On March 11

On this day in ...
... 1936 (75 years ago today), Antonin Scalia (prior posts) was born in Trenton, New Jersey. Following unanimous approval of the U.S. Senate, he became an Associate Justice of the Supreme Court in 1986. In the quarter-century he's served, he's become noted for an outsized personality and for espousal of a version of originalism that precludes recognition of many individual rights, such as the right to be free from criminal punishment for same-sex intimacy and the right to choose whether to terminate a pregnancy. (credit for AP photo)

(Prior March 11 posts are here, here, here, and here.)

'Nuff said

(Taking context-optional note of thought-provoking quotes)

'They're advancing extreme legislation. It's dangerous to women's health, disrespects the judgment of American women -- I don't know if they even gave that a thought -- and it's the most comprehensive and radical assault on women's health in our lifetime. It's that bad.'

-- House Minority Leader Nancy Pelosi (D-Calif.) (prior IntLawGrrls posts), in a Thursday conference call with journalists, reported here. Spurring Pelosi's criticism was a spate of bills aimed at limiting access to abortion, now pending in Congress. (credit for 2009 AP photo)

'Nuff said

(Taking context-optional note of thought-provoking quotes)

'I don’t even have to read the briefs, for Pete’s sake.'

-- U.S. Supreme Court Justice Antonin Scalia (right), in a just-published interview with California-Hastings Law Professor Calvin Massey, about which we also posted here. (2008 photo credit) Scalia spoke in explanation of the scope of questions that he deems easily decided by his originalist approach to constitutional interpretation. In the Justice's words:

'We don’t have the answer to everything, but by God we have an answer to a lot of stuff ... especially the most controversial: whether the death penalty is unconstitutional, whether there’s a constitutional right to abortion, to suicide ....'

Disappointing decision on abortion in Ireland

(Delighted to welcome back alumna Máiréad Enright, who contributes this guest post)

Over at the Human Rights in Ireland I have assembled a series of 'rapid responses' by five Irish feminist scholars to the recent judgment in A, B & C v. Ireland (December 2010), in which the European Court of Human Rights (right) ruled that Ireland’s failure to regulate how women can exercise the limited constitutional right to an abortion violates the European Convention. IntLawGrrls Fiona de Londras discussed the judgment as soon as it was issued, on this blog here. The responses that I have compiled critique the judgment and aim to place it in its broader legal context.
► Dr. Lisa Smyth, a sociologist at Queen's University Belfast, argues that the judgment in A, B & C signals a 'downgrading' of the abortion issue in Ireland: the shift from widespread moral to detailed legal argument signals the changed significance of this issue, once imagined to capture the essence of Irishness in the face of a history of colonisation and an imagined future of increasing European liberalisation.'
► Dr. Brenda Daly of the School of Law and Government at Dublin City University explains why the judgment will almost certainly drive the Irish government to legislate to regulate access to life-saving abortions.
► Dr. Mary Gilmartin (below left), at the Department of Geography, National University of Ireland-Maynooth, notes that the judgment leaves the status quo untouched as it concerns women whose lives are not placed at risk by pregnancy. She writes that

'the Court is following decades of practice in Ireland – from the forced emigration of pregnant women in the mid twentieth century to the ‘right to travel’ of the 1990s – where mobility has become an expedient way of addressing the vexed question of women’s sexuality. That mobility is still a ‘solution’ means that the broader issue of access to abortion services continues to be displaced across international borders.'

► Dr. Ruth Fletcher of the School of Law at Keele University in Staffordshire, England, sets the judgment in the context of ECHR jurisprudence and criticises it on four grounds:
►► It overstates the respect due to 'profound moral values' as a ground for limiting individual rights;
►► It simultaneously limited the capacity of consensus among contracting states to restrict the scope of the individual state’s discretion to protect morals;
►► It did not take adequate account of health and well-being as important individual interests; and
►► The state is allowed to claim that it is meeting negative obligations to protect women’s health and well-being, by relying both on women’s resourcefulness to exit the jurisdiction and on the availability of independent, charitable services in other jurisdictions. (On this aspect of the decisions, see too the recent New York Times op-ed by American legal expert Linda Greenhouse (above right).
► Finally, Dr. Sandra McAvoy (left) of Women's Studies at University College Cork interrogates the dubious basis upon which the Court established the 'profound moral values' to which Ruth refers.
Together these pieces provide a rich introduction to the issues raised by this important, if ultimately disappointing, judgment.

