Law and Policy Guide: Availability, Accessibility, Acceptability and Quality Framework

05.30.2019

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Availability, Accessibility, Acceptability and Quality of Abortion Services

The Committee on Economic, Social and Cultural Rights (ESCR Committee) has set forth four essential elements of the right to health: availability, accessibility, acceptability and quality (known as the AAAQ framework).1 This framework has been adopted by a number of UN Treaty Monitoring Bodies and domestic courts in assessing states’ obligations under the right to health. Notably, in General Comment 22 on the right to sexual and reproductive health, the ESCR Committee applied the AAAQ framework to sexual and reproductive health care, including abortion services, providing states’ with clear guidance on the measures they must take to fulfil their human rights obligations.2 The elements of the AAAQ framework are interrelated, requiring governments to ensure that they holistically address these different facets of the right to health in the provision of abortion care.

Availability

Human Rights Norms

United Nations Treaty Monitoring Bodies

According to the ESCR Committee, availability requires an adequate number of functioning health care facilities and services with trained medical and professional personnel and skilled providers who are trained to perform the full range of sexual and reproductive health services, including abortion services.3 It also requires essential medicines for abortion and post abortion care to be available.4 The ESCR Committee states that the “[u]navailability of goods and services due to ideologically based policies or practices…must not be a barrier to accessing services” and “[a]n adequate number of health‑care providers willing and able to provide such services should be available at all times in both public and private facilities and within reasonable geographical reach.”5

European Human Rights Bodies

The European Committee of Social Rights (ECSR) has addressed the issue of availability of abortion services in the context of conscientious objection. The ECSR has recognized that:

“[T]he provision of abortion services must be organised so as to ensure that the needs of patients wishing to access these services are met. This means that adequate measures must be taken to ensure the availability of non-objecting medical practitioners and other health personnel when and where they are required to provide abortion services, taking into account the fact that the number and timing of requests for abortion cannot be predicted in advance.”6

African Human Rights Bodies

The Maputo Protocol explicitly recognizes the right of women to adequate, affordable health services, including safe abortion services, at reasonable distances, especially for women living in rural areas.7 This is reinforced in the African Commission on Human and Peoples’ Rights’ General Comment No. 2, which recognizes that it is critical that states “ensure the availability, financial and geographical accessibility as well as the quality of women’s sexual and reproductive health-care services without any discrimination…”8

Global Medical Standards

The World Health Organization (WHO) makes clear in its Safe abortion: technical and policy guidance for health systems that “[p]olicy-makers and health-care managers working to provide reproductive health services should always ensure that safe abortion care is readily accessible and available to the full extent of the law.”9 This requires:

  • the availability of safe abortion services by ensuring facilities and trained providers within reach of the entire population;10
  • the availability of all medical equipment, drugs, contraceptives and supplies necessary for the safe delivery of services;11 and
  • the availability of abortion facilities within both the public and private sectors at all levels of the health system, with appropriate referral mechanisms between facilities.12

Comparative Law

Countries need to ensure that they make abortion services available by constructing an adequate number of health facilities, registering abortion drugs, and providing training to health care providers on the administration of safe abortion services. After Ethiopia liberalized its abortion law in 2005, the government undertook efforts to improve the availability of abortion services and published the Technical and Procedural Guidelines for Safe Abortion Services in Ethiopia which permit use of abortion drugs in accordance with WHO recommendations and allow properly trained midlevel health care providers to administer medical abortion services.13

Countries should also ensure that where abortion services are legal, they are available equally to all women free from discrimination, including on the grounds of geographical location. In the case of International Planned Parenthood Federation – European Network (IPPF-EN) v. Italy, the European Committee of Social Rights found that Italy violated the right of non-discrimination guaranteed by the European Social Charter by not ensuring that abortion services were equally available to all women in the country regardless of their geographical location or socio-economic status. The Committee found that women who lived in certain regions of Italy were impeded in their access to abortion services by doctors invoking conscientious objection with no effective referral mechanisms in place to refer women to available non-objecting health care personnel. While Italy fully covered the cost of abortion services under its National Health Service, the Committee made clear that “[i]f a service is not available in practice, it is irrelevant whether it is for free or has to be paid for.”14 The Committee went on to say that “women who are denied access to abortion facilities in their local region may in effect be deprived of any effective opportunity to avail of their legal entitlement to such services, as the tight time-scale at issue may prevent them from making alternative arrangements.”15

