Colombia’s Abortion Decision: Abortion as a Matter of Human Rights

Andrea Lynch

In May 2006, Colombia's Constitutional Court handed down a historic decision, voting 5-3 to decriminalize abortion in cases where a pregnant woman's life or health was in danger, in cases where the pregnancy was a result of rape or incest, and in cases of severe fetal malformation. The decision, which came in response to a case brought by Colombian lawyer Monica Roa, was a watershed for Colombia—one of the few countries in the world where abortion had been illegal under any circumstances up until then, despite the fact that between 350,000 and 400,000 Colombian women still sought clandestine abortions every year.

First, it grounded the decision in the norms established by a number of international and regional human rights instruments to which Colombia (among others) is accountable. And second, it placed women's human rights, with a particular emphasis on their sexual and reproductive rights, at the center of its justification for decriminalizing abortion. Which makes it, like, 80 times more progressive than Roe v. Wade, by the way. Women's Link Worldwide, the organization that supported Roa's case, has recently translated the most groundbreaking excerpts of the Court's 600-page decision into English, and posted the document on their website together with an excellent foreword by Rebecca J. Cook, a feminist and human rights scholar at the University of Toronto. Highlights follow.

In May 2006, Colombia's Constitutional Court handed down a historic decision, voting 5-3 to decriminalize abortion in cases where a pregnant woman's life or health was in danger, in cases where the pregnancy was a result of rape or incest, and in cases of severe fetal malformation. The decision, which came in response to a case brought by Colombian lawyer Monica Roa, was a watershed for Colombia—one of the few countries in the world where abortion had been illegal under any circumstances up until then, despite the fact that between 350,000 and 400,000 Colombian women still sought clandestine abortions every year.

First, it grounded the decision in the norms established by a number of international and regional human rights instruments to which Colombia (among others) is accountable. And second, it placed women's human rights, with a particular emphasis on their sexual and reproductive rights, at the center of its justification for decriminalizing abortion. Which makes it, like, 80 times more progressive than Roe v. Wade, by the way. Women's Link Worldwide, the organization that supported Roa's case, has recently translated the most groundbreaking excerpts of the Court's 600-page decision into English, and posted the document on their website together with an excellent foreword by Rebecca J. Cook, a feminist and human rights scholar at the University of Toronto. Highlights follow.

1. The Court's decision recognizes the value of life, but makes an essential distinction between the "claimed legal right to life" (which belongs only to born human beings) and the "value of life" (which applies to prenatal, potential life). To wit:

"Life" and "the right to life" are different phenomena. Human life passes through various stages and manifests in various forms, which are entitled to different forms of legal protection. Even though the legal system protects the fetus, it does not grant it the same level or degree of protection it grants a human person.

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So, for example, a law that prioritized the value of prenatal life over a pregnant woman's right to life (like, say, Nicaragua's new law banning therapeutic abortion), would be…what's the phrase…totally unconstitutional? (Nicaraguan and North Dakotan legislators, please proceed directly to Section 10.1: The unconstitutionality of a total prohibition of abortion.)

2. The Court's decision draws on the following hard-won, widely supported international and regional instruments: the International Conference on Population and Development Programme of Action, the Fourth World Conference on Women Platform for Action, the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, ratified by 185 countries but still unratified by the United States), the Convention on the Rights of the Child (CRC, ratified by every UN member state but Somalia and the United States), the American Convention on Human Rights, and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women.

3. The Court's decision specifically highlights the fact that pregnancy is often used as a pretext for curtailing or suspending women's human rights, a practice that flagrantly violates:

  • The right to dignity, liberty and free development of the individual person,
  • The right to health, life, bodily integrity and reproductive autonomy, and
  • The right to equality with men.

The decision also notes that criminalizing health care that only women need, such as all abortion services, is a violation of the right to sexual nondiscrimination under CEDAW. High rates of maternal mortality are also evidence of disrespect for women's human rights, since they indicate a lack of commitment to ensuring that women don't regularly wind up dead just because they're women. Additionally, since women's right to abortion is grounded in their human rights, appointing third parties (such as spouses, partners, and parents) to mediate that decision is inappropriate (did you hear that, more than half of U.S. states and Samuel Alito?) And finally, since denying women access to safe abortion amounts to a violation of their human rights, doctors have an ethical and professional obligation to ensure that women aren't denied abortions over matter s of individual conscience. So if you as a doctor can't bring yourself to perform a safe procedure, you as a doctor are obligated to ensure that someone else will. Ain't human rights grand?

4. Finally, instead of casting abortion as a tragic-but-I-guess-under-certain-circumstances-necessary evil, the Court's decision recognizes it as a fundamental part of women's sexual and reproductive rights, which are central to gender equality, human dignity, social justice, and democracy. Listen to this:

To conclude, women's sexual and reproductive rights have finally been recognized as human rights, and, as such, they have become part of constitutional rights, which are the fundamental basis of all democratic states. Sexual and reproductive rights also emerge from the recognition that equality in general, gender equality in particular, and the emancipation of women and girls are essential to society. Protecting sexual and reproductive rights is a direct path to promoting the dignity of all human beings and a step forward in humanity's advancement towards social justice.