The European Court of Human Rights on Abortion in Ireland

This morning in A, B & C v Ireland the European Court of Human Rights held that Ireland’s failure to regulate how women can exercise the limited constitutional right to an abortion violates the European Convention. The Court did not extend the right to an abortion any further than the Irish Supreme Court itself had done in 1992 but the release of the judgment has created renewed momentum around the issue. As a general matter, abortion is illegal in Ireland and Article 40.3.3 of the Constitution provides “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right”. That opens up limited exceptions allowing for abortion, the extent of which was decided by the Supreme Court in the tragic circumstances of Attorney General v X in 1992.
X—a teenage girl—had become pregnant as a result of rape and was suicidal. It was decided that she would travel to England for an abortion. Attempts to prevent this culminated in a Supreme Court case. The Court held that the Constitution allows for abortion where there is a “real and substantial risk” to the life (although not the health) of a pregnant woman, including from suicide. Some 18 years later there has been no regulation of this right and we still have no system of determining whether abortion is lawful in particular cases.
The decision handed down today in A, B & C is really quite limited. Unless there is a risk to the life of a pregnant woman there is no right to an abortion in Ireland; rather being permitted to travel for an abortion is enough to satisfy the Convention. However, where there is such a risk to life (and, as a result, there is a constitutional entitlement to an abortion), there must be a coherent legal framework in which entitlement to an abortion can be determined.
Thus, the Court does not extend the right to abortion beyond what had already been recognised within the Irish Constitution itself; neither does it say there is a “human right to abortion”. That should immediately put any claims of ‘European interference’ to bed. In fact, the judgment is extremely respectful of the Irish position and recognises that the extent to which any country allows for an abortion is a matter in which that country is entitled to a significant degree of discretion. That does not mean, however, that the case will not result in controversy in Ireland.
Abortion remains a deeply contentious social issue here. With a general election forthcoming, the case has already reignited the national debate and the question of what any new government might do to respond to it may well become a dominant theme in the campaign. This is especially so because, if Ireland is to comply with the Convention, we now have two choices: either have a constitutional referendum to remove this limited right (or, although unlikely, to extend it) or regulate the right as recognised in the X Case. Either choice will cause social division, although a referendum would in all likelihood create a greater social rupture.
What is abundantly clear now is that the situation cannot reasonably remain as it is. Since 1992 doctors have operated under what the Court called the “chilling effect” of the regulatory vacuum and women whose lives are at risk have found it practically impossible to exercise their constitutional right to elect for a termination. That this situation has persisted for 18 years is an abject failure of Irish politics; if it continues following the General Election it will further reinforce the unwillingness of Irish politicians to finally confront one of Ireland’s most persistent social and legal controversies.

There is more commentary, including from IntLawGrrls alum Máiréad Enright, on Human Rights in Ireland.

On August 26

On this day in ...
... 1969, C-150, an Omnibus Bill that revised Canada's Criminal Code to decriminalize sodomy, went into effect. The entry into force marked the end of a campaign touched off by the 3-2 Canadian Supreme Court judgment in Klippert v. The Queen (1967), which dismissed an appeal lodged by a gay man sentenced to an indefinite period of preventive detention on as "a dangerous sexual offender." Soon after the bill was introduced, and it became law after its parliamentary sponsor, Pierre Trudeau -- who'd defended the bill in a televised interview by saying: "There's no place for the state in the bedrooms of the nation." -- became Prime Minister. The legislation Canada's laws with regard to not only to this aspect of sexual conduct, but also to abortion, contraception, and other matters.


(Prior August 26 posts are here, here, and here.)

On May 28

On this day in ...
... 2010 (today), is marked the International Day of Action for Women’s Health. According to the Women's Global Network for Reproductive Rights, an NGO with offices in the Philippines and the Netherlands, the date was set during a network reunion in 1987. It was officially recognized by South Africa's government 11 years later. According to the U.S. Agency for International Development, the date's an occasion for "the world to look at women’s unique health needs in a new way." Issues to which both sites point, albeit with markedly different emphases, will be familiar to readers: contraception, maternity, gender issues, fistula prevention, sexually transmitted diseases, abortion and post-abortion care.

(Prior May 28 posts are here, here, and here.)

Human Rights in My Backyard: Feeling Blue About Being Purple

My home state of Virginia is supposed to be a purple state, but it hasn’t felt very purple lately.
On Wednesday, the Virginia General Assembly voted to restrict state funding for abortions when the health of the mother is at risk. According to the Washington Post:

On a 20 to 19 vote, the Democratic-led Senate agreed to an amendment proposed by McDonnell (R) that would limit state funding for abortions to those performed in cases of rape or incest or when the life of the mother is at risk. Nothing in state law previously prohibited Medicaid-funded abortions in instances when the health of the mother was in jeopardy.

