SAN BEDA COLLEGE - MANILA

COLLEGE OF LAW
SAN BEDA LAW - HUMAN RIGHTS ADVOCATES
SBL - HRA DEBATE CUP 2016

MOTION: LET IT BE RESOLVED THAT THE RIGHT TO ACCESS SAFE AND LEGAL
ABORTION IS A HUMAN RIGHT

POSITION PAPER FOR THE AFFIRMATIVE SIDE

GENERAL AND QUARTER FINAL ROUND

1S

In developing countries, millions of people are suffering from health problems

which are almost avoidable for the reason of poverty. Some of such dilemma
are infectious diseases, malnutrition, and complications of childbirth where it
is a maternal problem specifically arises in the said countries. 1 Despite the
decline of maternal mortality between the years 1990 and 2015 by 44%,
such problem has still been challenging to the health of the motherly bears.
In 2015, 303,000 mothers died from pregnancy-related causes and millions
more suffered from complications related to pregnancy or childbirth,
including hemorrhage, infection, hypertensive disorders and obstructed
labor.2

According to CARE, it believes that access to quality sexual, reproductive and

maternal health is both a fundamental human right and a critical
development issue. Improving commitment to gender equality and to
1 Population Reference Bureau. (2004.) Improving the health of the worlds poorest
country. Retrieved from http://www.prb.org/pdf04/improvingtheHealthbrief_Eng.pdf
2 Maternal and child. (n.d.) Retrieved from
http://www.one.org/international/issues/maternal-and-child-health/)
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reducing global poverty.3 The ability of a woman to have control of her body
is critical to civil rights. Take away her reproductive choice and you step onto
a slippery slope. If the government can force a woman to continue a
pregnancy, what about forcing a woman to use contraception or undergo
sterilization.4

In US, since about 49 percent of all pregnancies are unplanned, this means
about half of unplanned pregnancies are terminated by abortion. Abortions
outnumber live births in fourteen major metropolitan areas. There are about
1.37 million reported abortions in this country every year (down from 1.61 in
1990). The World Health Organization (WHO) estimates that each day
between 100,000 and 150,000 induced abortions occur, or about 36 to 53
million world- wide each year.5

If the prochoice position is correct, the freedom to choose abortion is an

expression of equal rights, fairness, and justice. Abortion is a necessity,
making society a better place for all. If we ever went back to a society in
which abortion was not freely available, it would be a gigantic step backward

3 (http://www.care.org/work/health/maternal-health).
4 (About news. (2006). 10 Arguments: For and against abortion. Retrieved from
http://womensissues.about.com/od/reproductiverights/a/AbortionArgumen.htm).
5 Alcorn, R. (1992). Profile answers prochoice arguments.

in the history of human rights.6 Here are some cases and jurisprudence on
the legality of abortion:
US Supreme Court takes abortion in a liberal and pro-choice stance since
the Roe v. Wade (1973) case where there is constitutionality regarding Due
Process Clause of the Fourteenth Amendment allowing abortion to life-saving
procedures on the mothers behalf, in which Due Process Clause protects the
right to privacy, including a womans right to terminate her pregnancy. Such
right protects both the pregnant womans health and the potentiality of
human life at various stages of pregnancy. The pro-choice position is the
definitive statement that it is a womans decision and her choice of whether
to have an abortion or not, and that no one should be able to take that power
from her. A state law is unconstitutional if it imposes on the woman's
decision an "undue burden,i.e., if it has the purpose or effect of placing a
substantial obstacle in the woman's path.7
In K.L. v Peru (2009), the Human Rights Committee found that forcing a
woman to continue a pregnancy that posed risks to her health and life was a
violation of the right to be free from torture and cruel, inhuman, and
degrading treatment or punishment.1 In 2001, K.L., a 17-year-old Peruvian
woman carrying a fetus with a fatal anomaly (anencephaly), was denied a
therapeutic abortion by Peruvian health officials, despite the fact that
Peruvian law allows pregnancy termination for health reasons, including
6 Ibid.
7 Summary of Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35, L. Ed. 2d 147 (1973)
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mental health. K.L. was forced to carry the anencephalic fetus to term and
gave birth to a baby who died, as was inevitable, several days later. 8 The
Committee noted that owing to the refusal of the medical authorities to carry
out the therapeutic abortion, [K.L.] had to endure the distress of seeing her
daughters marked deformities and knowing that she would die very soon.
This was an experience which added further pain and distress to that which
she had already borne during the period when she was obliged to continue
with the pregnancy. . . . The omission on the part of the State in not enabling
[K.L.] to benefit from a therapeutic abortion was, in the Committees view,
the cause of the suffering she experienced. The Committee has pointed out
[that] article 7 of the Covenant [the right to be free from torture or cruel,
inhuman or degrading treatment] relates not only to physical pain but also to
mental suffering . . . . Consequently, the Committee considers that the facts
before it reveal a violation of article 7 of the Covenant.
The CEDAW Committee found that the failure to provide L.C. with a
therapeutic abortion was discriminatory and a violation of article 12 of the
Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW), concerning equality and non- discrimination in access to health
care. In addition, the denial of both termination of pregnancy and spinal
surgery violated article 5 of the CEDAW, on sex-role stereotyping and
prejudice, as the decision to postpone the surgery due to the pregnancy

