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Access to safe and legal abortion is a central human
rights issue. Human Rights Watch’s experience, in
particular in Latin America, has reaffirmed that
women’s ability to decide if, when, how often, and
with whom to have children is fundamental to their
ability to make independent decisions about work,
education and family life. In short, limitations to
decision-making in the reproductive area hamper
decision-making in nearly every other area of
women’s lives; and limitations to women’s access to
safe and legal abortion is, our preliminary research
has shown, part and parcel of other limitations to
reproductive health and information. Yet the link
between abortion and human rights has not always
been made explicit. In many countries in Latin
America, traditional human rights groups have shied
away from the protection of women’s human rights
beyond the occasional case related to rape as torture.
And many Latin American feminist groups have not
used human rights law as a tool in their advocacy.
Research conducted by Human Rights Watch has
confirmed what numerous other studies have shown:
restrictive abortion laws do nothing to eliminate the
need for abortion, but merely contribute to the use of
unsafe services to the serious detriment of women’s
health and lives.1Our reports2look at this issue in a
much broader context of women’s rights violations,
including denial of access to contraceptives and
reproductive healthcare generally, and impunity for
violence against women. It is precisely the close links
between these issues that our research and advocacy
on abortion has sought to illustrate. Women do not
need abortions in a vacuum. Often, women face crisis
pregnancies because family planning is unavailable to
them or has failed, and women’s decisions about
abortion are taken in the context of their family or
community. This simple truth is not generally reflected
in public policies regarding violence, health and abortion.
This article begins by reflecting in more depth on the
links between abortion and human rights. It goes on
to illustrate the scope for human rights advocacy in
relation to the struggle for abortion rights in a
number of Latin American countries. In doing so, it
draws out regional commonalities and contextual
differences, exploring entry points for activism and
change.
1 International law standards and response of
international human rights authorities
regarding non-criminalised abortion
Most human rights treaties and conventions do not
refer directly to abortion. However, a number of
enunciated human rights are directly relevant to the
issue of abortion: women’s rights to life; physical
integrity; health; non-discrimination; privacy;
information; freedom of religion and conscience;
equal protection under the law; and the right to
make independent decisions about the number and
spacing of children. Taken together, this body of law,
including directly relevant interpretations of this law
by authoritative UN expert bodies, compels the
conclusion that women should have autonomy in
decisions regarding abortion, and equitable access to
safe and legal procedures. Moreover, it is in the
deprivation of such autonomy and access that the
relevance of legal abortion to women’s dignity – and
human rights – becomes clear.
Underpinning all of Human Rights Watch’s work on
access to safe and legal abortion is a careful analysis
of well-established human rights and interpretation
of those rights through UN treaty bodies, legislative
history and court cases. Those authoritative
interpretations of international human rights law
suggest that all women should have the right to
decide independently in matters related to sexuality
and reproduction, including the issue of abortion.
28
IDS Bulletin Volume 39 Number 3 July 2008 © Institute of Development Studies
Abortion and Human Rights:
Examples from Latin America
Janet Walsh, Marianne Møllmann and Angela Heimburger*
International human rights law is consistent with a
woman’s right to choose if and when to have
children and if and when to terminate her
pregnancy, and supports the provision of timely and
accessible healthcare services within evidence-based
guidelines and safe and sanitary conditions. The
criminalisation of abortion, on the other hand, is a
clear violation, inter alia, of a woman’s right to
privacy, security of person and non-discrimination.
International standards on the link between access to
abortion and women’s exercise of their human rights
have undergone significant development over the
past 15 years. This development has manifested itself
in over 130 concluding comments from UN treaty
monitoring bodies, in which international human
rights experts have expressed their opinion on
abortion restrictions in over 90 countries (Walsh and
Møllmann, forthcoming; Center for Reproductive
Rights, forthcoming). This jurisprudence furthers an
understanding that firmly established human rights
are jeopardised by restrictive or punitive abortion
laws and practices.
There have also been significant developments in
regional human rights systems relevant to women’s
right to decide on matters relating to abortion. For
example, the African regional human rights system
now has a binding protocol that stipulates a state’s
obligation to take all appropriate measures to ‘protect
the reproductive rights of women by authorising
medical abortion in cases of sexual assault, rape,
incest, and where the continued pregnancy
endangers the mental and physical health of the
mother or the life of the mother or the foetus’.3
1.1 Right to life
The right to life, a fundamental right in many human
rights treaties,4is in jeopardy when women and girls
are denied access to safe, legal abortions. In Latin
America and the Caribbean, over 4 million abortions
are performed each year, and the regional maternal
mortality rate is 190 out of 100,000 live births
(WHO 2004). Of those deaths, 5,000 women are
estimated to die from unsafe abortions every year
(Palma et al. 2006). In Peru, where maternal death
rates are among the highest in the region, unsafe
abortions cause approximately 16 per cent of all
maternal deaths (Távara et al. 1999). Criminalising
abortion does not reduce its incidence. In fact,
abortion rates are often highest where the laws are
most restricted (Boonstra et al. 2006) and women
are obliged to seek clandestine abortions from
unlicensed, unregulated practitioners, often under
conditions that are medically unsafe and therefore
life-threatening (Berer 2004).
UN treaty bodies have often expressed concern that
restrictive abortion laws may violate the right to life.
