by Marge Berer. Chapter 11, pp. 152-166, in: Reproductive Health & Human Rights: The Way Forward. Edited by Mindy Jane Roseman and Alice Miller. University of Pennsylvania Press.

© 2009. ISBN 978-0-8122-4152-5.

This book is a collection of papers that critically reflects on the previous 15 years of international efforts aimed at improving health, alleviating poverty, diminishing gender inequality and promoting reproductive health and human rights. I contributed this chapter. I have been contacted regularly, especially via Research Gate, with requests for a copy of this chapter, which is under copyright. This year, the publisher confirmed to me that I could post it on my personal website, which is my blog, so I am doing so here. This is the full text of the chapter, plus the notes and references. (MB)

Copyright © 2009. University of Pennsylvania Press. All rights reserved. Except for brief quotations used for purposes of scholarly citation, none of this work may be reproduced in any form by any means without written permission from the publisher. For information address the University of Pennsylvania Press, 3905 Spruce Street, Philadelphia, Pennsylvania 19104-4112.

The Programme of Action of the International Conference on Population and Development [1] is an extraordinary document. It is more than ten years since the conference, yet its comprehensive analysis of what constitutes sexual and reproductive health, reproductive rights, gender equality and equity, attention to the needs of adolescents and socio-economic development as it relates to population health, and how these can and must be achieved, is unsurpassed. For those for whom the document itself is a distant memory, it is worth re-reading. There is one exception to its brilliance, however, which is the subject of this chapter, that is, how the document addresses induced abortion.

Induced abortion is referred to a number of times in the Programme of Action, either specifically (paras. 7.6, 7.24, 8.19 and 8.25), by inference as a method of fertility regulation (paras. 7.2, 7.3 and 7.5b), or in relation to unsafe abortion as one of the causes of maternal mortality and morbidity (para. 8.20).

The great contradiction contained in this document, and the reason why in the short run it was such a let-down on the subject of abortion, is that although it urged on page after page that reproductive health and fertility regulation were to be considered as reproductive rights, the safety and legalisation of one of the most commonly used methods of fertility regulation − and a major cause of avoidable mortality and morbidity in women − was eschewed. All the negotiators managed to eke out in the effort to achieve a broad-based consensus was the proposition that “in circumstances where abortion is not against the law, such abortion should be safe” (para. 8.25).”

What the Programme of Action says about abortion

The perception of abortion contained in the Programme of Action explains a great deal in relation to the continuing conflict that has taken place on the subject in the years since. In the paragraph defining what constitutes reproductive health, the Programme of Action calls for:

“…the right of men and women to be informed and to have access to safe, effective, affordable and acceptable methods of family planning of their choice, and other methods of their choice for regulation of fertility which are not against the law…” (para. 7.2)

From the perspective of what health services should be doing, it says that:

“Reproductive health care in the context of primary health care should, inter alia, include… abortion as specified in paragraph 8.25, including prevention of abortion and the management of the consequences of abortion… [and that] diagnosis and treatment for complications of pregnancy, delivery and abortion… should always be available, as required.” (para. 7.6)

These first mentions in Chapter 7, having clearly been edited to reflect the more detailed text in Chapter 8, take an equivocal tone about abortion, not treating it as a means of fertility regulation or as a legitimate reproductive health service, but as something that must be prevented. In Chapter 8, the public health problem of unsafe abortion is stressed but instead of recommending that all abortions should be made safe, which would resolve the public health problem fully, it recommends that all unwanted pregnancies should be prevented, as if this were feasible:

“a significant proportion of the abortions carried out are self-induced or otherwise unsafe, leading to a large fraction of maternal deaths or to permanent injury to the women involved… Greater attention to the reproductive health needs of female adolescents and young women could prevent the major share of maternal morbidity and mortality through prevention of unwanted pregnancies and any subsequent poorly managed abortion.” (para. 8.19)

