The theme of this journal issue has been a particularly important one for me, as so many of the papers are about abortion and also about the law, both subjects I’ve devoted much of my working life to. Although every unnecessary death is a cause for pain and anger, deaths from unsafe abortion anger me more than most, because they are so easily avoidable and so completely unnecessary. Moreover, they continue to happen because of the misogyny that keeps abortion illegal, emanating from the Pope on down, and the unwillingness of national and international leaders to stand up for women’s right to safe abortion, and therefore women’s right to health and life. Upwards of a million women have died from the complications of unsafe abortion since the famous “compromise” on abortion in the ICPD Programme of Action, yet even today, 20 years later, few international leaders dare to take a step beyond 1994 on this subject. Do a million more women have to die first? Restrictive laws on abortion prove that the law can be grossly unjust, and this is clear from many other areas of sexual and reproductive health and rights too.
Yet people from all walks of life seek justice and redress from the law and the courts and invest a great deal of hope in the law, and rightly so. Progressive concepts of law and justice have given us the entire human rights system, constitutional and many other freedoms and redress for abuses that we can go to court to secure. As the papers here show, human rights lawyers and many others in our field turn to the courts when their political leaders and parliaments let them down. But the courts may also let people down, and require a huge level of commitment, time and resources.
Several papers in this journal issue describe “movement and counter-movement” in attempts by human rights lawyers to gain justice through the courts in situations where there is an active opposition. This can lead to a cycle of litigation, and even a stalemate, as has happened in the US, where legal challenges and counter-challenges on abortion restrictions (including many tabled by anti-abortionists that are blatantly unconstitutional) have swallowed up years of people’s time and energy. Indeed, for years now, the anti-abortion movement in the US has effectively used the law and the courts to tie abortion rights advocates up in knots fighting them. Worse, too much dependence on the law and the courts can lead to what has been labelled a litigious society, and again the US is a model of what to avoid.
The law and its uses and abuses, then, are as great and as flawed as humankind. This is shown from the lowest to the highest national and international courtrooms, in every local and national parliament, at the United Nations (UN) and in all its bodies and agencies, in human rights forums, and in the committees and working groups who are determining the post-2015 development agenda. And in this journal issue.
Not satisfied with clichés, I went looking for a learned quote on the concept of the law and its high purposes. But that wouldn’t serve in this journal issue, where harsh reality enters too often. Then I remembered a poem by WH Auden, and we tried to get permission to reproduce the first part of it here, as it so humorously and cuttingly expresses all the definitions of the law that do reflect reality of how the law is used. These include the sun as the law for gardeners, the wisdom of the old and its sometime impotence and scolding nature; the “senses” of the young who stick their tongues out at the old; the law according to the priests who quote from “their priestly books”; and of course, the law according to judges, whose last resort is to say “The law is the Law”. The poem goes on to say that according to scholars, the law is “neither wrong nor right but only crimes punished by places and by times”; that some say the law is “our Fate” and others that it is “our State”; and finally that the law is the “loud angry crowd”, and even more finally that “Law is We and always the soft idiot softly Me”.Footnote*
What emerges plainly from the papers in this journal issue is that the law by its very nature is adversarial. This is worth pondering long and hard before considering why and how to take it up. Using it as a big stick yourself can reap great benefits, as happened in Colombia, and it is exhilarating, but alone it does not solve the problem. Moreover, having the law used against you can be devastating and cause huge setbacks.
The adversarial nature of the law may also help to explain why so many politicians behave as they do. If they enter politics to engage in the battle – above all for the sake of the joust, win or lose – then this may explain why they say one thing and do another, not just once or on one issue but repeatedly and on many issues. Winning (and avoiding losing), as is also the case in court, becomes the point. Perhaps instead of trying to convince such politicians that what we want them to fight for is right, we need to convince them that they can win, and give them the means to win, and/or make them see they may lose if they don’t support us, so that they have good reason to enter the fray on our side. This means in turn aiming to build a critical mass of support. Without this, seasoned litigators, including several writing in this journal, would not recommend venturing into litigation without a longer-term plan and backup from others.
Hence, even as the authors of the papers in this journal issue are writing about using the law and the courts to seek justice and redress – and to protect and fulfill human rights – they also open a window on the complicated and messy world of politics they have encountered in doing so.
