A tale of two Supreme Courts

Excerpt of The Hill op-ed authored by GJC Legal Advisor Ashita Alag.

In a moment with major repercussions for the future of reproductive rights around the world, the Supreme Courts of India and the United States issued historic rulings on abortion only a few months apart. In the U.S., the fall of Roe v. Wade in June unleashed havoc on the country’s health care system. Yet, in India, the story has unfolded far differently.

Last month, the Supreme Court of India held that a distinction made in Indian law between married and unmarried women and their access to abortion up to 24 weeks was arbitrary and should be abolished. The ruling in the case X v. The Principal Secretary, Health & Family Welfare Department further expanded the right to abortion by clarifying that the listed set of circumstances that allow women to receive abortions up to 24 weeks under current law is not exhaustive. As a result, the right to abortion should be extended to all women who undergo a change in their material circumstances. The court further explained that this could include instances such as financial insecurity caused by losing a job or being diagnosed with a chronic illness.

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On Crimes Against Humanity, Protect the UN Sixth Committee’s Integrity With Action

Excerpt of Just Security op-ed co-authored by GJC President Akila Radhakrishnan.

Enthusiasm for negotiating and adopting a new global treaty on the prevention and punishment of crimes against humanity has been growing since the issuance of a model draft treaty 16 years ago, particularly after the United Nations International Law Commission (ILC) submitted a final set of draft articles to the General Assembly on Aug. 5, 2019. Although paragraph 42 of the ILC’s report recommended the “elaboration of a convention by the General Assembly or by an international conference of plenipotentiaries on the basis of the draft articles,” progress on this important treaty has stalled in the U.N. General Assembly’s Sixth Committee. But there are ways the Sixth Committee, the U.N. General Assembly panel that considers legal issues, could make progress on the ILC’s draft text, thereby fulfilling its role within the U.N. system and increasing the likelihood that this critical treaty will be negotiated and adopted in the near future.

The Sixth Committee Deliberations over the Past Three Years

When the ILC’s text was introduced to the Sixth Committee in 2019, it was not the first time the idea of a new treaty had been floated at the General Assembly. The ILC had assiduously canvassed State reactions since beginning work on the topic in 2013, and the draft took into account extensive State comments. Thus, a significant majority of States in 2019 were willing to proceed quickly to a Diplomatic Conference to negotiate the treaty, which Austria offered to host. A handful of States demurred, however, asking for more time to study the draft, and an even smaller number opposed the treaty entirely. The result was a disappointing resolution “taking note” of the draft articles and promising to revisit them the following year. Austria, joined by 42 other States, expressed disappointment.

In 2020, the COVID-19 pandemic made matters worse. Strict limitations on working methods were imposed, causing the Sixth Committee to adopt a technical rollover resolution again simply “taking note” of the draft articles. This time Mexico, joined by 13 other States, voiced concerns that this ran the “risk . . . of getting caught in a cycle of consideration and postponement of the articles without concrete action, which could undermine the relationship between the General Assembly and the ILC."

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Reproductive Rights Are Under Attack. Climate Change Will Make It Worse.

Excerpt of Women's Media Center op-ed authored by GJC Legal Intern Dakota Porter.

In the wake of ruling to overturn Roe v. Wade, the Supreme Court quietly limited the EPA’s power to combat climate change with their decision in West Virginia v. EPA. The decision prevents a nationwide cap on carbon emissions, allowing states with extractive industries and massive carbon outputs to go under-regulated. So, just as the court has paved the way for states to deny essential reproductive health care, it has also cemented the country’s position as one of the biggest contributors to climate change in the world.

These two cases are more connected than you may think.

Climate change, and the inevitable mass migration it has already unleashed, heightens the need for sexual and reproductive health services — the crisis is linked to higher rates of infectious diseases, gender-based violence, and disability, which all influence reproductive outcomes. Unfortunately, in the wake of natural disasters, the availability of and access to such health services is sparse or absent. When drought, floods, hurricanes, or other disasters strike, climate change strains the government’s and the humanitarian sector’s abilities to provide resources like contraception and STI testing.

As our understanding of the relationship between climate change, migration, and reproductive rights grows, it’s time we demand action that takes these intersecting harms into account.

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Roe Is the Past, Human Rights Are the Future

Excerpt of The Nation op-ed authored by GJC President Akila Radhakrishnan.

