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In the essay “A Christian in the Office of Constitutional Judge,” Ernst-Wolfgang Böckenförde addresses the dilemma of the Catholic judge who is sworn to apply a secular constitution yet who confesses to a “spirituality [that] knows no separation between the personal-private and the occupational spheres.” Böckenförde faced that dilemma in the 1993 abortion decision of the German Constitutional Court, which—with Böckenförde voting with the majority—held that abortion, while still punishable, allowed exceptions subject to certain conditions and counselling requirements. In this essay, the author situates that issue within the nature of judicial power and the ethical duties of the judge; the jurisdictional constraints that in other jurisdictions are available to avoid normative conflicts; and, finally, the challenges to judicial power when called upon to validate laws that go beyond the traditional punitive approach that merely prohibits and condemns, and that instead use welfare measures to actualize substantive norms taking into account social and historical realities.
INTRODUCTION: According to the Universal Declaration of Human Rights, everyone has the right to start a family. Under the Slovenian Infertility Treatment Act, everyone has the right to infertility treatment. A case of a patient in compulsory psychiatric treatment who participated in the process of IVF is presented.
CASE REPORT: A 40-year-old male with paranoid schizophrenia has already been hospitalized thirteen times. He often discontinued therapy, abused drugs and repeatedly exhibited violent behaviour. He already had a child from a past relationship he didn’t care of.
During the compulsory psychiatric treatment ordered by the court his mental status improved because his treatment with antipsychotics was supervised. He was in a relationship with a thirty-year-old partner. After unsuccessful attempts to become pregnant, they expressed a desire to conceive with biomedical assistance. Their application was considered and approved by the IVF Commission.
The procedure was successful but in the 13th week of pregnancy, the patient’s partner changed her mind due to his aggression. Because she was pregnant for more than 10 weeks, she had to submit a request for artificial termination to the Commission for abortion. Her request was granted and the pregnancy was terminated.
CONCLUSION: We live in time of endless possibilities. Despite of violent acts in the past and severe form of mental illness, the couple was granted IVF procedure. Everyone has the right to start a family; however, the question that has to be raised is the extent and reasonableness of involvement of medical profession and/or health care system.
Through the study of processes of countermovement and counter-reform in the field of abortion law in Mexico, Colombia, Brazil and Argentina over the past two decades, this chapter contributes to the discussion of backlash. In contrast to the judicial backlash thesis, it argues that the conservative reaction to abortion rights gains in Latin America cannot be explained as a direct or specific response to court decisions. Instead, the chapter presents an account of the development of countermovements and counter-reforms from a sociological perspective, by tracing them back to their interaction with political and legal opportunities. It identifies four types of counter-mobilization and counter-reform, based on the predominant and most successful strategies deployed by conservative actors against abortion rights in the case studies. Brazil is an emblematic case of conservative forces leveraging their legislative power via the formation of an inter-religious caucus at the national Congress. Mexico is a case of conservative pressure on subnational legislative processes. Colombia is a case of counter-legal mobilization by institutional activists anchored in national state structures. Finally, Argentina is the case in which counter-legal mobilization by civil society actors is most salient.
Since its creation in 1991, the Constitutional Court has played an important role in the Colombian context because of the broad political, economic, cultural, and social impact of its decisions. Several rulings, however, have triggered fierce criticism, putting into question the very legitimacy of the court. This chapter seeks to identify some of the factors that contribute to improve the legitimacy of high courts in the eyes of the country’s citizens, especially when they hand down controversial rulings. The chapter reports a vignette survey experiment on college students aimed at determining under what conditions citizens are more likely to provide diffuse support to the court or to what extent the court’s legitimacy depends on its performance (specific support). It hypothesizes that the legitimacy of the court is affected by the way in which its decisions are framed and justified, and finds that by wording and framing judicial rulings so that they convey a sense of principled reasoning and neutrality, the court helps translate specific support into diffuse support. Specifically, decisions based on scientific reasoning are more suitable to achieve that goal than other types of argument, including those based on legal norms and precedent.
Peru is often cited as an example of the internationalization of sexual and reproductive health and rights (SRHR) norms through supra-national litigation. Yet the impact to petitioners and other similarly situated women in Peruvian society has fallen far short of expectations. This chapter analyzes the actors behind progressive litigation in Peru, as well as their strategies and those of anti-abortion advocates. It shows that the professionalization, specialization, and detachment from grassroots movements of Peruvian feminist NGOs limit their capacity to build a broader network of political support and thus leverage the opportunities presented by successful litigation. By contrast, anti-abortion organizations are closely connected to grassroots organizations and have developed links to political organizations that allow them to deploy different strategies to stall efforts at expanding the right to abortion.
