Law and Policy Guide: Health Exceptions

05.23.2019

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Health Exceptions

The laws of countries allowing abortion on health grounds can vary in their formulation: Some countries indicate abortion is permitted under broad health or therapeutic grounds, while others specify that abortion is permitted when a woman’s mental health is at risk. A small number of countries explicitly indicate that abortion is only permitted when pregnancy jeopardizes the woman’s physical health. The World Health Organization advises that countries permitting abortion on health grounds should interpret “health” to mean “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.”1

Human Rights Norms

UN Treaty Monitoring Bodies

UN Treaty Monitoring Bodies have repeatedly made clear that States should permit abortion where there is a threat to the woman’s health.2 They have called on states not to limit this to physical health and ensure women can legally access abortion services when their mental health is at risk. For example, in the case of LC v. Peru, the Committee on the Elimination of Discrimination against Women (CEDAW Committee) recognized that restrictive interpretations of health exceptions that do not take into account both physical and mental health can result in violations of the right to health.3 The Committee further urged that when pregnancy poses a risk to one’s health, abortion services must be accessible in a timely manner.4

African Regional Bodies

The Maputo Protocol obligates State parties to permit safe and legal abortion when the pregnant woman’s mental or physical health is at risk.5 In General Comment No. 2, the African Commission on Human and Peoples’ Rights clarifies that, under this provision, State parties must interpret health exceptions to include mental and social well-being in accordance with the World Health Organization’s definition of health.6 The General Comment further recognizes that states must also adopt legal frameworks that enable women to access abortion on health grounds7 and “prior psychiatric examinations are not necessary to establish the risk to mental health.”8 

Inter-American Human Rights System

Human rights bodies in the Inter-American system have repeatedly recognized that abortion should be allowed on health grounds. For example, In the Matter of B., the Inter-American Court addressed the blanket criminalization of abortion in a case where a pregnant woman was facing serious risks to her life and health. The Court issued provisional measures ordering El Salvador to ensure the medical team treating the woman could take “without any interference, the medical measures they consider opportune and desirable” to preserve the woman’s rights to health, life and personal integrity.9 The Inter-American Commission has also issued precautionary measures to Paraguay to guarantee a pregnant girl whose health was at risk access to appropriate medical treatment that had been recommended by specialists, which in this case was the interruption of the pregnancy.10  The Commission also issued precautionary measures to Nicaragua in a case where a pregnant woman with cancer was being denied a therapeutic abortion and cancer treatment, due to fear it could provoke an abortion.  The Commission called on the state to adopt measures necessary to ensure her access to medical treatment for cancer.11 Furthermore, the Committee of Experts of the Follow-Up Mechanism to the Belém do Pará Convention has recommended that states legalize abortion on therapeutic grounds, including to avoid serious or permanent injury to the woman’s physical and mental health.12

Global Medical Standards

Global medical standards have long held an expansive definition of health that extends beyond physical health to include mental and social well-being. The World Health Organization (WHO) Constitution defines health as “a state of complete physical, mental, and social well-being and not merely the absence of disease.”13 The WHO defines mental health as “a state of well-being in which every individual realizes his or her own potential, can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a contribution to her or his community.”14

In Safe Abortion: Technical and Policy Guidance for Health Systems, the WHO advises that any laws that do not define health should be interpreted in accordance with the WHO’s definition of health (as “a state of complete physical, mental, and social well-being and not merely the absence of disease”).15 In this regard, the WHO notes that all Member States have ascribed to the WHO’s definition of health.16

The WHO has further recognized that health exceptions in abortion laws should be interpreted to include mental health.17 According to the WHO, whereas physical health conditions are those that are aggravated by pregnancy, or that result from pregnancy itself, conditions that impact mental health may include  psychological suffering resulting from “coerced or forced sexual acts,” among other conditions.18 The WHO also recognizes that third-party authorization requirements, which can create undue delays in accessing abortion services, can exacerbate physical and mental health conditions for pregnant women seeking abortion services.19

Comparative Law

The laws of countries allowing abortion on health grounds can vary in their formulation: Some countries indicate abortion is permitted under broad health or therapeutic grounds, while others specify that abortion is permitted when a woman’s mental health is at risk. A small number of countries explicitly indicate that abortion is only permitted when pregnancy jeopardizes the woman’s physical health. Generally, countries do not place a gestational limit on health exceptions. This reflects the reality that distinct health risks requiring medical intervention may emerge throughout a pregnancy.

Nearly half of the countries that permit abortion on health grounds explicitly include mental health in their laws,20while only a few countries limit abortion to when there is a risk to the woman’s physical health.21 Courts in a number of jurisdictions have issued decisions recognizing that abortion must be permitted where pregnancy poses a risk to the woman’s mental health.22 For example, in 2006, the Colombian Constitutional Court issued a groundbreaking decision recognizing abortion must be allowed when pregnancy poses a risk to the woman’s physical or mental health, as well as on several other grounds.23 In reaching this decision, the Court recognized mental health is protected as part of the right to health under domestic and international law.24 In 2014, the Constitutional Court in Bolivia determined that the health exception in the Penal Code must be understood to permit abortion in cases where the mental health of the pregnant woman is at risk.25 Similarly, the United Kingdom issued a landmark decision in 1938 on access to abortion for a rape survivor in which the Court explicitly stated that abortion must be permitted when the woman’s physical or mental health is at risk.26 This decision has shaped legal frameworks on abortion throughout Commonwealth States, and serves as legal precedent in a number of Commonwealth countries.