Thus, moral judgment on abortion constantly trumps the public health imperative to save women’s health and lives. Safe abortion should be provided only if it is legal, on the one hand, and on the other hand, it should be prevented and recourse to it should be reduced, or better, eliminated. That women must be encouraged to use family planning is repeated time and again. Abortion is seen as a matter for governments only insofar as “Governments should take appropriate steps to help women avoid abortion” (para. 7.24), which is fine as far as it goes, but refuses to address what governments should do once a woman has an unwanted pregnancy and seeks an abortion. It is commonly known that contraceptive methods are not perfect and people are not perfect users of them, and that in some cases men stop women from using contraception, while in other cases rape, sexual abuse, and coercive sexual relations are the reason for unwanted pregnancy. Yet the document calls only for increased use of family planning (viz. contraception), as if contraception will eliminate “any subsequent poorly managed abortion” (para. 8.19).

Thus, women seeking abortion in countries where it is legally restricted and/or not provided safely are left with unsafe abortions. For them, the document recommends only “compassionate counselling” and “diagnosis and treatment of complications”, in flagrant contravention of the duty on health professionals to “do no harm”, one of the historical pillars of medical ethics.

Unlike the rest of the Programme of Action, the stance on abortion is not based on evidence of what is required to promote and protect reproductive health or to reduce maternal mortality, or on the right to decide the number and spacing of children. Instead, these paragraphs wash their hands of responsibility for the harm that results from unsafe and illegal abortion. Women living in countries where abortion is unsafe and illegal can only hope to be patched up after the fact.

The greatest impact, however, has been due to the following sentence, repeated in two different chapters:

“In no case should abortion be promoted as a method of family planning.” (paras 7.24 and 8.25)

This statement, a masterpiece of equivocation, was originally imposed by the Reagan administration in the final recommendations of the 1984 global population conference in Mexico City. It has proven to be a potent weapon in the hands of a right-wing U.S. government, which has used it to block work on making abortion safe and legal, in tandem with the threat of withholding funding. I well remember some of those who claimed to support abortion rights at the Cairo conference coming out of the negotiations saying that they “could live with” this phraseology. Many of them probably did not think abortion should be “promoted” either, as the ambivalence about abortion among them was and perhaps still remains strong. [2] They were also willing to support the repeated references to preventing abortion, which they also agreed with, and they found it difficult to argue against respect for the law and the so-called “culture” in countries where abortion was illegal, even if the law and culture concerned were based on the oppression of women. This even though para. 7.3 says that the right to reproductive health:

“…also includes [women’s] right to make decisions concerning reproduction free of discrimination, coercion and violence, as expressed in human rights documents.” (para. 7.3).

The Programme of Action in fact never recognizes that for women living in poverty and young women, unsafe abortion is a form of economic discrimination, because women with money can pay for safe abortions; that abortion may be necessary as a consequence of sexual coercion; [i] and perhaps most importantly that because the means to provide safe abortions exist, making women have unsafe abortions is a form of violence against women. [3] The anodyne term “unsafe abortion” makes it possible to forget the horrific morbidity and mortality that can result. Figure 1 is a reminder of what unsafe abortion actually means. [4]

Figure 1. Loops of gangrenous small intestine protruding from the vagina, 20-year-old woman, Lagos University Teaching Hospital, Nigeria [4] [INSERT PHOTO]

This was the underbelly of the great compromise of Cairo, that with women’s autonomy hanging in the balance, those who believe that motherhood should be forced on women had to be assuaged and were more important than women themselves. However, the longer-term outcome of that fierce battle of wills and ideologies, which drew in people from all over the world, in spite of its equivocal outcome, put the public health problem of unsafe abortion on the global agenda in a way it had never been before. And on the agenda it has staunchly remained. The question of whether this has been a good thing or not, and whether what the document said would remain relevant, especially with the appearance of new politicians and governments with the passage of time, is the subject of the rest of this chapter.