Some people oppose abortion on the grounds that fetuses have full moral status and thus a right to not be killed. We argue that special obligations that hold between mother and fetus also hold between parents and their children. We argue that if these special obligations necessitate the sacrifice of bodily autonomy in the case of abortion, then they also necessitate the sacrifice of bodily autonomy in the case of organ donation. If we accept the argument that it is obligatory to override a woman’s bodily autonomy for the sake of an unborn child’s survival, we must continue to override the bodily autonomy of parents to ensure the survival of their living children, until the parent no longer has a special obligation to their child to the same degree as their special obligation to the fetus. And if the life of a child is truly more important than the bodily autonomy of its parents, as must be the case to force women to carry unwanted pregnancies to term, this should remain true until such a time that their children are no longer considered their responsibility. Thus, parity of reasoning suggests that policies compelling the gestation of a fetus should be accompanied by policies compelling organ donation.
While women may have partly profited from the relatively recent rights-revolution in Latin America, the pregnant sisters among them have seemingly had to sit in the back of the bus or stay off altogether. Even modest progress on abortion entitlements has ostensibly come at a high price and slow pace, perchance thanks to the opposition of an alliance of age-old and up-and-coming religious congregations. On a positive note, though, the struggle for emancipation on this front seems to be moving forward.
Argued December 13, 1971.Reargued October 11, 1972.Decided January 22, 1973.
Justice MURRAY, concurring in the judgment.1
Since 1854, Texas, like many other American jurisdictions, has made it a crime to procure or attempt to procure an abortion, except with respect to “an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.” Tex. Penal Code Arts. 1191–94, 1196 (1961). Petitioner Jane Roe is an unmarried woman living in Dallas County, Texas. She alleges that, unmarried and pregnant, she sought to terminate her pregnancy by an abortion “performed by a competent, licensed physician, under safe, clinical conditions.” She was unable to secure a “legal” abortion in Texas because her life did not appear to be threatened by the continuation of her pregnancy. Lacking the resources to travel to another jurisdiction to secure a legal abortion under safe conditions, she was forced to continue her pregnancy.
In 2020 the Constitutional Tribunal of Poland held that the legislation that permitted abortion in cases of ‘fatal foetal anomaly’ was an unconstitutional interference with the right to life of the foetus. This article examines the recent decision, which prohibits abortion on the grounds of foetal anomaly, arguing that this decision is part of a broader scheme of Polish and transnational anti-abortion lawfare. This lawfare seeks both to (re)shape Polish law in an anti-abortion mould, and to take advantage of ‘gaps’ in European and international human rights law standards on abortion in order to claim rights compliance for law and policy that, in reality, restricts access to abortion in a manner that is incompatible with international human rights law.
In her important and well-known discussion “On the Moral and Legal Status of Abortion,” Mary Anne Warren regrets that “it is not possible to produce a satisfactory defense of a woman’s right to obtain an abortion without showing that the fetus is not a human being, in the morally relevant sense.” Unlike some more cautious philosophers, Warren thinks that we can definitively demonstrate that the fetus is not a person. In this paper, Warren’s argument is critically examined with a focus especially on the question of the foundation and the boundaries of the moral community. The fundamental thesis of the paper is that Warren’s approach is flawed for at least four reasons: (1) that being a person is not as obviously central to having full moral rights as Warren assumes, (2) that her exclusivism regarding moral status has dubious moral consequences independent of the abortion issue, (3) that it is not clear that a fetus is not a person, even on Warren’s own criteria, and (4) her criteria for personhood are themselves suspect.
The rise of patriarchal populist leaders over the past decade has fortified a long-standing campaign by conservative governments and advocacy groups to undermine women’s international human rights. Their efforts have increasingly focused on revising language as a means to challenge and weaken the international norms and organizations essential to women’s and girls’ equality and health. Through our textual analysis of UN records, governmental and nongovernmental publications, media coverage of disputes over language, and background interviews with activists, we identify and delineate the significance of this ‘norm spoiling’ strategy and trace its expansion during the Trump administration. We find that women’s rights challengers have pursued three distinct spoiling tactics based in language: controlling what women’s rights advocates can say through policies such as the United States’ ‘global gag rule’; altering the meaning of women’s rights by reframing them as an attack on other rights, such as religious freedom; and deleting foundational words, such as ‘gender’ and ‘sexual and reproductive health and rights’, from international agreements. The role of language in today’s patriarchal populism goes beyond populist leaders’ speeches, rallies and tweets. Their governments and allies systematically control, alter or delete words central to women’s rights.
This article addresses the conservative opposition to Iceland’s recently liberalised abortion laws. It argues that the opposition belongs to a long and rich history of conservatives willing to employ diverse measures to oppose progress. It further claims that the rhetoric employed has strong roots in the conservative tradition. This is demonstrated by the fact that the discourse in Iceland fits within Hirschman’s analytical framework, through which he analyses the main arguments of conservatives in the past. Icelandic conservatives argued that the proposed legislation would lead to the perverse effect that healthy foetuses would be aborted, that the legislation was futile, as the system was already well-functioning, and that it would jeopardise women by giving them the sole responsibility of deciding whether to terminate a pregnancy. The article sheds light on the underlying resistance to women’s bodily autonomy and right to self-determination. It also illustrates the importance of hierarchy and conservatism’s opposition to equality that is perceived to be taken too far. In light of global trends, where conservatives have tried to implement policies that are hostile towards women and women’s interests, it is important to explore national contexts where legislative success has been achieved despite global backlash.