For example, the UN Human Rights Committee
(HRC) has noted, with concern, the relationship
between restrictive abortion laws, clandestine
abortions and threats to women’s lives.5In 2000, in
its general comment on equality of rights between
men and women, the HRC called upon states to
inform the committee of ‘any measures taken by the
state to help women prevent unwanted pregnancies,
and to ensure that they do not have to undergo life-
threatening clandestine abortions’.6
1.2 Right to health
International law also guarantees women the right
to the highest attainable standard of physical and
mental health.7Unsafe abortions are a grave threat
to women’s health: 10–50 per cent of women who
undergo unsafe abortions require post-abortion
medical attention for complications such as
incomplete abortion, infection, uterine perforation,
pelvic inflammatory disease, haemorrhage, or other
injury to internal organs. These may result in death,
permanent injury, or infertility. Denial of access to
safe, legal abortion can also result in mental health
harm, including depression.
UN treaty bodies have commented on the impact of
unsafe abortions and restrictive abortion laws on
health. For example, citing concerns about possible
violations of the right to health, the UN Committee
on Economic, Social and Cultural Rights has
recommended that states legalise abortion in some
circumstances, such as when the pregnancy is the
result of rape or incest, and when the life of the
pregnant women is endangered.8
The right to health requires four interrelated
features: availability of services in sufficient quantity;
accessibility of services and information, within
physical and economic reach of everyone without
discrimination; acceptability of services with respect
to culture, gender, and life-cycle; and evidence-based
technology and services of good quality.9Professor
Rebecca J. Cook points out that in addition to
constituting poor public health policy, ‘laws and
policies that unreasonably restrict safe abortion
IDS Bulletin Volume 39 Number 3 July 2008 29
services would not comply with this performance
standard … [It] may be a human rights violation to
jeopardise health care’ (Cook 2006).
International law also has specific standards for the
right to health as applied to adolescents. In its 2003
General Comment on adolescent health and
development, the Committee on the Rights of the
Child noted the physical and mental health risks
related to early pregnancy, and urged governments to
provide adequate services, including abortion services
where they are not against the law. It also urged
states to take measures to reduce maternal morbidity
and mortality in adolescent girls, including those
caused by unsafe abortion practices.10 The UN Human
Rights Commission has recognised the need for
special access and services to protect the vulnerable
rights and wellbeing of adolescents, especially with
respect to reproductive health, and has called upon
states to guarantee safe, timely and affordable access
to abortion for adolescents with unwanted
pregnancies when the law allows (Kebriaei 2006).
1.3 The right to non-discrimination
The right to non-discrimination is also a fundamental
right in every major human rights treaty. Denying
women access to therapeutic abortions to terminate
dangerous pregnancies amounts to a discriminatory
denial of women’s healthcare. Women are
consequently exposed to health risks not experienced
by men. In its General Recommendation on women
and health, the UN Committee on the Elimination
of Discrimination Against Women (CEDAW
Committee) suggests that the denial of medical
procedures only women need is a form of
discrimination against women. It explains that
‘barriers to women’s access to appropriate health
care include laws that criminalise medical procedures
only needed by women and that punish women who
undergo these procedures’.11
In several concluding observations on country reports
from the Latin American region, the HRC has
established a clear link between women’s equality
and the availability of reproductive health services,
including abortion.12 In the case of Argentina, HRC
noted: ‘The Committee is concerned that the
criminalisation of abortion deters medical
professionals from providing this procedure without
judicial order, even when they are permitted to do so
by law, inter alia when there are clear health risks for
the mother or when pregnancy results from rape of
mentally disabled women. The Committee also
expresses concern over discriminatory aspects of the
laws and policies in force, which result in
disproportionate resort to illegal, unsafe abortions by
poor and rural women.’13
1.4 The right to privacy
International human rights law protects the right to
non-interference with one’s privacy and family,14 as
well as the right of women to decide on the number
and spacing of their children.15 These rights can only
be fully implemented where women have the right
to make decisions about when or if to carry a
pregnancy to term without interference from the
state. The lack of privacy and confidentiality common
to many public healthcare facilities makes it difficult
for some women – unmarried women and
adolescents in particular – to access contraceptive
information and services in clinics, leaving them
more vulnerable to unwanted pregnancy and sexually
transmitted infections.
1.5 The right to information
The right to information, certainly as it relates to the
right to health, includes both the negative obligation
for a state to refrain from interference with the
provision of information by private parties and a
positive responsibility to provide complete and
accurate information necessary for the protection
and promotion of reproductive health and rights,
including information about abortion (Coliver 1995).
Human rights law further recognises the right to
non-discrimination in access to information and
health services, as in all other services.16 Women
stand to suffer disproportionately when information
concerning safe and legal abortion is withheld.
1.6 Freedom from cruel, inhuman, or degrading
treatment
The right to be free from cruel, inhuman, or
degrading treatment is protected by international
customary law as well as by several international and
regional human rights treaties.17 The UN Human
Rights Committee has indicated that restrictions on
access to safe and legal abortion may give rise to
situations that constitute cruel, inhuman, or
degrading treatment. These situations include forcing
a pregnant woman to carry an unwanted or health-
threatening pregnancy to term.
