The Gender Injustice of Abortion Laws

This commentary is a response to Katarzyna Sękowska-Kozłowska’s article on the treatment of criminal abortion laws as a form of sex discrimination under international human rights law through a study of the communications, Mellet v. Ireland and Whelan v. Ireland. The commentary offers a reading of these communications, and specifically the sex discrimination analysis premised on inequalities of treatment among women, as an engagement with the structural discrimination that characterises abortion laws, and asa radical vision for gender justice under international human rights law

In the Back Alleys of Health Care: Abortion, Equality and Community in Canada

The decriminalization of abortion in Canada ensured neither its availability nor accessibility as an integrated and publicly funded health service. While Canadian women are increasingly referred to or seek abortion services from single-purpose clinics, their exclusion from public health insurance often render these services inaccessible. This article considers denied funding for clinic abortion services from the perspective of the Canadian constitutional guarantee of sex equality. The article focuses on the 2004 Court of Queen\u27s Bench\u27s judgment in Jane Doe I v. Manitoba, which framed denied public funding for clinic abortion services as a violation of women\u27s equality rights under the Canadian Charter of Rights and Freedoms. Access to abortion services historically has been protected in Canadian law as a security of the person or liberty interest. This judgment is thus a significant development in the jurisprudence. Nevertheless, the Court\u27s equality analysis remains tethered to liberty-based values of autonomy, freedom, and self-determination. Part I of the article evaluates this liberty-based approach and considers why it may be especially ill-suited to the abortion funding context. In an effort to offer an alternative, Part II develops a model of equality analysis emphasizing values of self-respect and self-worth attained through relationships with others and by the recognition of others. This model of equality, premised on the social dignity of equal community membership, is developed with reference to the work of U.S. constitutional scholar Kenneth Karst and his principle of equal citizenship. Part III returns to the equality analysis in Jane Doe I to evaluate denied funding for clinic services according to the proposed community-membership model of equality. The exclusion of clinic abortion services, and by extension the women who require them, from a fundamental institution of community membership - a universally accessible and comprehensive health system - is demonstrated to perpetuate and promote the view that women are less worthy of concern, respect, and consideration as members of Canadian society

A Constitutional Future for Abortion Rights in Canada

In 2015, Abortion Access Now PEI legally challenged the restrictive abortion policy of Prince Edward Island. This article studies their challenge as a unique case in the building of a constitutional future for abortion rights in Canada. The article tracks how AAN PEI drew on classic rule of law arguments of transparency, accountability, and constitutional justice to shape and claim abortion rights as democratic rights, an entitlement to fully and equally participate in and benefit from the health care system as a fundamental social institution of the state

An Abortion Law Preformed

This article engages the transcribed testimony of Carolyn Egan and Janice Patricia Tripp in R v Morgentaler as a critical moment of lawmaking. There is something revealing, often amusing, and sometimes devastating, when a lawyer asks a non-lawyer, in this case, a social worker: “What is the law?” The article focuses on those moments in their testimony when Egan and Tripp answered questions about the 1969 abortion law that made the law itself, its rules and procedures, the subject of examination, and in doing so, constructed new meanings of the law and social action in relation to it in the tradition of critical legal pluralism and its prefigurative politics. Egan and Tripp testified to the power of the 1969 abortion law in the everyday lives of people and used this experience to challenge the idea of law itself and the institutions of its making

In the Name of Public Health: Misoprostol and the New Criminalization of Abortion in Brazil

This article explores the criminal regulation of misoprostol as a controlled drug in Brazil as a new form of abortion criminalization. A qualitative analysis of Brazilian case law shows how the courts use a public health rhetoric of unsafe abortion to criminalize the distribution of misoprostol in the informal sector. Rather than an invention of the local bench, this judicial rhetoric reflects global public health discourse and policy on unsafe abortion and the double life of misoprostol as both an essential medicine and a controlled drug. In contrast to previous studies, the article shows that abortion criminalization is not the cause, but rather the consequence of misoprostol’s double life. In the last section, it draws on an outlier judgment of the case law to chart a regulatory future for misoprostol and its supply in the informal sector as a site of harm reduction and safe abortion in public health policy

