budget, approaching that of WHO and has spend more than US$10B over the past decade. It is time to take stock. A series of recent commentaries in The Lancet, suggest that the Emperor, if not naked, has holes in its clothes.

A major criticism is that the Foundation and its Founder are unabashed believers in technical solutions to complex problems. This faith in technology, which seems to be shared by the US military, underestimates the complex, social, economic and political problems to be overcome before it is possible to establish an effective health system, of which immunization services are useful markers.

While new technology is a necessary component of attempts to improve immunization services, it is not sufficient alone to achieve the task.

Having a safe and effective vaccine against malaria for example, will be of limited value, even if provided free, if countries using the vaccines lack competent governments and governance, there is no ability to estimate what quantity of vaccine is required, no capacity to store or distribute it, no reliable source of power for refrigerators or capacity to repair broken ones, an inadequate supply or poorly trained, poorly motivated and poorly remunerated health care workers, if mothers live far from vaccination posts and can only access services if the weather is clement , they have someone to care for their children. Very little of the Foundations budget is being spent on addressing these low risk high reward problems and seeking innovative solutions.

A significant proportion of The Foundations funds go to basic research on HIV, malaria and TB, high risk, high reward targets, already well supported by other funders like the NIH and the EU and it has had little interest in harvesting low hanging fruit. Given the Millenium Development Goals, better returns could almost certainly be obtained with greater emphasis on more effective use of existing products and technology.

Finally the Foundations current priorities don’t align with the major causes of disease in the developing world, and seem to be driven by what is fashionable and a sense of what is needed, rather than the priorities of local decision makers.

The biggest killers in the developing world are maternal deaths associated with childbirth, pneumonia and diarrhoea, but provision of antenatal care, clean water, proper sanitation and adequate housing, don’t attract influential lobby groups and are not nearly as attractive to donors.

The rapid increase in funding and top down decision making has created a number of problems and highlighted a lack of absorptive capacity. While there are never enough good people to go around, this is especially so in International Public Health and Vaccine Development and Delivery, where there is a major shortage of people with the relevant skills..most of the latter being found in industry. As a result almost all of the Public Private Product Development Partnerships are currently run by public health workers rather than people with industrial product development experience.

Another problem is that much of the funding comes with strings attached. These may be political, such as the previous US administrations failure to support HIV prevention activities if they endorsed the use of condoms, or organizational, such as the requirement to employ nationals or purchase goods originating from the donor country, or to use a foreign set of accounting and reporting standards.

In many developing countries a significant amount of the new money available is absorbed by the bureaucracy and while providing some benefit is often not being applied to its stated purpose – in others huge amounts are lost to corruption. A 2006 World bank report found that less than half the funds donated to countries in Sub Saharan Africa reach their intended target.

They leak away in payments to phantom employees, padded prices, siphoning of products to the black market etc. Ghana holds the unenviable record with some 80% of funds diverted from their original purpose.

The new global health initiatives have achieved some notable gains, several countries have increased the proportion of GDP spent on health, coverage with EPI vaccines, is increasing and deaths from measles have fallen. The provision of ARVs in Africa has not only had an impact on mortality but has enabled many infected HCWs remain in their posts. The number of people receiving directly observed therapy for TB and the number of families receiving insecticide impregnated bed nets has increased dramatically, but are these achievements sustainable, are they having an impact on the delivery of other services and are they focussed on the right targets?

Most of these programmes are externally planned, managed and funded and seem likely to collapse when donor support is declines as it probably will.

Collectively they are having an inadvertent impact on local manpower, by attracting many of the most competent people in the public sector to work for NGOs to help them negotiate a path through numerous local obstacles.

Typically NGOs offer a range of benefits and incentives that the public sector in developing countries is unable to match. These people get to work on interesting projects, in a stimulating environment, with superior resources and opportunities for additional training and travel. It’s a seductive mix and not surprisingly few return to their previous positions creating a serious brain drain.

For example a recent survey in Malawi found that more than half of all health administrations, two thirds of nurses and 85% of doctors trained between 2002-7 had been recruited by foreign NGO’s. Very few donors provide funding or arrange secondments to replace local staff absorbed by their programs.

As Jim mentioned on Monday, the issue is complicated by the emigration of doctors and nurses to fill better paid posts in the developed world. . In Ghana of 800 doctors trained in the last decade, 600 now practice overseas and in Zambia of the last 600 doctors trained only 40 remain in the country. The creation of disease specific programs, so called “stovepiping”, while satisfying the donors needs, may have unintended consequences.

