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Abstract In The legal determinants of health: Harnessing the power of law for global health and sustainable development, Gostin et al. provide a sustained account of how law can and should be used as an instrument of health promotion. We pick up on the themes of this report with a specific focus of the importance of abortion for women’s sexual and reproductive health and the impact that particular ways of framing abortion in law can have on the lives of women and girls. In this short comment, we wish to emphasize that abortion regulations need to move beyond frameworks based on narrow understandings of harm towards more progressive agendas that take into account the social determinants of health in order to reduce barriers to care. This contribution is particularly relevant to the Commission’s criticism that those ‘[l]aws that stigmatise or discriminate against marginalized populations are especially harmful and exacerbate health disparities’. Introduction In The legal determinants of health: Harnessing the power of law for global health and sustainable development, the Lancet-O’Neill Commission on Global Health and Law provide a sustained account of how law can and should be used as an instrument of health protection and promotion (Gostin et al., 2019). In this short comment, we pick up on the themes of this report with a specific focus on the importance of abortion for women’s sexual and reproductive health and the impact that particular ways of framing abortion in law can have on the lives of women and girls. We wish to emphasize that abortion regulations need to move beyond frameworks based on narrow understandings of harm, towards more progressive agendas that take into account the social determinants of health in order to reduce barriers to care. This contribution is particularly relevant to the Commission’s criticism that those ‘[l]aws that stigmatise or discriminate against marginalized populations are especially harmful and exacerbate health disparities’ (Gostin et al., 2019). Amongst such laws, they note restricting reproductive rights as a common example. In this contribution, we follow the approach recommended by Hawkes and Buse (2020), which problematizes the ways in which public and global health institutions perpetuate troublesome gender norms by focusing on the role of women as ‘reproducers’. We advocate for a conceptualization of access to abortion that moves beyond consideration of abortion merely as an aspect of reproductive function and instead emphasise how access to appropriate sexual and reproductive healthcare, of which abortion is a vital component, is necessary for the realization of rights in all spheres. Our key concern is how legal frameworks can be developed to ensure access to, and the safety of, a common procedure. A review of abortion laws in many countries evidences the fact that legal frameworks are often not conducive to clinically optimal care and instead can often hinder good clinical practice (Lavelanet et al., 2018). It is estimated that over 25 million unsafe abortions were experienced by women and girls between 2010 and 2014, due either to unqualified personnel or unsafe methods, almost all in the Global South (Singh, 2010; Ganatra et al., 2017). It is thought that 193,000 women and girls died as a result of unsafe abortions between 2003 and 2009 (Say et al., 2014). This presents a major public health challenge that should be approached in discussions of legal determinants. In this contribution, we adopt a reproductive justice approach to understanding access to abortion. Such an approach is attendant to the wide-ranging cultural, social and political barriers which women and girls can face in accessing abortion care and realizing their rights to bodily integrity (Ross, 2006). This resonates with those definitions of public health which acknowledge the important role for social coordination in ensuring optimum conditions for health with justice across the population (Verweij and Dawson, 2009; Coggon, 2012: Part I). We suggest that there is a normative content to the rule of law that draws attention to the injustices that women experience in abortion care. Greater attention to these aspects of the legal determinants of health will enhance the prospects of harnessing the power of law to achieve sustainable global health with justice. Law as a Weapon In terms of global health governance, the Cairo Programme of Action in 1994 specifically acknowledged the importance of women being able to control the timing and number of their children and produced a 20-year roadmap to achieve this and other goals. Cairo was the first occasion when improving the safety of abortion provision was identified as a key public health tool for reducing maternal morbidity and mortality (Hessini, 2005; Barot, 2014). However, as noted by Joanna Erdman, the general support for controlling the timing and number of children outlined in Cairo was circumscribed by stating that control of reproduction must be by lawful means (Erdman, 2016). She summarizes this as follows: Governments agreed to address the devastating public health impacts of unsafe abortion as a human rights concern, but to otherwise leave abortion to the democratic forces of the nation-state. (40) She further highlights that Cairo was concerned with reducing certain sorts of harms to which lack of access would give rise, and as such fails in setting an agenda for a more progressive realization of rights and empowerment. More recently the Sustainable Development Goals, as the Lancet–O’Neill Commission notes, has a clear focus on promoting gender equality