The Compromise: Contradictory Stances

A compromise by definition ends up pleasing no one entirely. This compromise allowed the document to be passed by a large majority of countries, a major success for the thousands of people who worked hard for that goal. However, for a compromise to be workable, the terms cannot be so contradictory that implementing them is impossible. However, this is what has happened as regards abortion with the Programme of Action. Since 1994, both those who support safe, legal abortion and those who oppose it have focused only on the sentences and phrases in the Programme of Action that support their own position. Since ICPD, the Vatican has engaged in a pro-active campaign against abortion that has been all the more effective in the context of the rise of religious and political fundamentalism in all world regions and religions. From the day George W. Bush took office in 2001, he added fuel to that campaign. On the other hand, for those who support women’s right to safe abortion, outrage and dismay at the terms of the compromise in many cases motivated a renewed effort to campaign for safe, legal abortion.

Both sides remain uncompromising, though there are recent efforts on the part of some pro-choice activists in the U.S. to seek another sort of compromise position, based on so-called “fetal value” and “prevention of abortion”. Unfortunately, this does not arise in response to a comparable willingness to compromise by anti-abortionists, and I believe it is doomed to failure. [5] Yet all anti-abortionists have not supported the same goals either, and the various anti-abortion partners during the Cairo negotiations did not all have the same ends in mind, nor the same ends as the Bush administration. The Vatican was and remains opposed to the whole concept and practice of fertility regulation, not just abortion, while the then largely pro-natalist Latin American governments that had weak family planning programmes or sided with the Vatican in 1994 today mostly have far more substantial family planning programs and many are actively debating abortion law reform. The countries where a conservative interpretation of Islamic law is dominant were opposed to the legalization of abortion on the grounds of “culture” and support for “the rights of the family” over the rights of the individual (woman). This was both a pro-natalist and anti-women’s rights position rather than a strictly religious one. Indeed, a number of theological interpretations of Islam and a number of Islamic countries permit abortion in the first months of pregnancy. [6]

The Bush administration has had to take a complex stance, because it has had to engage internally with almost 40 years of U.S. government support for family planning programs globally and a long-standing commitment to reducing maternal deaths, which has included support for post-abortion care programs. The upheaval caused by the changes in leadership, senior staffing and policy in key U.S. government offices, such as the United States Agency for International Development (USAID) and the United States Food and Drug Administration (FDA), that have emerged under Bush will, I believe, prove disastrous for the United States in the long run. Most countries have made efforts, both large and small, to incorporate the ICPD Programme of Action into their national policies, programs and services [7], while the biggest donor in the field before 1994 has rapidly been backpedaling. This has caused havoc in countries where long-standing U.S. funding was withdrawn or threatened with being withdrawn. [8]

The bullying that has accompanied U.S. efforts to derail the implementation of the Programme of Action is thought to be unprecedented. At first, it was only whispered about in the corridors but then it was confronted openly, and anti-ICPD resolutions put forward by the U.S. were roundly defeated in every post-ICPD-related international meeting. [9] While the Bush administration has certainly succeeded in stopping work being done in the short term, it is also causing great resentment.

However, USAID under Bush has a right to claim that it too is implementing the ICPD Programme of Action, as regards the stricture that “In no case should abortion be promoted as a method of family planning” (paras. 7.24 and 8.25). This is the basis for the memorandum containing the Bush version of the Global Gag Rule. In it, neither financial support nor technical assistance for activities related to abortion is permitted.(ii) In this memorandum, abortion was considered a method of family planning when it is for the purpose of spacing births. This includes, but is not limited to, abortions performed to protect the physical or mental health of the pregnant woman. It does not include abortions if the life of the woman would be endangered if the fetus were carried to term or abortions following rape or incest (since abortion under these circumstances is not considered a family planning act). Also excluded from this definition is the treatment of injuries caused by an abortion; thus, post-abortion care is explicitly permissible, and again is a Programme of Action goal. [10]

