We continue our ongoing series of Fall 2014 author Q&As with Rebecca Cook, one of the editors of Abortion Law in Transnational Perspective: Cases and Controversies. Abortion Law in Transnational Perspective offers a fresh look at significant transnational legal developments in recent years, examining key judicial decisions, constitutional texts, and regulatory reforms of abortion law in order to envision ways ahead.
The chapters investigate issues of access, rights, and justice, as well as social constructions of women, sexuality, and pregnancy, through different legal procedures and regimes. They address the promises and risks of using legal procedure to achieve reproductive justice from different national, regional, and international vantage points; how public and courtroom debates are framed within medical, religious, and human rights arguments; the meaning of different narratives that recur in abortion litigation and language; and how respect for women and prenatal life is expressed in various legal regimes. By exploring how legal actors advocate, regulate, and adjudicate the issue of abortion, this timely volume seeks to build on existing developments to bring about change of a larger order.
(Previous Q&As: Cathy Lisa Schneider, Police Power and Race Riots; Jennifer Curtis, Human Rights as War by Other Means; Matt Cohen and Edlie Wong, The Killers: A Narrative of Real Life in Philadelphia; Jacqueline Bhabha, Human Rights and Adolescence.)
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Penn Press: What has driven the shift in the legal conceptualization of abortion from the domain of criminality to the domain of rights?
Rebecca Cook: The growth of domestic constitutional law and international human rights principles [has driven that shift].
Is there a global or universal trend in the evolution of abortion law, or are particular legal regimes changing independently?
There are many global trends that contribute to the evolution of abortion law. As the world gets smaller, and communication is facilitated through the internet, change is interactive among many domestic courts and international human rights tribunals.
How is abortion in law determined by other legal realities?
Abortion is affected by different realities, both on the demand and supply side of the leger. On the demand side, the continuing lack of contraception, the lack of sex education, and the failure of societies to prevent rape and sexual abuse of women, all contribute to unwanted pregnancy, fueling the demand for abortion. These realities influence legal developments. For example, many cases are brought to ensure adolescent rape victims can access abortion services in countries where it is legal for that purpose. On the supply side, the introduction of medical abortion has improved the supply of abortion particularly in the early stages of pregnancy. The introduction of medication abortion has also provoked a backlash causing those who are against women's choice to bring lawsuits trying to deny women access to this drug.
Overall, the improvement of women's rights and the understanding of women as equal citizens have led to a sense that criminalizing medical procedures that only women need is a form of discrimination against them that states are required to remedy.
What are the main contributions, positive and/or negative, of religious discourses to the legal discussion of abortion?
Most laws try to separate science from scripture—that is, to apply laws in principled ways and not in ways that are driven by religious ideologies. In some countries, religious ideologies are applied to try to deny women access to abortion. Such approaches are justified as a way of protecting prenatal life. These approaches overlook the facts that there are many more effective ways to protect prenatal life, such as improving nutrition for pregnant women, preventing violence against pregnant women, and, for example, reducing the number of stillbirths and miscarriages.
How has international human rights law been applied to abortion?
There has been an important trend in international human rights law to ensure that abortion laws are applied fairly and transparently. That is, where laws allow abortion for certain indications, the state is responsible for ensuring that all women can access abortion for those indications. Where women are denied abortion for those reasons, states are increasingly required to ensure that women have a right of appeal of those denials.
Another important trend is where women are treated in inhuman and degrading ways in trying to access abortion, courts are holding states accountable for proving services in ways that respect their dignity.
How has the legal status of a fetus changed as the legal status of the act of abortion has changed?
This book explains how some courts recognize that the protection of prenatal life has to be done consistently with women's rights, not in ways that defeat them. Some courts explain that this might be done through better counselling for women with unwanted pregnancies, and other courts explain that this might be done through improved assistance for mothers and fathers.
What is the purpose of the book?
The purpose of this book is to inform a U.S. and wider readership about how other countries have developed their abortion law. That is, this book shows how other countries have developed different laws on abortion, seeing the U.S. approach through Roe v. Wade and subsequent court decisions limiting the impact of Roe as only one option among many.
How is the U.S. isolated in comparative and international trends on abortion law?
American judicial exceptionalism and non-participation in the development of international human rights law is isolating the U.S. from international and comparative developments in which countries' leading courts take account of what other leading courts and tribunals are doing. These developments generally do not resonate in U.S. jurisprudence; a price U.S. society pays for its judicial isolationism.
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Rebecca J. Cook is Professor of Law Emerita and codirector of the International Reproductive and Sexual Health Law Program at University of Toronto. She is editor of Human Rights of Women: National and International Perspectives, and coauthor of Gender Stereotyping: Transnational Legal Perspectives, both available from the University of Pennsylvania Press. Abortion Law in Transnational Perspective is available now.