Right on. Read the complete English highlights here (PDF). You can also download the full decision (all 600 pages of it) in Spanish on the Women's Link Worldwide website. Flights to Colombia can be booked here.

News Abortion

Anti-Choice Leader to Remove Himself From Medical Board Case in Ohio

Michelle D. Anderson

In a letter to the State of Ohio Medical Board, representatives from nine groups shared comments made by Gonidakis and said he lacked the objectivity required to remain a member of the medical board. The letter’s undersigned said the board should take whatever steps necessary to force Gonidakis’ resignation if he failed to resign.

Anti-choice leader Mike Gonidakis said Monday that he would remove himself from deciding a complaint against a local abortion provider after several groups asked that he resign as president of the State of Ohio Medical Board.

The Associated Press first reported news of Gonidakis’ decision, which came after several pro-choice groups said he should step down from the medical board because he had a conflict of interest in the pending complaint.

The complaint, filed by Dayton Right to Life on August 3, alleged that three abortion providers working at Women’s Med Center in Dayton violated state law and forced an abortion on a patient that was incapable of withdrawing her consent due to a drug overdose.

Ohio Right to Life issued a news release the same day Dayton Right to Life filed its complaint, featuring a quotation from its executive director saying that local pro-choice advocates forfeit “whatever tinge of credibility” it had if it refused to condemn what allegedly happened at Women’s Med Center.

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Gonidakis, the president of Ohio Right to Life, had then forwarded a copy of the news release to ProgressOhio Executive Director Sandy Theis with a note saying, “Sandy…. Will you finally repudiate the industry for which you so proudly support? So much for ‘women’s health’. So sad.”

On Friday, ProgressOhio, along with eight other groupsDoctors for Health Care Solutions, Common Cause Ohio, the Ohio National Organization for Women, Innovation Ohio, the Ohio House Democratic Women’s Caucus, the National Council of Jewish Women, Democratic Voices of Ohio, and Ohio Voice—responded to Gonidakis’ public and private commentary by writing a letter to the medical board asking that he resign.

In the letter, representatives from those groups shared comments made by Gonidakis and said he lacked the objectivity required to remain a member of the medical board. The letter’s undersigned said the board should take whatever steps necessary to force Gonidakis’ resignation if he failed to resign.

Contacted for comment, the medical board did not respond by press time.

The Ohio Medical Board protects the public by licensing and regulating physicians and other health-care professionals in part by reviewing complaints such as the one filed by Dayton Right to Life.

The decision-making body includes three non-physician consumer members and nine physicians who serve five-year terms when fully staffed. Currently, 11 citizens serve on the board.

Gonidakis, appointed in 2012 by Ohio Gov. John Kasich, is a consumer member of the board and lacks medical training.

Theis told Rewire in a telephone interview that the letter’s undersigned did not include groups like NARAL Pro-Choice and Planned Parenthood in its effort to highlight the conflict with Gonidakis.

“We wanted it to be about ethics” and not about abortion politics, Theis explained to Rewire.

Theis said Gonidakis had publicly condemned three licensed doctors from Women’s Med Center without engaging the providers or hearing the facts about the alleged incident.

“He put his point out there on Main Street having only heard the view of Dayton Right to Life,” Theis said. “In court, a judge who does something like that would have been thrown off the bench.”

Arthur Lavin, co-chairman of Doctors for Health Care Solutions, told the Associated Press the medical board should be free from politics.

Theis said ProgressOhio also exercised its right to file a complaint with the Ohio Ethics Commission to have Gonidakis removed because Theis had first-hand knowledge of his ethical wrongdoing.

The 29-page complaint, obtained by Rewire, details Gonidakis’ association with anti-choice groups and includes a copy of the email he sent to Theis.

Common Cause Ohio was the only group that co-signed the letter that is decidedly not pro-choice. A policy analyst from the nonpartisan organization told the Columbus Dispatch that Common Cause was not for or against abortion, but had signed the letter because a clear conflict of interest exists on the state’s medical board.

Commentary Contraception

Hillary Clinton Played a Critical Role in Making Emergency Contraception More Accessible

Susan Wood

Today, women are able to access emergency contraception, a safe, second-chance option for preventing unintended pregnancy in a timely manner without a prescription. Clinton helped make this happen, and I can tell the story from having watched it unfold.

