Women's Health and the Limits of Law

Domestic and International Perspectives

Irehobhude O. Iyioha

• Publisher: Routledge
• Year: 2019
• eBook ISBN: 9781351002363
• Edition: 1
• Topic: Medicine
• Subtopic: Administrative Law

Despite some significant advances in the creation and protection of rights affecting women's health, these do not always translate into actual health benefits for women. This collection asks: 'What is an effective law and what influences law's effectiveness or ineffectiveness? What dynamics, elements, and conditions come together to limit law's capacity to achieve instrumental goals for women's health and the advancement of women's health rights?' The book presents an integrated, co-referential and sustained critical discussion of the normative and constitutive reasons for law's limited effectiveness in the field of women's health. It offers comprehensive and cohesive explanatory accounts of law's limits and for the first time in the field, introduces a distinction between formal and substantive effectiveness of laws. Its approach is trans-systemic, multi-jurisdictional and comparative, with a focus on six countries in North America, Europe, Asia, and Africa and international human rights case law based on matters arising from Hungary, Portugal, Spain, Slovakia, the Czech Republic, Peru and Bolivia.

The book will be a valuable resource for educators, students, lawyers, rights advocates and policymakers working in women's health, socio-legal studies, human rights, feminist legal studies, and legal philosophy more broadly.

1 Introduction

Within and beyond the hedge: form, substance and the limits of law on women’s health

Irehobhude O. Iyioha

Background: form, substance and law’s limits

In the last several years, the world has experienced significant advances in the recognition and protection of women’s health rights. Rule-based advances have come in the form of new and amended legislation, and in some cases, through constitutional guarantees – mostly state responses to commitments made to an international human rights regime that is at the forefront of expanding and promoting women’s rights and interests. Even in the more conservative parts of the world, including Africa, Latin America and the Middle East, there are progressive legislation guaranteeing some rights to reproductive health services and prohibiting violence and harmful traditional practices against women.

Yet, progressive laws recognizing women’s rights and agency do not always translate into actual health benefits for women. Data on several social and medical problems that impair women’s physical, mental and reproductive health reveal that millions of women around the world are still subject to harmful cultural practices and adverse gender norms, while many others in repressive regimes are faced with prohibitive conditions for the exercise of their rights, especially those pertaining to their reproductive health. The challenges women face are numerous and substantial. Violence against women around the world¹ remains a considerable problem. In Canada, for example, violence against Indigenous women in particular has reached epidemic proportions, a situation Amnesty International has described as a “national human rights crisis”.²

1 UN Women, Facts and Figures: Ending Violence Against Women, available at www.unwomen.org/en/what-we-do/ending-violence-against-women/facts-and-figures.

2 Amnesty International, Violence Against Indigenous Women and Girls in Canada: A Summary of Amnesty’s International’s Concerns and Call to Action (Feb. 2014), available at www.amnesty.ca/sites/amnesty/files/iwfa_submission_amnesty_international_february_2014_-_final.pdf (accessed 11 May 2019).

High rates of maternal mortality – caused by several factors, including poor healthcare access, HIV infections and the criminalization of abortion – is another major problem.³ The use of the criminal law to regulate access to abortion is particularly limiting of women’s agency and autonomy over their reproductive health, as are non-legal or systemic limits in jurisdictions where the procedure is liberalized. Beyond these measurable factors, an intractable and arguably insidious cause of maternal mortality relates to the governance of women’s lives through customary legal orders that conflict with international reproductive health rights recognizing women’s full agency and control over their bodies. Another problem that has gained the attention of the international community relates to the prevalence of female genital cutting and its unremitting, surreptitious migration as a cultural transplant among some practicing immigrant communities in Western nations.⁴ These and other emerging data suggest that women’s bodies remain sites of social, political, cultural and legal contests.

3 Trends in Maternal Mortality: 1990 to 2015: Estimates by WHO, UNICEF, UNFPA, World Bank Group and the United Nations Population Division (Geneva: World Health Organization, 2015), available at http://apps.who.int/iris/bitstream/handle/10665/194254/9789241565141_eng.pdf;jsessionid=B8ABEE8724C8F98410176BE00F4738CA?sequence=1 [Trends in maternal mortality].

4 United Nations News Centre, UN Report Reveals Increasing Incidents of Female Genital Mutilation in Guinea, Including on Infants (April 25, 2016), available at www.un.org/apps/news/story.asp?NewsID=53775#.V9HYJfkrK70; Jazmin Chavez, Female Genital Mutilation on the Rise in the United States (March 18, 2016), Human Rights Brief, available at http://hrbrief.org/2016/03/female-genital-mutilation-on-the-rise-in-the-united-states/.

Stated simply, there is a fundamental gap – perhaps more clearly evident in the global South – between the lived experiences of millions of women and the transformative goal of substantive equality sought through legal reform that has animated the scholarship on women’s reproductive health and the feminist legal project. Although there are indications that several legislative reforms and targeted programs at the domestic level⁵ as well as international efforts such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) have been effective,⁶ other observers question the overall effect of this and other treaties and domestic laws on women’s rights.⁷

5 For a discussion of some successful grassroots initiatives for improving women’s reproductive health, see analysis of economics and the limits of law in Grépin et al., Chapter 7 of this volume.

