Co-authored by Catherine Glenn Foster
At the United Nations (UN)-backed Women Deliver conference in Washington DC last week, abortion activists announced the achievement of a new international human right to maternal health just three years after launching a campaign to establish it. Advocates said that the new right requires nations to liberalize abortion laws and create numerous new bureaucracies, procedures and programs.
In a paper entitled, “Preventing Maternal Mortality and Ensuring Safe Pregnancy,” the Center for Reproductive Rights (CRR) asserted, “[W]omen’s rights to life, health, and non-discrimination entitle them” to maternal health and that “governments must ensure women’s access to high-quality, appropriate reproductive health care, abolish discriminatory laws and social practices … and allow women to make autonomous decisions regarding their reproductive lives.” The paper said this includes “contraceptives, family planning counseling, sex education, and safe abortion services.” CRR and other groups have dozens of legal cases pending in Brazil, India, South Africa and elsewhere to enact the new right.
Paul Hunt, former UN Special Rapporteur for health, said that human rights are not just about judicial accountability, but also discriminatory budgets and policies that require “radical” social transformation to rectify. Harvard University fellow Alicia Yamin, a founder of the campaign to establish the right, said, “Human rights needs to be an insurrectionalist discourse,” that “subverts the pathologies of power.”
“Women and children are not dying because it is a medical problem,” Yamin said, but because “It is a social problem. It is because they are discriminated against.” Columbia University professor Lynne Freedman said “Human rights work begins by identifying the workings of power [and] working for rearrangements of power necessary for change using a different vision of human well-being.”
Yamin said activists could use “hard and soft law” such as an article in the International Convention on Economic, Social and Cultural Rights (ICESCR) that specifies using “the maximum extent of resources” to protect rights. University of Toronto law professor Rebecca Cook said activists could show how laws and policies “attack women’s moral capacity” by using the definition of discrimination in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
CEDAW proscribes laws and policies with the “‘effect or purpose’ of impairing or nullifying the recognition, enjoyment or exercise by women … of human rights and fundamental freedoms….” One legal expert told the Friday Fax that the U.S. Supreme Court has historically rejected this definition as too broad since it includes the effect, and not just the intent, of laws and policies. The United States is not party to ICESCR.
The basis for the announcement of a new right, according to experts like Yamin is a non-binding 2009 Human Rights Council (HRC) resolution stating, “preventable maternal mortality is a health, development and human rights challenge.” The non-binding resolution was promoted by the European Union and came after two years of intense lobbying on the part of abortion advocates.
Conservative legal experts have been dubious about claims to new rights in the past, arguing that it requires explicit negotiation in a binding treaty document, or a general and consistent customary practice of states out of a sense of legal obligation that develops over an extensive period of time.
