Posted on | October 5, 2012 by Susan Yoshihara, Ph.D. |
A reporter just asked me to comment on a story suggesting that 2012 OHCHR technical guidance on maternal mortality seeks to criminalize pro-life organizations. While the OHCHR may well approve such an outcome, this aim is not clear in the text of the document.
Here are the pertinent paragraphs of the technical guidance:
22. States should protect against interference with sexual and reproductive health rights by third parties by enforcing appropriate laws, policies, regulations and guidelines. States are responsible for exercising due diligence, or acting with a certain standard of care, to ensure that non-governmental actors, including private service providers, insurance and pharmaceutical companies, and manufacturers of health-related goods and equipment, as well as community and family members, comply with certain standards.( footnote 19. CEDAW GC 28, para 13) States may be held responsible for private acts if they fail to act with due diligence to prevent, investigate and punish violations of rights.( footnote 20: CEDAW GC 10, para 9)”
30. A situational analysis should include a broadly participatory review of the legal framework and the enactment, modification or rescission of laws, policies, regulations and guidelines, as required. Express legal recognition of sexual and reproductive health rights, equality between men and women and health as a human right should be accompanied by regulations providing for women’s access to services. Laws and policies that impede access to sexual and reproductive health services must be changed, including laws criminalizing certain services only needed by women; laws and policies allowing conscientious objection of a provider to hinder women’s access to a full range of services; and laws imposing third-party authorization for access to services by women and girls.
Such an aim would require a very broad interpretation of cases in which governments can be held accountable for the acts of its private citizens (what the guidance calls “non-governmental actors”) under the aegis of a failure of due diligence. In this regard, the guidance refers only to the non-binding CEDAW committee general comment 19, which says the state should “regulate” the “activities of private actors with regard to education, employment and health policies and practices, working conditions and work standards, and other areas in which private actors provide services or facilities, such as banking and housing.”
The technical guidance certainly seeks liberalize “sexual and reproductive health rights” as part of a nebulous right to maternal health. It does so by referring to a version of “discrimination” promoted by the CEDAW committee and used widely in international litigation, but which has been rejected by the U.S. Supreme Court. As I have pointed out previously, the U.S. Supreme Court maintains that the “disparate impact” of facially neutral and justified practices are not sufficient grounds for a “discrimination” claim. Moreover, the recipient of the “disparate impact” must also be part of a protected class that is disproportionately impacted.
Conversely, the CEDAW committee in its general comment 10 says: “discrimination under the Convention is not restricted to action by or on behalf of Governments (see articles 2(e), 2(f) and 5). For example, under article 2(e) the Convention calls on States parties to take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise. Under general international law and specific human rights covenants, States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation.”