All of us in the abortion rights movement have long prepared for the day Roe v. Wade would be reversed. But nothing could fully brace us for the pain of reading Justice Samuel Alito’s majority opinion, which categorically declared that abortion is not a constitutional right. While we took to the streets to rage and mourn the destruction of our rights, we heard from feminist allies and partners around the world—some of whom had successfully fought deeply entrenched patriarchal forces to secure historic advances for abortion rights in their country and offered lessons for our struggle. There is an immense amount to learn from them, but there is one lesson in particular to embrace: We must place human rights at the center of our demands for unfettered access to abortion.

Since the Supreme Court decided Roe in 1973, the story of abortion access in the United States has been one of steady regression. In 1976, Congress passed the Hyde Amendment to restrict the use of federal funds for abortion except in limited circumstances. This decision was upheld by the Supreme Court in Harris v. McRae, which found that that neither the federal government nor states were required to pay for abortion services—severely undercutting the realization of a constitutional right. Subsequent years saw Planned Parenthood v. Casey limit Roe through the imposition of the “undue burden” standard, Gonzales v. Carhart limit later abortions, and National Institute of Family and Life Advocates v. Becerra limit regulation of anti-abortion “crisis pregnancy centers.” And just under 50 years after Roe, the court dealt its killing blow to abortion rights in Dobbs v. Jackson Women’s Health Organization.

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Ireland and Latin America Can Inspire the US Abortion Fight

Excerpt of Bloomberg article quoting GJC Legal Director Dr. Christine Ryan.

High-profile cases can nuance the debate by making even those averse to terminations recognize that it can be necessary — but normalization is vital. As Christine Ryan of the Global Justice Center argues, most abortion cases are not extreme; legislating only for the exceptions risks leaving many people behind, and abortion outside normal reproductive healthcare. Another risk is that only those who elicit our compassion are seen as deserving of this freedom. “Women shouldn't need to make us cry to have their rights respected,” Ryan says.

Both in Latin America and in Ireland, language choices helped to break down taboos. Avoiding heavily charged words (including abortion), campaigns have focused on the voluntary interruption of pregnancy as a medical procedure. Ireland’s was notable for its emphasis on hope. Its “Together for Yes” campaign featured slogans like “Sometimes a private matter needs public support” and advertisements that called to mind unifying national events, encouraging voters to drive change. The Niñas No Madres campaign in Latin America sought to shield young girls by encouraging the girls to be seen as just that — children.

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The Fight to Secure U.S. Abortion Rights Is Global

Excerpt of Ms. Magazine Op-Ed authored by GJC Special Counsel Michelle Onello and GJC Legal Advisor Elean Sarver.

The Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization stands to unleash devastating rollbacks on abortion across the United States, while also bringing domestic policy more in line with foreign policy. For decades, international aid restrictions have made abortion inaccessible abroad, resulting in significant harm—including death. While the forthcoming decision, and its catastrophic fallout, is not likely to have an immediate global impact, it will undercut efforts to remove these restrictions and embolden the anti-abortion lobby to further instrumentalize U.S. foreign policy to promote its ideology.

A central U.S global abortion restriction, the Helms Amendment has prohibited the use of foreign assistance for the performance of abortion “as a method of family planning” for nearly 50 years. The Helms Amendment has overridden national legislation in countries receiving aid and been over-implemented as a total ban on abortion, ignoring congressionally permitted exceptions in cases of rape, incest and life endangerment. It’s also disregarded a clarification, known as the Leahy Amendment, that permits information and counseling about abortion.

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Abortion: Ireland’s past is America’s future

Excerpt of The Hill Op-Ed authored by GJC Legal Director Dr. Christine Ryan.

This month, four years ago, media from across the globe descended on the courtyard of Dublin Castle. They traveled to capture the scene of thousands of Irish people celebrating the results of the Irish abortion referendum. A landslide majority had “repealed the 8th” and voted to change the country’s constitution to enable legal recognition of abortion rights for the first time in the state’s history. Generations of families cheered and cried together while politicians from warring parties embraced. Viewers abroad marveled at the displays of pride, rapture, and even love.   

To understand why the referendum result in Ireland prompted such outpourings is to understand the full meaning of the right to abortion. On the one hand, the right ensures that women and pregnant people of reproductive age can terminate unwanted or unsafe pregnancies without legal sanction. On the other, it signifies state recognition that women are equal agents in their societies, deserving of respect for their life choices. The right upends the assumptions that coerce women into predefined gender roles and rejects the seemingly immortal ideologies that accord women a lesser status. It demands that society trust women and that the law affirms their dignity and autonomy.