Human Rights Watch has concluded, ‘Evidence
suggests that restrictions on abortion often lead to
Walsh et al.Abortion and Human Rights: Examples from Latin America
30
restrictions on post-abortion care. These restrictions
can also be incompatible with the right to be free
from cruel, inhuman or degrading treatment. This
could, for example, be the case where post-abortion
care is systematically denied, or where available pain
medication is withheld. It could also be the case
when women only have access to necessary post-
abortion care if they testify in criminal proceedings’
(Human Rights Watch 2005b).
1.7 Purported conflict of rights
Although the right to life clearly protects the
interests of pregnant women, opponents of
abortion rights also argue that the ‘right to life’ of a
fetus should predominate. There is debate as to
when ‘legal personhood’ commences and when the
right to life should apply, with many arguing that it
should only apply as a legal concept after birth.
The American Convention on Human Rights (ACHR) is
the only international human rights instrument to
contemplate that the right to life can apply from the
moment of conception, although not in absolute
terms.18 The American Declaration on the Rights and
Duties of Man, the predecessor instrument to the
ACHR, does not mention conception, guaranteeing
instead that ‘every human being has the right to life,
liberty, and the security of his person’.19 In 1981, the
body that monitors the implementation of the human
rights provisions in the American regional system – the
Inter-American Commission on Human Rights – was
asked to establish whether or not the right-to-life
provisions in these documents are compatible with a
woman’s right to access safe and legal abortions. The
commission concluded that they are.
The question reached the commission through a
petition brought against the US government by
individuals related to a group called Catholics for
Christian Political Action when a medical doctor was
acquitted of manslaughter after performing an
abortion in 1973 (the ‘Baby Boy Case’).20 The
petitioners asked the commission to declare the USA
in violation of the right to life under the American
Declaration on the Rights and Duties of Man, using
the ACHR as an interpretative tool.21 In the
deliberation on the ‘Baby Boy Case’, the Commission
went to great pains to examine the provisions on the
right to life in both the declaration and the
convention, looking to the preparatory work for
both documents to clarify the intended object and
purpose of the wording of the provisions.22
In the case of the declaration, the commission
explained:
[I]t is important to note that the conferees in
Bogotá in 1948 rejected language which would
have extended that right to the unborn … [and] …
adopted a simple statement on the right to life,
without reference to the unborn, and linked it to
the liberty and security of the person. Thus it
would appear incorrect to read the Declaration as
incorporating the notion that the right to life
exists from the moment of conception. The
conferees faced this question and chose not to
adopt language which would clearly have stated
that principle.23
With regard to the convention – which, as noted
above, protects the right to life, in general, from the
moment of conception – the commission found that
the wording of the right to life in Article 4 was very
deliberate and that the convention’s founders
specifically intended the ‘in general’ clause to allow
for non-restrictive domestic abortion legislation. As
the commission phrased it: ‘it was recognised in the
drafting session in San José that this phrase left open
the possibility that states parties to a future
Convention could include in their domestic
legislation “the most diverse cases of abortion”,24
allowing for legal abortion under this article’. The
commission went on to correct the petitioners in
their selective reading of the ACHR:
[I]t is clear that the petitioners’ interpretation of
the definition given by the American Convention
on the right of life is incorrect. The addition of
the phrase ‘in general, from the moment of
conception’ does not mean that the drafters of
the Convention intended to modify the concept
of the right to life that prevailed in Bogotá, when
they approved the American Declaration. The
legal implications of the clause ‘in general, from
the moment of conception’ are substantially
different from the shorter clause ‘from the
moment of conception’ as appears repeatedly in
the petitioners’ briefs.25
The commission also cited several countries, including
the USA and Brazil, for having clarified during the
negotiations that, notwithstanding any language
contained in Article 4(1) of the convention, they
retained the right to ‘preserv[e their] discretion with
respect to the content of legislation in the light of
IDS Bulletin Volume 39 Number 3 July 2008 31
their own social development, experience and similar
factors’.26
2 Access to abortion in Latin America
Latin America is a region characterised by diverse
geography and populations, large gaps between rich
and poor due to unequal distribution of resources
and access to services, a successful region-wide
demographic shift from larger to smaller families –
thanks in part to access to family planning methods,
a pragmatic approach in daily life to predominant
Roman Catholicism, a strong human rights
movement following many of the darkest periods of
violations in the second half of the twentieth
century, and a long history of struggle for women’s
rights, especially sexual and reproductive rights, led
by Latin American feminists. Latin America is also the
region with the highest rates of unsafe abortion and
some of the strictest policy restrictions on abortion
in the world (WHO 2007). Like the region, women’s
experiences and the abortion laws in its different
countries are exceedingly diverse.
A common trait among countries is that abortion
restrictions seriously affect women’s health.
According to information from six Latin American
countries, between five and ten of every 1,000
women in the population are hospitalised annually
for treatment of complications from an induced
abortion (Rayas et al. 2005). Unsafe abortion
practised in unsanitary conditions can expose women
to numerous risks, including health complications like
excessive bleeding, infections, uterine perforation,
septic shock, infertility and even death. Women who
undergo clandestine abortions are also exposed to
high fees for the services, lack of redress for ill-
performed procedures requiring post-abortion care,
stigma and discrimination from having sought illegal
and therefore unregulated healthcare services, and
possible fines or prison sentences.