Where abortion is permitted on health grounds, requirements that women receive authorization from multiple medical professionals can hinder access to abortion services.27 For example, Thailand requires certification from one medical practitioner, other than the professional who will perform the abortion, that the mental health of the pregnant woman is at risk.28 Conversely, Ghana has made that clear stating “no psychiatric assessment is required in order to obtain a legal abortion” on the grounds of mental health.29

  • 1. World Health Organization, Constitution of the World Health Organization, at 1 (45th ed. 1949).
  • 2. See, e.g., L.C. v. Peru, CEDAW Committee, Commc’n No. 22/2009, para. 9(b), U.N. Doc. CEDAW/C/50/D/22/2009 (2011); K.L. v. Peru, Human Rights Committee, Commc’n No. 1153/2003, para. 6, U.N. Doc. CCPR/C/85/D/1153/2003 (2005); Human Rights Committee, Concluding Observations: Ireland, para. 9, U.N. Doc. CCPR/C/IRL/CO/4 (2014); Committee on Economic, Social and Cultural Rights (ESCR Committee), Concluding Observations: Chile, para. 29, U.N. Doc. E/C.12/CHL/CO/4 (2015).
  • 3. See L.C. v. Peru, CEDAW Committee, Commc’n No. 22/2009, para. 8.15, U.N. Doc. CEDAW/C/50/D/22/2009 (2011).
  • 4. Id. para. 8.17.
  • 5. 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).
  • 6. African Commission on Human and Peoples’ Rights, General Comment No. 2 on Article 14.1 (a), (b), (c) and (f) and Article 14.2 (a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, para. 38 (2014).
  • 7. Id.
  • 8. Id.
  • 9. Order of the Inter-American Court of Human Rights of May 29, 2013: Provisional Measures with Regard to El Salvador, Matter of B., at 14, para. 17, Inter-Am Ct. H.R. (2013), available at http://www.corteidh.or.cr/docs/medidas/B_se_01_ing.pdf.
  • 10. Medidas Cautelares No. 178/15: Asunto niña Mainumby respecto de Paraguay [Precautionary Measure No. 178/15: The matter of the girl Mainumby with respect to Paraguay], Inter-Am. Comm’n H.R. (2015), available at https://uniteforreprorights.org/wp-content/uploads/2018/01/MC178-15-ES.pdf.
  • 11. “Amelia” v. Nicaragua, Precautionary Measure MC 43-10, Inter-Am. Comm’n H.R. (2010).
  • 12. MESECVI (2012). op. cit. Recommendation 10
  • 13. World Health Organization, Constitution of the World Health Organization, at 1 (45th ed. 1949).
  • 14. Mental Health: A state of well-being, World Health Organization, https://www.who.int/features/factfiles/mental_health/en/ (last updated 2014).
  • 15. Id.
  • 16. Id.
  • 17. World Health Organization, Safe Abortion: Technical and Policy Guidance for Health Systems 92 (2nd ed. 2012), available at https://apps.who.int/iris/bitstream/handle/10665/70914/9789241548434_eng.pdf?sequence=1.
  • 18. Id.
  • 19. Id. at 94.
  • 20. Center for Reproductive Rights, World Abortion Map 2019, available at: http://worldabortionlaws.com/.
  • 21. Id.
  • 22. E.g., Sentencia Constitucional Plurinacional [Plurinational Consitutional Judgment] 0206/2014, Tribunal Constitucional Plurinacional [Constitutional Court], Feb. 27, 2015 (Bol.).; R v. Bourne, [1939] 1 K.B. 687, Central Criminal Court, July 18-19, 1938 (U.K.).
  • 23. Corte Constitucional República de Colombia [Colombian Constitutional Court], Sentencia C-355/2006, sec. 10.1, May 10, 2006 (Colom.), translated in C-355/2006: Excerpts of the Constitutional Court’s ruling that liberalized Abortion in Colombia, (Women’s Link Worldwide, 2006), available at https://www.womenslinkworldwide.org/en/files/1353/c355-2006-english-version.pdf.
  • 24. Id. sec. 7, p. 30.
  • 25. Sentencia Constitucional Plurinacional [Plurinational Consitutional Judgment] 0206/2014, Tribunal Constitucional Plurinacional [Constitutional Court], Feb. 27, 2015 (Bol.).
  • 26. R v. Bourne, [1939] 1 K.B. 687, Central Criminal Court, July 18-19, 1938 (U.K.).
  • 27. World Health Organization, Safe Abortion: Technical and Policy Guidance for Health Systems 87 (2nd ed. 2012), available at https://apps.who.int/iris/bitstream/handle/10665/70914/9789241548434_eng.pdf?sequence=1.
  • 28. Thai Medical Council, Regulation on Criteria for Performing Therapeutic Termination of Pregnancy In accordance with Section 305 of the Criminal Code of Thailand B.E. 2548, para. 5(2), (Nov. 10, 2005) (Thai.) (unofficial translation), available at https://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/Thailand%20Medical%20Council%20Regulations%20in%20English.pdf.
  • 29. Ghana Health Service, Prevention & Management of Unsafe Abortion, 16, (3rd  ed. 2012).