6 N. A. Englehart and M. K. Miller, “The CEDAW Effect: International Law’s Impact on Women’s Rights” (2014) 13:1 Journal of Human Rights 22–47; N. Englehart, “Women’s Rights, International Law and Domestic Politics: Explaining CEDAW’s Effectiveness” APSA 2011 Annual Meeting Paper.

7 Andreea Maria Serbu, “From the CEDAW to the Istanbul Convention: Effectiveness in tackling Violence Against Women” (Università Ca’ Foscari Venezia, 2017). Eric A. Posner, The Twilight of Human Rights Law (New York: Oxford University Press, 2014).

A book on the limits of law in the field of women’s health law and policy is necessitated not only by the dearth of critical scholarship with a marked theoretical bent but also by the nature of the times in which we live. In the last few years, the persistence of religious illiberalism and the conflation of judicial roles with religious orthodoxy and obligation, as well as the rise and open acceptance of authoritarian populism and the resultant adverse consequences for women’s reproductive health have incrementally eroded women’s rights. This development demands a focus on the limits of domestic and international human rights law – a focus situated markedly in both the philosophy of law and empirical analyses.

Enquiry into the limits of law aligns with the feminist legal project, which aims for equality for all women through legal reform. Therefore, interrogating the limits and effectiveness of law – an undertaking central to the realization of substantive equality – furthers the ultimate aims of the feminist legal project and the more immediate goals of incremental legislative and systemic reforms. Towards these goals, it is expected, as Charles Ngwena has noted, that norms in a “plural democracy” would allow for consensus on the importance of equality under the law.⁸ A general level of consensus is foundational not only to securing “effective” and “accessible” justice, but also to “securing equality”⁹ in both procedural and substantive terms. The reasons for and consequences of a lack of consensus on legal and policy reform, with particular reference to the impact on reception of and compliance with law, animate the discussions in this book.

8 Charles G. Ngwena, “Reforming African Abortion Laws and Practice: The Place of Transparency” in R. J. Cook, J. N. Erdman and B. M. Dickens, eds., Abortion Law in Transnational Perspective: Cases and Controversies (Philadelphia: University of Pennsylvania Press, 2014) at 178.

9 Ibid.

While questions about the limits of human rights law are only a part of the broader discourse on the limits and effectiveness of law, they are a significant part of the discourse. Campaigns promoting women’s interests and health, especially women’s reproductive health, draw pivotally on the framework and language of human rights as argumentative tools for guiding the discourse on rights as well as for negotiating and advancing women’s health rights. Given their intrinsically persuasive logic, it is not unexpected that human rights are conceived of as universal and objective, though dependent on a progressive state or one sympathetic to the shared values of dignity and equality for women to effectuate its promises.

However, opposition has been mounted against the idea of universalism of human rights on account of the diversity of cultures and ideologies on rights. Ideological and cultural relativisms – of which much has been said and written – demand a conception of ethical issues and women’s rights through lenses qualified by differences in value systems. While laws in many nation-states, including in some of the states discussed in this book, actively embody norms that reflect this relativist notion of rights, the narrative of universalism and immutability of human rights has helped sustain advocacy for legislative and policy reform as well as large-scale structural changes across populations in many other jurisdictions. As UN member states negotiate their ideological stance with regards to internationally prescribed norms, scholars and advocates must also find ways to address the consequences of conflicting ideologies for women – consequences that cannot be completely disassociated from the strategic limitations inherent in a top-down and universalized approach to reform that is embodied in human rights advocacy. The nature, foundations and manifestations of these consequences and the reasons for the underlying limits as they apply within human rights law and progressive domestic law on women’s healthcare are the subjects of focus in this book.

Limitations to the successful use of international human rights and domestic law to improve women’s health are framed in this book as the derivatives of multiple traversing factors. Limits may be conceptualized as arising from the much-disputed nature of law recognized within the non-positivist school of jurisprudence as a system of rules defined by the formality of the procedures central to its formulation and interpretation as well as by its aspiration for justice or for doing right – what legal philosopher Robert Alexy describes as ‘correctness’.¹⁰ However, while Alexy considers human rights to be “absolute” and “objective” and contends that “necessary moral elements do exist”,¹¹ the diversity of moral viewpoints around the world that challenge any assumption of a single conception of ‘correctness’ sits at the root of the problems of legal effectiveness, especially with regards to women’s reproductive health rights. This is one of the primary ideas connecting the diverse chapters of this book.

10 See generally Robert Alexy, The Argument from Injustice: A Reply to Legal Positivism (Oxford: Clarendon Press, 2002); Robert Alexy, “On the Concept and the Nature of Law” (Sept. 2008) 21:3 Ratio Juris 281–299. See Chapters 2 and 3 of this volume for a further exploration of this term.