Another commonality is that women’s decisions
about abortion may be the first choice they can
make about their own fertility and reproduction
because of a lack of access to sexual education,
contraception and other options. These decisions can
often be imperfect, wretched, and unsafe because of
the generalised criminalisation of abortion. In many
countries, marital rape is common and either legal or
not criminally prosecuted. Sexual violence outside
the home is also relatively common and shrouded in
impunity. Access to sex education and contraception
is limited. In such a context, women are generally
prevented from making any real decisions about their
sexual autonomy and reproduction, until they face a
crisis pregnancy. This was the case in Argentina, the
first focus country for Human Rights Watch’s
research on abortion. Government figures showed
that 40 per cent of pregnancies ended in abortions –
a clear testament to the inability of women to
control their fertility before pregnancy, and also to
the ineffectiveness of the criminalisation of abortion
(Human Rights Watch 2005a).
Our reports on access to safe abortion in the
Americas have documented how barriers to legal
abortion affect rich and poor women differently.
Women with some financial resources are in a
better negotiating position and can pay for safe
abortions in private clinics with better conditions.
Poor and marginalised women and girls must resort
to the kind of remedies they can afford, including
herbal remedies, unregulated or medically supervised
use of pharmaceuticals, or even objects like knitting
needles, sticks, or wires. Our reports gather
information from women themselves, healthcare
providers, human rights activists, government
officials and a host of other actors to thoroughly
examine the reported human rights violations and
offer recommendations for remedies and means of
protection.
In the following sections, we explore different
dimensions of access to safe and legal abortion as a
human rights issue in the Latin American context.
We begin with Peru, which arguably represents the
most common situation in Latin America: where
women have nominal access to some non-
criminalised forms of abortion, but in practice have
little or no real access in the public healthcare sector.
We go on to consider regional examples of both
ends of the spectrum in abortion law reform, from
the complete prohibition of abortion in all cases,
even to save the woman’s life, in Nicaragua, to the
complete liberalisation of abortion laws during the
first trimester of pregnancy in Mexico City.
2.1 Peru: nominal access
In Peru, abortion is penalised in all cases except to
save a pregnant woman’s life or preserve her health
from grave and lasting damage. In practice, non-
punishable abortion (or therapeutic abortion as it is
known) is rarely practised or classified as such. Those
women and girls who should qualify to receive a
Walsh et al.Abortion and Human Rights: Examples from Latin America
32
legal abortion have great difficulty accessing services.
Peru’s highly restrictive abortion law and its poor
record on making legal abortions accessible has
resulted in repeated, forceful critiques by national
and international human rights bodies and experts.
Some of the strongest critiques have come from the
HRC, the body which monitors compliance with the
International Covenant on Civil and Political Rights,
the CEDAW Committee, and the UN special
rapporteur on the right to health.
In October 2005, the HRC tribunal decided in favour
of K.L., an adolescent who was forced to carry a
non-viable pregnancy full-term, against her wishes
and against doctors’ recommendations. K.L. filed
charges against the state as an individual complainant
under the Optional Protocol to the International
Covenant on Civil and Political Rights (ICCPR). The
Committee found the government of Peru in breach
of its international obligations and in violation of its
domestic laws for denying access to therapeutic
abortion for a pregnant adolescent. Furthermore,
the same hospital that originally recommended
therapeutic abortion upon diagnosis denied her
access to treatment, much to the detriment of her
mental health. The Committee ordered the state to
‘furnish the author [K.L.] with an effective remedy,
including compensation’ and to ‘take steps to ensure
that similar violations do not occur in the future’.27
This decision is the HRC’s first on the theme of
abortion for an individual complaint and the first
ruling for any international or human rights tribunal
to hold a state accountable for failing to provide
access to legal abortion services (Kebriaei 2006). The
Committee found violations of the following
Covenant rights: respect for and guarantee of rights
(Article 2); freedom from torture and cruel, inhuman
or degrading treatment (Article 7); privacy (Article 17);
and special measures of protection for minors
(Article 24).28
In evaluating Peru’s compliance with the Convention
on the Elimination of All Forms of Discrimination
Against Women (CEDAW), the CEDAW Committee
noted that ‘illegal abortion remains one of the
leading causes of the high maternal mortality rate
and that the State party’s restrictive interpretation of
therapeutic abortion … may further lead women to
seek unsafe and illegal abortions’. The Committee
urged ‘the State party to review its restrictive
interpretation of therapeutic abortion, which is legal
… and to consider reviewing the law relating to
abortion for unwanted pregnancies with a view to
removing punitive provisions imposed on women
who undergo abortion’.29
Over the past several years, the UN special
rapporteur on the right to health has made multiple
visits and appeals to the government of Peru on the
issue of access to therapeutic abortion. In an urgent
appeal in July 2006, the special rapporteur
admonished the Peruvian State for failing to comply
with the HRC ruling in K.L. v. Peru and expressed
concern for the ‘continuing uncertainty surrounding
the precise circumstances in which women are
legally entitled to access therapeutic abortion …
exposing some to potentially serious physical and
mental health risks, if their pregnancy was carried to
term’.30 The rapporteur also signalled that such legal
and procedural uncertainty was ‘contributing to a rise
in unsafe and clandestine abortions, and
consequently an increased likelihood of maternal
mortality’, in a country still plagued with relatively
high rates. In a subsequent report in February 2007,
the special rapporteur regretted that to date, he had
received no reply from the Peruvian government.31
Women’s rights groups, medical associations and
human rights organisations in various regions within
Peru have increasingly worked together to draw
attention to the lack of regulation in the public
health sector that keeps women in the dark about
their right to access health services and puts their
health and lives at risk. These civil society actors have
held meetings with government officials and lobbied
international agencies and experts to pressure the
Peruvian government to abide by the
recommendations of the HRC. However, Peru’s
conservative administration and allied legislators are
opposed to moving forward on this issue. The
government still has not created national protocols;
high-level officials contest the complete decision of
the HRC on K.L. v. Peru, and women still do not have
adequate access to legal abortions (Human Rights
Watch 2008a). In consultation with these groups,
Human Rights Watch decided to research violations
of access to therapeutic abortion in Lima, the
nation’s capital. We will add our analysis and voice to
the urgent demand for the respect, protection and
fulfilment of women’s reproductive rights in Peru
with the publication of an upcoming report (2008b).
