Using International Human Rights Law to Increase Abortion Access in Malawi (Guest Post)
In the early 2000s, the US Agency for International Development (USAID) funded the Policy Project to improve reproductive health policy in 40 low- and middle-income countries. The Project’s briefs about health and human rights were removed from the internet in 2022 when the Project closed. The briefs’ author, Genevieve Grabman, has revised her work to bring it up to date and shared it with Strathmore Health, which will maintain it for posterity.
Using International Human Rights Law to Increase Abortion Access in Malawi
International human rights law is an underutilized framework for protecting reproductive health and abortion access. Although international law demands that countries promote, protect, and fulfill the rights of women and men equally,[i] in the past, human rights were invoked primarily to protect the individual liberties of those involved in political or public pursuits - generally, men.[ii] Human rights law ignored rights violations occurring within the home or family. Human rights are now applied to encompass social rights directly affecting women, such as health and education; and the power of international human rights law is recognized as protecting people in the private sphere of intimate relationships.
This brief demonstrates how advocates could use international human rights law to improve access to abortion care in Malawi, a country with extremely high rates of unsafe abortion-related death and illness. A joint study by Malawi’s College of Medicine and the Guttmacher Institute found that more than 140,000 abortions take place illegally every year in Malawi, resulting in 12,000 deaths.[iii] Abortion is only legal in Malawi to save a woman’s life; and obtaining an abortion for any other reason is punishable by 7–14 years in prison.[iv] Advocates were unsuccessful in a recent attempt to liberalize Malawi’s abortion laws. In 2021, Malawi’s parliament withdrew from debate a bill that would have increased the instances when abortion would be permitted.[v] For future abortion advocacy campaigns in Malawi, international human rights law and treaty bodies could be employed to encourage reform of the country’s abortion laws.
Access to Abortion Care in International Law
Countries are obligated by international law to prevent discrimination and to ensure equality of access in the provision of methods, techniques and services that contribute to reproductive health and well-being. Countries must make available to all family-planning counseling, information, and services; prenatal care, safe delivery, and post-natal care; prevention and appropriate treatment of infertility; abortion where permitted by law and post abortion care; treatment of sexually transmitted diseases, including HIV/AIDS; and information and education on human sexuality, reproductive health, responsible parenthood, and harmful traditional practices.[vi]
Adequate access to health care services can significantly influence patient use of the health care system and, ultimately, improve health. For example, most maternal deaths are preventable through timely provision of emergency obstetric care, including abortions. Conversely, heightened reproductive risk results from inadequate health care access, as demonstrated by increased maternal deaths in locations that legally prohibit abortion care.[vii]
Human Rights Implicated
Impeding equal access to health services and information violates the right to health by restricting individuals' abilities to make personal healthcare decisions and to attain the best possible health status for themselves and their families. Other human rights, including the following, are also implicated by disparate access to health care:
Right to non-discrimination - Without careful tailoring, health policies may impact differentially on and increase the marginalization of the poor and uneducated. In particular, close scrutiny must be given to required user fees for health services, privatization of primary healthcare, and "target-oriented" population control programs. Policymakers must ensure that such policies do not bar those in need from essential health care and that coercion or misinformation is not used to achieve programmatic goals.
Right to equal protection of the law - Individuals are impermissibly excluded from heath care systems through laws that prevent or discourage participation or through inadequate health resource allocation to impoverished communities.
Right to life - High rates of maternal mortality, preventable through adequate access to obstetric health care including abortion care, indicate that a country is failing to fulfill women's rights and to prioritize women's lives.
Relevant Human Rights Documents
The International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW), both treaties binding on ratifying countries, recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. CEDAW, Article 12, requires countries to take all necessary measures to eliminate discrimination against women in health care and to ensure that women and men have equal access to health services. This Article further requires that countries provide free and accessible health services in relation to pregnancy and post-natal care.
Additionally, the non-binding but highly persuasive consensus statements from the International Conference on Population and Development (ICPD or Cairo) and the Fourth World Conference on Women (Beijing) highlight the importance of ensuring women access to acceptable reproductive health services throughout the life cycle and of implementing gender-sensitive standards for health care delivery. The CEDAW Committee, the body that oversees compliance with CEDAW, refers to the ICPD guidelines to determine country compliance with CEDAW Art 12. In their reports to the CEDAW Committee, countries therefore should detail their implementation of the lCPD Programme of Action.
Malawi’s Legal Obligations
Malawi has ratified international agreements that require the country to protect and promote rights related to abortion care and access. Malawi is a state party to the following documents:
African (Banjul) Charter on Human and People's Rights
Convention Against Torture and Other Cruel, Inhumane, or Degrading Treatment or Punishment
Convention on Elimination of All Forms of Discrimination Against Women (CEDAW)
Convention on the Rights of the Child
International Convention on Elimination of All Forms of Racial Discrimination
International Covenant Economic, Social and Cultural Rights (ICESCR)
International Covenant on Civil and Political Rights
The following non-binding guidance documents further define the obligations of Malawi:
Beijing +5: Further Actions and Initiatives to Implement the Beijing Platform for Action
Beijing Platform for Action (Beijing)
Cairo Programme of Action (ICPD or Cairo)
Universal Declaration of Human Rights
Under international law, Malawi is obligated to promote several human rights related to abortion access and to remedy violations. These rights include:
· Right to equal protection of the law
· Right to freedom from inhuman or degrading treatment
· Right to highest attainable standard of physical and mental health
· Right to liberty and security of the person
· Right to marry and found a family
· Right to non-discrimination on grounds of sex and gender
· Right to private and family life
· Right to receive and impart information
Constitutional Protection of Rights
Although Malawi’s Constitution specifically protects rights of women, virtually all abortions are illegal in Malawi. The Malawian Constitution requires that Malawi take necessary measures to ensure women's participation in all spheres of society (art. 13(a)(i)) and adopt legislation to eliminate practices that discriminate against women (art. 24(2)), such as discrimination in work, business, and public affairs (art. 24(2)(b)).[viii] Nevertheless, constitutional arguments have not been sufficient to change Malawi’s criminal laws, which prohibit abortion unless the pregnant woman’s life is in danger.[ix]
Yet the Constitution of Malawi could serve an important tool for the application of international human rights law to the problem of abortion care and access for Malawian people. The Constitution enables Malawi to translate international agreements into domestic law and obliges all branches of government to respect and ensure the rights it enunciates (art. 211(1)). The Constitution further mandates Malawi to provide for the redress of human rights violations through the courts, the Ombudsman, the National Human Rights Commission (Chapter XI).