A good example is seen in Haiti, which since 2002 has focussed on control of HIV, malaria and TB. Most of the AIDS funding has gone to a dedicated program which provides HIV testing and counselling, dedicated hospices and orphanages, AIDS education and ARV distribution sties. Because of the stigma associated with HIV this has created a cadre of Health Care Workers who work largely outside the existing system. Instead of the rising tide lifting all boats, while the use of anti retrovirals has increased steadily, and HIV infection rates have fallen – every other measurable health indictor in Haiti , including life expectancy has declined.

But perhaps the most pointed criticism of the current increased spend on global health, as mentioned earlier, is that much of it is aimed at the wrong targets..

Arguably we could use the money more effectively and have a greater impact on Global health and the MDGs if greater emphasis was placed on improved antenatal care, breast feeding, greater availability of antibiotics to treat pneumonia, and oral rehydration fluids to treat diarrhoea, that is harvesting some low hanging fruit.

Huge gains could be obtained by using the tools we have more effectively. For example, the basic architecture of the EPI was designed nearly 40 years ago, long before companies such as Fedex and Walmart had turned logistics into a science.

The Public health field has been slow to respond to these lessons and to involve individuals with the relevant skills. A new level of sophistication is needed to find ways of reaching previously inaccessible groups, forecast demand, maintain stock levels and avoid wastage. Pleasingly this has recently been recognized by the GF which is devoting some funds to innovative approaches and pilot studies.

If it was possible to bring greater order to a field, which because of the multiple agendas and sources of funding, is inherently chaotic, what should be done?

I think, as Lawrie Garret has suggested, the first thing to do is to get away from disease specific targets and focus on a limited number of outcomes which reflect the strength of the underlying health systems, like maternal survival and life expectancy which can be readily measured.

Within that framework countries should establish their own priorities and tackle problems which are likely to give them the greatest reward for their, or others, investment.

Thirdly it is critical to expand programs to train and retain HCWs and ensure that, in parallel, the developed world had plans to reduce its dependency of foreign personnel.

Finally we need to find ways to continue to fund programs to assist the poorest countries and develop exit strategies for those better able to care for themselves.

While these are important objectives, I can’t help think that they are second order issues and that, without a reduction in the rate of population growth and effective government and governance, our increased investment, is simply providing a bandaid solution and simply preventing the situation from deteriorating.

Footnotes

1 The Universal Declaration of Human Rights specifically states that ‘everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services’: Universal Declaration of Human Rights, UN Doc A/810 (10 December 1948) art 25(1) (emphasis added).

2 International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969) art 5(e)(iv).

3 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 24(1).

4 Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 993 UNTS 3 (entered into force 3 May 2008) art 25.

5 Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981) art 12(1).

6 Committee on Economic, Social and Cultural Rights, General Comment No 14: The Right to the Highest Attainable Standard of Health, UN Doc E/C.12/2000/4 (11 August 2000) [8].

7 United Nations Department of Economic and Social Affairs, Report of the International Conference on Population and Development, UN Doc A/CONF.171/13 (19 October 1994) [7.2]. This definition was confirmed in the 1995 United Nations Report of the Fourth World Conference on Women: United Nations Department for Policy Coordination and Sustainable Development, Report of the Fourth World Conference on Women, UN Doc A/CONF.177/20 (17 October 1995) [94].

8 Committee on the Elimination of Discrimination against Women, General Recommendation No 24: Women and Health (Article 12), 20th session, UN Doc A/54/38/Rev.1 (1999) [1].

9 For example, the Committee on Economic, Social and Cultural Rights issued a General Comment on the meaning of the right to health that interprets aspects of the right to health which relate to the health of infants and children as including the right to reproductive health. It states that

[t]he provision for the reduction of the stillbirth rate and of infant mortality and for the healthy development of the child” (art. 12.2 (a)) may be understood as requiring measures to improve child and maternal health, sexual and reproductive health services, including access to family planning, pre- and post-natal care, emergency obstetric services and access to information, as well as to resources necessary to act on that information.

See: Committee on Economic, Social and Cultural Rights, General Comment No 14: The Right to the Highest Attainable Standard of Health (Article 12), 22nd session, UN Doc E/C.12/2000/4 (11 August 2000) [14] (emphasis added, citations omitted).

10 Paul Hunt, Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, UN Doc E/CN.4/2003/58 (13 February 2003) [25].

11 For example, the religious and cultural context of a particular country may dictate that even though abortion is technically legal in certain circumstances, in practice it is extremely difficult to find a doctor who is willing and able to perform the abortion.

12 World Health Organization, Unsafe Abortion: Global and Regional Estimates of Incidence of Unsafe Abortion and Associated Mortality in 2003, World Health Organization (2007) 2 (emphasis added). See also David A Grimes et al, ‘Unsafe Abortion: The Preventable Pandemic’ (2006) 368 The Lancet 1908, 1908; Ina K Warriner, ‘Unsafe Abortion: An Overview of Priorities and Needs’ in Ina K Warriner and Iqbal H Shah (eds), Preventing Unsafe Abortion and its Consequences: Priorities for Research and Action (Guttmacher Institute, New York, 2006); Marge Berer, ‘National Laws and Unsafe Abortion: The Parameters of Change’ (2004) 12(24 Supplement) Reproductive Health Matters 1, 2.