IDS Bulletin Volume 39 Number 3 July 2008 33
2.2 Nicaragua: complete prohibition
The most drastic case of recent rollbacks in
reproductive rights in the region – and arguably in
the world – belongs to Nicaragua. In response to
requests by women’s rights groups on the ground,
Human Rights Watch conducted an investigation on
the effects of the recently introduced total abortion
ban in Nicaragua and released a report entitled Over
Their Dead Bodies: Denial of Access to Emergency
Obstetric Care and Therapeutic Abortion in Nicaragua in
October 2007 in Managua, the capital of Nicaragua.
The investigation followed a series of events starting
with the National Assembly vote in November 2006
to eliminate from the 134-year-old penal code, all
exceptions to the criminalisation of therapeutic
abortion. In so doing, Nicaragua became one of only
a handful of countries in the world to maintain a
blanket ban on abortion, even in cases of rape,
incest, or life- or health-threatening pregnancies.32
Such blanket abortion bans are incompatible with
international human rights obligations, including
obligations on the rights to life, health and non-
discrimination. Their imposition can, and most often
does, have serious effects on the lives and health of
women and girls.
Nicaragua’s complete prohibition of abortion was
reaffirmed in September 2007, and includes a ban on
previously legal therapeutic abortions.33 But there is a
pending petition with the Nicaraguan Supreme
Court to rule on the constitutionality of the ban.
Currently the penal code allows for prison sentences
for doctors who carry out abortions under any
circumstances – even to save a pregnant woman’s
life – and on women who seek abortions, again,
regardless of the reason. Although it appears that
actual prosecutions are rare, the ban has very real
consequences that fall into three main categories:
(1) denial of access to life- or health-saving abortion
services; (2) denial or delay in access to other
obstetric emergency care; and (3) a pronounced fear
of seeking treatment for obstetric emergencies. The
net result has been avoidable deaths.34
The ban has also had a strong ‘chilling effect’ on
healthcare providers. Public health providers told
Human Rights Watch that due to the ban, they
delayed or refrained from treating women with
pregnancy complications, including life-threatening
ectopic or extrauterine pregnancies. They feared
being criminally charged with inducing an abortion,
even in cases that clearly would not be covered by
the ban. But the potentially most wide-ranging
effect of the ban on therapeutic abortion – albeit
the hardest to measure – is the surge in patients’
fear of seeking treatment for pregnancy-related
complications, in particular haemorrhaging, because
women and girls are afraid they will be accused of
having induced an abortion.
While the Nicaraguan government has developed
medical guidelines to mitigate some of the effects of
the ban, it does not monitor the implementation of
the guidelines and does not appear to properly
investigate and sanction all medical personnel who
cause unnecessary delay of or deny women access to
legal care. Nicaragua’s government has not made an
effort to counter public misperceptions regarding
abortion, the blanket ban and available legal care
options. This lack of due diligence may have resulted
in additional fatalities not directly related to the ban
on therapeutic abortion.
In the interests of protecting women’s human rights,
including the rights to life, physical integrity, health
and non-discrimination, Human Rights Watch calls on
Nicaragua’s government to repeal penal code
provisions that criminalise abortion, and instead
guarantee in law that women have access to
voluntary and safe abortions. Regardless of the
legality of abortion, Nicaragua must immediately
guarantee women and girls access to emergency
obstetric care. As part of our ongoing vigilance and
response to the situation, Human Rights Watch has
published opinion articles in Nicaraguan newspapers
to maintain pressure on the government to uphold
women’s basic human rights and to examine and
correct the dire reproductive health situation for
women and girls that has resulted from the ban.
Human Rights Watch supports the petition of various
non-governmental organisations (NGOs) for the
Nicaraguan Supreme Court to rule immediately on
the constitutionality of the ban and will maintain
contact with international observers who are
conducting the universal periodic review for
Nicaragua at the Human Rights Council this year.
