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Case Studies in Prenatal Diagnosis and Access to Abortion Joanna Erdman

Case Studies in Prenatal Diagnosis and Access to Abortion Joanna Erdman Schulich School of Law, Dalhousie University Nova Scotia, Canada 15 October 2012 III Latin American Legal Conference on Reproductive Rights. Rethinking Abortion and the Law: Transnational Perspectives

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Case Studies in Prenatal Diagnosis and Access to Abortion Joanna Erdman

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  1. Case Studies in Prenatal Diagnosis and Access to Abortion Joanna Erdman Schulich School of Law, Dalhousie University Nova Scotia, Canada 15 October 2012 III Latin American Legal Conference on Reproductive Rights

  2. Rethinking Abortion and the Law: Transnational Perspectives (UPenn Press 2014) • How we advocate, regulate & adjudicate on abortion • Ideas that influence, underlie & give meaning to legal reforms • Relevant questions, persuasive arguments & foreseeable answers

  3. Rethinking Abortion and the Law: Transnational Perspectives (UPenn Press 2014) • Luís Roberto Barroso, Legal Strategies Involving Anencephalic Fetuses • Paola Bergallo, The Indications Model in Argentina • Lisa Kelly, Innocent Suffering in Abortion Law • Julieta Lemaitre, Catholic Constitutionalism on Sex, Women and Life • Alejandro Madrazo, Prenatal Life: Narrative and Strategy • Verónica Undurraga, Proportionality in Constitutional Review

  4. The relationship in human rights law between: Prenatal or fetal diagnostic technology & Access to safe and lawful abortion

  5. Case Studies Brazilian Supreme Court: ADPF (2012) • Lawful access to termination for anencephalic pregnancies European Court of HR: RR v. Poland (2011) • Access to prenatal testing to confirm fetal diagnosis

  6. Case Studies Traditional Reading • Exception and Hierarchy • Vulnerability, Suffering and Mercy Progressive Reading • Women’s agency and capacity • Rights in Reproductive Decision-Making

  7. Brazil: ADPF 54 • Abstract Constitutional Review: National Confederation of Health Workers & ANIS • Anencephaly: fatal fetal neural tube defect • Exceptions: Rape & Life • Implied Exception? – Judicial Interpretation • Varied Outcomes • Physical, Financial and Psychological Burdens

  8. Brazil: ADPF 54 Asserted a woman’s right to terminate an anencephalic pregnancy As a general legal rule, requiring no prior authorization

  9. Brazil: ADPF 54 Factual Findings • Fatal & untreatable (distinct from disability) • Certain diagnosis on objective medical criteria • Brain activity: consistent legal standard

  10. Brazil: ADPF 54 Legal Argument • Premature Delivery v. Abortion Not human intervention, but congenital deformity 2. No Prenatal Life = No Right to Life No justification for state intervention

  11. Brazil: ADPF 54 “Because it is absolutely unviable, the anencephalic fetus cannot be entitled to a right to life. The conflict between fundamental rights is only apparent. Strictly speaking, at the other side of the scale, as opposed to women's rights, is not the right to life and human dignity of the those who are to come, precisely because there is no one to come, there is no viable life.”

  12. Brazil: ADPF 54 Supreme Court Judgment • Therapeutic Premature Delivery (vs. abortion) • Lawful under Penal Code & Constitutionally Required • BUT – No Exception to General Prohibition

  13. Brazil: ADPF 54 Broader Social Impact • Ignite Debate on Decriminalization • Recognize Concept of Reproductive Rights Constitutional Principle of Dignity • Focus and Justify Women’s Experience & Suffering • No Countervailing Value/Justification in Right to Life Avenue to Reproductive Freedom/Decision-Making … within tragic circumstances

  14. ECHR: RR v. Poland Narrow & Particular • Prenatal Diagnosis of Severe Fetal Condition Broad & Strategic • Women’s Decision-Making in Pregnancy and Reproduction Channels Vulnerability and Agency

  15. ECHR: RR v. Poland • Indication: severe or fatal condition, until viability • Prenatal tests by ordinance until 22 weeks • Ultrasounds & blood tests indicate fetal condition • Amniocentesis: recommended, delayed & refused • 23rd week: Turner’s syndrome confirmed • Past gestational limit

  16. ECHR: RR v. Poland Violation: Free from inhuman/degrading treatment Conduct: Manipulation and Procrastination … • Harm: Causing Suffering in Uncertainty Conduct: Deliberate Intention … • Harm: To Frustrate exercise of legal right

  17. ECHR: RR v. Poland Violation: Respect for physical and psychological integrity Denied access to diagnostic services v. abortion … • Harm: Denied Right to Access Health Information Right to Information = Right to Autonomy … • Harm: Denied right to Reproductive Freedom • In decision-making about pregnancy, treatment, future plans

  18. Case Studies Rather than access to abortion … granted in mercy and compassion Recognize and respect women … as decision makers in pregnancy & reproduction

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