In addition to refusing to fund abortions as a method of family planning, the Gag Rule’s definition of promotion of abortion includes, but is not limited to, operating a family planning counseling service that includes advice and information regarding the benefits and availability of abortion as a method of family planning; providing advice that abortion is an available option in the event other methods of family planning are not used or are not successful, or encouraging women to consider abortion; lobbying a foreign government to legalize or make available abortion as a method of family planning or lobbying such a government to continue the legality of abortion as a method of family planning; and conducting a public information campaign regarding the benefits and/or availability of abortion as a method of family planning. [11] All NGOs in countries who are recipients of USAID funds have been required to sign the Global Gag Rule before their grants are approved or continued. Not having an alternative source of funding, most of these NGOs are believed to have signed. [12](Crane and Dusenberry 2004; Global Gag Rule Impact Project 2003). There are also notable exceptions, such as that of the International Planned Parenthood Federation. [13]

The problem with all this is not what “promotion” of abortion means, since abortions will be needed regardless of whether anyone promotes it, but also what “family planning” means. The fact of the matter is that the practice of family planning and abortion can never be separated. In this, the Vatican at least has a consistent world view, while the Gag Rule is contradictory. But the Bush government is not interested in philosophical or linguistic debates. It is the very ambiguity inherent in its policy that gives the Gag Rule power, because if USAID even thinks an NGO has transgressed (and they have people tasked with watching for this at country level), they can cut their funding off. The threat alone has worked very well in stopping NGOs that are dependent on USAID from doing anything related to abortion, for fear that they will be de-funded. [14]

Whither the Right to Safe, Legal Abortion

As powerful as the alliance against abortion was in 1994, the momentum generated by ICPD and the overwhelming acceptance at country level of the need to protect and promote sexual and reproductive health and rights has been far stronger. In the Soviet Union and Eastern Europe, abortion had been legalised in the 1950s and in some cases even earlier. In the US and Canada, most of Europe, New Zealand, and Australia, the main battles for legalisation of abortion had taken place and been won by the end of the 1970s. However, in 1984 at the Fourth International Women and Health Meeting in Amsterdam, many of the women from developing countries said they could not participate in a network if the word “abortion” was in the name and could hardly raise the issue aloud in their own countries. In the more than twenty years since then, a sea-change has taken place; unsafe abortion is a public health problem that is being raised in country after country in the developing world.

The language of ICPD+5 on abortion in 1999 was the basis for the WHO Safe Abortion guidance document [15] and the lever for more work on abortion on the part of governments. It also spurred an increase in funding for making abortion safe on the part of several European donors, especially Sweden, the Netherlands, and the UK governments.

All over Latin America and the Caribbean, abortion is the subject of public debate, in which the supporters of safe abortion are becoming far more numerous. The Mexico City legislature has made abortion legal during the first trimester, although it is being appealed to the Supreme Court. [16,17] In Cuba and Guyana, the laws are liberal. In St Lucia and Trinidad, the law has been changed, and Jamaica is considering legal reform as well. [18] A Parliamentary bill to make abortion legal up to 12 weeks of pregnancy in Uruguay in 2004 was lost by only four votes, although some 63% of the population support law reform ), [19] and in Brazil, a bill has also been tabled though the outcome is currently uncertain. [20] Campaigns for health services to provide legal abortion under existing laws, such as those allowing abortion on grounds of rape, are ongoing in Mexico and Brazil. [21] Clarifying the legal situation to allow abortion when the fetus is unviable is being supported by obstetrician−gynaecologists in Peru and Brazil. [22,23] In Colombia, a human rights lawyer successfully challenged the law on abortion in the Constitutional Court as a violation of several of the human rights instruments signed by the country. The court situated its decision in the tradition of ICPD and Beijing, and subsequent interpretations of human rights by international human rights bodies. Abortion is now legal to save the life and health of the woman, in cases of rape and when the fetus is not viable (Women’s Link Worldwide 2005 & 2006). [24 Not Available]