Accessibility

Human Rights Norms

United Nations Treaty Monitoring Bodies

According to the ESCR Committee, accessibility requires that services related to sexual and reproductive health care, including abortion, should be accessible to all individuals without discrimination and free from procedural, practical, and social barriers interfering with access to such services.16 This means sexual and reproductive health care must be within safe physical reach for all, especially persons belonging to marginalized groups such as people with disabilities, to ensure timely access to services.17 These services must also be affordable for all and people with insufficient means should be provided with the support necessary to cover the costs of accessing sexual and reproductive health services.18

Treaty Monitoring Bodies (TMBs)  have also addressed the issue of accessibility to abortion services in cases that have come before it.19 The Human Rights Committee has made clear the where a state has legalized abortion, “it must establish an appropriate legal framework that allows women to exercise their right to it under conditions that guarantee the necessary legal security…”20 The CEDAW Committee has also held states accountable for the failure to guarantee access to legal abortion services.21

TMBs have also called on states to:

  • Remove obstacles to access legal abortion services and facilitate access to information on how to obtain a legal abortion;22
  • Ensure unimpeded access to legal abortion and post abortion services by ensuring that institutions are legally precluded from raising conscientious objection, clearly defining the grounds on which it is permissible for health professionals to do so and guaranteeing mandatory referrals;23
  • Implement awareness-raising policies to combat stigmatization of women who seek abortions;24 and
  • Ensure universal coverage of abortion within national health insurance schemes.25

European Human Rights Bodies

The European Court of Human Rights (ECtHR) has repeatedly found that where a state legally allows for abortion – even if it is only under limit circumstances – it must structure its legal framework to afford women access to legal abortion services.26 To this end, the ECtHR has recognized that “the State is under a positive obligation to create a procedural framework enabling a pregnant woman to exercise her right of access to lawful abortion.”27

Inter-American Human Rights Bodies

The Committee of Experts on the Follow-up Mechanism to the Belém do Pará Convention (MESECVI) in its Second Hemispheric Report on the Implementation of the Belém do Pará Convention specifically recommend not only that state parties legalize abortion on therapeutic grounds as well as in cases of rape, but also ensure the provision of abortion services in hospitals and health care centers and establish protocols/guidelines to guarantee access.28

African Human Rights Bodies

The Maputo Protocol recognizes that state parties must authorize abortions where the pregnancy poses a risk to the life, or mental or physical health of the woman, as well as in cases of rape, incest, sexual assault, and fetal impairment.29 In General Comment 2 on Article 14 of the Maputo Protocol, the African Commission on Human and Peoples’ Rights further reinforces that member states are required to ensure that their legal framework facilitate access to such medical abortion noting that women’s health and lives are put in danger when they do not have access to safe and legal abortions and are forced to resort to unsafe and illegal abortions.30

Global Medical Standards

The WHO’s Safe abortion: technical and policy guidance for health systems sets out clear guidelines to ensure access to abortion services. This includes guidance such as:

  • In circumstances where certification of abortion providers is required, such certification should not create barriers to accessing services.31 Furthermore, licensing criteria “should not impose excessive requirements for infrastructure, equipment or staff that are not essential to the provision of safe abortion services” and should be the same for both the public and private sectors to facilitate access to care;32
  • In compliance with states’ human rights obligations, financing mechanisms should ensure equal access to good-quality abortion services and in cases where fees are charged for abortion services, such fees should be commensurate to a woman’s ability to pay, and procedures should exempt adolescents and those unable to pay;33 and
  • Countries should ensure that the exercise of conscientious objection by health care providers does not prevent patients from obtaining access to abortion services by ensuring health care providers refer women to providers who are willing and trained to provide such services.34

Comparative Law

Countries worldwide have taken a whole host of measure to ensure that abortion services are accessible, including be ensuring that they are affordable for all women. For example, a number of countries have fully covered the cost of abortion in their domestic health insurance schemes. In 2012, France passed a law requiring the full cost of abortion procedures to be reimbursed by the state to improve women’s access to abortion services.35 Additionally, in the landmark case of Lakshmi Dhikta v. Nepal, the Supreme Court of Nepal held the government accountable for failing to ensure the affordability of abortion services and mandated that the government take the necessary steps to guarantee that women are not denied abortion services solely on financial grounds. Since that judgment, Nepal enacted the Safe Motherhood and Reproductive Health Rights Act, 2018 which contains provisions making reproductive health care free of charge in public health facilities.