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U.S. would lag behind global abortion access if Roe v. Wade is undone, advocates say

Excerpt of NPR article that mentions the Global Justice Center.

International rights groups warned the U.S. Supreme Court last year that possibly overturning the landmark Roe v. Wade case that made abortions legal in 1973 would put it behind the curve of other countries that have been expanding access to abortion care.

Human Rights Watch says there is an international trend toward expanding abortion access.

Argentina legalized abortion in 2020, while Mexico decriminalized the procedure in 2021.

Statistics also show that in Ecuador, El Salvador, South Africa and Romania, the more restrictive abortion legislation is, the higher incidences of women dying or contracting diseases after giving birth are, according to a September 2021 brief submitted to the U.S. Supreme Court.

The brief was submitted by Human Rights Watch in partnership with Amnesty International and the Global Justice Center.

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Symposium in Pursuit of Intersectional Justice at the International Criminal Court: Group Three – Observations on Forced Pregnancy – Protecting Personal and Reproductive Autonomy

Excerpt of Opinio Juris article co-authored by GJC President Akila Radhakrishnan.

In February 2021, nearly 20 years after the Rome Statute’s entry into force, the International Criminal Court (ICC) secured its first conviction for forced pregnancy as a war crime and a crime against humanity in the case against Lord’s Resistance Army (LRA) commander Dominic Ongwen. In that 2021 judgment, the Trial Chamber found that the enumeration of the crime in the Rome Statute protects the distinct legal interest of personal and reproductive autonomy.

The Global Justice Center, Women’s Initiatives for Gender Justice, Amnesty International and Dr. Rosemary Grey submitted an amicus brief to the Appeals Chamber on the definition of this crime, addressing questions that were raised in Ongwen’s appeal brief. In addition, in February 2022, at the invitation of the Appeals Chamber, we presented oral observations to the Court as amici.

This post summarizes the arguments made in our amicus brief and oral submissions, and very briefly comments on related arguments about the crime of forced pregnancy made by the Prosecution, Defence and victims’ legal representatives in this case.

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Symposium in Pursuit of Intersectional Justice at the International Criminal Court: Ongwen amici curiae Submissions from a Feminist Collective of Lawyers and Scholars

Excerpt of Opinio Juris article co-authored by GJC Senior Legal Advisor Angela Mudukuti.

On 4 February 2021, the International Criminal Court (ICC)’s Trial Chamber IX found Dominic Ongwen, a former commander in the Lord Resistance Army (LRA), guilty of 61 counts of war crimes and crimes against humanity committed in Northern Uganda between 1 July 2002 and 31 December 2005. The 61 counts included 19 counts of sexual and gender-based crimes (SGBC) and notably among them charges of sexual crimes tried at the ICC for the first time, namely forced marriage as an inhumane act and forced pregnancy. On 6 May 2021, Trial Chamber IX sentenced Dominic Ongwen to 25 years of imprisonment. The Defence filed its appeal briefs against the conviction in July and against the sentence in August 2021. Between 14 and 18 February 2022, the Appeals Chamber (AC) held the appeal hearing.

Following the Defence’s appeal and prior to the AC hearing, on 25 October 2021, the AC  issued an order inviting “expressions of interest as amici curiae in judicial proceedings” with respect to the case against Dominic Ongwen. Particularly, the AC sought to receive observations from “qualified scholars and/or practitioners of criminal procedure and/ or international law, mental health law and/or neuroscience and law” on, inter alia, “sexual and gender-based crimes, especially the legal interpretation of the crimes of forced marriage, sexual slavery and forced pregnancy as well as the standards applicable to assessing evidence of sexual violence”. A group of feminist lawyers and scholars put their heads together to form what we will loosely call a Feminist Collective and submitted four separate amici briefs.  As an introduction to this symposium, this blog details the process and shares our personal reflections as members of the Collective.

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The Science is In: Abortion Bans Are a Public Health Emergency

Excerpt of Women's Media Center Op-Ed authored by GJC Program Coordinator Merrite Johnson.

Last month, the World Health Organization (WHO) published new guidelines on abortion care, developed through years of consultations with providers, researchers, and human rights experts. The release of this groundbreaking healthcare manual is timely for people in the United States, who are bracing for the end of Roe v. Wade and ensuing crackdowns on abortion access. It’s also a test for the Biden administration, who has made women’s healthcare a major talking point in its campaign to re-assert US leadership on human rights globally.

