Introduction.

• Author: Northup, Nancy

This volume is the outgrowth of a panel discussion on New Scholarship on Reproductive Rights held at Columbia Law School on October 20, 2008 (1) to celebrate the establishment of a new joint fellowship program of the Center for Reproductive Rights (2) and Columbia Law School--The CRR-CLS Fellowship (3)--as well as an initiative by the Center to stimulate scholarship and teaching on reproductive health and human rights. (4) In the last decade, there have been groundbreaking cases from national courts as well as regional and international human rights bodies. These cases are not widely taught in U.S. law schools nor widely incorporated into legal scholarship. The emerging norms stemming from these cases, grounded in rights to equality, dignity, health, autonomy, freedom from cruel and degrading treatment, and non-discrimination, arguably provide more robust protection for women's health and reproductive self-determination than constitutional rights in the United States. Whereas the U.S. Supreme Court has ruled in the past that pregnancy discrimination does not violate equal protection guarantees, (5) foreign courts and international tribunals have recognized that discrimination against pregnant women is sex discrimination, (6) and that it is a violation of guarantees of non-discrimination to restrict access to health services necessary to women. (7) The underlying premise of the fellowship is that there are paradigm-shifting developments in transnational law on reproductive health and human rights that could invigorate scholarship in the U.S. legal community.

Before I introduce the articles in this volume, I want to bring you back to the spring of 1986. I was a first year Columbia Law student learning constitutional law at the feet of Professor Peter Strauss. I remember so vividly sitting in that classroom when we got to the section of the course on "Substantive Due Process, For Noneconomic Rights: Privacy; Autonomy; Family Relations." I studied late into the night briefing every case in the section because I knew that, Brennan clerk though he had been, Professor Strauss was going to grill me in a skeptical exchange on Griswold v. Connecticut (8) and Roe v. Wade, (9) and the legitimacy--or not--of pouring fundamental values into the due process clause that are not traceable to constitutional text or history. (10)

Thinking about that initial engagement with reproductive rights cases, I pulled off the shelf my 11th edition of Gunther's Constitutional Law (11) that I had used in the course. I was drawn to some notes that I had made on page 528, footnote six. I had highlighted, underlined, made two stars, and written "right!" next to the following sentences: "laws governing reproduction implicate equality concerns" and "a growing body of literature [is] tying the substantive due process issues raised in cases such as Roe to ... sex discrimination." (12) I think now of all the expectation that I had packed into that "right!" It was an expectation that the "growing body of literature" (13) would, well, grow. It was the expectation that the "growing body of literature" (14) would yield a complex understanding about the relationship of women's reproductive lives and health to our full equality and flourishing in political, social, and economic life.

When I look back at myself in that classroom in 1986, I see a young woman who had no idea of what was to come, in the political and social life of this nation, that would undercut her reasonable expectation that a range of legal bases to protect and support women's reproductive rights would be articulated and accepted in the near future.

March 1986. Justice Scalia had just joined the Court; the Bork hearings were years into the future, as were Webster v. Reproductive Health Services, (15) Planned Parenthood of Southeastern Pennsylvania v. Casey, (16) and the "undue burden" (17) analysis that weakened Roe v. Wade's strict scrutiny standard. (18) Carhart II (19) was over twenty years into the future, a decision that Justice Ginsburg would call "alarming" (20) because it refused to seriously consider precedent, (21) failed to safeguard women's health, (22) and "reflect[ed] ancient notions about women's place in the family and under the Constitution--ideas that have long since been discredited." (23) But in 1986, the religious right was on the ascendency, and Pat Robertson's Christian Coalition was soon to make its mark on U.S. politics. (24) These subsequent developments would erode support for the understanding that women's reproductive lives are connected to a range of human and civil rights, and to a broader set of rights for equality, health, and dignity.