A number of countries have implemented laws and policies to ensure women’s safe access to abortion services. For example, many states in Australia, including Victoria and Tasmania, have implemented safe access areas that create a 150 meter buffer zones outside health clinics that provide abortion services. These zones forbid different forms of harassment, intimidation, communications that may cause distress or anxiety, and filming without consent in order to protect the privacy, safety, and wellbeing of patients and staff. The validity of these laws was recently upheld by the High Court of Australia.36

Furthermore, a number of countries have taken steps to remove legal barriers to access. In a 2014 case, the Constitutional Court of Bolivia removed the requirement for judicial authorization for women to access a legal abortion as mandated in Bolivia’s Penal Code. In its decision, the court further held that a woman’s decision to have an abortion should not be influenced by the personal or religious beliefs of judges or attorneys.37

Acceptability

Human Rights Norms

United Nations Treaty Monitoring Bodies

According to ESCR Committee, acceptability requires that all sexual and reproductive health services, including abortion, be “respectful of the culture of individuals, minorities, peoples and communities and sensitive to gender, age, disability, sexual diversity and life-cycle requirements.” Notably, the ESCR Committee recognizes that acceptability “cannot be used to justify the refusal to provide tailored facilities, goods, information and services to specific groups.”38

To ensure abortion services are acceptable, TMBs have recommended that states:

  • ensure safe abortions for all groups of women;39
  • ensure women’s privacy and confidentiality, and in particular guarantee adolescent girls’ confidentiality40
  • provide medically accurate and non-stigmatizing information on abortion;41 and
  • remove barriers to access for girls such as parental consent requirements or mandatory waiting periods.42

African Human Rights Bodies

In General Comment 2 on Article 14 of the Maputo Protocol, the African Commission on Human and Peoples’ Rights recognizes that women need to be well informed of products, procedures and health services (including abortion services) that are specific to them in a non-discriminatory basis.43

Global Medical Standards

The WHO’s Safe abortion: technical and policy guidance for health systems, states that national abortion laws and standards should protect informed and voluntary decision-making, autonomy in decision-making, non-discrimination, confidentiality, and privacy for all women, including adolescents.44 The WHO also makes clear that health care providers need to be mindful of the context and individual situation of women seeking abortion services and need to ensure that women are treated with “respect and understanding and to be provided with information in a way that [they] can understand so that [they] can make a decision free of inducement, coercion or discrimination.”45

Furthermore, the WHO makes clear that “[d]epending upon the context, unmarried women, adolescents, those living in extreme poverty, women from ethnic minorities, refugees and other displaced persons, women with disabilities, and those facing violence in the home, may be vulnerable to inequitable access to safe abortion services. Abortion-service providers should ensure that all women are treated without discrimination and with respect.”46

Comparative Law

States should ensure that they provide information on and to access to abortion services in a manner that caters to the specific needs of all women, taking into consideration factors such as culture, disability, sexual diversity, and age.

One example of this is ensuring that abortion services are youth-friendly and that barriers adolescents face are addressed and removed. For example, a number of countries have removed their parental authorization requirements for abortion services. In the case of Gillick v West Norfolk and Wisbech Area Health Authority, the House of Lords in the United Kingdom held that children under the age of 16 were able to consent to abortion advice and services without parental authorization.47 Likewise, in the United States in 2016, the Alaska Supreme Court determined that Alaska’s law requiring physicians to notify a parent of a minor seeking an abortion violated the state constitution’s right to equal protection.48

Quality

Human Rights Norms

UN Treaty Monitoring Bodies

According to ESCR Committee, quality requires that sexual and reproductive services and goods, including those related to abortion, are evidence-based and scientifically and medically appropriate; drugs and equipment are scientifically approved and unexpired; and that health care personnel are trained. The ESCR Committee makes clear that “[t]he failure or refusal to incorporate technological advances and innovations in the provision of sexual and reproductive health services, such as medication for abortion…jeopardizes the quality of care.”49

TMBs have also called on states to ensure that:

  • health care professionals who perform abortion services are adequately trained;50
  • information provided by health care professionals about abortion are based on science and evidence and cover the risks of having as well as not have an abortion;51

European Human Rights Bodies

In Resolution 1607 on Access to safe and legal abortion in Europe, the Council of Europe called on member states to “adopt evidence-based appropriate sexual and reproductive health and rights strategies and policies… through increased investments from the national budgets into improving health systems, reproductive health supplies and information.”52

African Human Rights Bodies

In General Comment 2 on Article 14 of the Maputo Protocol, the African Commission on Human and Peoples’ Rights recognizes that when women are denied the ability to have a safe abortion on the grounds listed under Article 14.2(c) (where the pregnancy poses a risk to the mental or physical health of the mother, in cases of sexual assault, rape, incest, or fetal impairment) they are also denied the benefit of scientific progress as articulated in the International Covenant of Economic, Social and Cultural Rights.53

Global Medical Standards

The WHO has issued a number of guidelines and standards to ensure the quality of abortion services:

Comparative Law

States can ensure quality of abortion services by guaranteeing appropriate training of healthcare workers, ensuring equipment and medication are scientifically approved and appropriate, and by registering abortion drugs mifepristone and misoprostol to their core list of essential medicines.

  • 1. Committee on Economic, Social and Cultural Rights (ESCR Committee), General Comment No. 14: The right to the highest attainable standard of health (Art. 12), (22nd Sess., 2000), in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, at XX, para. XX, U.N. Doc. HRI/GEN/1/Rev.9 (Vol. I) (2008).
  • 2. ESCR Committee, General Comment No. 22 (2016) on the right to sexual and reproductive health (article 12 of the International Covenant on Economic, Social, and Cultural Rights), U.N. Doc. E/C.12/GC/22 (2016) [hereinafter ESCR Committee, Gen. Comment No. 22].
  • 3. Id. at para. 13.
  • 4. Id.
  • 5. Id. at para. 14.
  • 6. IPPF-EN v. Italy Complaint No. 87/2012, para 163 Eur. Comm. Soc.R.
  • 7. African Commission on Human and Peoples’ Rights, Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), art. 14(2)(a) (2003).
  • 8. The African Commission on Human and Peoples’ Rights (African Commission), General Comment No. 2 on Article 14 (1) (a), (b), (c) and (f) and Article 14 (2) (a) and (c) of the Maputo Protocol, online: African Commission on Human and People’s Rights at para. 29 < http://www.achpr.org/files/instruments/general-comments-rights-women/achpr_instr_general_comment2_rights_of_women_in_africa_eng.pdf>.
  • 9. World Health Organization, Safe Abortion: Technical and Policy Guidance for Health Systems 64 (2d ed. 2012).
  • 10. Id. at 65.
  • 11. Id. at 69 and 71.
  • 12. Id. At 65.
  • 13. Technical and Procedural Guidelines for Safe Abortion Services in Ethiopia, June 2006 (Addis Ababa).
  • 14.  International Planned Parenthood Federation – European Network (IPPF-EN) v. Italy, Complaint No. 87/2012, Eur. Comm. Soc. R., paras. paras. 193 (2014). See also Confederazione Generale Italiana del Lavoro (CGIL) v. Italy, Complaint No. 91/2013, Eur. Comm. Soc. R., paras. 139-140 (2016). 
  • 15. Id.
  • 16. ESCR Committee, Gen. Comment No. 22, para 2, 15, and 24.
  • 17. ESCR Committee, Gen. Comment No. 22, para 16.
  • 18. ESCR Committee, Gen. Comment No. 22, para 17.
  • 19. See for example:  L.C. v. Peru, CEDAW Committee, Commc’n No. 22/2009, U.N. Doc. CEDAW/C/50/D/22/2009 (2011); K.L. v. Peru, Human Rights Committee, Commc’n No. 1153/2003, U.N. Doc. CCPR/ C/85/D/1153/2003 (2005).
