Abortion Law in Transnational Perspective: Cases and Controversies

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

C h a p t e r 1 4 Reckoning with Narratives of Innocent Suffering in Transnational Abortion Litigation Lisa M. Kelly 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 . U.N. human rights treaty bodies have recognized state obstructions of lawful abortions as rights violations in each communication brought before them. In 2007, Mexico agreed to a landmark friendly settlement in a case before the Inter-American Commission on Human Rights.3 Two years later, the Commission granted precautionary measures against Colombia in a case related to the denial of a lawful abortion.4 Regional and international reproductive rights advocates celebrate these decisions as important victories for the advancement of abortion rights in international human rights law.5 As one advocate commented after the U.N. Human Rights Committee’s decision in K.L. v. Peru, “this ruling establishes that it is not enough to just grant a right on paper. Where abortion is legal it is governments’ duty to ensure that women have access to it.”6 These claims aim to ensure access to abortion under enumerated exceptions—such as to preserve the life of the woman or where pregnancy results from rape—in jurisdictions that generally prohibit abortion. Advocates understand these decisions as tools that can be deployed domestically to bridge the gap 304 Narratives and Social Meaning between abortion exceptions on the books and their realization on the ground. I offer in this chapter a more ambivalent reading of these cases, specifically of how they narrate abortion and sexuality. All but one of the five Latin American claims has involved rape, and all but one has concerned minors. I identify in these cases a recurring narrative that invokes sexual innocence, violation, and parental beneficence: an adolescent girl, figured often as a child, is raped, becomes pregnant, and with the support of her parents seeks to terminate the pregnancy. When she is denied access to a lawful abortion at a public hospital, the state emerges as the shameful antagonist. This narrative of innocent suffering is neither new nor limited to international law cases from Latin America. It repeats across time and place, weaving through landmark domestic abortion cases in interwar Britain,7 late twentieth-century Ireland,8 and contemporary Argentina,9 Colombia,10 and Nicaragua .11 A recent abortion decision by the European Court of Human Rights similarly concerned a Polish adolescent who was raped, became pregnant, and with the support of her mother sought access to a lawful abortion under the rape exception to Poland’s restrictive abortion law.12 Each of these “innocent suffering” cases arose in jurisdictions with restrictive abortion laws. Although these other cases figure in my analysis, this chapter focuses on contemporary international abortion rights litigation from Latin America. My reasons for this focus are twofold. First, narratives of innocent suffering are particularly prominent in contemporary abortion discourse in Latin America. A series of highly publicized cases involving the rape of minors has fueled debates in the region over restrictive abortion laws.13 Second, these are landmark cases in international human rights law. They mark the first time that U.N. human rights treaty bodies have addressed communications concerning abortion and the first time that abortion rights advocates have engaged the Inter-American system. Analyzing how these cases narrate abortion, and to what effect, is crucial for mapping the current state of international abortion jurisprudence, understanding reproductive rights advocates ’ strategies, and anticipating future legal developments. The innocent suffering narrative has received only cursory analysis in both the health and human rights literatures.14 In this chapter, I examine the power and peril of this narrative. The production of narrative is a complex phenomenon, and so I proceed cautiously in naming from where it emerged and by whom it is deployed. Regional and international reproductive rights advocates did not see themselves as seeking out abortion cases from Latin Narrating Innocent Suffering 305 America involving adolescent rape.15 Rather, like all cause lawyers, they pursued high-profile international cases that they believed they could win at law and in public opinion.16 They overwhelmingly advanced sympathetic cases that bracketed the...