The proposal to restrict state funding came from Virginia Governor Bob McDonnell, a staunch conservative who took office on January 16, 2010. Abortion rights supporters fear that the measure will affect all Medicaid abortions at public hospitals in the state except those that fit into the narrow exceptions for rape, incest, and life of the mother. This latest insult to women’s rights comes on the heels of McDonnell’s comments about a week ago, in which he declared April to be Confederate History Month and intentionally omitted anti-slavery language in his Proclamation. He infuriated civil rights leaders in the state and attempted to defend his actions by minimizing the role of slavery in the war. McDonnell’s efforts to mobilize the conservative base in this purple state may do real harm in the lives of women and people of color in the state – and may, regrettably move us from purple to red.

On April 1

On this day in ...
... 1878, the woman known as Madame Restell committed suicide in her New York City home. Born into a laboring family in England on May 6, 1812, she'd worked as a maid and married as a teenager. Eventually she immigrated to the United States and, by 1831 a widow, remarried. Using the French pseudonym above, Ann Trow Lohman became wealthy marketing birth-control products, and "the term 'Restellism' became a euphemism for abortion." Her conduct led to many criminal prosecutions, as detailed in a number of books, reviewed here and here. (credit for 1878 newspaper illustration of Restell, far right, in a New York jail cell)


(Prior April 1 posts are here, here, and here)

On March 23

On this day in ...
... 1981, in H.L. v. Matheson, the U.S. Supreme Court turned back a class action brought by a young, pregnant woman -- an unemancipated minor -- who challenged a Utah law stating "if possible," her physician must "notify" her parents before performing an abortion. Agreeing with the result were 6 of the Court's 9 Justices. Debate on such parental notification statutes continues to this day, as is evident from this recent article on an Illinois law.


(Prior March 23 posts are here, here, and here)

Therapeutic Abortion In Nicaragua, cont.

We've blogged before on the issue of therapeutic abortion and its criminalization in a handful of states, including Chile, El Salvador, Malta and the Philippines.

Women’s Link Worldwide along with other organizations that form part of the Strategic Group for the Decriminalization of Therapeutic Abortion in NICARAGUA -- including the Nicaraguan Center for Human Rights, the OB-GYN Society, the New Family Association (ANFAN), the Center for Justice and International Law (CEJIL), and IPAS Central America -- recently requested the Inter-American Commission of Human Rights (IACHR) to order the Nicaraguan government to adopt urgent precautionary measures to protect the life of a 27-year-old Nicaraguan woman and mother of a 10-year-old child. The case is premised on the fact that the Nicaraguan health system refused "Amalia" (or "Amelia" -- the petitioner's pseudonym) both a therapeutic abortion and treatment (chemotherapy and radiotherapy) for metastatic cancer.
On February 26, in an unprecedented move, the Inter-American Commission on Human Rights, under the leadership of President Luz Patricia Mejia Guerrero (right), apparently adopted urgent precautionary measures on behalf of the petitioner (the text of the measures is not yet available on the Commission's website, see more here, here and here). Women's Link Worldwide reports that in its ruling, the IACHR called on the government of Nicaragua to

• ensure that the petitioner has access to appropriate medical treatment for her condition, and
• undertake this treatment in consultation with Amalia and her designated representatives.

In addition, the Commission has apparently required an account of Amalia’s progress within five days. There are some reports that Amalia did finally receive treatment for her cancer, although this cannot be confirmed.

Nicaragua is under considerable internal and external pressure to amend its law. At the recent session of the U.N. Human Rights Council that considered Nicaragua's first Universal Periodic Review of its human rights record, the Council recommended that the law be abolished. Nicaragua reportedly took note of the recommendation, but did not accept it or even offer to study it as it did with respect to other recommendations. The Nicaraguan representative countered that the law was a reflection of Nicaragua's sovereignty. In addition, four other human rights bodies -- the Committee against Torture, the Committee on Economic, Social and Cultural Rights, the Human Rights Committee and the Committee on the Elimination of Discrimination against Women -- have determined that the law violates Nicaragua's treaty-based human rights obligations. Amnesty International has taken up the case, and feminist activists have launched an Urgent Action on Amelia's behalf. The Constitutional Court has yet to rule on the constitutionality of the measure.
Stay tuned....

On February 18

On this day in ...
... 1855, a daughter, Marie, was born in Schäßburg, Siebenbürgen, Germany, into a family active in law and politics. Originally a theater student, she married an opera singer. Eventually, however, Marie Stritt (right), would become known as a women's rights activist. For much of the 1st decade of the 1900s Stritt, described here as a bourgeois "sympathizer" of more radical political elements, headed the Bund Deutscher Frauenvereine, or Federation of German Women’s Associations. "During this period, issues such as reproductive rights, the abortion laws and female suffrage dominated the agenda and international links were fostered"; however, the group reverted to "more conservative, inward-looking policies" after Stritt was replaced in 1910. Stritt died in Dresden in 1928.

(Prior February 18 posts are here, here, and here.)

