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Monthly Archives: April 2013

Anti-choice spinning of California’s 1967 abortion law

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We’ve heard a lot lately from anti-choice campaigners about California’s 1967 Therapeutic Abortion Act. It’s being cited to support the argument that legislating for the X case – to allow abortion where a pregnant woman’s life is at risk, including by suicide – will inevitably open the floodgates and effectively allow abortion on demand.

One example is this Tweet from the Pro-Life Campaign’s Cora Sherlock:

Subsequently, an email circulated to Oireachtas members by a group of anti-choice politicians (parts of which were published in this Irish Independent article) claimed that the California law

was enacted in 1967 on the strict grounds of ‘where the mother was a danger to herself’

And then on the Vincent Browne show the other night, Dr Patricia Casey said that under the law, the woman had to be “certifiable”.

Three different claims about the California law. All wrong.

The actual text of the law was found in §25951 of the California Health and Safety Code. It allowed abortion where a committee, established by the hospital performing the abortion and consisting of at least two licensed physicians and surgeons (or at least three after the 13th week of pregnancy), found that there was

a substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the mother

“Mental health”, meanwhile, was defined in §25954 as

mental illness to the extent that the woman is dangerous to herself or to the person or property of others or is in need of supervision or restraint

Right away, we see that the text is logically problematic – how on earth can “mental health” be defined as “mental illness”? – but we don’t need to spend time on that. The more important thing is what the legislators intended in this requirement. Clearly Cora Sherlock got it wrong, because there’s no need that the woman actually be at risk of suicide, and the Oireachtas group also got it wrong, because the element of danger to herself is only one of the possible criteria under the law.

Dr Casey is closest to the truth, but even she is not quite correct. The text is based on an old standard under which a person could be deemed “certifiable” (a term I find a bit offensive, personally, but we’ll put that aside for now) but there is a crucially important difference. The old standard – which was found in §5550 of California’s Welfare and Institutions Code – allowed for involuntary commitment where a person was

dangerous to themselves or to the person or property of others, and are in need of supervision, treatment, care or restraint

What’s changed there is that the “and” was replaced by “or” for the abortion law. To be committed, a person had to be both dangerous and in need of supervision or restraint; to be allowed an abortion on mental health grounds, either was sufficient. So clearly, a lesser threat to mental health was required than that the woman would need to be institutionalised.

Still, it is a fairly high standard, and the anti-choicers are right when they say it was given a much broader interpretation in practice.  But it still doesn’t follow that the Irish law would do the same thing. For one thing, any way you look at it, “dangerous to herself or to the person or property of others or … in need of supervision or restraint” lends itself to a much looser interpretation than “at real or substantial risk of suicide”. (In fact, the California law was struck down as unconstitutionally vague in 1972 – two months before Roe v Wade – precisely because it had proven impossible for doctors to agree on what these criteria meant.)

For another thing, the California law operated in California. California isn’t Ireland, and it always took a more permissive attitude toward abortion. Even before the 1967 Act, it wasn’t actually difficult to get an abortion there – though the standard of care varied widely depending on the quality of provider the woman could afford. Women didn’t need to travel for abortion as they do in Ireland, where doctors are simply not willing to breach the law. It’s unlikely to the point of absurdity that the flexible interpretation applied by California doctors will be repeated here.

A comparable situation is the way that abortion laws are interpreted in Britain and Poland. On paper, the two countries have a pretty similar regime: both allow abortions in case of fatal foetal abnormality or risk to life or health. In practice, however, they couldn’t be more differently applied: Britain, as we all know, is more or less effectively abortion on demand, while Poland is regularly hauled before the European Court of Human Rights for denying even crystal-clearly legal abortions (and in the most appalling circumstances too; the latest example, P and S v Poland, reads like something Franz Kafka might have written with Margaret Atwood). Cultural views, and the constitutional context, have a huge impact on how liberally abortion laws are interpreted – and Ireland is far closer to Poland than Britain in this respect.

The increasing calls of the Irish pro-choice movement to repeal the 8th Amendment are a reflection of this. If legislating for X really would “open the floodgates” and allow abortion on demand, there’d be no need to amend the Constitution. When the legislation gets through eventually, and it will, we will see how little impact it really has on the abortion rate in Ireland. And then we can get on with campaigning for real change.