2.3 Mexico: access to abortion in the first
trimester in Mexico City
Mexico has a federal system of government and no
national abortion law. Some Mexican states have
fairly liberal abortion laws, compared with the rest of
the region, at least on paper. But putting the laws
Walsh et al.Abortion and Human Rights: Examples from Latin America
34
into action has been problematic and the focus of
international attention. In 2006, Human Rights
Watch issued a report on the lack of access for
pregnant rape victims to legal abortion, calling on
governments to ensure immediate access to safe and
legal abortion after rape and to discipline public
officials – whether in the health, legal or judicial
sectors – who are abusive or neglectful in the
provision of relevant services for women and girls
(Human Rights Watch 2006).
Since that time, lawmakers in Mexico City have
broadened the scope of legislation in the federal
district to legalise abortion in the first trimester for
all pregnant women. This makes Mexico City the only
jurisdiction in Latin America, other than Cuba, where
women can decide to terminate a pregnancy in the
first 12 weeks for any reason. Mexico City’s recent
decision (April 2007) is groundbreaking, and sets the
stage for the similar legislation to protect women’s
reproductive rights in the country and the region.
Unfortunately, the National Commission on Human
Rights challenged the constitutionality of Mexico
City’s law, arguing that the Mexican Constitution
protects the right to life of the unborn and thus
precludes abortion. Many proponents of human
rights argue that this law is, in fact, protecting
women’s right to life, and that the Constitution’s
language does not preclude abortion.
In 2008, the Mexican Supreme Court is anticipated
to decide on the Mexico City abortion law. This
weighty decision will determine if women and girls
in the capital will continue to have access to abortion
in bona fide medical facilities with qualified
professionals under sanitary conditions, or be forced
to revert to unsafe and often hazardous practices
with unlicensed practitioners in clandestine clinics,
pharmacies or marketplaces. For some, this decision
may mean the difference between life and death.
In Mexico City, thousands of women and girls have
made use of the legal abortion services now
available in the public healthcare system: 13,000
women have asked for information, and more than
6,500 women have received abortions as of 5 March
2008 (Cabrera 2008). Of those women, 86 per cent
are from Mexico City and 14 per cent come from
elsewhere within the country, with at least one
woman registered from Guatemala. Contrary to
popular belief, only 5 per cent of those women were
under 18. Every one of them made a decision to
interrupt her pregnancy based on a number of
reasons, including physical health, mental health,
financial security, rape, fetal complications, and the
interruption of other life projects, such as education.
Whatever their reasons, under Mexico City’s law,
each woman is entitled to make the decision for
herself based on her own individual set of criteria
and considerations. This ability to exercise individual
decisions represents a monumental advance in the
exercise of women’s rights to life, the rights to
health and healthcare, the right to non-
discrimination, and the right to decide the number
and spacing of children. All of these rights are also
enshrined in the Mexican Constitution of 1917. But 91
years later, Mexican women are still struggling to
protect those rights.
The public hearings in Mexico’s Supreme Court have
fallen around the first year anniversary of women’s
and girl’s access to safe and affordable pregnancy
termination in Mexico’s largest city. The Mexican
Supreme Court has been recognised recently for
adopting some very important human rights
decisions, and is currently the centre of regional
attention on reproductive rights. This decision will
have important repercussions not only for women in
Mexico City, but for Mexico itself and for Latin
America as a whole (Heimburger and Taraciuk 2008).
3 Conclusion
Human Rights Watch maintains that decisions about
abortion belong to pregnant women without
interference by the state or others. The denial of a
pregnant woman’s right to make an independent
decision regarding abortion violates or poses a threat
to a wide range of human rights. Any restriction on
abortion that unreasonably interferes with a
woman’s exercise of her full range of human rights is
unacceptable.
Not informing women and healthcare providers of
their rights to access and provide safe abortion
services can be a violation of the rights to seek,
receive and impart information to the highest
attainable standard of health. Hindering or not
allowing women and girls to seek care for
emergency obstetric services and therapeutic
abortions that can save their health and lives is a
violation of the right to health and the right to life.
Only if governments provide legal protections that
do not criminalise access to healthcare services,
IDS Bulletin Volume 39 Number 3 July 2008 35
including abortion, and that provide evidence-based
information on a range of sexual and reproductive
rights, can women make free and informed decisions
about the best ways to protect their health and
wellbeing and decide if and when to have children
and found a family.
In reports and through advocacy throughout the
region and globally, Human Rights Watch has urged
governments to take all necessary steps, both
immediate and incremental, to ensure that women
have informed and free access to safe and legal
abortion services as an element of women’s exercise
of their reproductive and other human rights.
Together with allies in many countries, we
continually underscore how access to legal abortion
is not only a vital public health service that can
protect women’s health, save women’s lives, and
contribute to a reduction of maternal mortality and
disability, but also a necessary step in fully
guaranteeing fundamental human rights of women,
including the rights to health, life, non-
discrimination, physical integrity and freedom from
cruel, inhuman, or degrading treatment.
Walsh et al.Abortion and Human Rights: Examples from Latin America
36
Notes
* Janet Walsh, Marianne Møllmann and Angela
Heimburger work at Human Rights Watch’s
Women’s Rights Division as Deputy Director,
Advocacy Director and Researcher on Latin
America, respectively.
1 For more information, see Ferrando (2002),
Francome and Velkmans (2007), Boonstra et al.
(2006), Warriner and Shaw (2006), Faundes and
Barzelatto (2006).
2 Human Rights Watch (2005a, 2006, 2007 and
2008).