Therapetic Abortion in Nicaragua

As we’ve blogged before in connection with the sad case of La Rosita, abortion is prohibited in most Latin American states, with the exception of Cuba. Several Latin American states, however, have taken the ban to extreme limits, penalizing even the provision of therapeutic abortion. For example, Nicaraguan law completely prohibits abortion, regardless of the circumstances and even if the health of the woman is at risk from the continuation of the pregnancy. Prior to 2008, Nicaraguan law permitted “therapeutic abortions” only for those women and girls whose life or health was threatened by the continuation of their pregnancy and, in some cases, for victims of rape.
The revised penal code repealed this provision. See Law No. 164, Penal Code of the Republic of Nicaragua. Nicaraguan law now completely prohibits abortion, regardless of the circumstances and even if the health of the woman is at stake, and if the woman has been raped or is the victim of incest. Abortion is also prohibited (and penalized) if the baby is unviable as in cases of ectopic pregnancy (when the fetus implants somewhere outside the womb such as the fallopian tubes (left)) or anencephaly—a neural tube defect in which the fetus fails to develop a brain or skull vault and is born with dramatic physical defects (below right). The latter condition is uniformly fatal; the baby is literally born dying and usually survives only a few days, although there are cases of children living beyond one year with aggressive and expensive medical interventions.
The Nicaraguan law now imposes prison terms for both doctors and women or girls who carry out, or seek, an abortion (Article 143) and for doctors who cause unintentional harm to a fetus while administering medically necessary treatment to a pregnant women or girl (Articles 145, 148, and 149). Article 143, for example, provides:

Whosoever causes an abortion with the consent of the woman shall be sanctioned with a penalty of one to three years in prison. If the person is a medical professional or health worker, the penalty will simultaneously include being prohibited from working in medicine or as a health worker for two to five years.

The woman who intentionally causes her own abortion or agrees with someone else
to provide an abortion will face a penalty of one to two years in prison.

With strong backing from the Catholic Church and evangelical leaders, the law was put in place during the contested presidential election in 2006, when none of the candidates wanted to alienate church leaders. (Pro-choice protest at left). Legislators supporting the ban invoked fast-track procedures normally reserved for national emergencies.

Legislation like this is felt most acutely by

• women and girl survivors of rape and incest,
• women and girls who need essential medical treatment for life-threatening illnesses (such as cancer) while pregnant or pregnancy-related medical conditions (such as eclampsia, spontaneous abortion/miscarriage, obstructed labor, premature labor, ectopic pregnancy, pelvic disproportion),
• women and girls carrying non-viable pregnancies or pregnancies where the baby will not survive long after birth (as in the case of anencephaly), and
• women and girls in need of post-abortion care, whether for a miscarriage or induced abortion. (Indeed, it is often difficult to distinguish between spontaneous and induced abortions).

The law also prevents doctors from having a meaningful discussion with their patients about treatment options.

A number of United Nations treaty expert committees and special rapporteurs have determined that such bans breach states’ obligations to protect women and girl’s human rights. The Committee on the Elimination of All Forms of Discrimination against Women, for example, determined that laws that criminalize medical procedures only needed by women—such as Nicaragua’s law—constitute barriers to women’s access to appropriate health care. See U.N. Committee on the Elimination of All Forms of Discrimination against Women, General recommendation No. 24: Article 12 of the Convention (women and health). See also similar Concluding Observations from the Committee on Economic, Social and Cultural Rights (CESCR, concluding observations on Chile, U.N. Doc. E/C.12/1/Add.105 (2004), para. 52; Kuwait, U.N. Doc. E/C.12/1/Add.98 (2004), para. 43; and Nepal, U.N. Doc. E/C.12/1/Add.66 (2001)) and the Committee on the Rights of the Child (Committee on the Rights of the Child, concluding observations on Chad, U.N. Doc CRC/C/15/Add.107 (1999)). Likewise, the Special Rapporteur on Violence Against Women, Radhika Coomaraswamy (right), has stated that,

Acts deliberately restraining women from … having an abortion constitute violence against women by subjecting women to excessive pregnancies and childbearing against their will, resulting in increased and preventable risks of maternal mortality and morbidity.

Report of the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, in accordance with Commission on Human Rights resolution 1997/44, Addendum: Policies and practices that impact women’s reproductive rights and contribute to, cause or constitute violence against women, UN Doc E/CN.4/1999/68/Add.4, paragraph 57, 21 January 1999.