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On “pimps” and policy

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The Godwin’s Law of the sex work debate is that inevitably, someone on one side will call someone on the other side a pimp. Most of the time, the person making the accusation will be a supporter of criminalising the purchase of sex – and at least some of the time, the only ground for the accusation is that the other person disagrees. Sometimes, of course, there’s a bit more to it than that – the accused may have picked up a brothel-keeping charge, for example – but seeing as that’s happened to people on both sides of the debate, it’s a fairly unedifying accusation. Even when it’s true.

Of course, the point of the accusation isn’t to improve the debate from an intellectual standpoint; it’s to discredit the person it’s made against. And when it’s made against a person who wants sex work decriminalised, the point is to discredit their entire argument – by suggesting anyone who puts it forward is a “vested interest”, a person who (quoting RTÉ’s Prime Time) “profits from prostitution”, a person who pretends to have the interest of sex workers at heart but really just seeks to exploit them. In this way, supporters of the Swedish model can not only take the high moral ground themselves, but can also add impetus to their argument by portraying the law as an anti-pimp measure (as they did, for example, in this press release last month).

The irony is that there are plenty of reasons to think the law would actually have the opposite effect, and promote pimps and pimping. In 2003 the Norwegian Ministry of Justice and the Police went to Sweden to investigate the outworking of the law, and this is what they reported:

It has been claimed that prostitutes’ dependence on pimps has increased because street prostitutes cannot work as openly. The police informed us that it is more difficult to investigate cases of pimping and trafficking in human beings because prostitution does not take place so openly on the streets anymore….

Prostitutes’ dependence on pimps has probably increased. Someone is needed in the background to arrange transport and new flats so that the women’s activity is more difficult to discover and so that it will attract the attention of the police.

A few years later, this was echoed in a report by the Swedish National Board of Health and Welfare:

According to one informant in Göteborg, there are probably more pimps involved in prostitution nowadays. The informant says the law against purchasing sexual services has resulted in a larger role and market for pimps, since prostitution cannot take place as openly.

A woman engaged in indoor prostitution in Göteborg relates that when the law took effect in 1999, about ten women engaged in prostitution from various Eastern European countries approached her business because they wanted to hide indoors. Informants from the Stockholm Prostitution Centre also mention that the law has opened the door to middlemen (pimps), because it has become more difficult for sellers and buyers of sexual services to make direct contact with one another.

Norway, meanwhile, has seen the emergence of what you might call “pimp-like” relationships – relationships of extreme dependency, in which the most vulnerable (drug using street workers) become totally reliant on a particular man or men for survival. According to last year’s City of Oslo report,

Among the women with a drug addiction who still sell sex many have changed methods for finding customers. Most of the support services have experienced that the women enter into more long term relations with men who they refer to as “friends”, “boyfriends”, “uncles”, or acquaintances. These are men they stay in contact with through telephones and that they stay with for longer periods, this could be hours, days, or weeks. They have sex with the men in exchange for the men supplying them with drugs, money, and other necessities. Many of the support services say that they perceive the women as being very vulnerable in the relationships. The women become very dependent on the few customers they have.

So where does the idea come from that pimps would oppose criminalising clients? I think in part, it’s the failure of prohibitionists to understand the difference between legalisation and decriminalisation. Admittedly, there isn’t always a clear line between the two, but an essential element of legalisation is that sex work is only lawful under specified conditions. For indoor workers, this usually means that a premise has to meet strict criteria to be deemed a legal brothel – and that certainly can promote “pimping” as prohibitionists would define it. Few self-employed sex workers have the resources or even the desire to wade through that much red tape, so if they don’t want to work illegally and/or alone (depending on the laws of the jurisdiction), they often have little choice but to work for someone else.

