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Let not misinterpretation and extrapolation lead us astray on abortion

Phillipa
Davies

Wednesday, August 15, 2018

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Mesdames Alyssa Nebel (Canada) and Linnette Vassell's (Jamaica) comments on July 10, 2018 have in fact affirmed the Jamaica Coalition for a Healthy Society's (JCHS) position (July 2, 2018) that no international instrument mandates countries to legalise abortion, nor is Jamaica under any national or international obligation to do so.

Nebel and Vassell agreed with the JCHS that the monitoring committee established by the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) treaty can only make non-binding recommendations. However, they wrongly claim that the committee is empowered to “explain further what the convention means in practice”, and that the JCHS gave a “one-sided, selected interpretation”.

The JCHS reiterates its position, which is based on agreed international law, that the general rule of interpretation is to apply the ordinary meaning to the terms of the treaty in their context. (Vienna Convention on the Law of Treaties, Article 31 (1))

The 'ordinary meaning' is the meaning at the time of the treaty's negotiation and ratification and in the context of the issues the State parties were negotiating. CEDAW was not a negotiation for legalising abortion. If it were, Jamaica could not have participated in such a negotiation as our law then and now prohibits abortion.

Furthermore, the Vienna Convention does not give binding authoritative value to suggested interpretations of treaty bodies like the CEDAW committee. That committee comprises individuals who are not representatives of the nations who negotiated CEDAW. That committee has no authority to “explain” beyond what the negotiating parties meant. To grant any such authority would override the sovereignty of independent states like Jamaica.

Nebel and Vassell know full well that what the CEDAW committee suggests is not and has never been binding on Jamaica or any other United Nation member state. As such, they allege that the JCHS's position is surface reading and a shallow understanding of the instruments. They want Jamaicans to follow their 'expert' understanding that legalising abortion, although not explicitly stated, should be implied. The JCHS would urge all Jamaicans to be vigilant in order to reject the deceptive idea that words on the paper do not mean what they say but must be specially interpreted by a select group of elites.

While Nebel and Vassell affirmed that the Sustainable Development Goals say nothing about abortion, they failed to disprove the JCHS's assertion that Article 12.1 (CEDAW) is silent on abortion. They tried to claim that the Beijing Declaration advocates for abortion because clause 106(K) asks countries to “consider reviewing laws containing punitive measures against women who have undergone illegal abortion”. One should note, however, that a call to review is not a call to decriminalise.

Nebel and Vassell agreed with the JCHS that paragraph 8.25 (International Conference on Population and Development) clearly states that abortion is not to be promoted as family planning. They again repeat flawed reasoning by claiming that a later subsection calling for strengthening commitment to women's health and dealing with the “health impact of unsafe abortion” is the same as mandating the decriminalisation of abortion. Interestingly, they themselves ignored the following sections of the same paragraph 8.25; that Governments should“(iii) reduce the recourse to abortion through expanded and improved family-planning services” and work towards (iv) the “prevention of unwanted pregnancies [as] the highest priority and every attempt should be made to eliminate the need for abortion”.

Nebel and Vassell asserted that research on the impact and reasons for choosing abortions (clause 109(i), Beijing) can only be implemented if abortion is decriminalised. This claim weakens their own stance of lobbying for decriminalisation supposedly based on their collective 50 years of research and consultation. In other words, they themselves have implemented clause 109(i) even while the law is still in the place.

Additionally, Beijing defines “unsafe” as a procedure for terminating an unwanted pregnancy either by persons lacking the necessary skills or in an environment lacking the minimal medical standards or both. Yet Nebel and Vassel cite a 1975 ministerial policy which sought to facilitate abortion by medical personnel in certain cases in clear contravention of the law. The chief medical officer of Victoria Jubilee Hospital has publicly stated that the individuals doing abortions in Jamaica are medical doctors. If abortions in Jamaica are carried out by doctors in hospitals, obviously the reason for legalising abortions in Jamaica is not to make them “safe”. This raises the question: Who or what are Nebel and Vassell really representing?

They presented no supporting data of unsafe abortion being a major driver for maternal mortality in Jamaica. The real facts are that cardio/cerebro/renovascular disorders and hypertension are the major drivers of maternal mortality (2013-2015). The real fact is that maternal mortality is a medical and social problem which is properly addressed by applying medical and social principles. Killing innocent babies does not solve the problem; it only creates more problems.

Nebel and Vassell were glaringly silent on the JCHS's statement that all human life is of inherent dignity and value. They comment that the CEDAW committee's role is to make suggestions in light of broad principles designed to uphold dignity and rights and women, men, boys, and girls in our diverse and nation-specific contexts. Yet they are mute on the blatant fact that abortion destroys the lives of boy and girl babies. They deceptively twist the meaning of 'termination of pregnancy' (birth of a live baby) into an euphemism for abortion (the intentional ending of the life of a baby). They make no comment on Jamaica's binding obligation to preserve the life of the unborn under the Convention of the Rights of the Child. They, in fact, are demanding that mothers be given a 'right' in law to kill their own babies.

Nebel and Vassel also want Jamaicans to ignore the basic fact that a woman can only be pregnant if she has a living human being growing in her womb, a new person with his/her own constitutional right to life and protection (Jamaican Charter of Rights [s 13 3a and 3K(i)].

Our nation recently commemorated Emancipation and Independence. Lest we forget, colonialism and plantation slavery devalued and degraded human life. It would indeed be tragic for Jamaican citizens and any Government to allow abuse of this freedom by cherry-picking which child should live or die, and pitting mothers against their own children as if one was less valuable than the other.

How do Nebel and especially Vassell, Cuthbert-Flynn, Hanna, and their Jamaican sistren plan to interpret our national anthem's call to 'strengthen us the weak to cherish'?

Philippa Davies is the attorney-at-law/advocacy officer at Jamaica Coalition for a Healthy Society. Send comments to the Jamaica Observer or jchsadvocate@gmail.com.

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