In response to a petition filed against Nicaragua, the Committee Against Torture ruled:

The Committee expresses its profound concern at the general prohibition of abortion in Articles 143 and 145 of the Criminal Code, including in cases of rape, incest or where continuation of the pregnancy poses a threat to the life of the mother, which in many cases directly result from crimes related to gender based violence. This situation particularly implies that those groups of women (aforementioned) are exposed to a constant risk of violations committed against them, which one supposes must cause extreme traumatic stress with the risk of suffering long-term psychological problems, such as anxiety and depression. The Committee also notes with concern that women who require an abortion in the circumstances mentioned, now run the risk of criminal sanctions. Also, it is of concern to this committee that the law which authorized therapeutic abortion in such circumstances was repealed in 2006 and since the adoption of this prohibition there have been various cases documented of women dying in pregnancy as a result of lack of medical treatment which could have saved her life, in clear violation of numerous codes of professional medical ethics. In this way, the Committee observes with concern that medical professionals can be investigated and criminally sanctioned by the state for practicing therapeutic abortion.

Consideration Of Reports Submitted By States Parties Under Article 19 Of The Convention, Concluding observations of the Committee against Torture, CAT/C/NIC/CO/1 (10 June 2009). Amnesty International’s brief in this case is available here. See Amnesty International, Nicaragua: The Impact of the Complete Ban of Abortion in Nicaragua: Briefing to the United Nations Committee Against Torture, Index No. AMR 43/005/2009 (April 29, 2009). Amnesty’s campaign on the Nicaragua law is available here. Human Rights Watch’s report is here.
In the heart-wrenching case of K.N.L.H. v. Peru, the Human Rights Committee, which supervises state compliance under the International Covenant on Civil and Political Rights, ruled that Peru’s failure to offer an abortion to petitioner, whose fetus was anencephalic (right), violated petitioner’s rights to privacy, to special protection as a minor, and to be free from torture and other cruel, inhuman and degrading treatment. The latter ruling stemmed from the fact that petitioner was forced to give birth to an anencephalic baby and to care for the baby until she died several days later, which plunged the mother into a depression.
The Nicaraguan court has yet to issue a ruling, which was expected in May 2009, on the constitutionality of the anti-abortion law. One media report suggests that a draft decision has been written but still needs to be reviewed and approved by the entire bench. According to this report, the decision declares the law unconstitutional. Let’s hope this prognosticator is accurate… Stay tuned.

How transnational law develops

(Part 2 of a 3-part guest post by Mireille Delmas-Marty)

Having introduced a comparison of French and U.S. approaches to legal pluralism in a transnational legal world develops, we now consider answers to our threshold question: How does the transnational legal world develop?
Transnational law develops through:
► cross-referencing,
► efforts to harmonize, and
► creation of hybrid rules of substance and procedure.
In both the European and the U.S. legal systems, the last method is rarely used. It is true that some hybrid rules have been created. An example is the hybridisation of the accusatorial and inquisitorial criminal procedure rules that occurred first in the ad hoc tribunals and later at the International Criminal Court. But these rules – which increase judicial powers in the preliminary phase, transmit dossiers to the trial judge, and accord more prominent roles to victims – do not directly affect national legal orders.
In the United States, much has been debated about the 1st option, called cross-referencing or, sometimes, consultation; that is, the citation by U.S. judges of decisions handed down by judges of foreign constitutional and international courts. Most salient are 2 U.S. Supreme Court judgments, Lawrence v. Texas (2003) and Roper v. Simmons (2005). The latter issued during a Term when the Court considered or referred to foreign law in at least 6 cases, according to Justice Stephen G. Breyer (above). In his foreword to my book Ordering Pluralism (trans. Naomi Norberg 2009), Breyer wrote that "six out of a total docket of 79 indicates the increasingly routine nature" of this method in American cases.
In France, meanwhile, the main concern is the middle option, harmonisation. Jurists focus on the changes that European efforts to harmonise different national systems imposes on criminal, contract, and other sectors of French law.
Harmonisation is a very complex process, entailing both more and less integration than either of the other 2 options:

Harmonisation and cross-referencing
Compared with cross-referencing, harmonisation requires more integration. Cross-referencing assumes the priority of domestic law; in contrast, harmonisation involves a hierarchy in which an abundance of international law is binding on the national legislative authority. That international law derives, moreover, from both poles of the bipolar European legal system discussed in my last post:
► Respecting the European Union pole, France’s Conseil d’État (right) observed in 2000 that since the 1960s the Community had produced more than 68,000 acts supposed to be integrated to French law.
► Respecting the Council of Europe pole, the indirect effects of decisions by the European Court of Human Rights (below left) against France must be noted. In 1990 that Court condemned France twice -- in Huvig and Kruslin, which challenged wiretapping without any legal basis -- and France adopted a new law within a year. In Medvedyev (2008), a Court panel ruled that in France the prosecutor is not independent enough to satisfy the due process principle enshrined in Article 5 of the Convention on Human Rights and Fundamental Freedoms. Should the Court’s Grand Chamber confirm this finding of violation, the French government likely will have to delay and revise a pending plan to transfer more power from the investigating judge to the prosecutor, about which I wrote an op-ed last summer. (Prior IntLawGrrls post)

