A write suit was filed with the High Court Division of the Supreme Court of Bangladesh in May 2020 questioning the legitimacy of British colonial-era Sections 312-316 of the Penal Code 1860. abortion laws of Section 312 criminalizes anybody who willfully causes a woman to miscarry, including the lady. The sole exception to this wide restriction is if the surgery is done in good faith to rescue the lady.
The petition extensively references Roe v Wade, the 1973 US Supreme Court ruling establishing women’s constitutional right to the abortion, but it does not mention Bangladesh’s international human rights duties.
I suggest in this piece that relying only on this comparativist approach might be risky in the long term while the petition is pending and the Court has yet to rule on the validity of the disputed provisions of abortion laws. I propose that the Court use international human rights and foreign court doctrine to rule that the over-broad criminalization of abortion is unconstitutional.
Setting Bangladesh’s constitutional rights in context with foreign court rulings and international human rights legislation
Comparative debates of international rulings helped Bangladeshi rights jurisprudence flourish. Many landmark constitutional law rulings used precedents from other countries. Foreign rulings of abortion laws, albeit not binding, influence the Supreme Court of Bangladesh on constitutional issues.
UK, USA, and India have often been mentioned in this regard (see, here, here, here). Bangladesh has not followed any overarching normative principles or methodological reasons while picking jurisdiction of abortion laws or ‘borrowing’ from foreign instances.
Bangladesh also uses international human rights frameworks to decide constitutional rights claims. Applying international human rights legislation to constitutional rights interpretation by the Court of abortion laws has become a step toward ‘creeping monism’ via judicial activism. As with foreign cases, the Bangladeshi Supreme Court has not taken a doctrinal position on international human rights law in domestic matters (Hoque and Naser 2007).
Ershad v Bangladesh is noteworthy because the Court said that it cannot disregard international human rights duties of abortion laws. The Court stated that ‘if the domestic laws are ambiguous or if there is nothing therein, the national [Court] should draw upon the principles in the international instruments’ (para 69) and that it will alert lawmakers to local laws that conflict with international human rights principles.
Bangladesh v Sheikh Hasina and State v Metropolitan Police Commissioner shared Supreme Court opinions (see wider debate here). In BNWLA v Bangladesh, the Court said that international covenants and treaties ratified by the state are read into the Constitution’s basic rights in the absence of local laws and principles.
The Supreme Court typically cites both sources, but the omission of international human rights legislation of abortion laws in this case is striking and perhaps problematic of abortion laws.
The international human rights framework and abortion laws
No human rights body has explicitly acknowledged a woman’s right to abortion on demand. However, criminalizing abortion is a type of gender-based violence that may amount to torture or cruel, barbaric, or degrading treatment (see General recommendation No. 35, Committee on the Elimination of Discrimination against Women).
The Human Rights Committee states that States parties must provide safe, legal, and effective abortion when the life and health of the pregnant woman or girl are at risk or when carrying a pregnancy to term would cause substantial pain or suffering, such as when the pregnancy is the result of rape, incest, or is not viable (see General Comment No. 36).
Thus, states must liberalize restrictive abortion laws (see General comment number 22, Committee on Economic, Social, and Cultural Rights) or ‘legalize’ or ‘decriminalize’ them in all cases.
The Human Rights Committee advised Poland, Jordan, and Argentina to amend their laws to guarantee safe, legal, and effective abortion in certain circumstances and to avoid forcing women to have clandestine abortions that endanger their lives and health.
In 2017, the Human Rights Committee urged Bangladesh to amend its abortion ban to allow abortions ‘including in cases of rape, incest, fatal fetal impairment and for therapeutic reasons, and to ensure that women are not denied medical services and are not prompted by legal obstacles, including criminal provisions, to resort to unsafe abortions that put their lives and health at risk’ (p 4).
Pro-choice advocates may criticize the international human rights groups’ present stance for not going far enough, but their growth is remarkable.
Roe’s vulnerability amid the US political chaos of abortion laws
Right-wing political extremism includes abortion criminalization or bans in several countries. This is centered on the US (see here), where Roe was written. A Texas statute barring abortions for most women was upheld by the US Supreme Court.
The majority conclusion noted procedural errors in the application and did not rule on the Act’s legality, but it gives anti-abortion supporters optimism. Inasmuch as the ruling does not address the federal constitutional right of a woman to obtain an abortion during the first stage of pregnancy, the statement that it is not to be construed as a conclusion on the constitutionality of the Texan law is problematic.
Given that the US Supreme Court (SC) will consider a new case in its autumn term to determine whether to overturn Roe, women’s rights appear bleak. The US SC’s ruling on the new Texan law has scrambled the political landscape again, and both parties are rethinking their US strategies. Republicans see their anti-abortion agenda coming closer to fruition, while Democrats fear losing one of their most fundamental principles.
Abortion has frequently been more political than women’s rights. With each governmental shift in Russia, abortion regulations have changed. In Poland, Chile, and other Central and Eastern European nations, abortion legislation have progressed and regressed (judged in the perspective of women’s rights) under various political regimes.
Given their fragility due to political context and judge selection, exclusive or major reliance on constitutional court rulings may be paradoxical. Framing this as a human rights issue may promote long-term development.
Some last words of abortion laws
The Bangladesh National Population Policy tried to legalize first-trimester abortion in 1976 on vague medical and social grounds. The national family planning program included Menstrual Regulation (MR) in 1979.
According to a Population Control and Family Planning Division memo, doctors and paramedics were urged to give MR services at all government hospitals, health, and family planning facilities. Since pregnancy is hard to verify, the Memorandum says that the Penal Code 1860 does not restrict MR of abortion laws. MR is considered a ‘interim way of establishing non-pregnancy’ for a woman at risk of pregnancy, whether or not she is.
Despite the availability of MR services, supported by bureaucratic instruments like the Memorandum, many women resort to clandestine and unsafe abortions due to lack of awareness, legal ambiguity, and the Penal Code’s categorical criminalization of abortion (see here). Decriminalizing abortion and eliminating the colonial holdover makes it easier for women. In this aspect, the new writpetition is fresh.
A ‘pro-choice’ 2020 petition would have to declare the challenged provisions unlawful and alert the legislature to the Constitutional problems of the unduly wide criminality. These enforceable international human rights duties may be incorporated into the Constitution’s more general rights (equality, non-discrimination, life, liberty, security, etc.). Additionally, foreign choices might be mentioned.
Roe is convincing, yet relying only on it may be paradoxical because of its fragility as a precedent even in the US. Therefore, the Bangladesh Supreme Court should look to other progressive legal rulings in this instance.
The Irish Supreme Court ruled that prohibiting abortion in circumstances of fatal fetal abnormalities and sexual offense violates the right to private and family life (see here). The recent Mexican Supreme Court finding that abortion is unconstitutional as a felony (read here) cleared the way for legalizing abortion in the nation.
Roe v Wade may illustrate that a constitutional court judgment alone is too fragile and that abortion must be debated by the legislature as part of a broader cultural discussion to protect hard-won women’s rights against right-wing assaults.
If the Supreme Court rules Bangladesh’s abortion prohibition illegal, the legislature will be pressured to rectify the gap between Bangladesh’s human rights duties and its abortion laws.