  • 20. L.C. v. Peru, CEDAW Committee, Commc’n No. 22/2009, para. 8.17, U.N. Doc. CEDAW/C/50/D/22/2009 (2011).
  • 21. LC v. Peru/
  • 22. Human Rights Committee, Concluding Observation: Colombia, para 21, U.N. Doc. CCPR/C/COL/CO/7.
  • 23. CEDAW Committee, Concluding Observations: Romania, para 33(c), U.N. Doc. CEDAW/C/ROU/CO/7-8
  • 24. Human Rights Committee, Concluding Observation: Namibia, para 16.(a), U.N. Doc. CCPR/C/NAM/CO/2
  • 25. CEDAW Committee, Concluding Observations: Croatia, para 31(b), U.N. Doc. CEDAW/C/HRV/CO/4-5
  • 26. Tysiąc v. Poland §116-124; R.R. v. Poland §200; P. and S. v. Poland §99
  • 27. R.R. v. Poland §200
  • 28. MESECVI, Second Hemispheric Report on the Implementation of the Belém do Pará Convention, recommendations 10-11, Washington, D.C.: Follow-Up Mechanism to the Belém do Pará Convention, 2012, http://www.oas.org/en/mesecvi/hemisphericreports.asp
  • 29. African Commission on Human and Peoples’ Rights, Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), art. 14(2)(c) (2003).
  • 30. The African Commission on Human and Peoples’ Rights (African Commission), General Comment No 2 on Article 14 (1) (a), (b), (c) and (f) and Article 14 (2) (a) and (c) of the Maputo Protocol, at para. 38-39.
  • 31. World Health Organization, Safe Abortion: Technical and Policy Guidance for Health Systems 67 (2d ed. 2012).
  • 32. Id.
  • 33. Id at 80.
  • 34. Id. at 69.
  • 35. Code de la Sécurité Sociale, art. L. 322-3 (20) (2012) (Fr.).
  • 36. Clubb v Edwards [2019] High Ct. 11 (Austl.).
  • 37. Constitutional Court case from 2014 (Bolivia – Aborto – Tribunal Constitucional Plurinacional – Sentencia 0206/2014 SENTENCIA CONSTITUCIONAL Plurinacional 0206/2014.
  • 38. ESCR Committee, Gen. Comment No. 22, para 20.
  • 39. CEDAW Committee, Concluding Observation: Armenia, para 27(a), U.N. Doc. CEDAW/C/ARM/CO/5-6
  • 40. Committee on the Elimination of Discrimination against Women, General Recommendation No. 24: Article 12 of the Convention (women and health), (20th Sess., 1999), in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, at para. 31(e), U.N. Doc. HRI/GEN/1/Rev.9 (Vol. II) (2008) [hereinafter CEDAW Committee, Gen. Recommendation No. 24]; Committee on the Rights of the Child, Concluding Observation: Slovakia, para 41(e), U.N. Doc. CRC/C/SVK/CO/3-5
  • 41. Committee on the Rights of the Child, Concluding Observation: Slovakia, para 41(e), U.N. Doc. CRC/C/SVK/CO/3-5.
  • 42. Committee on the Rights of the Child, Concluding Observation: Slovakia, para 41(c)-(d), U.N. Doc. CRC/C/SVK/CO/3-5.
  • 43. The African Commission on Human and Peoples’ Rights (African Commission), General Comment No 2 on Article 14 (1) (a), (b), (c) and (f) and Article 14 (2) (a) and (c) of the Maputo Protocol, at para. 31.
  • 44. World Health Organization, Safe Abortion: Technical and Policy Guidance for Health Systems 67-68(2d ed. 2012
  • 45. Id. at 68.
  • 46. Id.
  • 47. Gillick v. West Norfolk and Wisbech Area Health Authority, [1986] 1 Appeal Cases 112 (House of Lords).
  • 48. Planned Parenthood v. Alaska, Supreme Court of Alaska, (2016), https://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/supreme_court_opinion__7114.pdf
  • 49. ESCR Committee, Gen. Comment No. 22, para 21.
  • 50. Human Rights Committee, Concluding Observation: Colombia, para 21, U.N. Doc. CCPR/C/COL/CO/7.
  • 51. CEDAW Committee, Concluding Observation: Slovakia, para 31(e), U.N. Doc. CEDAW/C/SVK/CO/5-6.
  • 52. http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=17638, para 7.
  • 53. The African Commission on Human and Peoples’ Rights (African Commission), General Comment No 2 on Article 14 (1) (a), (b), (c) and (f) and Article 14 (2) (a) and (c) of the Maputo Protocol, at para. 33.