Harmonisation and hybridisation
Compared with the 3d option of hybridisation, however, harmonisation involves less integration This is because each member state enjoys a margin of appreciation that precludes application of strictly identical rules throughout Europe. As articulated in Handyside v. United Kingdom (1976) and later judgments, the margin-of-appreciation concept operates to limit the jurisdiction of the European Court of Human Rights, particularly in areas in which differences among members states are so strong and so deeply linked to national cultures that it seems impossible for international judges to impose the same rule on every state. Examples include areas such as abortion, euthanasia, and privacy. The national margin of appreciation excludes binary reasoning: it imposes not an obligation of strict conformity, which bars all variation, but rather an obligation of compatibility, which permits some differences in application of European legal norms.
In short, the margin of appreciation involves gradation-based reasoning -- fuzzy logic, as I have called it -- and accepts incomplete integration.
Not all differences are accepted, however. The concept preserves some gradation of integration, for it assumes limits which must not be exceeded. Examples:
► Abortion may be subject to limitations by the state that are strict, as in Ireland or Poland, or not so strict, as in Germany. But, as the Court established in Tysiac v. Poland (2007), the domestic law must effectively implement the Europe-wide right to abortion.
► Wiretapping may be controlled very differently in each European national system -- by administrative authority, for instance, or by a judge or a parliamentary commission. The Court has not relinquished its right to review such mechanisms, but has limited review to those deemed incompatible with Europe-wide norms.
This graduated approach has some resonance among U.S. jurists. Justice Breyer proposed in Heller (2008), which entailed "review of gun control regulation," U.S. courts ought to embrace an "interest balancing inquiry." Breyer considered deference to legislative appreciation to be "particularly appropriate" given that the decision was made "by a local legislature, with particular knowledge of local problems and insight into appropriate local solutions." The consequence is that different localities may seek to solve similar problems in different ways. Breyer’s dissenting opinion in Heller:

The Framers recognized that the most effective democracy occurs at local levels of government, where people with firsthand knowledge of local problems have more ready access to public officials responsible for dealing with them.

(internal quotation marks omitted) This statement is not so different from those in which the European human rights court has considered that national courts are better situated than European judges to determine the proper scope of restrictions based on public order.

(Still to come in this 3-part guest post: Part 3, on where and when transnational law develops; here. Part 1, which introduced comparison of French and U.S. approaches, is here.)

Guest Blogger: Nadia Bernaz

It's IntLawGrrls' great pleasure to welcome Dr. Nadia Bernaz (right) as today's guest blogger.
Nadia is a Lecturer in law at Middlesex University Business School in London, where she teaches Legal Method, Civil Liability, Contract Law, and the Criminal Justice System. She previously held a lectureship in human rights law at the Irish Centre for Human Rights, National University of Ireland, Galway. She holds a Ph.D. in public international law from Université Paul Cézanne, Aix-en-Provence, France.
Her publications include several articles on human rights law as well as a monograph, Le droit international et la peine de mort - International Law and the Death Penalty (2008), which was the subject of this book review in the August 2009 edition of Human Rights Quarterly.
A chapter she published recently, on the subject of the United States' role as a global actor in the debate about the death penalty, is the subject of Nadia's guest post below.
Nadia dedicates her work on the blog to Marie-Louise Giraud (1903-1943), whose Vichy-era life and death were depicted in a 1988 film, Une Affaire de femmes/Story of Women (below, with star Isabelle Huppert, as no digital photo of Giraud herself could be found online). Of Giraud, Nadia writes:

Marie-Louise Giraud was guillotined in 1943 and is one of the last women to have been executed in France. She possessed no medical skills, but performed 26 abortions. One led to the death of the pregnant woman. She received money to perform abortions and even rented rooms to prostitutes. As such, it is hard to view her as one of the great figures of women’s rights. However, I believe that all people have their darkest sides -- even the women and men who are said to be the most exemplary -- and that the quest for a morally irreproachable foremother is probably pointless. Interestingly, Giraud's ‘immorality’ was strongly emphasized during her trial, and at least partially explains the capital verdict against her.
Marie-Louise Giraud helped many women at a time when reproductive rights were nonexistent and she died, her body literally cut in half, because of this.

Today Giraud joins other foremothers on IntLawGrrls' list just below our "visiting from..." map at right.

Heartfelt welcome!