11 Alexy, Robert, “Law, Morality, and the Existence of Human Rights” (2012) 25:1 Ratio Juris at 3.

Against the problem of different ideologies on what constitutes ‘human rights’, the extent to which women’s reproductive health should be protected by state law and the nature of the protections to be secured by the state, this book asks: What is an effective law and what determines legal effectiveness or ineffectiveness? Are there limits that specifically arise due to the nature of the field of women’s health law and policy? On this latter question, an observer only needs to consider the historical and continuous policing of women’s bodies, and the significant legal and political debates over women’s bodies and their reproductive health rights to understand that a perceived exceptionality of women’s bodies and reproductive role in society provokes the inordinate interference with women’s agency and autonomy. Fundamentally, the book asks: How might these limits (whether or not unique to the field of women’s health law) be theorized? Specifically, what dynamics, elements and conditions come together to limit law’s capacity to achieve instrumental goals for women’s health and the advancement of women’s health rights?

While there are no easy answers to these questions, what is at least clear is that addressing them requires an engagement with the nature of law. The connection between the subject of law’s limits and law’s claimed nature can be discerned from a study of the field, especially through insights from the philosophical debates about the factors essential to law’s validity, as well as through a close study of the claims made about law within mainstream Western legal jurisprudence. Central to this jurisprudence is the philosophical framework of legal positivism, within which law is defined by certain structural qualities, such as autonomy, certainty, generality, universality, neutrality and uniformity.¹² This structural form of law – expressed in legal formalism – offers a legal methodology in which the application of law is grounded on a sequence of logical decision-making based on predetermined legal rules.¹³ Several problems have been identified with this approach to the application and study of law. A major problem is that it offers an approach to understanding law in practice that is not reflected in the actual social circumstances that circumscribe women’s experiences. Furthermore, legal formalism’s “highly formalistic and apolitical understanding of law” ultimately produces conservative political outcomes for women that typically do not serve their best interests.¹⁴

12 Margot Stubbs, “Feminism and Legal Positivism” (1986) Australian Journal of Law and Society at 65.

13 Ibid. at 65.

14 Ibid. at 67, 64.

Part of the feminist legal undertaking has long been to expose the ways in which this “form of law” regulates women’s lives and the oppression that they experience.¹⁵ This structural and adjudicative form of law, which – it must be emphasized – traditionally defines the very nature of the Western legal order, has historically served to “reinforce and reproduce existing” sex-based social and economic imbalances in relationships between men and women.¹⁶ Thus, central to exposing the operations and real-life consequences of law – and a primary part of the goals of this project – is the task of challenging the very ideological foundations of law as defined in Western jurisprudence. On this, Margot Stubbs notes:

15 Ibid. at 68.

16 Ibid. at 65.

An acceptance of the understanding of the law presented in mainstream Western jurisprudence (as defined by the “science of legal positivism”) limits the development of a political critique of law as it presents the law as an autonomous, self-contained system, fuelled by its own logic, which is supposedly uninvolved in the processes of class production and reproduction.¹⁷

17 Ibid. at 67.

Beyond the adjudicatory problems arising from the conceptual construct of law within the Western legal tradition, a study of the procedural and substantive qualities of law also reveal entrenched limits. As Douglas, Sarat and Umphrey have noted, law itself is defined by “the very idea of limits”.¹⁸ In the definitive elements of law – its procedural and substantive elements – are to be found the very limits that constrain law in its operation. For example, the ‘nature’ of law as a system of rules that have been authoritatively passed, the social facts embodied within law, as well as the language that conveys law’s purpose and commands can complicate compliance with law. Inhering in these elements – which are only one part of the elements of law on a non-positivistic account – are influences that bear upon the workings of law and whether a given law is regarded as legitimate. The potency of the limits embodied ...

Table of contents

• Cover
• Half Title
• Series
• Title
• Copyright
• Contents
• Table of cases
• Table of legislation, treaties and instruments
• List of figures
• List of table
• Notes on contributors
• Acknowledgements
• 1 Introduction: within and beyond the hedge—form, substance and the limits of law on women’s health
• 2 Law, normative limits and women’s health: towards a jurisprudence of substantive effectiveness
• 3 Feminism, morality, and human rights: assessing the effectiveness of the United Kingdom’s FGM Act
• 4 Abortion law in China: disempowering women under the liberal regulatory model
• 5 Forced sterilizations: addressing limitations of international rights adjudication through an intersectional approach
• 6 Tilted interpretations: reproductive health law and practice in the Philippines
• 7 Economics and the limits of law: an international analysis of persistent gaps in women’s reproductive health
• 8 Indigenous feminist legal theory: a multi-juridical analysis of the limits of law on Indigenous women’s health in relation to HIV in Canada
• 9 Domestication and reception of international reproductive health law and the limits of law: perspectives from Nigeria and South Africa
• 10 On the margins of law: examining the limits of legislative initiatives on maternal mortality in South Africa and Nigeria
• Index