The Protection of Abortion-Related Rights in the Context of Article 12 of the International Covenant on Economic, Social and Cultural Rights

Abstract

The thesis examines the protection of abortion rights within the framework of article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 12 of the ICESCR protects the right to health and reproductive health and rights are inherent to Article 12. Reproductive rights and freedom encompass the right to have access to medical services relating to reproductive health, and ensuring full accessibility, protects abortionrelated rights for women. However, many women do not enjoy unhindered access to safe abortion and resort to unsafe and clandestine methods of terminating a pregnancy which have disastrous effects on their physical and mental health and may even prove fatal. The objective of the thesis is to examine the protection of abortion-related rights through article 12 of the ICESCR and to prove that abortion rights are important for the full realization of women’s right to health. The aim of the thesis is also to prove that a lack of access to safe abortion and a faulty protection of abortion rights, are discriminatory and unjustified limitations in women’s rights. Furthermore, the aim is to prove that an unjustified limitation in women’s right to reproductive rights are in violation of the State obligations to respect, protect and fulfil the rights in the ICESCR. The thesis examines different aspects of the protection of the right to health: access to safe abortion and the right to non-discrimination, stereotypical gender aspects, criminalization of abortion and stigmatization of abortion. The issues of the thesis are examined with the ICESCR’s article 12 as a basis and continues to analyze the findings through relevant case-law and General Comments issued by the Committee on Economic, Social and Cultural Rights. The central findings of the thesis are indeed that a lack of protection of safe abortion is a violation of women’s right to health and that the protection of abortion-related rights is important to safeguard the right to health for women. The failure of providing safe abortions for women who need it, violates their right to health, self-determination and dignity. Prohibiting or restricting women from obtaining abortions, has disproportionate effects on women and adds to the stigmatization of abortion and the women who undergo it. Furthermore, the failure of a State to provide unhindered access to abortion and ensure protection of abortion-related rights are in violation of the State’s core obligations. In order to ensure a proper protection, the thesis gives three example on how to transform the protection of access to safe abortion into a comprehensive legal framework: decriminalization, realization of access to safe abortion as an integral part of the right to health and ensuring proper and comprehensive sexual and reproductive education for women and girls. Therefore, it can be concluded that the protection of safe abortion needs protection in hard-law instruments. Protection of safe abortion needs to be considered as an integral part of women’s human rights and women should have unhindered access to safe abortions. The protection of abortion-related rights in the context of Article 12 could also benefit from overlapping jurisprudence from other international courts or treaty bodies, as the case-law examples will show.