and universal access to healthcare. Legal frameworks which facilitate both access to abortion and best clinical practice are a necessary aspect of this. Abortion regulations often offer a powerful counter-example to the thesis that law can translate vision into action on sustainable development. Abortion laws are often a battleground in culture wars. This has prevented a consensus on the human rights dimensions and obscured health issues by instead focusing on abortion as an issue of ‘moral' concern (Zampas and Gher, 2008). In Europe the Parliamentary Assembly of the Council of Europe has called for the decriminalization of abortion and called on its member states to ‘guarantee women’s effective exercise of their right of access to a safe and legal abortion’ (Parliamentary Assembly of the Council of Europe, 2008). While the European Court of Human Rights has acknowledged the importance of access to abortion within the boundaries of what the domestic laws allow it has failed to make a decisive substantive statement on the issue; this approach is as likely to promote conservative as progressive agendas (Erdman, 2014). The African Charter explicitly recognizes that authorization of abortion is a requirement of women’s reproductive rights but this is limited to reducing certain specified types of harms—‘where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother’ (Protocol on the Rights of Women in Africa, 2003). A narrow focus on limitation of specific sorts of physical or mental harm does not take into account the broader social and economic harms that lack of access to abortion gives rise to. The battle over abortion rights has often failed to recognize the full range of issues that women face in accessing appropriate care, and in that sense can be a barrier rather than a benefit. As the Lancet–O’Neill Commission note: [L]aw can also be a formidable barrier to achieving global health and equity. Throughout history, misguided, out-dated, arbitrary, or discriminatory laws have caused great harm. Punitive laws, for example, can discourage marginalised individuals from accessing care, restrict reproductive rights, and enable discrimination in employment or insurance. (Gostin et al., 2019) Arguably, in the context of abortion care this is a product of ‘abortion exceptionalism’ (Corbin, 2014), i.e. a situation where standard legal rules, including those which protect access to healthcare, do not apply. As such we wish to emphasize the limitation of law as a positive determinant of health in the face of conflicting political pressures. Some (public) health framings may inadvertently stigmatize abortion by emphasizing it as dangerous or something that necessitates medical control when advances in abortion technologies mean that this is no longer always the case. A recent and stark example of this was the interplay between abortion regulations in Great Britain (GB) and the global COVID-19 pandemic. Prior to 2018, GB abortion regulations meant that those undergoing early medical abortion had to attend hospital/clinic twice, once to take mifepristone and then usually somewhere between 12 and 48 hours later returning for misoprostol. During 2018, regulations across Scotland, Wales and then England were relaxed to allow home use of misoprostol. However, women still needed to attend clinics to access mifepristone. Such a regimen can be described as ‘partial’ home use. During the COVID-19 crisis, sexual and reproductive health practitioners highlighted the problems this approach posed in a context of ‘social distancing’ and ‘self-isolation’. After initial reluctance, the Westminster, Scottish, and Welsh Governments accepted the widely advocated solution , of ‘full’ home use—that is the ability to take both drugs (mifepristone and misoprostol) at home (Royal College of Obstetricians and Gynaecologists, 2020). On March 31st 2020 The Abortion (Northern Ireland) Regulations 2020 were introduced to regulate provision of services in Northern Ireland. In keeping with the approach in the rest of the UK these regulations allow the Minister for Health in Northern Ireland to make an order allowing for home use of mifepristone. The minister refused and instead women in that jurisdiction were forced to travel unnecessarily and unsafely in order to access appropriate abortion care. These are clear examples of how cumbersome and clinically unnecessary restrictions can exacerbate the burdens faced by both women and clinicians at an already difficult and stressful time. Medical oversight and supervision may be absolutely vital for some women, but for others it will be less so. It should be an open question the extent to which, if at all, abortion care must be subject to specific regulation, and law should not be used to coerce women into engaging with medical services unnecessarily (Erdman et al., 2018). Burdensome over-regulation hinders good medical practice. Regulations which govern access to abortion care need to recognize the range of barriers that women may face and should not themselves become a barrier. They should be designed in ways that facilitate and promote appropriate care pathways and interventions rather than hindering medical and technological advances (see in particular Erdman et al., 2018). Hawkes and Buse (2020) caution that although healthcare systems might be ‘gender-blind’ they ‘are rarely gender-neutral’. In the field of sexual and reproductive rights (SRHR), unnecessary and harmful restrictions on access to healthcare are common and as such healthcare systems can be complicit in the perpetuation of gendered harms. Restrictions placed on access to abortion include medically