(En)Gendering Suffering: Denial of Abortion as a Form of Cruel, Inhuman or Degrading Treatment

Abstract

The regulation of abortion has long been considered a prerogative of the state. In recent years, however, international human rights bodies have begun to consider the conformity of domestic abortion regulations with a state’s human rights obligations. This paper examines a notable trend among human rights bodies: namely, finding that denying or obstructing a woman’s access to abortion can amount to cruel, inhuman, or degrading treatment under multiple human rights treaties. First, human rights bodies have found that states can be responsible for CIDT inflicted on women who are harassed and denied services that are legally available to them under the state’s laws. Second, human rights bodies have found that the application of restrictive abortion laws themselves may inflict CIDT by depriving women of an abortion in particularly serious cases, such as rape or when the woman’s life is threatened. I argue that these findings reflect an understanding that certain restrictions on abortion — or the state’s failure to act to prevent de facto restrictions from arising — are unjustifiable and disproportionate to lawful state aims. They also demonstrate a limited but important recognition that deprivations of autonomy in the reproductive rights context can lead to the kind of pain and suffering that is unacceptable in modern societies. At the same time, I argue that human rights bodies should further strengthen their understanding of women’s autonomy interests in this context, particularly the ways in which the frustration of their reproductive autonomy can inflict severe and unacceptable pain or suffering tantamount to CIDT.

Keywords: human rights, reproductive rights, CIDT