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Abortion Law in Transnational Perspective

Cases and Controversies

Edited by Rebecca J. Cook, Joanna N. Erdman, and Bernard M. Dickens

Publication Year: 2014

It is increasingly implausible to speak of a purely domestic abortion law, as the legal debates around the world draw on precedents and influences of different national and regional contexts. While the United States and Western Europe may have been the vanguard of abortion law reform in the latter half of the twentieth century, Central and South America are proving to be laboratories of thought and innovation in the twenty-first century, as are particular countries in Africa and Asia. Abortion Law in Transnational Perspective offers a fresh look at significant transnational legal developments in recent years, examining key judicial decisions, constitutional texts, and regulatory reforms of abortion law in order to envision ways ahead.

The chapters investigate issues of access, rights, and justice, as well as social constructions of women, sexuality, and pregnancy, through different legal procedures and regimes. They address the promises and risks of using legal procedure to achieve reproductive justice from different national, regional, and international vantage points; how public and courtroom debates are framed within medical, religious, and human rights arguments; the meaning of different narratives that recur in abortion litigation and language; and how respect for women and prenatal life is expressed in various legal regimes. By exploring how legal actors advocate, regulate, and adjudicate the issue of abortion, this timely volume seeks to build on existing developments to bring about change of a larger order.

Contributors: Luis Roberto Barroso, Paola Bergallo, Rebecca J. Cook, Bernard M. Dickens, Joanna N. Erdman, Lisa M. Kelly, Adriana Lamačková, Julieta Lemaitre, Alejandro Madrazo, Charles G. Ngwena, Rachel Rebouché, Ruth Rubio-Marín, Sally Sheldon, Reva B. Siegel, Verónica Undurraga, Melissa Upreti.

Published by: University of Pennsylvania Press

Title Page, Series Page, Copyright Page

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Contents

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pp. v-viii

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Introduction

Rebecca J. Cook, Joanna N. Erdman, and Bernard M. Dickens

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pp. 1-10

The field of abortion law has survived several revolutions. Perhaps the greatest is the shift in focus to human rights. Although today it is exceedingly difficult to encounter any legal treatment of abortion without some comment on the rights involved, this was not always the case. Abortion law evolved “from placement within criminal or penal codes, to placement within health or...

Part I. Constitutional Values and Regulatory Regimes

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1. The Constitutionalization of Abortion

Reva B. Siegel

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pp. 13-35

Comparative constitutional study of abortion has generally focused on the decisions of a few influential jurisdictions, particularly Germany and the United States, where constitutional frameworks begin from dramatically divergent premises—protecting, respectively, unborn life and decisional autonomy.1 Some comparative studies are dynamic, observing that constitutional...

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2. Abortion in Portugal: New Trends in European Constitutionalism

Ruth Rubio-Marín

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pp. 36-55

Despite persistent variation, abortion legislation in Europe has experienced a common and gradual liberalizing trend. Most European countries exempt from punishment abortions performed to protect a woman’s health and life, in cases of serious fetal malformations, and where pregnancy results from rape (the commonly known therapeutic, eugenic, and ethical indications)...

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3. Women’s Rights in the Abortion Decision of the Slovak Constitutional Court

Adriana Lamačková

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pp. 56-76

In 2007, the Constitutional Court of the Slovak Republic held that abortion on a woman’s request is consistent with the constitutional obligation to protect unborn human life.1 The question of compatibility between a liberal abortion law and the right to life is not a new question in European constitutional law. After the end of state socialism, constitutional courts across Central...

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4. Proportionality in the Constitutional Review of Abortion Law

Verónica Undurraga

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pp. 77-97

Constitutional abortion judgments are often characterized by two primary traits. Courts tend to be categorical in their approach, grounding decisions in abstract moral and legal principles that are difficult to relate to women’s experiences. Courts are also prone to rely on rarely justified intuitive premises, especially the assumed effectiveness of criminalization in protecting unborn...

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5. A Functionalist Approach to Comparative Abortion Law

Rachel Rebouché

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pp. 98-118

This chapter critiques the present comparative methodology in abortion law and explores the possibilities of a new comparative approach. The current method relies on high-profile but dated constitutional abortion decisions from the United States and Germany. Courts continue to rely on these cases...

Part II. Procedural Justice and Liberal Access

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6. The Procedural Turn: Abortion at the European Court of Human Rights

Joanna N. Erdman

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pp. 121-142

A change can be seen in the international world of abortion advocacy, a movement from the reform of laws to their implementation, from legal rights to legal services. This is perhaps a consequence of success, an unmistakable global trend toward decriminalization. More likely, it is a consequence of that...