In the midst of election-year talk and debates about political controversies, we often forget examples of candidates’ past leadership. But we must not overlook the ways in which Hillary Clinton demonstrated her commitment to women’s health before she became the Democratic presidential nominee. In early 2008, I wrote the following article for Rewirewhich has been lightly edited—from my perspective as a former official at the U.S. Food and Drug Administration (FDA) about the critical role that Clinton, then a senator, had played in making the emergency contraception method Plan B available over the counter. She demanded that reproductive health benefits and the best available science drive decisions at the FDA, not politics. She challenged the Bush administration and pushed the Democratic-controlled Senate to protect the FDA’s decision making from political interference in order to help women get access to EC.

Since that time, Plan B and other emergency contraception pills have become fully over the counter with no age or ID requirements. Despite all the controversy, women at risk of unintended pregnancy finally can get timely access to another method of contraception if they need it—such as in cases of condom failure or sexual assault. By 2010, according to National Center for Health Statistics data, 11 percent of all sexually experienced women ages 15 to 44 had ever used EC, compared with only 4 percent in 2002. Indeed, nearly one-quarter of all women ages 20 to 24 had used emergency contraception by 2010.

As I stated in 2008, “All those who benefited from this decision should know it may not have happened were it not for Hillary Clinton.”

Now, there are new emergency contraceptive pills (Ella) available by prescription, women have access to insurance coverage of contraception without cost-sharing, and there is progress in making some regular contraceptive pills available over the counter, without prescription. Yet extreme calls for defunding Planned Parenthood, the costs and lack of coverage of over-the-counter EC, and refusals by some pharmacies to stock emergency contraception clearly demonstrate that politicization of science and limits to our access to contraception remain a serious problem.

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Today, women are able to access emergency contraception, a safe, second chance option for preventing unintended pregnancy in a timely manner without a prescription. Sen. Hillary Clinton (D-NY) helped make this happen, and I can tell the story from having watched it unfold.

Although stories about reproductive health and politicization of science have made headlines recently, stories of how these problems are solved are less often told. On August 31, 2005 I resigned my position as assistant commissioner for women’s health at the Food and Drug Administration (FDA) because the agency was not allowed to make its decisions based on the science or in the best interests of the public’s health. While my resignation was widely covered by the media, it would have been a hollow gesture were there not leaders in Congress who stepped in and demanded more accountability from the FDA.

I have been working to improve health care for women and families in the United States for nearly 20 years. In 2000, I became the director of women’s health for the FDA. I was rather quietly doing my job when the debate began in 2003 over whether or not emergency contraception should be provided over the counter (OTC). As a scientist, I knew the facts showed that this medication, which can be used after a rape or other emergency situations, prevents an unwanted pregnancy. It does not cause an abortion, but can help prevent the need for one. But it only works if used within 72 hours, and sooner is even better. Since it is completely safe, and many women find it impossible to get a doctor’s appointment within two to three days, making emergency contraception available to women without a prescription was simply the right thing to do. As an FDA employee, I knew it should have been a routine approval within the agency.

Plan B emergency contraception is just like birth control pills—it is not the “abortion pill,” RU-486, and most people in the United States don’t think access to safe and effective contraception is controversial. Sadly, in Congress and in the White House, there are many people who do oppose birth control. And although this may surprise you, this false “controversy” not only has affected emergency contraception, but also caused the recent dramatic increase in the cost of birth control pills on college campuses, and limited family planning services across the country.  The reality is that having more options for contraception helps each of us make our own decisions in planning our families and preventing unwanted pregnancies. This is something we can all agree on.

Meanwhile, inside the walls of the FDA in 2003 and 2004, the Bush administration continued to throw roadblocks at efforts to approve emergency contraception over the counter. When this struggle became public, I was struck by the leadership that Hillary Clinton displayed. She used the tools of a U.S. senator and fought ardently to preserve the FDA’s independent scientific decision-making authority. Many other senators and congressmen agreed, but she was the one who took the lead, saying she simply wanted the FDA to be able to make decisions based on its public health mission and on the medical evidence.

When it became clear that FDA scientists would continue to be overruled for non-scientific reasons, I resigned in protest in late 2005. I was interviewed by news media for months and traveled around the country hoping that many would stand up and demand that FDA do its job properly. But, although it can help, all the media in the world can’t make Congress or a president do the right thing.

Sen. Clinton made the difference. The FDA suddenly announced it would approve emergency contraception for use without a prescription for women ages 18 and older—one day before FDA officials were to face a determined Sen. Clinton and her colleague Sen. Murray (D-WA) at a Senate hearing in 2006. No one was more surprised than I was. All those who benefited from this decision should know it may not have happened were it not for Hillary Clinton.

Sometimes these success stories get lost in the “horse-race stories” about political campaigns and the exposes of taxpayer-funded bridges to nowhere, and who said what to whom. This story of emergency contraception at the FDA is just one story of many. Sen. Clinton saw a problem that affected people’s lives. She then stood up to the challenge and worked to solve it.

The challenges we face in health care, our economy, global climate change, and issues of war and peace, need to be tackled with experience, skills and the commitment to using the best available science and evidence to make the best possible policy.  This will benefit us all.

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