In Africa, abortion has been legal in Tunisia, Zambia, and South Africa for some time. Ethiopia recently liberalised its law as well. Campaigns are taking place for liberalisation of the law in Kenya, Nigeria, and Ghana. Mozambique is also planning legal reform. In Asia, Nepal’s Family Planning Association defied the Global Gag Rule and worked for legalisation of abortion, with law reform succeeding in 2004. Abortion services are being made available through the health system [25,26] and through several non-governmental clinics. [27] Cambodia has also liberalised its law. India, in spite of a long-standing liberal law, is often held up along with Zambia as the exception to the rule that where it is legal, abortion will be safe, but efforts to tackle morbidity and mortality from unsafe abortions are growing. [28]

Safer surgical methods of abortion, particularly manual and electric vacuum aspiration, are more widely available and training in using them has been carried out in a growing number of countries thanks to non governmental organizations like Ipas, [29] Marie Stopes International, and a growing number of private providers. At the same time, women’s access to medical abortion in legally restricted settings, using at least one of the two types of abortion pill that have been included on the WHO List of Essential Medicines since mid-2005, is reducing many first trimester abortion deaths, according to providers of post-abortion care. (iii)

At the ICPD, it was agreed that where abortion was illegal, post-abortion care services (“management of the consequences of abortion” [para. 7.6]) should always be provided. Many hospitals are more willing and better equipped to treat women with incomplete abortions than in the past, when the morbidity from dangerous invasive methods was far worse than it is today. Progress has been made in Mexico, Brazil, Bolivia, Peru, Nicaragua, El Salvador, and Guatemala, among others, in increasing availability of post-abortion care, but a recent review of post-abortion care initiatives in public hospitals in seven Latin American countries shows that much work remains to be done. [30] In Guatemala, for example, post-abortion care has recently been scaled up and is available in the majority of district hospitals. Unfortunately, at least in the first two years of this programme, mortality from unsafe abortion had not been reduced. [31]

In Africa, “a recently developed model of costs for abortion care shows that treating incomplete abortions in tertiary facilities costs ten times more than providing elective abortion in a primary health centre”. [32] Moreover, in 2006, a paper examining the extent of hospitalisation for abortion in 13 developing countries where abortion is still illegal reported that hundreds of thousands of women are being treated each year, taking up hospital beds and resources that could be used to improve women’s health as well as make abortion safe. [33]

Thus, there is a long way to go, and all is not rosy. Fundamentalism grows apace and the gulf between fundamentalist and secular world views is widening, with women’s rights hanging in the balance. The situation for women needing an abortion in Poland is dire, [34] and the battle to legalise abortion at a woman’s request will be uphill for decades to come in many countries. The problem of morbidity and deaths from unsafe second trimester abortions is often hidden, as has been shown in Mexico, [35] and even in the developed world second trimester abortions are less accepted than those in the first trimester. As one Norwegian author has argued, even in Europe “the legal right has been won, but not the moral right”. [36 Op cit.2]

On the other hand, in the now ratified 2003 African Charter on Human Rights and Peoples’ Rights Relating to the Rights of Women, states are called upon to protect women’s reproductive rights by authorising abortion in cases of sexual assault, rape, incest, fetal impairment and where continuing the pregnancy would endanger the life or mental or physical health of the woman. [37] Rulings on the part of several United Nations treaty bodies have also supported abortion rights. For example in November 2005, the United Nations Human Rights Committee, which monitors countries’ compliance with the International Covenant on Civil and Political Rights, decided its first abortion case, brought by a woman who had been refused a legal abortion and forced to carry a non-viable fetus to term. The Committee established that denying a woman access to legal abortion violates her most basic human rights. This was the first time an international human rights body has held a government accountable for failing to ensure access to legal abortion services. [38]

In 1994, the same year as the ICPD, Jain and Bruce proposed some sensible indicators to measure whether women were achieving their reproductive intentions in a healthy manner. These included: the extent to which women are able to have a desired pregnancy which results in a positive

outcome, prevent an unplanned pregnancy, terminate an unwanted pregnancy safely, achieve the desired interval between two consecutive births and prevent any associated reproductive morbidity. [39] These acknowledge, simply and without compromise that safe, legal abortion is a central aspect of fertility control.