13 David A Grimes et al, ‘Unsafe Abortion: The Preventable Pandemic’ (2006) 368 The Lancet 1908, 1908.

14 David A Grimes et al, ‘Unsafe Abortion: The Preventable Pandemic’ (2006) 368 The Lancet 1908, 1908, 1911.

15 World Health Organization, Unsafe Abortion: Global and Regional Estimates of Incidence of Unsafe Abortion and Associated Mortality in 2003, World Health Organization (2007) 5.

16 David A Grimes et al, ‘Unsafe Abortion: The Preventable Pandemic’ (2006) 368 The Lancet 1908, 1910.

17 Susan R Fawcus, ‘Maternal Mortality and Unsafe Abortion’ (2008) 22(3) Best Practice and Research Clinical Obstetrics and Genaecology 533, 533.

18 David A Grimes, ‘The Role of Medical Technology’ in Ina K Warriner and Iqbal H Shah (eds), Preventing Unsafe Abortion and its Consequences: Priorities for Research and Action (Guttmacher Institute, New York, 2006) 73, 84.

19 Susan R Fawcus, ‘Maternal Mortality and Unsafe Abortion’ (2008) 22(3) Best Practice and Research Clinical Obstetrics and Genaecology 533, 537.

20 Jo Wainer (ed) Lost: Illegal Abortion Stories (Melbourne University Press, Melbourne, 2006) 135-136.

21 Jennifer S Barber, William G Axinn and Arland Thornton, ‘Unwanted Childbearing and Mother-Child Relationships’ (1999) 40(3) Journal of Health and Social Behavior 231.

22 Human Rights Committee, Communication No 1153/2003, UN Doc CCPR/C/85/D/1153/2003 (22 November 2005).

23 The principle of non-discrimination applies to all rights enshrined in the ICESCR. For example, article 3 of the ICESCR requires States to ‘undertake to ensure the equal right of men and women to the enjoyment of all economic, social, and cultural rights set forth in the present Covenant.’ See also article 2(2) of the ICESCR in which the State parties undertake ‘to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind’: International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 999 UNTS 3 (entered into force 3 January 1976) arts 2(2), 3. Further, according to the United Nations independent expert on the right to health, ‘non-discrimination is among the most fundamental principles of international human rights law’ and ‘discrimination on grounds of gender, race, ethnicity and other social factors is a social determinant of health’: Paul Hunt, Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, UN Doc E/CN.4/2003/58 (13 February 2003) [20]. See also Paul Hunt, Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, UN Doc A/HRC/7/11 (31 January 2008) [42] for an additional statement of the application of the non-discrimination principle to the right to health. It should be noted that the Human Rights Committee has also stated that article 26 of the International Covenant on Civil and Political Rights not only prohibits discrimination with respect to the rights set out in that Covenant but also applies to other human rights (such as economic and social rights). See: Broeks v Netherlands (172/1984), UN Doc A/42/40 (1987).

24 For example, in his 2006 report the United Nations independent expert on the right to health focused on reproductive health, and reiterated the application of the non-discrimination principle to the right to health. He specifically stated that women are entitled to good quality reproductive health care that is available and accessible as part of the general right to health: Paul Hunt, Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, UN Doc A/61/338 (13 September 2006) [17, 28].

25 Committee on the Elimination of Discrimination against Women, General Recommendation No 19: Violence against Women, 11th session, UN Doc A/47/38 (1992) [6]; Committee on Economic, Social and Cultural Rights, General Comment No 14: The Right to the Highest Attainable Standard of Health, UN Doc E/C.12/2000/4 (11 August 2000) [21].

26 Reva Siegel, ‘Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection’ (1992) 44 Stanford Law Review 261.

27 127 S Ct 1610 (2007).

28 Gonzales v Carhart 127 S Ct 1610, 1641 (2007) (citations omitted). The full paragraph is: [a]t stake in cases challenging abortion restrictions is a woman’s “control over her [own] destiny.” …“There was a time, not so long ago,” when women were “regarded as the center of home and family life, with attendant special responsibilities that precluded full and independent legal status under the Constitution.” Those views, this Court made clear in Casey, “are no longer consistent with our understanding of the family, the individual, or the Constitution.” Women, it is now acknowledged, have the talent, capacity, and right “to participate equally in the economic and social life of the Nation.” Their ability to realize their full potential, the Court recognized, is intimately connected to “their ability to control their reproductive lives.” Thus, legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.