Posted by David Kopel:
Does the Convention Against Torture apply to abortion?
http://volokh.com/archives/archive_2009_05_24-2009_05_30.shtml#1243545906
The [1]Convention Against Torture defines torture as:
any act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person for such purposes as
obtaining from him or a third person information or a confession,
punishing him for an act he or a third person has committed or is
suspected of having committed, or intimidating or coercing him or a
third person, or for any reason based on discrimination of any
kind, when such pain or suffering is inflicted by or at the
instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity. It does
not include pain or suffering arising only from, inherent in or
incidental to lawful sanctions.
The United Nations Committee Against Torture oversees the
implementation of the treaty. Among the nations which have ratified
the CAT is Nicaragua. The government of Nicaragua, which is currently
led by the Sandinista National Liberation Front, has outlawed abortion
in all circumstances. A May 15 report from the UN Committee suggested
that the ban is a violation of the Convention Against Torture. In the
country report for Nicaragua, the Committee wrote:
The Committee was deeply concerned about Chile�s [sic]
anti-abortion law, which prohibited abortions even in cases of
rape, incest or when the life of the mother was at stake. That
meant that women victims of violence were subjected to continuing
violations, placing them under serious traumatic stress with the
risk of incurring long-term psychological problems. A further
concern were reports that human rights defenders were
systematically harassed and received death threats, as well as the
fact that women defenders of reproductive rights were subjected to
criminal investigations.
Amnesty International has been pushing the issue, and castigated
Nicaragua's abortion law in an April [2]report to the UN Committee.
After the Committee issued its statement, AI [3]called on Nicaragua to
comply wiht the CAT by liberalizing its abortion laws, including by
repealing all criminal sanctions against abortion providers.
The AI argument, and the UN's partial support for the argument, strike
me as a good example of the UN's readiness to use human rights
treaties to advance an agenda which has no genuine relation to the
treaties. A [4]report from C-Fam indicates that other UN Committees
have been using their own particular treaties to pressure Nicaragua on
abortion.
It is indisputable that childbirth is often very painful, and that
some pregnancies can have severely painful or life-threatening
complications; it is also true that abortion can cause "severe pain
and suffering" for the fetus. However, the CAT itself defines
"torture" only to include "severe pain and suffering" which is
inflicted for certain motives--none of which appear to be present in
Nicaragua's case. Rather, the Nicaraguan law appears to have been
enacted for the purpose of protecting fetal life--not surprising in
which a country where almost all the people are either Roman Catholic
or evangelical Protestant.
The UN Committee raised concerns about harassment of "human rights
defenders" and "women defenders of reproductive rights." The claims of
harassment (if factually accurate) would very likely indicate
violations of other human rights treaties which guarantee freedom of
speech, of political activism, and so on. But the harassment (as long
as it fell short of torture) would seem entirely related to the
jurisdiction of the UN Committee Against Torture, unless one concludes
(as AI argues) that banning abortion is sometimes a form of torture;
in that case, pro-abortion speech would be considered anti-torture
speech, and therefore the harassment of speakers have some relevance
to the international law against torture.
FWIW, if I were an American legislator (and presuming that Roe v. Wade
had been overruled) I would not vote for a law like the Nicaraguan
one, and if I were a Nicaraguan, I would never vote for a Sandinista.
But the facts do suggest that the UN Committee is treating the
Sandinista government very unfairly, indeed illegally.
References
1. http://www.hrweb.org/legal/cat.html
2. http://www.amnesty.org/en/library/info/AMR43/005/2009/en
3.
http://www.amnesty.org/en/for-media/press-releases/nicaragua-complete-ban-abortion-violates-torture-convention-20090515
4. http://www.c-fam.org/publications/id.1200/pub_detail.asp
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