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7. The Struggle Against Informal Rules on Abortion in Argentina

Paola Bergallo

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pp. 143-165

Since 1921, Argentina’s National Criminal Code (NCC) has allowed abortion for specified indications. The text of NCC’s Article 86 reads: Abortion performed by a licensed medical practitioner with the consent of the pregnant woman is not punishable: 1. If done in order to prevent danger to the life or health of the mother and if this danger cannot be avoided by other means. 2. If the pregnancy is a result of a rape or indecent assault on an...

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8. Reforming African Abortion Laws and Practice: The Place of Transparency

Charles G. Ngwena

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pp. 166-186

Unsafe abortion that is linked to criminalization of abortion remains a major public health and human rights challenge in the African region. Reform of abortion law and practice in the African region can advance women’s reproductive rights partly by appropriating and domesticating persuasive jurisprudence on the requirement of transparency in abortion laws. With the global...

Part III. Framing and Claiming Rights

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9. The Medical Framework and Early Medical Abortion in the U.K.: How Can a State Control Swallowing?

Sally Sheldon

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pp. 189-209

In this chapter, I use early medical abortion (EMA), a routine procedure in many countries, as a focus for exploring the strengths and weaknesses of a highly medicalized framework for supporting access to good, safe, legal abortion services. I focus on the example of Britain, where EMA has been legally available under medical control for over two decades and where such a medical...

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10. The Right to Conscience

Bernard M. Dickens

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pp. 210-238

The aim of this chapter is to release “conscience” from capture by those who object to participation in induced abortion. It argues that, while opponents of induced abortion are properly entitled to invoke conscientious objections to participation, others are equally entitled conscientiously to participate in such lawful procedures, to advise patients about the option, and to refer patients...

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11. Catholic Constitutionalism on Sex, Women, and the Beginning of Life

Julieta Lemaitre

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pp. 239-257

The 1994 U.N. International Conference on Population and Development at Cairo set off a conservative Catholic backlash against feminist ideas on sexuality and reproduction. Catholic lawyers, inspired by Vatican instructions, vigorously argued in constitutional settings across the Americas against the liberalization of abortion laws, same-sex marriage, and embryonic cell research...

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12. Bringing Abortion into the Brazilian Public Debate: Legal Strategies for Anencephalic Pregnancy

Luís Roberto Barroso

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pp. 258-278

In October 2003, Gabriela de Oliveira Cordeiro, a poor nineteen-year- old living in the town of Teresópolis, in the outskirts of Rio de Janeiro, was four months into her second pregnancy when she learned that she was carrying an anencephalic fetus. She wanted to terminate the pregnancy. Over the next several months a grim and painful legal battle ensued to obtain a court order...

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13. Toward Transformative Equality in Nepal: The Lakshmi Dhikta Decision

Melissa Upreti

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pp. 279-300

In 2009, the Supreme Court of Nepal issued a monumental decision in the case of Lakshmi Dhikta v. Nepal recognizing abortion as a constitutionally protected fundamental right.1 The decision represents a dramatic shift from treating abortion as a matter of crime and punishment to one of reproductive choice and justice grounded in a vision of transformative equality...

Part IV. Narratives and Social Meaning

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14. Reckoning with Narratives of Innocent Suffering in Transnational Abortion Litigation

Lisa M. Kelly

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pp. 303-326

Over the past decade, reproductive rights advocates have pursued a series of lawful abortion access cases from Latin America before the United Nations and Inter-American human rights systems.1 Advocates drew in part on the decades-long history of abortion rights litigation in the European human rights system.2 The Latin American cases have met with resounding legal success...

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15. Narratives of Prenatal Personhood in Abortion Law

Alejandro Madrazo

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pp. 327-346

In August 2008 a majority of the Mexican Supreme Court declared the decriminalization of abortion constitutional.1 By December, state legislatures throughout the country had adopted constitutional amendments to extend personhood to prenatal life, granting it the constitutional protection of fundamental...

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16. Stigmatized Meanings of Criminal Abortion Law

Rebecca J. Cook

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pp. 347-370

The meaning of induced abortion is constructed and contested, in part, through how abortion laws are framed, enforced, and interpreted. The social meaning of abortion—and by implication the meaning ascribed to women who seek abortion and those persons who provide it—is historically and culturally contingent. Social meaning provides “a way to speak of the frameworks...

Table of Cases

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pp. 371-378

Table of Legislation, Treaties, and Other Relevant Instruments

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pp. 379-386

Notes

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pp. 387-456

Contributors

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Index

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pp. 459-470

Acknowledgments

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pp. 471-472


E-ISBN-13: 9780812209990
E-ISBN-10: 0812209990
Print-ISBN-13: 9780812246278

Page Count: 512
Publication Year: 2014

Series Title: Pennsylvania Studies in Human Rights