3 Protocol to the African Charter on Human and
Peoples’ Rights on the Rights of Women in
Africa, adopted by the 2nd Ordinary Session of
the Assembly of the Union, Maputo, 13
September 2000, CAB/LEG/66.6, entered into
force 25 November 2005, Article 14.
4 International Covenant on Civil and Political
Rights (ICCPR), adopted 16 December 1966, G.A.
Res. 2200A (XXI), 21 UN GAOR Suppl. (No. 16) at
52, UN Doc. A/6316 (1966), 999 UNTS 171,
entered into force 23 March 1976; and
Convention on the Rights of the Child (CRC),
adopted 20 November 1989, G.A. Res. 44/25,
annex, 44 UN GAOR Suppl. (No. 49) at 167, UN
Doc. A/44/49 (1989), entered into force 2
September 1990.
5 See, e.g. the HRC’s concluding observations on
Honduras, UN Doc. CC PR/C/HND/CO/1 (2006),
para. 8; Madagascar, UN Doc. CCPR/C/MDG/CO/3
(2007), para. 14; Chile, UN Doc. CCPR/C/CHL/CO/5
(2007), para. 8; Zambia, UN Doc.
CCPR/C/ZMB/CO/3 (2007), para 18; Kenya, UN
Doc. CCPR/CO/83/KEN (2005), para. 14;
Mauritius, UN Doc. CCPR/CO/83/MUS (2005),
para. 9; Bolivia, UN Doc. CCPR/C/79/Add.74
(1997), para. 22; Cameroon, UN Doc.
CCPR/C/79/Add.116 (1999), para. 13; Chile, UN
Doc. CCPR/C/79/Add.104 (1999), para. 15;
Colombia, UN Doc. CCPR/CO/80/COL (2004),
para. 13; Costa Rica, UN Doc. CCPR/C/79/Add.107
(1999), para. 11; Ecuador, UN Doc.
CCPR/C/79/Add.92 (1998), para. 11; Guatemala,
UN Doc. CCPR/CO/72/GTM (2001), para. 19;
Mali, UN Doc. CCPR/CO/77/MLI (2003), para. 14;
Morocco, UN Doc. CCPR/CO/82/MAR (2004),
para. 29; Peru, UN Doc. CCPR/CO/70/PER (2000),
para. 20; Poland, UN Doc. CCPR/C/79/Add.110
(1999), para. 11; Poland, UN Doc. CCPR/CO/82/POL
(2004), para. 8; Senegal, UN Doc.
CCPR/C/79/Add.82 (1997), para. 12; Sri Lanka, UN
Doc. CCPR/CO/79/LKA (2003), para. 12; and
Venezuela, UN Doc. CCPR/CO/71/VEN, (2001),
para. 19.
6 Human Rights Committee, General Comment 28,
Equality of rights between men and women
(Article 3), UN Doc. CCPR/C/21/Rev/1/Add/10
(2000), para. 10.
7 International Covenant on Economic, Social and
Cultural Rights (ICESCR), adopted 16 December
1966, G.A. Res. 2200A (XXI), 21 UN GAOR Suppl.
(No. 16) at 49, UN Doc. A/6316 (1966), 993 UNTS
3, entered into force 3 January 1976, Article 12.
8 CESCR, concluding observations on Nepal, UN
Doc. E/C.12/1/Add.66 (2001), para. 55; Malta, UN
Doc. E/C.12/1/Add.101 (2004), para. 41; Monaco,
UN Doc. E/C.12/MCO/CO/1 (2006), para. 23;
Mexico UN Doc. E/C.12/CO/MEX/4 (2006), paras.
25 and 44; Chile, UN Doc. E/C.12/1/Add.105
(2004), para. 25; and Kuwait, UN Doc.
E/C.12/1/Add.98 (2004), para. 43.
9 UN Committee on Economic, Social and Cultural
Rights, ‘Substantive Issues Arising in the
Implementation of the International Covenant on
Economic, Social and Cultural Rights’, General
Comment No. 14, The Right to the Highest
Attainable Standard of Health, E/C.12/2000/4
(2000), para. 12.
10 UN Committee on Rights of the Child, General
Comment No. 4, Adolescent Health and
Development in the Context of the Convention
on the Rights of the Child, CRC/GC/2003/4
(2003), para. 31.
11 UN Committee on the Elimination of
Discrimination Against Women, General
Recommendation 24, Women and Health
(twentieth session, 1999), UN Doc. A/54/38 at 5
(1999), reprinted in Compilation of General
Comments and General Recommendations
Adopted by Human Rights Treaty Bodies, UN
Doc. HRI/GEN/1/Rev.6 at 271 (2003), para. 14.
12 See UN Human Rights Committee, Concluding
Observations on Argentina, UN Doc.
CCPR/CO.70/ARG (2000), para. 14; Colombia,
UN Doc. CCPR/C/79/Add.76 (1997), para. 24;
Ecuador, UN Doc. CPR/C/79/Add.92 (1998), para.
11; Paraguay, UN Doc. CCPR/C/PRY/CO/2
(2006), para. 10; and Guatemala, UN Doc.
CCPR/CO/72/GTM (2001), para. 19.
13 UN Human Rights Committee, Concluding
Observations on Argentina, UN Doc.
