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Cases and controversies: Rebecca Cook outlines Abortion Law in Transnational Perspective

Abortion Law in Transnational PerspectiveToday we have a guest post from Rebecca J. Cook, co-editor of Abortion Law in Transnational Perspective: Cases and Controversies. Read her Author Q&A here. In this post, Cook outlines the topics taken on by the scholars that contributed to the volume, listing the authors and chapter names in parentheses. Click the links to view the full table of contents.

In a wide-ranging new volume, Abortion Law in Transnational Perspective: Cases and Controversies, legal scholars from different parts of the world analyze recent cases and controversies with a view toward understanding how ideas are changing the way abortion is legally advocated, regulated, and adjudicated. Insights into how ideas are changing can be found in the reasoning used in public debates and court decisions (Rebecca Cook, Joanna Erdman and Bernard Dickens, “Introduction”). Frames of reasoning might be evident in the type of law that is chosen to regulate reproductive health services, whether it is criminal law, health law, or constitutional and human rights law. For example, where abortion services continue to be regulated as a matter of crime and punishment, the criminal law has a stigmatizing effect on both the providers and seekers of such services, spoiling their identity and dignity (Rebecca Cook, “Stigmatized Meanings of Criminal Abortion Law”).

In contrast to a criminal law approach are medical frames of reasoning. Medical frames have helped to legitimize reproductive health services as necessary medical services and have contributed to the improvement of access to abortion services. However, the conceptualization of abortion solely as a medical matter might obstruct the understanding of abortion as a women’s rights issue (Sally Sheldon, “The Medical Framework for Early Medical Abortion in the U.K.: How Can a State Control Swallowing?”). Within the constitutional and human rights framework, how courts balance various competing rights through, for example, the analytical framework of proportionality, can be important (Verónica Undurraga, “Proportionality in the Constitutional Review of Abortion Law”; Adriana Lamačková, “Women’s Rights in the Abortion Decisions of the Slovak Constitutional Court").

The power to define the content and meaning of a particular right also can be decisive. The meaning of a right is often restricted through the co-option of secular discourse of human rights to advance Catholic theological reasoning (Julieta Lemaitre, “Catholic Constitutionalism on Sex, Women, and the Beginning of Life”). Another example is defining the meaning of the right of conscience. The right to act lawfully according to one’s individual conscience is often framed as if it were the right only of those who conscientiously object to reproductive rights (Bernard Dickens, “The Right to Conscience”). The rights to freedom of conscience of women seeking reproductive health services and of practitioners committed to providing reproductive health services are ignored in ways that give opponents a monopoly on the definition of the right, and a self-issued license to deny women necessary health services. Cases concerning the termination of anencephalic pregnancy, a fetal condition that is incompatible with life outside the womb, have given rise to new insights into the meaning of the right to life and the right to be free from inhuman and degrading treatment through the degrading denial of terminations (Roberto Barroso, “Bringing Abortion into the Brazilian Public Debate: Legal Strategies for anencephalic Pregnancies”).

Understanding the nature of justifications for attacks on reproductive rights is important. For example, the use of constitutional provisions protecting the right to life is often justified to protect prenatal life in ways that marginalize and subordinate pregnant women, often enabling a draconian use of criminal law (Alejandro Madrazo, “Narratives of Prenatal Personhood in Abortion Law”). Attacks on reproductive rights might be rationalized as a way of protecting women. Such justifications can have pernicious effects because they reinforce constructions of women—or certain subgroups of women such as adolescent girls (Lisa Kelly, “Reckoning with Narratives of Innocent Suffering in Transnational Abortion Litigation”)—as vulnerable dependents, and not as actual or potential autonomous agents.

The frames of judicial reasoning that are used to protect reproductive rights might also be a basis for perverse infringements. Access to lawful abortion is often facilitated through procedural rights. Courts may require governments to issue guidelines clarifying the conditions under which women can gain access to lawful abortion, and to provide a right of appeal against a denial within a specified time frame. While such court decisions are important in facilitating access to abortion for specific legal exceptions to the criminal prohibition (Charles Ngwena, “Reforming African Abortion Laws and Practice: The Place of Transparency”), it has been asked whether such procedural approaches actually help or hinder the achievement of broader substantive rights to abortion in the long term (Joanna Erdman, “The Procedural Turn: Abortion at the European Court of Human Rights”). It has been shown, for instance, that conservative opponents can undermine procedural approaches that provide guidance clarifying the conditions under which women can access lawful abortions by the application of restrictive informal rules (Paola Bergallo, “The Struggle against Informal Rules on Abortion in Argentina”).

Some explain that social movements have led courts to acknowledge, accommodate, and even respect women’s agency in abortion through their respective constitutions (Reva Siegel, “The Constitutionalization of Abortion”). Where courts have acknowledged women’s agency in rights-affirming decisions (Melissa Upreti, “Toward Transformative Equality Nepal: The Lakshmi Dhikta Decision”; Ruth Rubio-Marin, Abortion in Portugal: New Trends in European Constitutionalism”), it is important to determine whether such decisions have resulted in the actual delivery of services (Rachel Rebouche, “A Functionalist Approach to Comparative Abortion Law”).

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Rebecca J. Cook is Professor of Law Emerita, Faculty of Law, and Co-Director, International Reproductive and Sexual Health Law Program, at University of Toronto. Abortion Law in Transnational Perspective: Cases and Controversies is available now.