unnecessary waiting periods, unnecessary informed consent rules, parental notification requirements and clinically unnecessary restrictions on where and by whom abortions may be performed (Culwell and Hurwitz, 2013). Such restrictions serve to obstruct and stigmatize abortion. They are also unequally experienced by women depending on a range of socio-cultural barriers that they face (Singh et al., 2018). Good Governance, Capacity Building, and Access to Safe Abortion Globally We suggest that taking seriously the fourth legal determinant in the Lancet-O’Neill report, which relates to building capacity for health, requires challenging claims made by some professionals and organizations about their ‘right’ of conscientious objection. In other areas of human rights abuses, states are obliged to confront harmful practices affecting the health of women and children. In the context of abortion many states permit individual healthcare practitioners to opt out of meeting health needs and in some countries institutions are also allowed to breach human rights in this way. (Convention on the Elimination of All Forms of Discrimination against Women, 1979). Discussions of conscientious objection often elevate the status of personal beliefs in professional contexts and overemphasize these claims as an important mechanism for protecting individual integrity and agency. Yet at the same time, there is a failure to consider fully how to ensure a right of access to abortion when law provides for it. There is little if any attempt to ‘balance’ the competing rights that are at play. It is important to note that the invocation of rights to refuse certain sorts of care is highly stigmatizing of that care, and also of the people who need to access it. The development of universal health coverage should take seriously the possibility that health systems can be used as a mechanism for perpetuating gendered harms and be sensitive the history of how law and medicine have worked together to discriminate against, and control, women in the sphere of reproduction. Given these points, there is a danger in regulations that treat abortion as an issue of moral dispute in need of a ‘compromise’ between competing sides. Cathleen Kaveny, critiquing laws on conscientious objection, makes the following observation of the form of such arguments: ‘A decent society ought to ban abortions but at the very least, it ought to protect those morally courageous doctors who refuse to perform it’ (as cited in Nejaime and Siegel, 2015). Such arguments are inherently self-contradictory and show lack of integrity in legal regulation. Laws that focus on the morality of abortion do so at the risk of undermining clinically appropriate care. Unnecessary barriers such as waiting periods must be reduced or removed, and if there are protections for clinicians who wish to refuse to provide certain sorts of care then their scope should be carefully qualified (Cook and Dickens, 2000, 2006). This approach to good governance is compliant with human rights requirements that abortion should be legally available and also accessible, and also that conscientious objection has a much less certain status in international human rights norms (Center for Reproductive Rights, 2019). It also serves the wider demands of sustainable health and global health justice. Access to sexual and reproductive healthcare has obvious health impacts on the lives of women and girls. However, in addition to these health impacts, there are wider social and cultural consequences; for example, ability to access education or enter the workforce (Bunch 1990; Cook 1993). Although just one part of the SRHR landscape, access to safe abortion services is vital to achieving health with justice for women and girls worldwide. As such, in the development of universal healthcare coverage it is important that Hawkes and Buse’s recommendation be adopted: Ensuring that laws, policies, plans and programmes for UHC take gender (and other social stratifiers) into account, and do not rest upon the assumption that UHC is likely to be gender-neutral and universal. If we are to take an evidence-based approach that aims to promote health with justice, one of the clearest harms in this area will be laws that restrict or obstruct access to abortion care. The most obvious mechanism to reduce maternal morbidity and mortality in this area will be the removal of inappropriately restrictive law and regulation. Abortion is the most common surgical procedure that women undergo. When provided by appropriately trained individuals, or accessed with appropriate supports, abortion can be safe in a range of contexts. Indeed, the WHO states that when performed appropriately it is safer than the continuance of pregnancy (World Health Organization, 2012; see also Royal College of Obstetricians and Gynaecologists, 2016). However, we must be cautious about overly binary framings of abortion in global health governance. As Erdman (2016) has observed: Within the pragmatic discourse of global abortion rights, unsafe abortion is a public health problem, and its solution resides in the tools of this field: provision of information and services, training of providers, and equipping of facilities—a technical set of interventions with decriminalization in the mix. Consider the World Health Organization’s Safe Abortion: Technical and Policy Guidance for Health Systems, which offers clinical, service delivery, and policy recommendations all in one document. The guidance subjects criminal law to the same evidence-based standards as clinical medicine and service delivery design. The measure of the law’s legitimacy is its health