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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

Case Studies in Prenatal Diagnosis and Access to Abortion Joanna Erdman

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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 - PowerPoint PPT Presentation

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Page 1: Case Studies in Prenatal Diagnosis and Access to Abortion Joanna Erdman

Case Studies in Prenatal Diagnosis and Access to

AbortionJoanna Erdman

Schulich School of Law, Dalhousie University Nova Scotia, Canada

15 October 2012III Latin American Legal Conference on Reproductive

Rights

Page 2: Case Studies in Prenatal Diagnosis and Access to Abortion Joanna Erdman

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

Page 3: Case Studies in Prenatal Diagnosis and Access to Abortion Joanna Erdman

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

Page 4: Case Studies in Prenatal Diagnosis and Access to Abortion Joanna Erdman

The relationship in human rights law between:

Prenatal or fetal diagnostic technology&

Access to safe and lawful abortion

Page 5: Case Studies in Prenatal Diagnosis and Access to Abortion Joanna Erdman

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

Page 6: Case Studies in Prenatal Diagnosis and Access to Abortion Joanna Erdman

Case Studies

Traditional Reading

• Exception and Hierarchy • Vulnerability, Suffering and Mercy

Progressive Reading

• Women’s agency and capacity • Rights in Reproductive Decision-Making

Page 7: Case Studies in Prenatal Diagnosis and Access to Abortion Joanna Erdman

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

Page 8: Case Studies in Prenatal Diagnosis and Access to Abortion Joanna Erdman

Brazil: ADPF 54

Asserted a woman’s right to terminate an anencephalic

pregnancy

As a general legal rule, requiring no prior authorization

Page 9: Case Studies in Prenatal Diagnosis and Access to Abortion Joanna Erdman

Brazil: ADPF 54

Factual Findings

• Fatal & untreatable (distinct from disability)

• Certain diagnosis on objective medical criteria

• Brain activity: consistent legal standard

Page 10: Case Studies in Prenatal Diagnosis and Access to Abortion Joanna Erdman

Brazil: ADPF 54

Legal Argument

1. Premature Delivery v. Abortion

Not human intervention, but congenital deformity

2. No Prenatal Life = No Right to Life

No justification for state intervention

Page 11: Case Studies in Prenatal Diagnosis and Access to Abortion Joanna Erdman

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.”

Page 12: Case Studies in Prenatal Diagnosis and Access to Abortion Joanna Erdman

Brazil: ADPF 54

Supreme Court Judgment

• Therapeutic Premature Delivery (vs. abortion)

• Lawful under Penal Code & Constitutionally Required

• BUT – No Exception to General Prohibition

Page 13: Case Studies in Prenatal Diagnosis and Access to Abortion Joanna Erdman

Brazil: ADPF 54Broader 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

Page 14: Case Studies in Prenatal Diagnosis and Access to Abortion Joanna Erdman

ECHR: RR v. PolandNarrow & Particular

•Prenatal Diagnosis of Severe Fetal Condition

Broad & Strategic

•Women’s Decision-Making in Pregnancy and Reproduction

Channels Vulnerability and Agency

Page 15: Case Studies in Prenatal Diagnosis and Access to Abortion Joanna Erdman

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

Page 16: Case Studies in Prenatal Diagnosis and Access to Abortion Joanna Erdman

ECHR: RR v. PolandViolation: Free from inhuman/degrading treatment

Conduct: Manipulation and Procrastination …

•Harm: Causing Suffering in Uncertainty

Conduct: Deliberate Intention …

•Harm: To Frustrate exercise of legal right

Page 17: Case Studies in Prenatal Diagnosis and Access to Abortion Joanna Erdman

ECHR: RR v. PolandViolation: 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

Page 18: Case Studies in Prenatal Diagnosis and Access to Abortion Joanna Erdman

Case Studies

Rather than access to abortion … granted in mercy and compassion

Recognize and respect women … as decision makers in pregnancy &

reproduction