8 KL v. Peru (United Nations Human Rights Committee)

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was influenced by the stereotype that protection of the fetus should prevail
over the health of the mother.9
Abortion is a second category offence in Peru's 1991 Penal Code. Article 114
provides that a woman who causes her abortion or consents to another
performing one upon her will be sentenced to up to 2 years' imprisonment or
between 52 and 104 days of community service. The only exception to the
general criminalization of abortion is Article 119. It provides that abortion `is
not punishable when it is the only means to save the life of the woman or to
avoid serious and permanent damage to her health. However, neither the
constitutional provisions on abortion, nor the current General Health law,
provide for any regulations on the procedure for accessing an abortion: the
decision lies at the discretion of the patient's doctors. There is no judicial
mechanism for challenging the doctors' decision.10
Carrying a pregnancy resulting from rape to term has serious mental health
consequence for the woman and child, and bearing and raising a child has a
significant financial and personal impact on a woman. In the case of Paulina
Del Carmen Ramirez Jacinto v. Mexico (2007) the petitioners rights were
violated by failing to ensure access to legal abortion. The formal settlement
done caused damages which were compensated. These damages and
compensation reflect the recognition that bearing and raising a child has a
significant financial and personal impact on a woman, affecting access to
9 [L.C. v. Peru (UN Committee on the Elimination of Discrimination against Women)]
10 [Cambridge Journal of International and Comparative Law (2)3: 640656 (2013)
DOI: 10.7574/cjicl.02.03.118]
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education and employment opportunities and consequently limiting the

ability to pay for health and housing costs. The states payment for
psychological care acknowledges the mental health consequences for
women and children when women are forced to carry to term pregnancies
resulting from rape.11
The European Court of Human Rights has recognized that forcing a woman to
carry a pregnancy to term can harm a womans health and violate her rights.
A Polish woman was severely visually impaired. When she became pregnant
with her third child, she consulted three ophthalmologists. Although all three
concluded that carrying the pregnancy to term constituted a serious risk to
her eyesight, they all refused to issue the referral legally required for an
abortion in Poland. Even when Alicja finally secured a referral from a general
practitioner, the head of the gynecology and obstetrics department at a
Warsaw clinic refused to terminate the pregnancy, on the premise that there
were no medical grounds for a therapeutic abortion. Because of the lack of
appeals procedures for decisions on abortion, Alicja was unable to access a
timely abortion and was forced to carry her pregnancy to term. As predicted,
after the delivery Alicjas eyesight seriously deteriorated, and an official
panel declared Alicja to be a significantly disabled person.12

11 [Paulina del Carmen Ramirez Jacinto v. Mexico, 161-02 (2007)]

12 [(Tysiac v. Poland, 5410/03 (2007)]
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The stance of society towards Legal Abortion remains disarrayed. As people

consider life as sacred and therefor condemn the practice of abortion,
socioeconomic conditions of people, especially those living in Third World
nations, would suggest otherwise. It is the responsibility of the State to
improve, maintain, and uphold the welfare of the people, and legal abortion
may be considered as a means for them to fulfill such responsibility.