Conclusions

It is time for unsafe abortion, and the ICPD compromise on abortion with it, to become an anachronism. In a few short years, the 20-year period that was originally set to achieve the goals of ICPD 1994 will be upon us. It would be too optimistic to say that the trend towards greater access to safe, legal abortion is inexorable. History is cluttered with instances of political backsliding and stalled initiatives, especially when it comes to implementing verbal support for women’s rights. However, the Vatican and the current fundamentalist stranglehold on US politics notwithstanding, the trend is that unsafe, illegal abortion is on its way out, not least because low fertility is here to stay for the foreseeable future – with a two-child norm for the majority of the globe, many one-child families, and a growing number of people who have no children. More and more women are being educated and are in paid employment. Although access to contraception is still limited for many and unsafe abortions still take place, more women and men are practising fertility regulation. With fewer children to raise, they have time for doing other things with their lives as well. The right to family planning has been accepted by most women and men – and almost all governments − and has been accepted as a socially acceptable, legitimate practice, even in some conservative societies. Efforts on the part of those who would turn the clocks back are unlikely to succeed in the long run, whether those who, as anti-abortionists, would rescind all access to contraception and safe abortion or those who are proposing to push the fertility rate back up where it has fallen below replacement level, e.g. in Europe, while claiming to be pro-choice. (iv)

Would women be worse off insofar as abortion is concerned if the Cairo compromise had not taken place? Yes, without a doubt, which is why the pro-choice government delegates and NGO representatives at the conference spent so many gruelling hours hammering it out. However, the terms of the compromise do not support making all abortions safe and legal.

As is common with extremists, the Bush government has gone overboard in its efforts to limit sexual and reproductive rights. Like all donors, however, the US needs to give financial support to other countries both in order to assert its leadership in the world and to have influence over the policies and programmes of those countries. Recipients of funding need to recognise their collective power and refuse, individually and collectively, to accept the Gag Rule, just as governments overwhelmingly voted no when Bush administration representatives at the UN Special Session on Children in May 2002 [40] and regional ICPD+10 meetings in 2003 and 2004 tried to introduce clauses to undermine the 1994 Programme of Action. [41 op. cit.]

A women-centred perspective considers abortion legitimate not only if it is to save the life and health of a woman, or as a consequence of rape or incest, or because of fetal impairment, but also on social and economic grounds, to protect a woman’s existing children and as a method of birth spacing or limiting births. A woman’s reasons for abortion always come back to the fact that she does not wish to carry a particular pregnancy to term. A women-centred perspective considers the need for abortion to be a necessary part of sexual and reproductive life. The legalization of abortion is fundamental to the long-term safety of abortion and the ability of health services to provide it as a legitimate procedure.

Making abortion legal is the only way that morbidity and mortality from unsafe abortions have been reduced historically, as evidenced in an analysis of national data from more than 160 countries. [42] If women are to have not only the inalienable right to life, but also the right to life on their own terms, the argument for making abortion safe, legal and accessible is unassailable.

Acknowledgments

Thanks to Barbara Crane for helpful comments.

Notes

i. In a study in India, for example, 21 of 66 women interviewed considered unwanted pregnancy and abortion a direct consequence of non-consensual sex, often accompanied by violence when the woman resisted. [43]

ii. Technical assistance is defined as the transfer of goods and services to another organization. Goods include equipment. Services include organization, facilitation, and participation in workshops, technical meetings, training and program assessments. [44]

iii. Although there are no data confirming this, it was widely agreed to be the case among participants at the conference “Medical Abortion: An International Forum on Policies, Programmes and Services, Johannesburg, 17-20 October 2004.

iv. Whether or not national policy would succeed in doing so was the subject of debate at the conference of the International Society for the Scientific Study of Population, Tours, July 2005.

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