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Human Rights Perspectives on Access to Misoprostol Johanna B. Fine Legal Fellow Center for Reproductive Rights.

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Presentation on theme: "Human Rights Perspectives on Access to Misoprostol Johanna B. Fine Legal Fellow Center for Reproductive Rights."— Presentation transcript:

1 Human Rights Perspectives on Access to Misoprostol Johanna B. Fine Legal Fellow Center for Reproductive Rights

2 Summary Human rights related to access to medicines, such as misoprostol: Right to health Right to the benefits of scientific progress Right to information Focus on misoprostol and abortion Emergency medical treatment and abortion

3 Right to Health And Essential Medicines Several international and regional covenants recognize a right to health ICESCR, Art. 12(1): “The States Parties … recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”

4 CESCR, General Comment 14: ¶ 12(a): “Functioning public health and health-care facilities, goods and services, as well as programmes, have to be available in sufficient quantity within the State party … They will include … the underlying determinants of health, such as … essential drugs, as defined by the WHO Action Programme on Essential Drugs.” ¶ 43(d): States have a minimum core obligation to: “(d) To provide essential drugs, as from time to time defined under the WHO Action Programme on Essential Drugs.” Right to Health And Essential Medicines

5 WHO Model List of Essential Medicines List of minimum medicines needed for a basic health ‐ care system, listing the most efficacious, safe and cost ‐ effective medicines for priority conditions In 2005, WHO added misoprostol Governments should therefore prioritize this medicine for budgetary allocations and procurement

6 Right to the Benefits of Scientific Progress and Essential Medicines UDHR, Art. 27(1): “Everyone has the right … to share in scientific advancement and its benefits.” ICESCR, Art. 15(1)(b) : States Parties “recognize the right of everyone … [t]o enjoy the benefits of scientific progress and its applications.” San Salvador Protocol, Art. 14(1)(b) : States Parties “recognize the right of everyone … [t]o enjoy the benefits of scientific and technological progress.” Requires access to medications: Essential medicines and Safe and available reproductive health technologies, including medical abortion

7 Right to Information and Essential Medicines Grounded in several rights in UN and regional covenants, such as: Life Health Dignity Privacy Freedom of expression Decide on the spacing of one’s children Focus on rights to health and freedom of expression

8 Right to Information and Essential Medicines Right to Health: CESCR, General Comment 14: ¶ 12(c) – States must guarantee “the right to seek, receive and impart information and ideas concerning health issues.” ¶ 21 – “The realization of women's right to health requires the removal of all barriers interfering with access to health services, education and information, including in the area of sexual and reproductive health.” ¶ 34- “States should refrain from limiting access to …means of maintaining sexual and reproductive health, from censoring, withholding or intentionally misrepresenting health-related information”. ¶ 44(d) – A core priority of States includes “provid[ing[ education and access to information concerning the main health problems in the community, including methods of preventing and controlling them”

9 Right to Information and Essential Medicines UN: Right to Freedom of Expression Article 19(2) of the ICCPR: “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. “

10 Right to Information and Essential Medicines Regional: Right to Freedom of Expression/Information European Convention (Art. 10): “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers …” American Convention (Art. 13): “Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice.” Banjul Charter (Art. 9): “1. Every individual shall have the right to receive information. 2. Every individual shall have the right to express and disseminate his opinions within the law.

11 Right to Information and Essential Medicines Right to Freedom of Expression: Each Covenant (except Banjul) imposes restrictions on this right Restrictions must be provided by law and include those necessary for: Respect of the rights or reputations of others Protection of national security or of public order Public safety, health or morals Prevention of disorder or crime (European Convention) Generally restrictions interpreted narrowly

12 Right to Information and Essential Medicines States may try to justify restricting access to information about medicines used to procure abortions on grounds of public health or morals Case Study: Open Door Counselling and Dublin Well Woman Centre and Others v. Ireland Failure to provide information about health services permitted by law constituted a violation of the right to receive and impart information (Art. 10).

13 Emergency Medical Treatment and Abortion International Human Rights and Emergency Medical Treatment CESCR, General Comment 14: –¶ 14 – Art requires measures that include “access to …emergency obstetric services and access to information, as well as to resources necessary to act on that information.” –Emergency obstetric services may include abortion

14 Emergency Medical Treatment and Abortion National Laws: Necessity Defense Countries without an explicit life exception may permit abortion on criminal defense of “necessity.” –Criminal liability excused if a criminal act is performed in order to save one’s own life or the life of another –Although abortion not expressly permitted by law, it could be performed because it was necessary to preserve life BUT: –Generally theoretical –Can only be invoked once criminal charges are faced –Fact specific

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