CCPR/CO.70/ARG (2000), para. 14.
14 ICPPR, art. 17.
15 Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW),
adopted 18 December 1979, G.A. res. 34/180, 34
UN GAOR Suppl. (No. 46) at 193, UN Doc.
A/34/46, entered into force 3 September 1981,
Article 16(1)(e). This Article reads: ‘States Parties
shall … ensure, on a basis of equality of men and
women … (e) the same rights to decide freely and
responsibly on the number and spacing of their
children and to have access to the information,
education, and means to enable them to exercise
these rights’.
16 ICCPR, Article 19(2); Committee on Economic,
Social and Cultural Rights, General Comment 14,
paras. 12(b) and 18.
17 ICCPR, Article 7; American Convention on
Human Rights (‘Pact of San José, Costa Rica’),
adopted 22 November 1969, O.A.S. Treaty Series
No. 36, 1144 UNTS 123, entered into force 18 July
1978, reprinted in Basic Documents Pertaining to
Human Rights in the Inter-American System,
OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992), Article 5.
18 American Convention on Human Rights, O.A.S.
Treaty Series No. 36, 1144 U.N.T.S. 123, entered
into force 18 July 1978, reprinted in Basic
Documents Pertaining to Human Rights in the
Inter-American System, OEA/Ser.L.V/II.82 doc.6
rev.1 at 25 (1992), Article 4.
19 American Declaration of the Rights and Duties of
Man, O.A.S. Res. XXX, adopted by the Ninth
International Conference of American States
(1948), reprinted in Basic Documents Pertaining
to Human Rights in the Inter-American System,
OEA/Ser.L.V/II.82 doc.6 rev.1 at 17 (1992), Article I.
20 Inter-American Court of Human Rights, White
and Potter (‘Baby Boy Case’), Judgement of 6
March 1981, Inter-Am.Ct.H.R. (Ser. L) No. 5/II.54
(1981).
21 The American Convention on Human Rights was
not directly applicable, since the USA had not
ratified this convention. However, as a member of
the Organization of American States, the USA is
bound by the American Declaration on the Rights
and Duties of Man.
22 The 1969 Vienna Convention on the Law of
Treaties, which guides public international treaty
law, establishes as a general rule of interpretation
of international treaties that ‘a treaty shall be
interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the
treaty in their context and in the light of its object
and purpose’, and notes that the preparatory
works of a treaty can be used as a supplementary
means of interpretation. Vienna Convention on
the Law of Treaties, Articles 31 and 32.
23 Inter-American Commission of Human Rights,
Baby Boy Case, para. 14(a).
24 Inter-American Commission of Human Rights,
Baby Boy Case, para. 14(c).
25 Inter-American Commission on Human Rights,
Baby Boy Case, para. 30.
26 Inter-American Commission of Human Rights,
Baby Boy Case, para. 14(c).
27 UN Human Rights Committee, Karen Noelia
Llantoy Huamán v. Peru (K.L. v. Peru),
Communication No. 1153/2003, UN Doc.
CCPR/C/85/D/1153/2003(2005), paras. 8–9.
28 UN Human Rights Committee, K.L. v. Peru, para.
6.6.
29 United Nations Committee on the Elimination of
Discrimination Against Women, Concluding
Comments: Peru, UN Doc. CEDAW/C/PER/CO/6
(2007), paras. 24 and 25.
30 UN Human Rights Council, Report of the Special
Rapporteur on the right of everyone to the
enjoyment of the highest attainable standard of
IDS Bulletin Volume 39 Number 3 July 2008 37
physical and mental health, Paul Hunt,
A/HRC/4/28/Add.1, 23 February 2007, paras 36
and 37.
31 UN Human Rights Council, Report of the Special
Rapporteur on the right of everyone to the
enjoyment of the highest attainable standard of
physical and mental health, Paul Hunt,
A/HRC/4/28/Add.1, 23 February 2007, paras 36
and 37.
32 The other countries are Chile, El Salvador and
Malta. See Center for Reproductive Rights, The
World’s Abortion Laws, www.reproductiverights.org/
pub_fac_abortion_ laws.html (accessed 19
September 2007).
33 Therapeutic abortion was not defined in
Nicaraguan law, but was set out in an official
norm, issued by the Health Ministry: ‘The
termination of pregnancy before 20 weeks
gestation … due to maternal pathologies that are
made worse by the pregnancy or for maternal
pathologies that have a negative effect on the
development and growth of the foetus’. Health
Ministry of Nicaragua, Medical Treatment
Department/Department of Comprehensive
Treatment for Women, ‘Norm for treatment of
abortion’ (Norma de atención al aborto), August
1989.
34 Human Rights Watch conducted research in
Nicaragua in August 2007 to document the ill
and sometimes fatal effects of the blanket ban. In
October 2007, we released a report on the
human rights consequences of the ban, Over Their
Dead Bodies: Denial of Access to Emergency
Obstetric Care and Therapeutic Abortion in
Nicaragua. The report is based on interviews with
officials, doctors from the public and private
health systems, women in need of health services,
and family members of women who died as a
result of the ban. For more information, see
http://hrw.org/reports/2007/nicaragua1007.
Walsh et al.Abortion and Human Rights: Examples from Latin America
38
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IDS Bulletin Volume 39 Number 3 July 2008 39
