Friday, January 29, 2010

Therapetic Abortion in Nicaragua

As we’ve blogged before in connection with the sad case of La Rosita, abortion is prohibited in most Latin American states, with the exception of Cuba. Several Latin American states, however, have taken the ban to extreme limits, penalizing even the provision of therapeutic abortion. For example, Nicaraguan law completely prohibits abortion, regardless of the circumstances and even if the health of the woman is at risk from the continuation of the pregnancy. Prior to 2008, Nicaraguan law permitted “therapeutic abortions” only for those women and girls whose life or health was threatened by the continuation of their pregnancy and, in some cases, for victims of rape.
The revised penal code repealed this provision. See Law No. 164, Penal Code of the Republic of Nicaragua. Nicaraguan law now completely prohibits abortion, regardless of the circumstances and even if the health of the woman is at stake, and if the woman has been raped or is the victim of incest. Abortion is also prohibited (and penalized) if the baby is unviable as in cases of ectopic pregnancy (when the fetus implants somewhere outside the womb such as the fallopian tubes (left)) or anencephaly—a neural tube defect in which the fetus fails to develop a brain or skull vault and is born with dramatic physical defects (below right). The latter condition is uniformly fatal; the baby is literally born dying and usually survives only a few days, although there are cases of children living beyond one year with aggressive and expensive medical interventions.
The Nicaraguan law now imposes prison terms for both doctors and women or girls who carry out, or seek, an abortion (Article 143) and for doctors who cause unintentional harm to a fetus while administering medically necessary treatment to a pregnant women or girl (Articles 145, 148, and 149). Article 143, for example, provides:

Whosoever causes an abortion with the consent of the woman shall be sanctioned with a penalty of one to three years in prison. If the person is a medical professional or health worker, the penalty will simultaneously include being prohibited from working in medicine or as a health worker for two to five years.

The woman who intentionally causes her own abortion or agrees with someone else
to provide an abortion will face a penalty of one to two years in prison.

With strong backing from the Catholic Church and evangelical leaders, the law was put in place during the contested presidential election in 2006, when none of the candidates wanted to alienate church leaders. (Pro-choice protest at left). Legislators supporting the ban invoked fast-track procedures normally reserved for national emergencies.
Legislation like this is felt most acutely by
  • women and girl survivors of rape and incest,
  • women and girls who need essential medical treatment for life-threatening illnesses (such as cancer) while pregnant or pregnancy-related medical conditions (such as eclampsia, spontaneous abortion/miscarriage, obstructed labor, premature labor, ectopic pregnancy, pelvic disproportion),
  • women and girls carrying non-viable pregnancies or pregnancies where the baby will not survive long after birth (as in the case of anencephaly), and
  • women and girls in need of post-abortion care, whether for a miscarriage or induced abortion. (Indeed, it is often difficult to distinguish between spontaneous and induced abortions).
The law also prevents doctors from having a meaningful discussion with their patients about treatment options.
A number of United Nations treaty expert committees and special rapporteurs have determined that such bans breach states’ obligations to protect women and girl’s human rights. The Committee on the Elimination of All Forms of Discrimination against Women, for example, determined that laws that criminalize medical procedures only needed by women—such as Nicaragua’s law—constitute barriers to women’s access to appropriate health care. See U.N. Committee on the Elimination of All Forms of Discrimination against Women, General recommendation No. 24: Article 12 of the Convention (women and health). See also similar Concluding Observations from the Committee on Economic, Social and Cultural Rights (CESCR, concluding observations on Chile, U.N. Doc. E/C.12/1/Add.105 (2004), para. 52; Kuwait, U.N. Doc. E/C.12/1/Add.98 (2004), para. 43; and Nepal, U.N. Doc. E/C.12/1/Add.66 (2001)) and the Committee on the Rights of the Child (Committee on the Rights of the Child, concluding observations on Chad, U.N. Doc CRC/C/15/Add.107 (1999)). Likewise, the Special Rapporteur on Violence Against Women, Radhika Coomaraswamy (right), has stated that,

Acts deliberately restraining women from … having an abortion constitute violence against women by subjecting women to excessive pregnancies and childbearing against their will, resulting in increased and preventable risks of maternal mortality and morbidity.

Report of the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, in accordance with Commission on Human Rights resolution 1997/44, Addendum: Policies and practices that impact women’s reproductive rights and contribute to, cause or constitute violence against women, UN Doc E/CN.4/1999/68/Add.4, paragraph 57, 21 January 1999.
In response to a petition filed against Nicaragua, the Committee Against Torture ruled:
The Committee expresses its profound concern at the general prohibition of abortion in Articles 143 and 145 of the Criminal Code, including in cases of rape, incest or where continuation of the pregnancy poses a threat to the life of the mother, which in many cases directly result from crimes related to gender based violence. This situation particularly implies that those groups of women (aforementioned) are exposed to a constant risk of violations committed against them, which one supposes must cause extreme traumatic stress with the risk of suffering long-term psychological problems, such as anxiety and depression. The Committee also notes with concern that women who require an abortion in the circumstances mentioned, now run the risk of criminal sanctions. Also, it is of concern to this committee that the law which authorized therapeutic abortion in such circumstances was repealed in 2006 and since the adoption of this prohibition there have been various cases documented of women dying in pregnancy as a result of lack of medical treatment which could have saved her life, in clear violation of numerous codes of professional medical ethics. In this way, the Committee observes with concern that medical professionals can be investigated and criminally sanctioned by the state for practicing therapeutic abortion.

Consideration Of Reports Submitted By States Parties Under Article 19 Of The Convention, Concluding observations of the Committee against Torture, CAT/C/NIC/CO/1 (10 June 2009). Amnesty International’s brief in this case is available here. See Amnesty International, Nicaragua: The Impact of the Complete Ban of Abortion in Nicaragua: Briefing to the United Nations Committee Against Torture, Index No. AMR 43/005/2009 (April 29, 2009). Amnesty’s campaign on the Nicaragua law is available here. Human Rights Watch’s report is here.
In the heart-wrenching case of K.N.L.H. v. Peru, the Human Rights Committee, which supervises state compliance under the International Covenant on Civil and Political Rights, ruled that Peru’s failure to offer an abortion to petitioner, whose fetus was anencephalic (right), violated petitioner’s rights to privacy, to special protection as a minor, and to be free from torture and other cruel, inhuman and degrading treatment. The latter ruling stemmed from the fact that petitioner was forced to give birth to an anencephalic baby and to care for the baby until she died several days later, which plunged the mother into a depression.
The Nicaraguan court has yet to issue a ruling, which was expected in May 2009, on the constitutionality of the anti-abortion law. One media report suggests that a draft decision has been written but still needs to be reviewed and approved by the entire bench. According to this report, the decision declares the law unconstitutional. Let’s hope this prognosticator is accurate… Stay tuned.

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