Law and Policy Guide: The Right to Information on Abortion

05.28.2019

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The Right to Information on Abortion

Accurate information about safe, legal abortions is critical to ensuring that women can exercise their reproductive rights. Access to information should take into account both the need to address and dispel misconceptions about abortion as well as provide access to comprehensive, accurate and evidence-based information on abortion services, including on the legality of abortion and how to access abortion services.

Human Rights Norms

United Nations Treaty Monitoring Bodies

United Nations Treaty Monitoring Bodies (TMBs) have consistently recognized that access to information on abortion services is a critical component of sexual and reproductive health. In General Comment 22 on the right to sexual and reproductive health, the Committee on Economic, Social and Cultural Rights (ESCR Committee) makes clear that the right to evidence-based information on all aspects of sexual and reproductive health, including safe abortion and post-abortion care, should be assessible to all individuals, including adolescents and youth.1 The ESCR Committee states that, “such  information must be provided in a manner consistent with the needs of the individual and the community, taking into consideration, for example, age, gender, language ability...”2

In General Comment 15 on the rights of the child to the enjoyment of the highest attainable standard of health, the Committee on the Rights of the Child (CRC Committee) calls on states to ensure that children have access to “education and guidance on sexual health…[and] safe abortion” without the consent of legal guardians.3 The CRC Committee goes on to articulate that comprehensive sexual and reproductive health services should be designed to enable couples and individuals to make sexual and reproductive decisions freely and responsibly, including “the number, spacing and timing of their children, and to give them the information and means to do so”4

TMBs have also called on states to:

  • Ensure schools provide age-appropriate information on sexual and reproductive health and rights;5
  • Remove obstacles that could prevent women’s access to abortion services and facilitate public access to information on how to access legal abortions;6
  • Provide information on safe abortion and post-abortion care;7 and
  • Ensure that health care providers give medically accurate and non-stigmatizing information on abortion, while also guaranteeing patient confidentiality.8

African Human Rights Bodies

In General Comment 2 on Article 14 of the Maputo Protocol, the African Commission on Human and Peoples’ Rights emphasizes the importance of information and education on family planning and safe abortion for all women and girls and calls on states to ensure the provisions of such comprehensive information.9 The Commission also stresses that such information “must be based on clinical findings, rights based, without judgement and take into account the level of maturity of adolescent girls and the youth…”10

European Human Rights Bodies

The European Court of Human Rights (ECtHR) has also addressed the importance of the free flow of information on abortion services. In Open Door and Dublin Well Woman v. Ireland, the ECtHR held that the Irish Supreme Court's injunction upholding a restriction which prevented counselling agencies from providing pregnant women with information concerning abortion facilities abroad violated the right to freedom of expression and information of the European Convention on Human Rights.11 The Court further held that Ireland's restriction interfered with the ability of women to receive information.12

In the case of R.R. v. Poland, the ECtHR addressed the need for timely access to unbiased counselling in order for a pregnant woman to make an informed decision about whether to continue with or terminate her pregnancy.13 The ECtHR held that “procrastination, confusion and lack of proper counselling and information given…” contributed violations of the woman’s right to be free from inhuman or degrading treatment  and the right to privacy.14

Inter-American Human Rights Bodies

The Inter-American Human Rights Commission (IACHR) has examined access to information on abortion in Paulina Del Carmen Ramírez Jacinto and Mexico, in a case where a child (the victim of rape) and her mother were given incomplete and erroneous information about the abortion procedure and its consequences in an effort to dissuade the girl from having an abortion. In the friendly settlement agreement, the IACHR stated that “women cannot fully enjoy their human rights without having a timely access to comprehensive health care services, and to information and education in this sphere.”15

Global Medical Standards

In its Safe abortion: technical and policy guidance for health systems, the World Health Organization (WHO) recognizes that “complete, accurate and easy-to-understand information about the [abortion] procedure and what to expect during and afterwards must be given to the woman in a format that is accessible to her and helps with her decision-making and voluntary consent.”16

While the WHO acknowledges that “providing information and offering counselling can be very important in helping women to consider their options and ensuring that they can make a decision that is free from pressure,” it also states that a woman’s decision to have an abortion “should be respected without subjecting them to mandatory counselling.”17 Furthermore, the voluntary provision of counselling should be done by a trained person and be confidential and non-directive.18

International Federation of Gynaecology and Obstetrics (FIGO) also recommends in its Ethical Aspects of Induced Abortion for Non-Medical Reasons that counselling in relation to abortion procedures should include objective information.19