The

issue now arises here: Should the access to legal and safe abortion be
considered human right?

This affirmative side answers in the positive, for the access to safe and legal
abortion is necessary, beneficial, and practical to pregnant women,
especially those living in the third world developing countries. To further
substantiate this argument, this affirmative side shall present the relevance
and important of safe and legal abortion to pregnant women in the
Philippines with respect to the exercise of their human rights, within the
context of the health sector and the socioeconomic conditions of society.

I.

Necessity
The State values the dignity of every human person and guarantees
full respect for human rights. (Sec. 11, Article II, 1987 Philippine
Constitution) In this provision, the fundamental law gives focus on
the States responsibility to uphold at all times the rights of ever
individual under its protection. Moreover, the United Nations
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Universal Declaration on Human Rights states that Everyone has a

right to a standard of living adequate for the health and well-being
of himself and of his family, including food, clothing, housing and
medical care and necessary social services, and the right to security
in the event of unemployment, sickness, disability, widowhood, old
age or other lack of livelihood in circumstances beyond his control.
Motherhood and childhood are entitled to special care and
assistance. All children, whether born in or out of wedlock, shall
enjoy the same social protection. (Article 25, United Nations
Universal Declaration of Human Rights) This stresses the extended
responsibility of the State to uphold the rights of ever individual, for
it is considered an obligation of theirs to comply to international
laws and treaties.

Abortion as a Public Concern

As actions prejudicial to the constitutional principles of the state and
to the rights of others are a matter of public concern which makes
prohibitions valid, the existence and protection of such actions is
also within the public sphere.
Usually, the arguments lean on the side of putting abortion as
confined in the private sphere- matter that is consistent to free
choice of each individual and as respect, the government must not
interfere in these kinds of decisions. However, like pregnancy is and
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other kinds of medical procedures, abortion is a public concern, for

the exact reason that prohibition of such hampers various basic
rights of individuals as women and as citizens of the state. Abortion
must be considered as an option not merely because it is demanded
by the society and is in the states interests but because it is the
rights which are granted to sovereign people are being violated
(e.g. right to access of information, right to free choice, right to
health).
Scientific Knowledge and Practices
The world is rapidly evolving and the demands of the society in
different aspects have unimaginably higher and more difficult to
attain. Fortunately, science had made sure that means of controlling
population and other kinds of problems regarding human health are
available. Before, abortion was condemned because of the more
harmful results to women by such practice. In this generation,
however, safe abortion has been proven effective and less risky
than before. In fact, it has been proven to be less risky than
pregnancy. The question now is this: given the shifting of beliefs,
morals and dynamics of the society in this generation, does abortion
not deserve a chance to be an instrument of protecting the rights of
the citizens? The fast-paced evolution of the world calls for a few
changes in the way we see things like the quality of life. Science has
offered us promising benefits and solutions to our problems, one of
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which is abortion. As we strive for a better health care, the option of

terminating pregnancy is a stepping stone to keeping up with this
evolution.

II.

Beneficiality
Liberty of Abortion
The state has the primary duty and responsibility to protect life. This
nation cannot tolerate any action or for any matter, transaction that
takes away the right to life. Also, Liberty is an inherent right that is
granted to a human being. It is safeguarded in the Constitution 1 st
section of Bill of rights that no person shall be deprived of life,
liberty, or property without due process of law, nor shall any person
be denied the equal protection of laws. It is not yet clear,
scientifically, where life begins and shall be considered as a human
person. While science has no law or principle that provides or
confirms on what point shall life commence, the laws and statutes
shall fulfill the role in settling where life should start. Originally, Art
40 of NCC provides that Birth determines personality but was
already superseded by Art 5 PD No. 603 that provides that The civil
personality of the child shall commence from the time of his
conception, for all purposes favourable to him, subject to the
requirements of Article 41 of this code. And according to Article 42
of NCC Civil personality is extinguished by death. Now it is known
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where civil personality commences and terminated, but Philippines