Papers on the theme
The majority of the theme papers are about using the law and the courts at the local and national level to advocate for or further abortion rights; others take a broader reproductive and sexual rights perspective. Papers focusing on the international level work from a broad remit on sexual and reproductive health and rights in the context of the post-2015 sustainable development agenda. Two papers, from a completely different legal angle, discuss the consequences of age-restrictive consent laws on young people’s access to reproductive and sexual health services.
Abortion law reform and opposition to it
Most of these papers are about seeking to reform the law or challenge restrictions on abortion. Others describe women’s experiences, including individual cases of women who have been imprisoned unjustly, or even sentenced for homicide when they had only had a miscarriage. These come from Latin American countries — Chile, Colombia, El Salvador, Mexico — active arenas of struggle for safe, legal abortion, though by no means the only ones. Two papers on Ireland show that the history of this issue is particularly fraught there. All these papers are indicative of what is happening in a growing number of other countries as well, in which both advocates for safe, legal abortion and those who oppose it are actively engaged in law reform efforts. Not a day goes by that abortion is not in the news somewhere, and increasingly, the police, the law, parliaments and the courts are involved.
These journal articles cover trials and imprisonment of women and efforts to get them released; going to court to defend women prosecuted for abortion; challenging specific laws and responding to court judgments; the reality of abortion for women and providers under highly restrictive regimes; analysis of conservative litigation against sexual and reproductive health and rights policies; using litigation as an advocacy tool in defence of abortion as a reproductive right; studying movement and counter-movement in the history of abortion law reform and the backlash against it; describing and contesting the cruel treatment of women seeking abortion; and procedural issues related to abortion in a regional court of human rights.
Lastly, we include part of a report by four NGOs on an investigation of the recent sterilisation deaths in India, which found a wide range of abuses, potentially putting the whole family planning programme at risk.
The post-2015 agenda, human rights and SRHR
Of the theme papers about issues at the international level, most focus on the post-2015 development agenda, and human rights and policy issues at the UN, and cover the broad spectrum of sexual and reproductive health and rights as a whole. A huge amount is riding on what happens in this process, and these papers (as those in the past several journal issues) provide cutting-edge analysis and in-depth description of events and key players. They also highlight the efforts needed to ensure that — with less than a year to go — sexual and reproductive health and rights remain part of the sustainable development goals (SDGs) on health and gender, and firmly on the post-2015 development agenda. They look at the shifting politics in multilateral development and human rights negotiations, and how to address the absence of accountability that characterised the implementation (or not) of the MDGs. One paper reflects a major concern — that if human rights are omitted from the post-2015 agenda, because of a conflict between countries in the interpretation of how to achieve development, then those who lost out under the MDGs – people who are poor, marginalised, discriminated against, stigmatised, under-served and under-represented – will again be left out in the cold. And that includes women, given that the target of universal access to reproductive health was achieved the least of all. This is a major area of risk, especially since the conflict seems to have become one between the global North and global South, the political history of which which complicates reaching a solution. Like the MDGs, the proposed SDGs are aspirational, but this paper’s argument, that ensuring accountability for fulfilling them should be the task of the UN human rights system, is one that deserves wholehearted support.
Another paper analyses what it describes as the Holy See’s unchanged and unchanging conservative position on sexual and reproductive health rights, but demonstrates how the language of their interventions has shifted conceptually to appropriate secular rights language, even while seeking to subvert those same rights. Yet not all efforts at policy reform lead to conflict and disagreement. One paper describes how the Global Commission on HIV and the Law successfully developed recommendations for legal reform to promote sexual and reproductive health and rights, having taken evidence from a wide range of stakeholders in all regions.
Magistrate's desk, Makeni, Sierra Leone, 2012
Sexual violence, particularly in conflict settings, is perhaps one of the most difficult issues the law has to deal with. We showcase here the executive summary of the June 2014 Policy Paper on Sexual and Gender-Based Crimes, from the Office of the Prosecutor of the International Criminal Court (ICC), Ms Fatou Bensouda (whose photograph is on the cover of this journal issue). She made this issue a key part of the ICC’s 2012–15 Strategic Plan.
Lastly, the Round Up section in this journal contains a rich mix of reports on sexual and reproductive rights in law, policy, and the courts, at both national and international levels. These include a report on lessons from the first cycle of Universal Periodic Reviews; a publication and new databases on global health law and justice; defining and implementing State obligations as regards harmful practices; a joint UN agency statement on involuntary sterilisation; a call for greater accountability in research ethics in clinical trials following a court case on HPV vaccinations; myths about the value of outlawing sex-selective abortion; forced virginity testing and transgender abuses; legal and policy attention to removing sexual orientation from “disease categories” in international standards; one court’s recognition of gender variance, and much much more.
