When I visited Malta last November, I noted how the very restrictive legislation on abortion jeopardised women’s rights. I was also particularly struck by the lack of an open debate about this issue. It is, therefore, encouraging that some voices are now starting to challenge the taboo that still surrounds discussions on abortion. To increase the chances of this debate leading to positive change for all women, it is necessary that discussions be well informed and avoid misconceptions.
Some argue that access to abortion care is not a matter of women’s human rights. Others, in Malta and elsewhere, question whether this is a human right at all.
From a thorough analysis of human rights standards and jurisprudence applicable to Council of Europe Member States, it is clear to me that women’s human rights cannot be protected without ensuring their effective access to safe and legal abortion care.
While it is not mentioned as such in international and European legal standards, access to safe and legal abortion care represents an intrinsic part of States’ human rights obligations. Indeed, a multiplicity of human rights standards imposes requirements in the field of abortion care. Such standards can be found in the European Convention on Human Rights and the European Social Charter but also in other instruments, whether global or regional.
All these standards taken together require that States’ legislation and practice guarantee access to safe and legal abortion care.
One of these standards is the absolute prohibition of ill-treatment. In a series of judgments, the European Court of Human Rights ruled that Poland had violated this prohibition because it failed to ensure in practice women’s access to abortion services that were legal under domestic law.
In 2016 and 2017, the UN Human Rights Committee ruled on two cases concerning women who were not allowed to interrupt their pregnancy in Ireland after they discovered that the foetus they were carrying had a fatal impairment. In both cases, it held that the women had faced inhuman treatment and that Ireland was therefore obliged to reform its laws on abortion to establish effective, timely and accessible procedures for termination of pregnancy.
Access to safe and legal abortion care also forms an integral part of the right to health. In 2013 and 2016, the European Committee of Social Rights concluded that Italy had violated this right because “women seeking access to abortion services continue to face substantial difficulties in obtaining access to such services in practice, notwithstanding the provisions of the relevant legislation”.
Last year, the UN Committee on Economic, Social and Cultural Rights underscored that, under the right to health, States must guarantee women access to safe abortion services and quality post-abortion care to prevent unsafe abortions.
Women’s human rights cannot be protected without ensuring their effective access to safe and legal abortion care
In some cases, the right to life of the pregnant woman can also be at stake. Numerous international human rights bodies recognise that barriers in accessing safe abortion services, which may force women to interrupt a pregnancy in a clandestine or dangerous manner, violate women’s right to life. This means that if a woman risks her life because of a pregnancy, the State has a duty to provide her with access to care that can save her life. And this sometimes includes the possibility of interrupting her pregnancy.
Lastly, access to safe abortion care is also a question of equality. The Committee on the Elimination of Discrimination Against Women and other international bodies have underscored that obligations to guarantee gender equality and non-discrimination require States to respect the right of women to make autonomous decisions about their sexual and reproductive health in general. This means that States should remove laws and policies that criminalise or prohibit access to certain sexual and reproductive health services, including abortion care.
I am aware that some argue in favour of restrictions on access to abortion on the basis of a purported “prenatal right to life”. However, after a thorough analysis of how the right to life is interpreted within core treaties, it is clear to me that this right does not apply prior to birth and that international human rights law and mechanisms do not recognise a prenatal right to life.
Thus, Malta’s total ban on abortion contradicts the norms of international human rights law, because it denies women a range of fundamental human rights. The Maltese authorities should remedy this situation.
I see in particular four main areas where they should intervene. As a starting point, political leaders and opinion makers should promote a debate in which every individual or organisation has the possibility of expressing their views without fearing stigma or negative repercussions.
This would pave the way for lawmakers to amend the current legislation to bring it in line with human rights standards. A new law should ensure abortion care is available on a woman’s request in early pregnancy and thereafter throughout pregnancy to protect women’s health and life and ensure freedom from ill-treatment.
The next step should be to ensure that no practical, financial or other barrier prevents women from accessing affordable abortion care services.
Finally, these measures should be complemented by others such as ensuring full access to comprehensive sexuality education and modern contraception, also because this will help prevent unwanted pregnancy and reduce the number of unplanned pregnancies.
Women have the human right to a safe reproductive life, free from coercion. I hope that Malta’s legislation will soon conform with this reality.
Nils Muižnieks is the Council of Europe Commissioner for Human Rights.
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