Most importantly, however, the guidelines can serve as an authoritative confirmation for what American reproductive rights activists have always known: abortion is essential healthcare.

The WHO’s guidelines take a radically simple approach to laws and policies on abortion, recommending both full decriminalization and that abortions be made available on request, without any grounds-based or gestational restrictions.

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Ukrainian Victims of Wartime Rape May Be Forced To Give Birth—All Thanks to This U.S. Policy

Excerpt of Ms. Magazine Op-Ed authored by GJC Legal Director, Dr. Christine Ryan.

Seeking protection from Russian bombing and shelling amidst a siege of their city, thousands of civilians in Bucha bunkered down in subways and basements. But for some, the reprieve from artillery was not enough. For women and girls, there was no shelter from the sexual violence inflicted by Russian soldiers.

Rape, sexual slavery and forced pregnancy are among the war crimes reportedly suffered by women and girls in Bucha and in wider Ukraine. Yet, the cruelty endured by these victims does not end there. Thanks to U.S. policy, abortion may be unavailable to these women and girls.

Because the Ukrainian health system is drastically strained, international humanitarian aid is playing an outsized role in delivering healthcare throughout the country. But all humanitarian aid provided by the U.S.—the largest single-country donor of humanitarian assistance to Ukraine—is subject to the Helms Amendment, which limits the use of U.S. foreign assistance funds for abortion. In this way, rather than alleviating their suffering, U.S. aid could be the reason that victims of wartime rape are denied abortions and forced to give birth.

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U.S. Says Myanmar Military Committed Genocide Against Rohingya

Excerpt of Wall Street Journal article that quotes Global Justice Center President Akila Radhakrishnan.

Calls to prosecute Myanmar’s generals have grown since February last year, when the military overthrew the civilian government of Nobel Peace Prize winner Aung San Suu Kyi. The military has since been accused of more abuses including arbitrary arrests, custodial torture and killing of civilians.

“This is a welcome, yet long overdue step from the Biden administration,” said Akila Radhakrishnan, president of the Global Justice Center. “The same military who committed genocide against the Rohingya are those who are illegally in power as a result of a military coup—the cycle of impunity must be broken.”

In October 2016 and August 2017, Myanmar’s armed forces launched what they called “clearance operations” in response to attacks on state security forces by Rohingya insurgents in the country’s western state of Rakhine. Independent investigators from the U.S. and the U.N. concluded that Myanmar troops committed widespread atrocities: Civilians were tortured and killed, women were gang raped and children and elderly people were burned alive as entire villages were razed.

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Enabling access to quality abortion care: WHO's Abortion Care guideline

Fundamental to meeting the Sustainable Development Goals (SDGs) on health and wellbeing (SDG3) and gender equality (SDG5) is the recognition that access to sexual and reproductive health information and services is central to both individual and community health, as well as the realisation of human rights. Comprehensive abortion care, which includes information provision, abortion management, and post-abortion care, is an integral component of sexual and reproductive health and is a safe, simple health-care intervention that saves women's lives and safeguards their dignity and bodily autonomy.

Globally, abortion remains common, with 30% (three out of ten) of all pregnancies ending in induced abortion. However, estimates suggest that just over half (55%) of all abortions worldwide (and less than a quarter of all abortions in African and Latin America) can be considered as safe. Barriers—such as the scarcity of accurate information or providers and facilities that can safely provide services, restriction of available methods of abortion, abortion-related stigma, high costs, third party consent and other legal restrictions—have made it difficult or impossible for many women to access abortion care, which can lead them to use unsafe methods and negatively affect their sexual and reproductive wellbeing and health.

Fulfilling one of its core functions as a norms-setting agency, WHO has been providing recommendations related to abortion since 2003. With the release of the WHO Abortion Care guideline in March, 2022, WHO has consolidated and updated its recommendations, drawing on the evidence and data on the clinical, service delivery, legal, and human rights aspects of providing abortion care that have arisen over the past 10 years. In line with the WHO guideline process, formulation of recommendations by expert panels was based on available evidence and consideration of other criteria using the WHO-INTEGRATE framework. As a result, 54 evidence-based recommendations and two best practice statements focusing on the above-mentioned aspects of abortion care are presented in this updated guideline.

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Myanmar’s military has spent the year since the coup searching for international legitimacy. It has not found it.

Excerpt of Washington Post article that quotes Global Justice Center President Akila Radhakrishnan.

