Slate Magazine, January 29, 2009
By Michelle Goldberg
In March 2007, the European Court of Human Rights ruled that Poland had to pay 25,000 euros to a woman who was prevented from having an abortion she needed to save her eyesight. When Alicja Tysiac, a severely nearsighted Polish mother of two, became pregnant for the third time in 2000, a series of ophthalmologists told her that she risked going blind should she bring another baby to term. But Tysiac couldn't get the authorization she needed to get around Poland's abortion restrictions. She had the baby and, as predicted, lost nearly all of her eyesight. But in winning her case before a European forum, she became part of a small cadre of women who are helping to forge a definition of abortion as a human right under international law.
The overseas battle over funding for family planning is a familiar one: In what has become a kind of ritual marking the arrival of a new party in the White House, Barack Obama last week lifted the ban on American aid to family-planning groups involved with abortion abroad. Little noticed in the United States is that abortion jurisprudence-the court cases that define rights and restrictions for the procedure-has increasingly gone global.
In the last four years, in addition to Tysiac's case, women and their lawyers have brought abortion actions before the U.N. Human Rights Committee and the Inter-American Commission on Human Rights, which investigates human rights violations in the Western hemisphere. Several times, women who've been denied abortions have won both compensation and an acknowledgment that their rights were violated. For feminists worldwide, this represents a great victory, since it elevates women's rights and safety above the often-sacrosanct principle of national sovereignty. Though back-alley abortions are largely a matter of history in the United States, botched terminations kill scores of women globally-nearly 70,000 annually, according to the World Health Organization. When governments don't respond, international courts can offer women another avenue of redress.
Yet as abortion rights go international, so does the anti-abortion backlash. The globalization of the abortion wars creates some of the same tensions-between universal human rights and community mores, between majority rule and the protection of individual liberty-as Roe v. Wade, on a larger scale. All over the world, in countries including Kenya, Poland, and Nicaragua, local anti-abortion movements (often working with American allies) rail against the meddling of powerful outsiders. In Poland, traditionalists who oppose abortion bemoan the loss of their country's Catholic values as it integrates into secular Europe. They speak about international human rights and the courts that enforce them with something of the frustrated anger that American conservatives sometimes direct at the federal government. "Abortion proponents cannot win elections on these issues, so they have to go through the least democratic bodies in the world, the United Nations, for instance, and the courts," says Austin Ruse, the president of the Catholic Family and Human Rights Institute, a pro-life organization active at the United Nations.
To be sure, no international court has ruled that countries must allow abortion on demand. These courts are, however, increasingly mandating that when countries restrict abortion, they allow a number of exceptions, grounding their findings in various human rights treaties. The cases date from 2005, when the U.N. Human Rights Committee ruled that Peru had violated the rights of a 17-year-old girl who was forced to carry to term an anencephalitic fetus, which was missing most of its forebrain and unable to survive outside the womb. The committee, which monitors countries' compliance with the International Covenant on Civil and Political Rights, ordered Peru to pay reparations and to establish a framework for women to access therapeutic abortions.
In 2006, in the settlement of a case before the Inter-American Commission on Human Rights, Mexico agreed to pay a 13-year-old rape victim who'd been prevented from terminating her pregnancy-and was by then a 19-year-old single mother-$40,000, plus a stipend for her son's education. A few months after that, Colombia's Supreme Court struck down that country's total abortion ban on the grounds that it violated both Colombia's Constitution and international law. "Sexual and reproductive rights of women have been finally recognized as human rights," said the court. "As such, they have entered the realm of constitutional law, which is the fundamental ground of all democratic states."
Such reasoning is making its way into legal documents worldwide. Recently, an African Union treaty became the first human rights covenant in the world specifically to include abortion rights. Abortion is highly restricted in most African countries; still, the treaty calls on state parties to "protect the reproductive rights of women by authorizing medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus." When Kenya's vice president spoke out in favor of ratifying the African Union's women's rights treaty, however, an op-ed headline in the Sunday Standard newspaper called the agreement a "Blatant Case of Neo-Colonialism."
More such clashes are on the horizon. A group of Irish women is challenging their country's abortion ban before the European Court of Human Rights. And in a case that's likely to get lots of attention, Nicaragua, which banned all abortion in 2006, may soon find itself before the Inter-American Commission on Human Rights. It was Sandinista leader Daniel Ortega, eager to return to power and hoping to co-opt his former foes in Nicaragua's Catholic Church, who championed the ban. Now, the same American conservatives who once backed the Contras insist that it's unfair for other countries to pressure the Sandinistas to change their ways.
For liberals, the globalization of abortion law presents other contradictions. These cases pit feminism and multiculturalism, both cherished values on the left, against each other. The struggle is over abortion, but it's also over something bigger. When women's rights and cultural freedom collide, who prevails, and who gets to decide?
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