Pregnancy and motherhood are among the most cherished experiences of many women, but for many others are involuntary or unwanted. In either case, they are ideologically loaded and politically consequential. We review various lines of research across the social sciences documenting some of the myths surrounding pregnancy and motherhood, and some of the taboos, restrictions, and discrimination to which pregnant women and mothers are subjected. Our review encompasses opposition to abortion, ‘financial abortion’, paternalistic control over women’s reproductive and lifestyle choices, the motherhood penalty, and antagonism to women’s autonomy in conservative, libertarian, and populist politics. Drawing on social psychological theory, we argue that these phenomena have obvious roots in male dominance but also in idealised, reverential attitudes to pregnancy and motherhood. We conclude that unchecked, they will prevent women from achieving economic and social parity with men.
Historically, access to contraception has been supported in a bipartisan way, best exemplified by consistent congressional funding of Title X—the only federal program specifically focused on providing affordable reproductive health care to American residents. However, in an era of partisan polarization, Title X has become a political and symbolic pawn, in part because of its connection to family planning organizations like Planned Parenthood. The conflicts around Title X highlight the effects of intertwining abortion politics and contraception policy, particularly as they relate to reproductive justice and gendered policy making. Family planning organizations like Planned Parenthood have responded to these battles by bowing out of the Title X network. To what extent have contraception deserts—places characterized by inequitable access to Title X—developed or expanded in response to policy changes related to contraception and reproductive health? What is the demographic makeup of these spaces of inequality? We leverage data from the Office of Population Affairs and the U.S. Census Bureau and use the integrated two-step floating catchment area method to illustrate the effects of a major change in the Title X network in 10 states. Our results reveal the widespread human ramifications of increasing constraints on family planning organizations as a result of quiet but insidious federal bureaucratic rule changes.
The first section of this Element reviews the history of LGBTQ rights in the region since the 1960s. The second section reviews explanations for the expansion of rights and setbacks, especially since the mid 2000s. Explanations are organized according to three themes: (1) the (re-)emergence of a religious cleavage; (2) the role of political institutions such as presidential leadership, political parties, federalism, courts, and transnational forces; and (3) the role of social movement strategies, and especially, unity. The last section compares the progress on LGBTQ rights (significant) with reproductive rights (insignificant). This Element concludes with an overview of the causes and possible future direction of the current backlash against LGBTQ rights.
This chapter shifts the focus of the book to non-reproductive desire in Palestine by comparatively examining relevant legal genealogies and coexisting layers of law on birth control, especially abortion, using a sweeping historical approach. The purpose is to undermine simplistic reliance on “religion” or “culture” to explain birth control ideologies, practices, and restrictions in historic and contemporary Palestine. This and the following chapter show that contraceptive use was licit and available and abortion, while often “technically illegal,” was always an important method of birth control for women in all communities. Most people made complex or simple anti-reproductive decisions best understood by accounting for personal situations and options, as well as material and structural conditions. The first section offers an abridged comparative overview of Muslim, Jewish, and Christian religious legal traditions on contraception, abortion, and sex. The second examines late Ottoman laws, policies, and priorities as they interacted with birth control practices. The third summarizes British law on birth control in Mandate Palestine. The final section discusses Israeli, Jordanian, and Palestinian National Authority abortion laws and policies applicable since 1948.
A 35-year-old gravida 3, para 2, last menstrual period 11 weeks ago, presents with an undesired pregnancy. Her prior pregnancies were uncomplicated vaginal deliveries. Her ultrasound confirms an 11-week intrauterine pregnancy. She has no relevant past medical or surgical history. She is currently taking prenatal vitamins and has no known drug allergies. After counseling, she chooses to proceed with a surgical abortion. After the administration of 200 mg of oral doxycycline, a suction dilation and curettage (D&C) is performed under moderate sedation. After the procedure, she has persistent heavy vaginal bleeding.
Chapter 5 delves into three additional cases of treaty interpretation by the human rights treaty bodies. The aim of the chapter is to probe the plausibility of the TLC concept across the human rights regime. I use insights and findings gathered from the drafting process of GC No. 15 to articulate a typology that distinguishes the treaty bodies by their likelihood to need external input when drafting GCs. Drawing on a combination of data – documents and existing scholarship, as well as interviews and personal observations – the case studies ultimately demonstrate the TLC concept to be applicable to drafting processes in other treaty bodies, even where their formation is less likely.
The Supreme Court and lower courts have not articulated a clear or consistent framework for First Amendment analysis of speech restrictions in health care and with respect to abortion. After offering a coherent doctrine for analysis of speech restrictions in the doctor-patient relationship, this piece demonstrates how potential legislation restricting patient access to information from reproductive testing intended to limit “undesirable” reproductive choices would violate the First Amendment.
This article discusses the existence of an international obligation for the State of Colombia to guarantee access to abortion services for women and girls who are victims of conflict-related sexual violence in the context of the Colombian armed conflict. By examining international humanitarian law rules from an international human rights law lens, it sets out the interdependence between both frameworks from reproductive health and human rights perspectives. Furthermore, the article provides considerations on the recognition and redress of these violations in the transitional justice scenario in Colombia.