But, and here’s the important thing that always seems to get missed, this is not the model advocated by most supporters of sex workers’ rights. Including many of those who are regularly accused of being pimps. A more favoured model would be something along the lines of New Zealand’s, where up to four sex workers can share a premise as a “small owner operated brothel” (SOOB) without the reams of bureaucracy that a managed brothel is subject to – and where sole operators can take the safety precautions they need without putting themselves at risk of arrest, as happens in many “legalisation” jurisdictions. Does this promote pimping? No, it doesn’t. In fact, according to the 2008 report of NZ’s Prostitution Law Review Committee,

Some brothels have closed down with operators citing the lack of staff and increasing competition for workers because of sole operators/SOOBs as reasons for the failure of their business.

You see? Make it easier for people to work without someone managing them, and they’ll have less need for managers. It isn’t really rocket science. In fact, none of this is counter-intuitive, at least for anyone who doesn’t consider the sex industry to be totally sui generis (which it isn’t). I mean, think about it: most people who call for drugs to be legalised are not actually drug dealers themselves. I don’t think I’ve ever even heard a drug dealer call for drugs to be legalised, for bleeding obvious reasons. Nor does anyone ever argue that criminalising drug dealers’ customers makes a dent in drug dealers’ profits – and fewer and fewer seem to think it really deters the customers, either. Why would criminalising the sex industry have an entirely different effect?

I am fully aware that this post is an exercise in futility. Criminalisation advocates are going to keep throwing the accusation around, keep raising the spectre of the Pimp-Monster lurking behind a multitude of Twitter accounts. It’s an emotive tactic, and thus perfect for what has been a heavily emotive campaign. It’s just ironic that its success will be measured by whether it achieves a policy that real pimps may be the first to benefit from.

Savita, abortion and the right to health in international law

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Commentary around the Savita Halappanavar inquest has, understandably, focused on the Irish constitutional law context but I haven’t seen much discussion about the breach of her rights under international law.

This is perhaps unsurprising, as abortion itself has a nebulous standing in international human rights law. As its opponents never tire of pointing out, it isn’t protected per se in most of the world’s major human rights treaties. The only real exception is in the 2003 Maputo Protocol to the African Charter on Human and People’s Rights – that continent’s counterpart to the European Convention – which sets out in Article 14(2):

States Parties shall take all appropriate measures to:

(c) 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.

None of the human rights treaties to which Ireland is party even mention the word “abortion”, though that doesn’t mean they can’t protect the right in limited circumstances. The obvious example of this is the European Court of Human Rights decision in ABC v Ireland, which held the State in breach of an applicant’s right to her private life for failing to provide a clear mechanism by which she could establish and exercise her right to a legal abortion. This is similar to the way that other treaty monitoring bodies have approached the issue, such as the UN Human Rights Committee in KL v Peru and the CEDAW committee in LC v Peru. In both cases, the decision wasn’t that there was a right to abortion per se in the relevant treaty (respectively, the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Discrimination Against Women), but that the particular abortion sought would have been legal under state law and thus various treaty provisions were breached by denying the petitioner access to it.

But what I want to talk about here is a more general right – namely, the right to health, and how it was breached in Savita’s case. The right to health is protected in a number of treaties that Ireland is party to, most importantly under Article 12 of the International Covenant on Economic, Social and Cultural Rights. Then there’s CEDAW, mentioned above, which has its own Article 12 protections for women’s health, while in the European Social Charter, “The right to protection of health” is set out in Article 11. It’s important to realise that these treaties are all fully binding on Ireland as a matter of international law. There’s often confusion on this point, because Ireland has a “dualist” system which means a treaty isn’t domestically enforceable unless it’s incorporated into national law by the Oireachtas (as with the European Convention on Human Rights Act 2003). You can’t go down to the High Court to sue the State for breaching your ICESCR rights – in fact, at the moment you can’t go anywhere. But it’s still legally obliged to protect them, even though there’s not much you can do if it doesn’t.

In and of itself, the fact that Savita died wholly avoidably in a public hospital proves the State’s failure to protect her right to health. If her death really had been due only to the “system failures” we keep hearing about, then perhaps we could chalk it down to a one-off, individual failure. But the more we hear from the inquest, the more apparent the truth becomes: the breach is in the law itself, not merely the way it was implemented or (mis)understood by her medical team. In fact, even if she had survived – and I know of a few women in similar circumstances who, thankfully, did – her right to health would still have been violated. Ireland’s ban on abortions in all but life-threatening cases will inevitably violate the right to health in those cases that fall short of the “real and substantial risk” threshold set by the Supreme Court. Here’s why.

