In the last few months women’s rights have been potentially endangered worldwide. The first attempt to limit women’s choices and the governance of their physical integrity is represented by Spain’s upcoming bill regarding abortions. If pushed through, this new legislative measure will only allow women to have abortions on criminal and medical grounds (such as imminent danger for the fetus or mother or in case of sexual assault). The law is currently under development and the Government is waiting for advisory opinions from the General Council of the Judiciary, the National Bioethics Committee and the Council of State. Equally shocking news comes from US that enacted the HR7 bill according to which abortions will no longer be covered under the health insurance scheme.
In light of these recent events, this article will analyze the CEDAW and its abortion-related content in an attempt to determine if the Convention imposes pro-choice obligations on States and if so, the extent of such obligations.
CEDAW: prochoice, prolife or elegantly silent?
Two relevant provisions must be examined in order to objectively react to this highly debated matter: article 12 of the Convention and the General Recommendation 24 of the Committee. First of all, article 12 is in my view incomplete and the wording is exceedingly insufficient. It only stipulates that States should provide women with health care irrespective of their gender and ensure their equal access to health services. Secondly, article 12 does not mention abortion but it does point out “nutrition during pregnancy and lactation’’. If it wasn’t for the subsequent General Recommendation, States wouldn’t identify what exactly is asked of them in order to promote womanly health. Fortunately enough, the Recommendation not only analyzes every facet of the right to health but it expressively mentions abortion in paragraph 31: ‘’when possible, legislation criminalizing abortion should be amended, in order to withdraw punitive measures imposed on women who undergo abortion’’.
It must be noted that the Committee’s wide interpretation was repeatedly criticized by States. Many reports estimate that the Committee is exceeding its mandate and the US has even used this argument to justify its non-ratification movement. Others claim that the interpretation is actually narrow and a more explicit mandate should be reflected in the Committee’s position.
The discourse regarding CEDAW’s position in relation to abortion is split between a vast majority that deem it abortion neutral (US- the Clinton administration, Burkina Faso, Colombia, Ireland…etc) and those who uphold the existence of a pro-choice obligation (usually academics and NGOs rather than States). Personally, I consider the Convention to be soundless regarding this issue and the fact that the Recommendation stipulates “when possible […]” represents a clear encouragement for States to act arbitrarily. It is not specified whether the possibility reflects economical, legislative or social barriers. Thus, States can easily claim that decriminalizing abortion is impossible.
Women in conflict to get preferential treatment: The situation is different for women in situations of conflict. Recommendation 30 issued in late 2013 stipulates that forced abortions violate women’s rights “to decide freely and responsibly on the number and spacing of their children’’. My first reaction was to applaud the Committee for ensuring that women who are vulnerable and exposed to sexual violence are effectively protected. On second thought, I inevitably asked myself why women in peacetime can’t equally benefit from the Convention.
Moreover, given the non-authoritative nature of Recommendations, we will probably see slow if not inexistent progress in the matter. However, it has been stressed by various sources that the Recommendation shows a change of heart of the UN regarding abortion and that the Committee itself is slowly shifting from a traditionalist view to a neoteric approach.
It remains unclear when and how will the Committee decide to step up and definitively advocate for safe and legal abortions. The fact that women’s choices depend on a State’s mood or political agenda is yet another sign of the fragility of the human rights system. Every year, approximately 50.000 women die from complications of unsafe abortions. It is thus immediately necessary for the international community to come together and protect women from these unsafe practices. It is paramount to inhibit social taboos concerning reproductive health rights by enacting an expressive and unquestionable international instrument that will allow women to dictate their choices and values and design their own freedom.