[David Kopel, May 28, 2009 at 5:25pm] Trackbacks
Does the Convention Against Torture apply to abortion?
The Convention Against Torture defines torture as:
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.The United Nations Committee Against Torture oversees the implementation of the treaty. Among the nations which have ratified the CAT is Nicaragua. The government of Nicaragua, which is currently led by the Sandinista National Liberation Front, has outlawed abortion in all circumstances. A May 15 report from the UN Committee suggested that the ban is a violation of the Convention Against Torture. In the country report for Nicaragua, the Committee wrote:
The Committee was deeply concerned about Chile's [sic] anti-abortion law, which prohibited abortions even in cases of rape, incest or when the life of the mother was at stake. That meant that women victims of violence were subjected to continuing violations, placing them under serious traumatic stress with the risk of incurring long-term psychological problems. A further concern were reports that human rights defenders were systematically harassed and received death threats, as well as the fact that women defenders of reproductive rights were subjected to criminal investigations.Amnesty International has been pushing the issue, and castigated Nicaragua's abortion law in an April report to the UN Committee. After the Committee issued its statement, AI called on Nicaragua to comply wiht the CAT by liberalizing its abortion laws, including by repealing all criminal sanctions against abortion providers.
The AI argument, and the UN's partial support for the argument, strike me as a good example of the UN's readiness to use human rights treaties to advance an agenda which has no genuine relation to the treaties. A report from C-Fam indicates that other UN Committees have been using their own particular treaties to pressure Nicaragua on abortion.
It is indisputable that childbirth is often very painful, and that some pregnancies can have severely painful or life-threatening complications; it is also true that abortion can cause "severe pain and suffering" for the fetus. However, the CAT itself defines "torture" only to include "severe pain and suffering" which is inflicted for certain motives--none of which appear to be present in Nicaragua's case. Rather, the Nicaraguan law appears to have been enacted for the purpose of protecting fetal life--not surprising in which a country where almost all the people are either Roman Catholic or evangelical Protestant.
The UN Committee raised concerns about harassment of "human rights defenders" and "women defenders of reproductive rights." The claims of harassment (if factually accurate) would very likely indicate violations of other human rights treaties which guarantee freedom of speech, of political activism, and so on. But the harassment (as long as it fell short of torture) would seem entirely unrelated to the jurisdiction of the UN Committee Against Torture, unless one concludes (as AI argues) that banning abortion is sometimes a form of torture; in that case, pro-abortion speech would be considered anti-torture speech, and therefore the harassment of speakers have some relevance to the international law against torture.
FWIW, if I were an American legislator (and presuming that Roe v. Wade had been overruled) I would not vote for a law like the Nicaraguan one, and if I were a Nicaraguan, I would never vote for a Sandinista. But the facts do suggest that the UN Committee is treating the Sandinista government very unfairly, indeed unlawfully.