The most widely-accepted definition of the right to health – the Article 12 ICESCR definition – is the “right to the highest attainable standard of physical and mental health”. The General Comment on this right by the treaty’s monitoring body, the Committee on Economic, Social and Cultural Rights, goes quite a bit further in defining that to include “the right to control one’s health and body, including sexual and reproductive freedom”. This is a fairly unambiguous, though legally non-binding, interpretation. But we don’t even have to go there, because on the plain terms of Article 12, you cannot enjoy the highest attainable standard of health if you’re denied an abortion that you need for the sake of your health. Simple as – and there’s no getting around it by hypothesising whether Physical or Mental Condition X would entitle someone to an abortion under this rule. Yes, there may be cases where it’s uncertain if abortion really is indicated for health reasons, but that’s completely beside the point: Irish law doesn’t allow for any of them if you aren’t considered likely to die otherwise. An absolute prohibition on “therapeutic” abortions for non-life threatening cases is not made compatible with the right to health just because it’s not always easy to determine who needs a therapeutic abortion.

“But rights aren’t absolute”, I hear you say. Well no, they aren’t, but when they’re guaranteed in a legally-binding treaty they can only be limited under the terms set out in that treaty. The ICESCR limitations clause, Article 4, states that the rights can be subjected

only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.

Now, admittedly, this is a bit woolly, and a casual reading might well lend itself to a utilitarian interpretation, or suggest that a society which considers abortion a generally bad thing could legitimately consider an abortion ban to promote society’s general welfare. It’s not an absurd argument, on its face.

But it’s also not supported by the aids we have to interpret the meaning of the text. The Convention’s travaux préparatoires – the official records of the negotiation process (not online, but detailed in this book) – don’t exactly explain what the drafters of Article 4 had in mind. They do, however, show the rejection of various proposals to include grounds of public order, public morality and the interests of the community – all things which might suggest a person’s rights could be trumped in the interests of some aspirational “greater good”. The CESCR, for its part, states that Article 4

is primarily intended to protect the rights of individuals rather than to permit the imposition of limitations by States

which would mean that the State has a heavy burden of proof in justifying any such limitations.

In Irish law, of course, this is met by Article 40.3.3’s protection of “the right to life of the unborn”. But that won’t cut it in international law, because there is no right to life of the unborn in international law.  (As with the “right to abortion”, there is one exception, but it’s in a treaty that Ireland isn’t party to – the American Convention on Human Rights). And again, in terms of the treaties we’ve ratified that protect the right to life – the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, the European Convention on Human Rights – there is either travaux or case law leaving the foetus out of this protection. (This nifty fact sheet from the Center for Reproductive Rights has lots more detail about this.) So the balancing exercise that would be required to make the denial of therapeutic abortion compatible with the ICESCR is, in international legal terms, simply a nonsense. There is no legal “individual” to balance the woman’s rights against.

There’s another way in which I think Savita’s right to health was infringed, and that’s in the discriminatory way her health needs were dealt with. Article 2 ICESCR requires that the Covenant’s rights be protected “without discrimination of any kind”. Patently, there was discrimination in her case: she was treated differently because she was pregnant. A non-pregnant person would not have had a medically-indicated course of action refused to them at a time of comparable need. There may also be an issue around the antibiotic she was given, which wasn’t strong enough but was “recommended for use in maternal cases”. I’ve found the newspaper reports on this a bit unclear, and I’m not sure whether she was purposely given a weaker antibiotic because she was pregnant, or whether the staff simply didn’t realise, when they gave her the one they always give the pregnant women, that her infection needed a stronger dose. If it’s the former, then she clearly received discriminatory treatment – especially given that it was already known her foetus wouldn’t survive and anyway, she’d already asked for an abortion. The use of less effective medication in the interests of foetal health may certainly be justified, with the woman’s consent, in a wanted and viable pregnancy. But this wasn’t one of those cases.