Jurisprudence being based on English common law, allows us to
reflect and take into consideration some of their principles. In the
case of Roe v Wade, it was determined that in the 1 st trimester, the
mother of the child has the liberty and right of choice to decide to
have an abortion. The remaining 2nd and 3rd trimester, that is life. It
is a political compromise of a democratic country to determine the
unsettled controversy in the commencement of life. It is also a way
for both parties protected by law (mother and the unborn child) to
have equal protection and opportunity to be protected. Lastly, if it is
a medical necessity that abortion is needed to save the mothers
life, it should never be a question of rights. Medical procedure must
be done regardless of the trimester of pregnancy, because this
hampers a productive persons life that may affect her permanently
in the future which is a priority within states interests. Life and
liberty should not be weighed but should be determined in a case to
case basis or must be compromised in the process in the recurring
issue of Abortion. Granting the liberty of choice to a woman with a
regulated period of three months or for purposes of critical medical
condition is a compromise to the right of life of the unborn child.

III.

Practicability
Abortion is not inherently wrong.

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Anti-abortion scholars have viewed abortion as murder. And

following such premises, must be condemned and be banned by
the laws. Killing even deliberately still depends on the intent. This
is why there is a distinction between murder and other crimes
because of intent. The law does not condemn those who kill
because of self-defense, etc. Therefore, in cases of killing the
human embryo, the intention or reason for such must be of huge
consideration.

On the context that the womans life is at risk because of the

pregnancy, whose rights will prevail?
Yes, the right to life is absolute and inalienable. However, in times
where the mothers life is put to risk, her right to life must also be
protected. Which is why the laws are provided to protect certain
rights of individuals serving to protect their right to life. In cases as
such, abortion is a not simply a way out of a miserable and
inconvenient life. It is a right, along with the other rights for the
protection of ones right to life, which gives the OPTION to mother
whether or not she chooses to invoke that protection. The States
interests will also be considered in this scenario. Obviously, a
mother can be more functional and effective citizen than a child
almost dying in a mothers womb. If all mothers will not be given

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the option to do so, the rights of the mothers to life and choice, as
well as the States interests in maintaining an organized society will
be hampered.
Abortion is consistent to other laws in status quo.
Take organ donation, for instance. The law does not condone selling
of organs but commends organ donation. This is because organ
donation is a matter of voluntary choice. We do not impose that
citizens risk their lives in order to save others, no matter how huge
the demand for such is. Government cannot impose others to
simply give irreplaceable parts of their body, which is an
instrument of their life, in order to serve the interests of others. In
the same vein, we cannot force mothers who are not ready to risk
their health and go suffer in the future just because of the moral
beliefs that apparently curtails the primary rights given to the
mothers. Its not a question of simply sustaining the child after
birth but sustaining the child at the expense of her own life.
Reasonableness as a concept highly valued by the laws.
Every law must be construed to reflect the intent of the framers or
be literally interpreted if reasonable. It is well-settled that no law
must be unreasonable and inconsistent to other provisions.etc.
This only proves that the reasonableness of actions in relation to
circumstances is a highly valued concept in the rule of law.
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Abortion is not encouraged; nor is it considered to be the primary

choice for birth control. Abortion is a viable option in order to serve
the rights of the citizens and the betterment of the state,
preferably having exhausted all options and under the allowed
circumstances. This must be an option allowed when exercised by
citizens as their rational choice. As stated above, we cannot force
mothers to risk their lives for their children. We cannot condone
women who simply engaged in unprotected and impulsive sexual
intercourse and decide to terminate the pregnancy for no valid
reason. Therefore, abortion must be a rational choice, made after
all

options

have

been

exhausted

and

under

reasonable

circumstances.

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