'Nuff said

(Taking context-optional note of thought-provoking quotes)

Last night, I had the honor of meeting Linn Duvall Harwell, the co-founder of the Clara Bell Duvall Reproductive Freedom Project of the ACLU of Pennsylvania, at an event celebrating the 30th anniversary of that organization. Linn told us stories of marching for women's rights with the National Organization for Women in Pittsburgh and being told that she and fellow marchers "should all be taken out and shot." She also reminded us of an era in which, alongside maternity wards, hospitals had separate wards dedicated to women dying from unsafe abortions. Linn founded the project because her mother, Clara Bell Duvall, died from a botched abortion, leaving behind five young children. Her words (from a speech at the 2004 March for Women's Lives) are so moving that I reprint them here as a reminder, for those of us who've never seen or imagined it, of what a world without safe abortion looked like:

As [my mother] lay dying, she said to my 10-year-old sister, "You will be the mother now." And to my grandmother, "Take care of my precious." This was my 18-month-old sister. Mother died March 27, 1929, in Mercy Hospital, Pittsburgh, PA. The archives say death was from "miscarriage." This was a lie. She died from a self-induced knitting needle abortion. She was 34 years old. As we children gathered around the polished casket that held her body for the three-day Irish wake, our father said, "We must stick together now." This was not to be. We were taken to Baltimore, divided among relatives. In a few days, we lost our mother, our father, and each other. I do not remember crying tears, yet I have wept inside all my life.

Rosita's Legacy

(Many thanks to IntLawGrrls for the opportunity to contribute this guest post.)

As my colleague, IntLawGrrl Beth Van Schaack, and I recently made the rounds of various women’s groups during our research trip to Costa Rica, attempting to get a sense of whether and how the world of international human rights might be employed to help to mobilize those working on behalf of women’s status in Central America, everyone spoke of “la Rosita.” They did so as if her case had happened only yesterday. In fact, it had been six years since the then-nine-year-old girl was found to be pregnant and was refused an abortion by the Costa Rican government’s health service on the grounds that the pregnancy did not threaten her life.

Rosita’s story is layered, and has unfolded over the interceding years in ways that are at once horrific and mundane.

In Costa Rica, doctors, lawyers and health advocates invoke it to illustrate any number of problems plaguing women’s autonomy in their region of the world. (One of her drawings, entitled "Rosita sad," is at left.) Rosita’s mother brought her daughter to the doctor when the girl began complaining of stomach pain. It took several days before they realized she was just over three months pregnant. When she was transferred to San José for care, doctors put her in the obstetrical ward of the women’s hospital rather than in the children’s hospital.

Somehow, the media learned of Rosita’s pregnancy, which allegedly resulted from her having been raped by an acquaintance. Costa Rican law permits therapeutic abortions when the pregnancy poses a danger to a woman’s life or physical health. Perhaps the publicity around her case shaped her doctors’ decision that Rosita did not qualify for such an exception to the general ban on abortion.

With the help of local activists, the family returned to their home state, Nicaragua, where three doctors verified, in accordance with the law at that time, that the pregnancy was in fact life-threatening. Rosita obtained an abortion, but by then, her case had become a cause célèbre around the world. Filmmakers made an award-winning documentary (trailer) telling of her plight. Narrated in part by Rosita's mother and stepfather (right), the film expresses the hope that the abortion had been a way to permit her to resume her childhood.
Meanwhile, anti-abortion advocates vowed to tighten the laws that had permitted her to obtain a legal abortion. Daniel Ortega was elected president of Nicaragua on a platform supporting a complete ban on abortion. In 2006, Nicaragua became one of 4 countries in the world to ban abortion under all circumstances, including when pregnancy poses a threat to the life of the mother.

In late 2005, Rosita, still a child, became pregnant again. This time she carried her baby to term, and DNA testing determined that Rosita had been impregnated by her stepfather. It is now widely accepted that he caused her earlier pregnancy as well. In November 2007, he was sentenced to 30 years in prison. Today, Rosita and her baby live in state custody.

The women with whom Beth and I spoke in Costa Rica were on the front line of the struggle to improve women’s lives in their country and in their region of the world. Each spoke of Rosita’s case, and yet her story only emerged in bits and pieces:

► One group was most interested in the ensuing prosecution of the nine women who had assisted Rosita’s escape and helped her get her legal abortion.

► Others focused on the way the case has been used by anti-abortion activists to slander women’s health advocates in Nicaragua and throughout the region.

► Another recounted the manner in which Rosita’s mother’s initial ambivalence about abortion, coupled with the media attention the case received, left the doctors with no real alternative but to deny the abortion.

No one spoke about the manner in which Rosa initially became pregnant. No one talked about the fact that she became a mother two years later, while still a child. No one mentioned that the law had not managed to protect Rosa from her abuser.
Instead, we spoke of the grey space beneath the law in which girls and women presently struggle to find a safe path to walk through their lives. It became clear that the law is only part of what circumscribes women’s status in their country, as in our own. To speak of rights was to tell only a half-truth. And yet, to ignore rights language altogether was to invite in the resignation that accompanies oppression. It was to feel shamed and humiliated, rather than simply afraid.