I said earlier that there’s no place we can go to complain about a breach of the Covenant on Economic, Social and Cultural Rights. Well, that could change in the near future. The Covenant’s Optional Protocol, which allows individuals to bring complaints to the treaty’s monitoring body, will come into force on the 5th of May. Ireland has yet to ratify the Protocol, but it did finally sign it last year and ratification is the next step. Again, since this is international law, the CESCR won’t have enforcement powers – but there’s plenty of potential to shine the world’s spotlight on Ireland, and how it fails to adhere to its international obligations. Abortion rights campaigners should call for the government to ratify the Protocol now.

Expert in Savita inquiry confirms Irish women get lower standard of care with chorioamnionitis

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The furious attempts by anti-choicers to portray Savita’s death as an issue of negligence rather than Ireland’s abortion law overlooks some very simple facts. The law is the reason Savita’s request for an abortion was denied. The law is the reason Savita’s medical team were forced to assess her illness by reference to whether she met some vague and ill-defined threshold of sick enough before they could accede to her request. The law is the reason preservation of her foetus was given such priority.

Here, an OB/GYN with expertise in infectious diseases, practicing in a jurisdiction without such a law, describes how she would have assessed Savita’s condition – not being constrained by the threat of prosecution to look for any possible chance, however remote, that a (clearly unviable) foetus could be saved.

Dr. Jen Gunter

article-2306301-192A17E9000005DC-388_306x466As the inquest into Savita Halappanavar’s death continues we have heard about delays and errors, all of which most likely contributed to her terrible outcome. However, along the way those who have tried to pass off her death as medical negligence and nothing to do with Irish law or Catholic ethos have rested on the assertion that she wasn’t sick enough to need a termination.

One of the experts at the inquest, Dr. Susan Knowles, a microbiologist at the National Maternity Hospital in Dublin is reported in the Irish Times as saying there wasn’t a substantial risk to Ms. Halappanavar’s life before Wednesday at 6:30 am. While she admits to what she calls “subtle indicators” of sepsis and chorioamnionitis (infection of the fetal membranes), she asserts these findings were just not enough to warrant a termination.

She is wrong.

By the Monday morning, less than 24 hours after admission…

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Enduring (the) Myths: Sex Work, Decriminalisation and the Nordic Model

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“When prohibitionists do cite other researchers’ findings, they sometimes distort the results and assert the exact opposite of what the cited researchers found.”

– Ronald Weitzer, The Mythology of Prostitution: Advocacy Research and Public Policy (2010)

In early March 2013, the Huffington Post published an article with the title Debunking The Myths: Why Legalising Prostitution Is A Terrible Idea. I was not desperately keen to read it, but I proceeded to anyway because I am generally interested in what people are saying about sex work. And then I was angry. And then I went away and did something else, but I’ve had to come back to it again, a month later, because this one has specific features that make me particularly angry, and I need to share with you what they are.

It was written by Jacqui Hunt, London director of Equality Now. And despite its title, its scope is not limited to legalisation: she believes decriminalisation is an equally bad idea. At first glance, her article looks fairly reasonable and well researched, citing studies from various countries in which sex work has been legalised or decriminalised. It should be noted, however, that any legal model can be tweaked: whichever approach to sex work is selected by authorities, sex workers’ rights and well-being may or may not be prioritised in the accompanying legislation. Germany’s legalisation model is not identical to Austria’s (given the choice, I’d pick Germany). This means that negative outcomes might very well indicate the need for better legislation, rather than conclusive proof that legalisation or decriminalisation should never be entertained again. On the other hand, criminalising sex workers’ clients, as per the Nordic model, has specific, negative repercussions for sex workers’ safety, and there is no conceivable way to criminalise clients that won’t result in those negative repercussions.

I’m not going to address each and every claim Hunt makes about legalisation or decriminalisation: my intention in writing this post is, instead, to examine the ways in which some of her claims have been made, ways which I believe undermine her credibility. My main interest here is in references she makes to New Zealand, where I recently visited the New Zealand Prostitutes Collective (NZPC) to specifically discuss the effects of decriminalisation. And because the primary source for her observations on New Zealand reveals a markedly different picture from the one she has chosen to paint, I’m given to feel that all of her claims ought to be thoroughly investigated before anyone takes them as gospel.

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