But what was still to come after 1986 beyond the United States' borders was much more heartening. In contrast to the progressive undermining of constitutional protections in the United States, there was a revolution underway to position both reproductive rights, generally, and access to safe abortion, specifically, as human rights issues. (25)

1. TRANSNATIONAL LEGAL DEVELOPMENTS ON REPRODUCTIVE RIGHTS AS HUMAN RIGHTS

   Still to come after 1986 was the landmark U.N. International Conference on Population and Development in Cairo, Egypt in 1994, where governments around the world explicitly recognized that reproductive health is a basic human right. (26) The Programme of Action, adopted by 179 governments including the United States, explicitly recognized for the first time that reproductive rights are basic human rights and urged governments to strengthen their commitment to women's health and to "deal with the health impact of unsafe abortion as a major public health concern." (27) At the following year's U.N. Conference on Women in Beijing, the Platform for Action took the language of Cairo a step further by recognizing the problem of illegal abortions and noting that "unsafe abortions threaten the lives of a large number of women [and] represent[] a grave public health problem [because] it is primarily the poorest and youngest who take the highest risks." (28) These international consensus documents from Cairo and Beijing "represent[ed] years of concerted effort by women's health movements around the world to gain recognition of women's reproductive and sexual self-determination as a basic health need and human right." (29) This movement was based in stark facts about women's lives: the average woman will need to use contraception for approximately three decades if she is seeking to have only two children; (30) the risk of death in childbirth in Afghanistan can be as high as one in seven. (31) These statistics make real the connection between reproductive healthcare and women's basic life and health rights.

   In the wake of this political consensus among nations at Beijing and Cairo, human rights lawyers began applying this rights framework to issues such as: coercive sterilization; female genital mutilation; family size limits; access to contraception, emergency obstetrics care, assisted reproductive technologies, and abortion; and information on sexuality and sexual health. These issues implicate fights already guaranteed in binding regional and international human fights treaties: women's right to life; (32) the fight to health; (33) the right to equality and non-discrimination; (34) the right to be free from cruel, inhuman, and degrading treatment; (35) the fundamental right to dignity; (36) the right to liberty, self-determination and privacy; (37) the right to physical integrity; (38) and freedom of conscience. (39)

   Human rights lawyers sought to hold governments accountable through mechanisms such as the periodic review of a country's compliance with its treaty obligations, (40) authoritative interpretations of the treaty by its overseeing bodies, (41) and individual cases in which treaty rights have been violated. (42) The norms being articulated through these processes provide complementary, (43) and at times alternative (44) ways to understand the rights implications of reproductive and sexual health issues. (45)

   In the case of K.L. v. Peru, a seventeen-year-old Peruvian woman learned that her fetus had anencephaly, a fatal anomaly. (46) Although Peru has very restrictive abortion laws, there is an exception for therapeutic abortions. (47) Her obstetrician recommended that she terminate the pregnancy to preserve her physical health and a psychiatrist concurred with respect to her mental health, but her multiple attempts to secure an abortion were denied and K.L. had to carry to term. (48) K.L.'s case was taken to the U.N. Human Rights Committee, (49) which oversees the International Covenant on Civil and Political Rights. (50) In the first abortion ruling by that body, the Committee ruled that Peru had violated K.L.'s right to privacy, and her right to be free from cruel and degrading treatment. (51) The Committee found that Article 7 of the ICCPR relates not only to physical pain but also to mental suffering, and that government officials could have foreseen that denying K.L. an abortion would cause her pain, distress, and ultimately the deep depression that beset her after the delivery. (52) While the first ground is unsurprising to those familiar with U.S. constitutional standards, the second provides an additional lens to understand the scope of her suffering as a result of the government's actions.

   In 2006, the Constitutional Court of Colombia struck down a law banning all abortions as unconstitutional, relying on international standards to shape the protections under Colombia's Constitution. (53) The court held that the total ban on abortion was a violation of Colombia's Constitution, and that there had to be broad exceptions for mental and physical health, for fetal abnormalities, for rape, and for incest. (54) The court found that the abortion ban infringes more than necessary on a range of rights of pregnant women which are protected by Colombia's Constitution and international human rights...