Legal Remedies to Improve Abortion Care Access in Malawi
Subjecting Malawi to international scrutiny could be an effective way of pressing a country to modify laws and policies that prohibit abortion access and, therefore, cause human rights abuse. The international legal system offers women several ways to challenge barriers to their equal access to health care.
Malawi’s health advocates can submit complaints and reports about health care access to the committee that monitors compliance with CEDAW. The CEDAW Committee uses the ICPD Programme of Action to set standards for country compliance with the right to health. This means that countries party to CEDAW must follow the measures listed in the ICPD to eliminate discrimination against women in health care and to guarantee equal access to health services.
If it finds a country in violation of the right to health, the CEDAW Committee recommends to that country how to properly promote and protect women’s access to quality health care. Malawian policymakers may be convinced to improve women’s access to quality health care by being made aware of these recommendations.
Key Human Rights Arguments to Increase Access to Abortion Care in Malawi
In making the case for increased legal abortion access in Malawi, advocates could rely on text and guidance from treaty compliance bodies. The ICESCR Committee, for example, notes in its General Comment on the Right to Health, access to health care is determined by the availability of specific services; the accessibility of services to the public; the acceptability of the services to different cultures, sexes, and age groups; and the quality of the services.[x]
Availability. Functioning health care facilities, services, and programs, must be available in sufficient quantity within the country. These include safe and potable drinking water, adequate sanitation facilities, health-related buildings, trained medical and professional personnel receiving domestically competitive salaries, and essential drugs. Unsafe and absent obstetrical care services, including abortion care, would not be in compliance with this principle.
Accessibility. Accessibility has four overlapping dimensions: non-discrimination, physical accessibility, economic accessibility, and information accessibility. Barring women from abortion procedures necessary for the maintenance of women’s health would discriminate against women in the provision of health care.
Acceptability. All health facilities, goods and services must be respectful of medical ethics and sensitive to gender and life-cycle requirements, as well as designed to respect confidentiality and improve the health status of those concerned. Lack of abortion services is in contravention of ethical and gender-sensitive care necessary to women during their childbearing years.
Quality. Health facilities, goods and services must also be scientifically and medically appropriate and of good quality. This requires skilled medical personnel, scientifically approved and unexpired drugs and hospital equipment, safe and potable water, and adequate sanitation. Good quality reproductive and maternal health care necessarily includes medical personnel skilled in pregnancy intervention and termination, safe and approved medications and devices to provide abortion care and post-abortion care, and sanitary and licensed facilities where abortion care is legally and routinely provided.
To ensure health services are acceptable, accessible, affordable, and appropriate to the needs of women, Malawi should integrate a gender perspective in its health-related policies, planning, programs and research. To do this, the ICESCR Committee encourages countries to develop and implement a comprehensive national strategy for promoting women's right to health. For Malawi, a major goal should be reducing women's health risks, particularly lowering rates of maternal mortality related to the lack of legal abortion care. Malawi’s realization of women's right to health further requires the removal of all barriers to sexual and reproductive health services, education, and information.
[i] See, e.g., Convention on Elimination of All Forms of Discrimination Against Women (CEDAW), Art. 12, "States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning."
[ii] Called "civil and political rights," these individual liberties include protections in voting, political participation, public expression, and interaction with the police and judiciary. See International Covenant on Civil and Political Rights (ICCPR).
[iii] See Lameck Masina, Malawi Parliament Withdraws Abortion Rights Bill after Objections, Voice of America (June 19, 2021), Malawi Parliament Withdraws Abortion Rights Bill after Objections
[iv] See Guttmacher, Abortion and Postabortion Care in Malawi (April 2017), https://www.guttmacher.org/fact-sheet/abortion-malawi.
[v] See Masina, Malawi Parliament Withdraws Abortion Rights Bill after Objections.
[vi] International Conference on Population and Development (ICPD) Programme of Action, para. 7.6.
[vii] See, e.g., Eugene Declercq et al., The U.S. Maternal Health Divide: The Limited Maternal Health Services and Worse Outcomes of States Proposing New Abortion Restrictions, The Commonwealth Fund Issue Brief (December 14, 2022), https://www.commonwealthfund.org/publications/issue-briefs/2022/dec/us-maternal-health-divide-limited-services-worse-outcomes.
[viii] The Constitution of Malawi can be viewed at Malawi 1994 (rev. 2017) Constitution - Constitute.
[ix] See Malawi Penal Code, Chapters XIV – XXII, Articles 149-151, 231 & 243, available at https://reproductiverights.org/maps/provision/malawis-abortion-provisions/.
[x] The Right to the Highest Attainable Standard of Health, CESCR General Comment 14, E/C.12/2000/4 (2000).