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Alyne da Silva Pimentel Teixeira died of postpartum hemorrhage (PPH) following the stillbirth of a 27-week-old fetus on November 16, 2002 in Rio de Janeiro, Brazil. Her death led in 2011 to the first decision of an international treaty body holding a government accountable for a preventable maternal death. The decision, Alyne da Silva Pimentel Teixeira (deceased) v. Brazil, was given by the Committee on the Elimination of Discrimination against Women (the Committee), established to monitor compliance by member states with the UN Convention on the Elimination of All Forms of Discrimination against Women (the Convention). The decision upheld a complaint, filed in 2007 against the state and government of Brazil, finding discrimination in the field of health care for Alyne’s avoidable maternal death, in breach of the Women’s Convention.
In 2006, the Constitutional Court of Colombia declared unconstitutional a statute criminalizing abortion under all circumstances. The Court ruled that abortion should be legally permitted when:
the continuation of pregnancy presents a risk to the life or physical or mental health of the woman;
there are serious malformations that make the fetus nonviable; or
the pregnancy is the result of a criminal act of rape, incest, unwanted artificial insemination or unwanted implantation of a fertilized ovum.
The Court held that banning abortion to protect fetal interests in these cases would violate women's fundamental rights, because criminalization under such circumstances places a disproportionate burden on women's exercise of human rights protected by the 1991 Colombian Constitution and by international human rights law.
This paper analyzes how the Court protected the rights of pregnant women in the abortion context by incorporating regional and international human rights law within its judicial review of the abortion legislation, giving constitutional status to human rights treaties ratified by Colombia. It also describes the reasoning of the Court regarding the status of the unborn under Colombian and international law, the way the Court balanced the constitutionally required protection of the unborn with the rights of women, and the borrowings the Court made of comparative law and jurisprudence. It explains how the Court enriched the meaning of the dignity of women by interpreting constitutional provisions in light of international human rights sources with a feminist perspective, and laid a foundation for protecting the reproductive rights of women in countries that are parties to the treaties on which the Court relies.
In the Brief for the United States as Amicus Curiae supporting the Attorney General of Missouri in the Webster case, the Department of Justice invoked a favorable image of European legislative responses to the practice of abortion in order to argue the appropriateness of locating legislative control at the state level, as opposed to the level of federal law. It was further claimed that it was necessary for the Court to set aside its 1973 decision in Roe v. Wade in order for legislation in the U.S. to be consistent with the laws of other countries with which the U.S. “shares a common cultural tradition.”
The foundation on which these arguments were based is fundamentally flawed. The Department's brief omitted reference to the setting of Western European national legislation within the framework of international law , and in particular of the European Convention on Human Rights and Fundamental Freedoms.
The problem of abortion is not primarily a problem of law. The law clearly addresses the social practice of abortion, it influences the means of practice and may, at its best, resolve the social consequences of abortion, but the problem of abortion is located in social experience and prevailing social philosophies, rather than in statute books and judicial decisions. Abortion lies at the heart of a number of concerns of particular sensitivity, but it can also have a severe medical and personal impact.