On June 1

On this day in ...
... 1959 (50 years ago today), Tunisia (flag at left) adopted its Constitution, which is modeled on the system in France. The North African country won independence from France in 1956 following years of "[a]nti-colonial resistance." That history is reflected in the Constitution's opening words:

In the name of God, the Compassionate and Merciful, We, the representatives of the Tunisian people, meeting as members of the National Constituent Assembly, Proclaim the will of this people, set free from foreign domination thanks to its powerful cohesion and to its struggle against tyranny, exploitation, and regression; ...

... 2004 (5 years ago today), in Planned Parenthood v. Ashcroft, U.S. District Judge Phyllis J. Hamilton (right), Northern District of California, permanently enjoined federal officials from enforcing the Partial-Birth Abortion Ban Act of 2003 on grounds that it:

(1) poses an undue burden on a woman’s ability to choose a second trimester abortion; (2) is unconstitutionally vague; and (3) requires a health exception ....

As IntLawGrrls has posted, in 2007 the Supreme Court ruled otherwise and thus sustained the federal statute banning late-term abortions. (photo credit)

(Prior June 1 posts are here and here.)

On May 29

On this day in ...
... 1990, Canada's House of Commons (right) passed Bill C-43, new abortion legislation, by a vote of 140 to 131. (photo credit) The bill, which continued the criminal proscription of abortion but allowed exceptions from that prohibition " as long as a doctor believes the physical or mental health of the woman is endangered," was sent to Canada's Senate for debate. There it would fail by a tie vote in 1991.
... 1999 (10 years ago today), Olusegun Obasanjo (left) was sworn in as President of Nigeria following his election, bringing an end to 15 "years of adventurism and brigandage under military rule," as The Nation put it. (photo credit) The 8-year tenure of Obasanjo, who himself had been a military ruler of Nigeria from 1976 to 1979, was marred by charges of corruption and repression. Last December Obasanjo was appointed the U.N. Special Envoy on the Great Lakes Region, tasked to aid "dialogue between the leaders of Democratic Republic of Congo and Rwanda," by Secretary-General Ban Ki-moon.

(Prior May 29 posts are here and here.)

Job 1 for AG

This week U.S. Attorney General Eric Holder listed as "'probably my top priority'" getting Dawn Johnsen confirmed as Assistant Attorney General for the Office of Legal Counsel.
It's about time.
About time, that is, that a top Obama Administration official pushed publicly on this issue.
As we posted about this IntLawGrrls guest/alumna, Dawn (left) was named to head OLC, the branch of the Department of Justice responsible for giving advice on the gamut of legal issues the Executive Branch confronts, 'way back on January 5th. (photo credit) That was more than 2 weeks before President Barack Obama's inauguration, and a day before the swearing-in of the new Congress. But the upper chamber of that Congress has moved at the pace of a recalcitrant snail since then. The Senate Judiciary Committee voted favorably on the nomination, but on a narrow vote of 11 Democrats to 7 Republicans, with then-Republican Arlen Specter of Pennsylvania then abstaining. Since then, nothing -- or rather, as Legal Times' blog reports,"since then Democrats have been trying to cobble together a 60-vote bloc to end debate on her nomination in the full Senate."
That's proved a challenge -- far more than it ought to be for Dawn, whose record as an attorney and law professor is, put simply, stellar. Singing her praises is a spectrum of former Justice Department lawyers that's broad enough to include Reagan-era OLC head Doug Kmiec and his Clinton-era counterpart, Walter Dellinger. The Washington Post endorsed her.
Against her? Specter and Ben Nelson, Democrat from Nebraska, plus, according to Legal Times' blog, "Republicans, foremost among them Sen. John Cornyn (R-Texas)." (A GOP exception: Dawn's won the support of Richard Lugar, senior Senator from Indiana.)
Complaints remain those identified before:
►As legal counsel for the National Abortion Rights Action League, Dawn vigorously represented her client, and so litigated against encroachments on the law of the U.S. Constitution as set forth by the U.S. Supreme Court in Roe v. Wade (1973); and
►As a law professor and former acting head of OLC, Dawn spoke and wrote against the so-called "torture memos," the Bush-era OLC opinions that professed to give legal cover for post-9/11 detention and interrogation practices and policies.
By no means does either of these points constitute a basis for withholding confirmation.
Here's hoping that Holder -- who told a Senate appropriations subcommittee that OLC "is being run by capable layers but required the 'solidity and continuity' supplied by a Senate-confirmed assistant attorney general" -- will keep the pro-Johnsen pressure on.