impact, to which the authority of international human rights law is then attached. In this global discourse, political conflicts over abortion law are not so much denied as suggested to be almost beside the point, a mischaracterization of the issue. (50) Globally, a theme that links many of the legal frameworks that limit access to abortion is that they are framed within moral or criminal codes rather than being directed towards the vindication of rights and promoting social justice. In a review of Ugandan law on abortion, Charles Ngwena has highlighted the legacy of historic criminalization of abortion care and the continuing problems of lack of full implementation of constitutional protections in this area (Ngwena, 2016). He states that this ‘accentuates the stigmatization of abortion through a double discourse in which laws that permit abortion are juxtaposed with state practices that deny abortion’. The need to decriminalize abortion within domestic legal frameworks is widely identified as a key way of protecting access to safe abortion care in a way that promotes and protects reproductive rights of women and girls (Uberoi et al., 2012). As noted by the Lancet-O’Neill Commission, laws that criminalize abortion do not reduce the number of abortions taking place; abortions take place at roughly the same rates in countries where abortion is prohibited as in countries where it is allowed. However, criminalization does impact the safety of abortion with evidence of links between increased incidence of criminalization with increased rates of maternal morbidity and mortality (Sedgh et al., 2016; Sheldon and Wellings, 2020). As such decriminalization is a primary strategy in global abortion advocacy. However, we also need to consider what happens after decriminalization and how legal institutions can translate vision into action with regard to access to abortion and address a wide range of barriers to care. Conclusion To summarize, abortion laws evidence why we should be careful in evaluating the detail and application of the claim that law is necessarily, or even generally, a tool for translating the vision for sustainable development goals into action (the first way in which law is seen as a determinant of health). This is because, as Gostin et al. (2019) emphasize, it is a tool that can ‘cut both ways’. Nevertheless, there are important features of the ‘inner morality’ of law that provide constraints against the use of law as a tool of oppression, stigmatization and an adverse determinant of health (Fuller, 1969). When these are properly recognized, the law operates to support good governance (legal determinant 2) and promote fair treatment (legal determinant 3). The politicization of abortion law distorts the opportunity for law as a determinant of health. As such, the role of law as a determinant of health in relation to safe health services may be poorly extended to abortion provision. As Ngwena (2016) cautions: ‘The health care sector mirrors society in its propensity to violate women’s reproductive rights through systemically embedded laws, policies, practices and values that draw from harmful stereotypes’. While Sexual and Reproductive Health advocacy has successfully engaged with human rights frameworks, it is also clear that law and medicine can be a powerful coalition in the perpetuation of harmful constructions of women in need of abortion care through processes of criminalization, control and power (Sheldon, 1997). In the area of SRHR, law is a significant determinant of health and as such has important consequences for achieving gender justice. The legal framework has important consequences for how women and girls access abortion and is as likely to give rise to barriers as not. However, it need not be this way. As we have outlined above, laws that have the vindication of the rights of women and girls at their core can promote equality and reduce marginalization and vulnerability. Abortion should be regulated to the extent necessary to facilitate excellent clinical care in a human rights enhancing and respectful way. Such a vision of regulation would meet the features outlined in the Lancet-O’Neill Commission’s framework for evaluating evidence-based health law. Greasley (2017) has argued that ‘regulating abortion is not the same as moralizing about it’. Sheldon (2016) suggests that ‘abortion services might simply be regulated by the same mass of general criminal, civil, administrative and disciplinary regulations that govern all medical practice’. The first principle of medical ethics, do no harm, translates into a core aim of healthcare regulation that has at its heart patient safety (Quick, 2017). Arguably then, the first principle of medical ethics is as pertinent to law as it is to healthcare practice: legal regulation should not itself be the cause of harm. As Erdman cautions in the work cited above, the measure of whether legal restrictions are warranted is the extent to which they promote health outcomes. This should not be limited to the narrowest of understandings of mental and physical health but instead wider understandings that pay attention to broader issues of physical and social well-being, including any gendered harms perpetuated by continued ‘over regulation’ (WHO, 2018; Center for Reproductive Rights 2020). As outlined in the Lancet-O’Neill Commission Report, law and legal frameworks should be evidence based and promote the wider aims of global health with gender justice. 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Public Health Ethics – Oxford University Press
Published: Apr 1, 2020
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