Comparative Law

Access to information on abortion is critical to ensuring women can fully exercise their reproductive rights. In 2018, Belgium repealed laws that criminalized the distribution of information on abortion methods, making it lawful to make this information publicly available.20 Other countries have taken steps to ensure that information on abortion is accurate and presented in an unbiased manner. For example, in France where the abortion law guarantees a “right to be informed about abortion methods and to choose one freely,”21 lawmakers passed a law in 2017 sanctioning websites that aim to discourage women from having an abortion by providing misleading information.22

Some countries have also emphasized the importance of nondirective counseling for women seeking an abortion. Ghana’s Comprehensive Abortion Care Services Standards and Protocols explicitly states that counseling should be voluntary and provided by a trained person in an environment “conducive to openly sharing thoughts, feeling and perceptions.”23 Moreover, accurate information should be communicated to the client in a language that they understand and providers are directed not to impose their own values or beliefs onto the client.24 For example, in 2019, the parliament of North Macedonia passed a new abortion law which removes a prior requirement that women receive mandatory, biased counselling and observe a waiting period before they can access abortion services.25

  • 1. 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), para. 18, U.N. Doc. E/C.12/GC/22 (2016) [hereinafter ESCR Committee, Gen. Comment No. 22].
  • 2. Id. at para. 19.
  • 3. Committee on the Rights of the Child, General Comment No. 15 (2013) on the rights of the child to the enjoyment of the highest attainable standard of health, pg.5 UN Doc. CRC/C/GC/15.
  • 4. Id. at 8
  • 5. CRC and CEDAW Committee, Joint General Recommendation 31 of the Committee on the Elimination of Discrimination against Women/General Comment No. 18 of the Committee on the Rights of the Child on harmful practices, para 69(d), U.N. Doc. CEDAW/C/GC/31-CRC/C/GC/18.
  • 6. Human Rights Committee, Concluding Observation: Colombia, para. 21 U.N. Doc. CCPR/C/COL/CO/7 (2016)
  • 7. CRC, Concluding Observation: Kenya, para 50(a), U.N. Doc. CRC/C/ KEN/CO/3-5 (2016); CRC, Concluding Observation: Peru, para. 56(b) U.N. Doc. CRC/C/PER/CO/4-5 (2016); Human Rights Committee, Concluding Observations: United Kingdom of Great Britain and Northern Ireland, pg. 5, U.N. Doc. CCPR/C/GBR/CO/7 (2015).
  • 8. Human Rights Committee, General Comment No. 36 on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life, para. 8, U.N. Doc. CCPR/C/GC/36 (2018); CRC, Concluding Observation: Slovakia, para 41(e), U.N. Doc. CRC/C/SVK/CO/3-5 (2016).
  • 9. 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. 51.
  • 10. Id.
  • 11. ECtHR, Open Door and Dublin Well Woman v. Ireland, Application No. 14234/88 [hereinafter Well Woman v. Ireland]
  • 12. Id.
  • 13. RR v. Poland, No, 27617/04 Eur. Ct. H.R. (2011).  65.
  • 14. Id. at para. 153.
  • 15. IACHR, Report No. 21/07, Petition 161/02, Friendly Settlement, Paulina del Carmen Ramírez Jacinto (Mexico), para. 19, March 9, 2007.
  • 16. World Health Organization, Safe Abortion: Technical and Policy Guidance for Health Systems 31 (2d ed. 2012).
  • 17. Id, p. 36.
  • 18. Id.
  • 19. Figo Committee for the Study of Ethical Aspects of Human Reproduction and Women's Health, Ethical Aspects of Induced Abortion for Non-Medical Reasons, in Ethical Issues in Obstetrics and Gynecology, 133 (2012).
  • 20. Proposition de loi relative a l’interruption volontaire de grossesse, chap. 4, art. 6,Doc 54 3216/004 (Belgium).
  • 21. Code De La Santé Publique (Health Code), art. L2212-1 (Fr.).
  • 22. Loi No. 2017-347 extension du délit d'entrave à l'interruption volontaire de grossesse, (Fr.)
  • 23. Ghana Health Service, Ministry of Health, Prevention & Management of Unsafe Abortion: Comprehensive Abortion Care Services Standards and Protocols, pg. 17 (3rd ed., April 2012).
  • 24. Id. at 17-18.
  • 25. Press Release, International Campaign for Women's Right to Safe Abortion, New draft law on abortion adopted by the Government of North Macedonia (Feb. 15, 2019), available at https://www.safeabortionwomensright.org/north-macedonia-new-draft-law-on-abortion-adopted-by-the-government-of-north-macedonia/