Age-restrictive laws
The remaining two feature papers on the theme focus on age-restrictive laws on youth and how they affect young people’s access to sexual and reproductive health services. One is about righting the mismatch in the Asia-Pacific Region between law and policy on age of marriage, age of sexual consent, age of consent to medical care, and specifically consent to HIV testing. Because these laws and policies take little account of age at first sex, they conflict with the sexual and reproductive health needs of young people in the region. The other paper starts with the question of whether these same restrictive laws serve a protective purpose, and discusses their impact on young people’s access to sexual and reproductive health services.
Profile of Anand Grover
Finally, this journal issue contains a profile of the achievements of Anand Grover, UN Special Rapporteur on the right to the highest attainable standard of health from 2008–2014, whose commitment to, investigation of, and defence of sexual and reproductive health and rights, including safe abortion, has set the bar high for every Special Rapporteur who follows him.
Other themes
The papers on other themes add an enormous breadth of focus to this journal issue, ranging from the sexual and reproductive health and rights of older men and women; the limited focus, primarily on women, of existing research on HIV and gender-based violence; reducing high maternal mortality rates in western China; women’s experiences of termination of pregnancy for fetal abnormality; participatory gender budgeting in the Russian Federation; and research on new multipurpose prevention technologies.
Ebola fever: the effect on women and public health systems
Lastly, we reprint a paper and a press statement about the Ebola fever epidemic and a third paper about a relatively new network called Health Systems Global. The first of these papers unflinchingly describes how fast a virulent disease like Ebola fever can kill off a weak public health system, in addition to its patients and many of the people working in it. It argues that a strong public health system, even in the poorest countries affected, could save 90% of the people who are dying. The second, a press statement, is about why women in this situation are at greatest risk– as health workers, as carers at home for their sick relatives, as patients, as those responsible for burying the dead, and as those needing pregnancy and delivery care, contraception and I would add (post-)abortion care. These two papers have urgent lessons for everyone who cares about global public health and the importance of strong public health systems, and everyone who wants to understand the meaning of life-and-death gender differences in the lived experience of women and men.
The third paper is a description of the network Health Systems Global and includes a summary of their 2014 conference on the subject of people-centred health systems. The importance of people-centred health systems, in the face of the harsh reality of extremely weak public health systems and global forces seeking to privatise health care for private gain, is crucial and cries out for action on the part of NGOs and public health and human rights advocates across the world.
Expanding access to medical abortion: an RHM supplement as well
We are in the process of finishing a supplement to the journal on “Expanding access to medical abortion” which we aim to complete by the end of 2014. However, you need not wait to read it! The papers that have been completed over the past several months are already on the home page of RHM’s Elsevier website www.rhm-elsevier.com, at the right-hand column, where they are available on an open access basis. When the whole issue is complete, it will be posted on the current issues page of that website and on ScienceDirect, as supplements and journal issues always are, and will remain open access.
The papers come from Nepal, India, Argentina, Turkey, Colombia, South Africa, Armenia, Mexico, Bangladesh, Zambia and Cambodia. They are about women’s experiences of using medical abortion in both legally permissible and legally restricted contexts; the views of a wide range of health professionals on medical abortion as a method and their own involvement in providing it; the importance of training medical students in medical abortion provision; the ability of trained nurse-midwives, pharmacists, and other non-physician health workers to provide first trimester medical abortion safely and acceptably to women themselves. And they show, across all these countries, the extent of the unmet need for safe abortion.
In conclusion
This is a fantastic journal issue! I'm thrilled and proud to be publishing everything in it.
Acknowledgements
Many thanks to Pathika Martin for substantial input into this editorial and to all the RHM staff, translators, editorial teams, board members and designer/production manager Carol Brickley, SPI and Witherbys, Greyling Peoples and Elsevier for unstinting work and support for RHM over many years.
Notes
* The poem then goes on to compare law to love, which is not relevant here. The full poem “Law, like love”, can be found at: http://www.poemhunter.com/poem/law-like-love/. We were unfortunately unable to get permission in time to reprint the poem itself.