Abortion Rights Beyond the Medico-Legal Paradigm

Abortion rights in international law have historically been framed within a medico-legal paradigm, the belief that regulated systems of legal and medical control guarantee safe abortion. However, a growing worldwide practice of self-managed abortion (SMA) supported by feminist activism challenges key precepts of this paradigm. SMA activism has shown that more than medical service delivery matters to safe abortion and has called into question the legal regulation of abortion beyond criminal prohibitions. This article explores how abortion rights have begun to depart from the medico-legal paradigm and to support the novel norms and practices of SMA activism in a transformation of the abortion field. Abortion rights as reimagined in SMA activism increasingly feature in human rights agendas related to structural violence and inequality, collective organising and international solidarity, and democratic engagement

The Boundaries of Medicare: Tensions in the Dual Role of Ontario\u27s Physician Services Review Committee

In this research, we describe and analyse the Physician Services Committee (PSC) in Ontario, focusing on its role in determining what physician services are publicly funded and what services are de-listed (i.e. no longer eligible for public funding). We explain how the PSC\u27s role in determining the boundaries of Medicare is in tension with its role as a medium for labour relations between the government and the medical profession. We suggest that while the values of privacy, secrecy and a lack of transparency may enhance the PSC\u27s fulfillment of its labour relations mandate, they impede the Committee\u27s successful fulfillment of its health policy mandate. The remainder of this paper is dedicated to a detailed investigation of the PSC\u27s process of determining candidate services for de-listing, and the principles upon which it bases its decisions. Particular attention is paid to the principles of open participation, transparency, accountability, and the degree to which these principles are incorporated into the PSC\u27s decision-making

International Human Rights and the Mistreatment of Women During Childbirth

International human rights bodies have played a critical role in codifying, setting standards, and monitoring human rights violations in the context of sexual and reproductive health and rights. In recent years, these institutions have developed and applied human rights standards in the more particular context of maternal mortality and morbidity, and have increasingly recognized a critical human rights issue in the provision and experience of care during and after pregnancy, including during childbirth. However, the international human rights standards on mistreatment during facility-based childbirth remain, in an early stage of development, focused largely on a discrete subset of experiences, such as forced sterilization and lack of access to emergency obstetric care. As a consequence, the range of mistreatment that women may experience has not been adequately addressed or analyzed under international human rights law. Identifying human rights norms and standards related to the full range of documented mistreatment is thus a first step towards addressing violations of human rights during facility-based childbirth, ensuring respectful and humane treatment, and developing a program of work to improve the overall quality of maternal care. This article reviews international human rights standards related to the mistreatment of women during childbirth in facility settings under regional and international human rights law and lays out an agenda for further research and action

SARS Surveillance during Emergency Public Health Response, United States, March–July 2003

In response to the emergence of severe acute respiratory syndrome (SARS), the United States established national surveillance using a sensitive case definition incorporating clinical, epidemiologic, and laboratory criteria. Of 1,460 unexplained respiratory illnesses reported by state and local health departments to the Centers for Disease Control and Prevention from March 17 to July 30, 2003, a total of 398 (27%) met clinical and epidemiologic SARS case criteria. Of these, 72 (18%) were probable cases with radiographic evidence of pneumonia. Eight (2%) were laboratory-confirmed SARS-coronavirus (SARS-CoV) infections, 206 (52%) were SARS-CoV negative, and 184 (46%) had undetermined SARS-CoV status because of missing convalescent-phase serum specimens. Thirty-one percent (124/398) of case-patients were hospitalized; none died. Travel was the most common epidemiologic link (329/398, 83%), and mainland China was the affected area most commonly visited. One case of possible household transmission was reported, and no laboratory-confirmed infections occurred among healthcare workers. Successes and limitations of this emergency surveillance can guide preparations for future outbreaks of SARS or respiratory diseases of unknown etiology

Procedural Abortion Rights: Ireland and the European Court of Human Rights

The Irish Protection of Life During Pregnancy Act seeks to clarify the legal ground for abortion in cases of risk to life, and to create procedures to regulate women’s access to services under it. This article explores the new law as the outcome of an international human rights litigation strategy premised on state duties to implement abortion laws through clear standards and procedural safeguards. It focuses specifically on the Irish law reform and the jurisprudence of the European Court of Human Rights, including A. B. and C. v. Ireland (2010). The article examines how procedural rights at the international level can engender domestic law reform that limits or expands women’s access to lawful abortion services, serving conservative or progressive ends