Lawyers for the Gambia argued this week that “now, even more than before, justice within Myanmar is impossible,” using the coup to argue that there cannot and will not be any resolution or accountability for the Rohingya inside the country. The risks that the Rohingya face, the lawyers added, have only intensified since the coup with armed conflicts raging all over the country.

The hearings — only the third genocide case the court has ever heard — show the military “that they will get hauled into court to respond to their actions,” said Akila Radhakrishnan, president of the Global Justice Center.

“This is a military that has for decades committed crimes, and has intensified their crimes, toward the population at large,” she said. She and others believe the case is very likely to go ahead, particularly without the civilian government led by Suu Kyi to protect and shelter the military, though a resolution could take years.

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BBC Radio: International Court of Justice Hearings Begin

Excerpt of BBC Radio segment featuring Global Justice Center President Akila Radhakrishnan.

Also on the programme, British Prime Minister Boris Johnson has announced the lifting of all Covid rules including the need to self-isolate after testing positive with the virus; and, Myanmar is back in The Hague over its genocide of the Rohingya but this time with a new leadership.

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Myanmar junta takes place of Aung San Suu Kyi at Rohingya hearing

Excerpt of The Guardian article that quotes Global Justice Center President Akila Radhakrishnan

Akila Radhakrishnan, president of the Global Justice Centre, said she did not believe the junta’s appearance before the court would lend legitimacy to the military. It was likely to simply reflect a continuation of the status quo in court procedures, she said.

Radhakrishnan added: “There is such a strong link between impunity and the coup occurring, and the fact that the military has very rarely faced any direct consequences, that I think there is import to the fact that they are learning that they will be hauled into court – and this time around, unlike 2019, they can’t hide behind Aung San Suu Kyi and the civilian government.”

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‘Important opportunity’: Myanmar Rohingya genocide case to resume

Excerpt of Al Jazeera article that quotes Global Justice Center President Akila Radhakrishnan

Rohingya and rights groups say despite the issue of representation, the case has gained added urgency because of the crackdown on the anti-coup movement since February 1, 2021. The Assistance Association for Political Prisoners (AAPP), which has been tracking developments, says more than 1,560 people have been killed since the generals seized power, and that violence has also increased in ethnic minority areas.

“As the Myanmar military continues to commit atrocities against anti-coup protesters and ethnic minorities, it should be put on notice there will be consequences for these actions – past, present, and future,” said Akila Radhakrishnan, president of the Global Justice Center. “The ICJ’s proceedings are laying the groundwork for accountability in Myanmar – not only for the Rohingya, but for all others who have suffered at the hands of the military.”

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UN court hearings set to resume into Rohingya genocide case

Excerpt of Associated Press article that quotes Global Justice Center President Akila Radhakrishnan

The court didn’t respond to a request for comment on Myanmar’s representation at the hearings.

“What’s really important here is that... if it is the junta that’s in court, this is not something that should be taken to confer legitimacy on the junta,” said Akila Radhakrishnan, president of the Global Justice Center.

At public hearings in late 2019, lawyers representing Gambia showed judges maps, satellite images and graphic photos to detail what they called a campaign of murder, rape and destruction amounting to genocide perpetrated by Myanmar’s military.

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The whole world is watching for Biden's plan to protect abortion rights

Excerpt of The Hill Op-Ed authored by GJC President Akila Radhakrishnan and Ipas President Anu Kumar.

The first year of Joe Biden’s presidency came to a close just days before the 49th anniversary of the Supreme Court’s landmark ruling in Roe v. Wade, which has served as the foundation for Americans’ right to abortion ever since. Yet, it could be the last anniversary we ever celebrate.

In the next six months, the Supreme Court is set to rule in a case aimed directly at dismantling the constitutional protections established by Roe. Given the realities of a conservative Supreme Court and gridlock in Congress, executive branch leadership and support of abortion is critical. The time is now for the Biden administration and federal agencies to take every measure necessary to protect abortion access. But it shouldn’t stop at creative domestic approaches — an international perspective is also needed.

In the early days of his term, President Biden rescinded a policy known as the “global gag rule.” This policy restricted foreign non-governmental organizations that receive U.S. global health funds from using their own resources to engage in abortion-related work. While rescinding this policy is to be commended, it is also a low bar that every other Democratic president has cleared in the first days of their presidencies since the policy was first enacted in 1985 by the Reagan administration. To demonstrate a real commitment to protecting sexual and reproductive rights around the world, the Biden administration must dismantle structural policies that allowed the global gag rule to exist in the first place.

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