Challenging abortion laws in Bangladesh: In need of a multi-pronged judicial strategy

In May 2020, a writ petition was filed with the High Court Division of the Supreme Court of Bangladesh challenging the constitutionality of Sections 312-316 of the Penal Code 1860, a legacy of the British colonial rule in the Indian subcontinent. Under Section 312, anyone who voluntarily causes a woman to miscarry, including the woman herself, is punishable for criminal offence. The only exception to this broad prohibition is where the procedure is carried out in good faith to save the woman’s life.

What is remarkable is that while there is lengthy reference in the petition to Roe v Wade, the seminal 1973 US Supreme Court decision establishing women’s constitutional right to the procedure, there is no reliance on Bangladesh’s obligations under international human rights law. While the petition is still underway, and the Court is yet to decide on the constitutionality of the impugned sections, in this post, I argue that it could be precarious in the long run to rely solely on this comparativist approach. Should the Court decide the over-broad criminalization of abortion is unconstitutional, I argue it should be based on jurisprudence borrowed from both international human rights obligations and foreign courts.

Using foreign court decisions and international human rights law to interpret constitutional rights: Contextualizing Bangladesh

The rights jurisprudence in Bangladesh owes a significant part of its growth to comparative discussions of foreign judgments. Many of the seminal constitutional law decisions based their reasoning on decisions from other jurisdictions. Foreign decisions, though not binding, hold considerable persuasive value for the Supreme Court of Bangladesh when considering constitutional matters, among others. In this context, reference to jurisdictions such as the UK, USA, and India have been consistent in many cases (see, here, here, here). It is pertinent to mention that the choosing of jurisdiction or process of ‘borrowing’ from foreign cases has not been guided by any overarching normative principles or methodological justifications as such in Bangladesh.

Additionally, in Bangladesh, when deciding constitutional rights cases, recourse has also been made to international human rights framework. The tendency of the Court to apply international human rights law in interpreting constitutional rights has grown to such a level that it now is seen as a step towards ‘creeping monism’ through judicial activism. As with the reception of foreign cases, the Supreme Court in Bangladesh has not established a doctrinal view on the relevance of international human rights law in the context of the domestic cases (see, Hoque and Naser 2007).

For most part, Ershad v Bangladesh is significant because the Court observed in this case that international human rights obligations cannot be ignored outright by the Court. The Court opined 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 when the local laws are clearly inconsistent with the international human rights principles, the Court will draw the attention of the lawmakers to such inconsistency. The Supreme Court expressed similar views in Bangladesh v Sheikh Hasina, State v Metropolitan Police Commissioner (see a general discussion here). In BNWLA v Bangladesh, the Court categorically observed that in the absence of domestic laws and principles, the international covenants and treaties signed by the state are to be read into the fundamental rights of the Constitution (see here).

Despite both sources often being referred to by the Supreme Court, the absence of international human rights law in the present instance is both notable and, as I argue, potentially problematic.

Abortion and the international human rights framework

No human rights bodies have unequivocally recognized a woman’s right to access abortion services on demand. However, the criminalization of abortion has been underscored as a form of gender-based violence that, depending on the circumstances, may amount to torture or cruel, inhuman or degrading treatment (see General recommendation No. 35, Committee on the Elimination of Discrimination against Women). According to the Human Rights Committee, States  parties  must  provide  safe,  legal  and  effective  access  to  abortion  where  the  life  and  health  of  the pregnant  woman  or  girl  is  at  risk,  or  where  carrying  a  pregnancy  to  term  would  cause  the  pregnant  woman or  girl  substantial  pain  or  suffering,  most  notably  where  the  pregnancy  is  the  result  of  rape  or  incest or is not viable (see General Comment No. 36). As a result, states are considered to have the obligation to liberalize restrictive abortion laws (see, General comment no 22, Committee on Economic, Social, and Cultural Rights), if not ‘legalize’ or ‘decriminalize’ the same in all circumstances without exception.

For example, Poland, Jordan, and Argentina, among others, were recommended by the Human Rights Committee to ensure that their strict legislation did not force women to resort to clandestine abortions that put their lives and health at risk and were urged to amend  their  legislation  to  guarantee  safe,  legal,  and  effective  access  to  abortion in specific circumstances. 

The Human Rights Committee urged Bangladesh in 2017 to revise its legislation to provide for additional exceptions to the overly broad ban on abortion, ‘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).

While the current stance of the international human rights bodies may be criticised for not going far enough by those who are pro-choice, the positions adopted by these bodies and their progress so far achieved is admirable.

The fragility of Roe in the current US political maelstrom

At present, the criminalization of or ban on abortion across different jurisdictions is but one manifestation of right-wing political extremism. The epicenter of this is none other than the United States (see here), the same jurisdiction where Roe was authored. Recently, the US Supreme Court refused to block a Texan law banning abortions for most women. Though the majority opinion cited procedural flaws in the application and stated that it did not necessarily conclude on the question of constitutionality of the Act being challenged, the ruling fuels hope for the anti-abortion advocates. The very statement that the ruling is not to be construed as a conclusion on the question of constitutionality of the Texan law is problematic, inasmuch as it does not address the federal constitutional right of a woman to obtain an abortion during the first stage of pregnancy (see the court’s opinion here, and the condemnation of the Texan law and the Supreme Court decision by the UN Experts here).

Moreover, given the US Supreme Court (SC) is set to hear a new case in its fall term to decide whether Roe should be overruled, the hallway of rights of women looks gloomy. With the US SC’s ruling on the new Texan law, the political landscape has been scrambled once again and both political parties are now rethinking their strategies in the US; Republicans see their antiabortion agenda move closer to realization while Democrats fear that one of their most deeply held principles is in jeopardy (see here).

Abortion has often been more about politics and less about women’s rights. In Russia, the abortion laws have gone back and forth with every change in the political climate. Similarly, in Poland, Chile, and a number of other Central and Eastern European countries, laws on abortion have experienced tremendous progress and regress (judged in the context of women’s rights) amid different political regimes (see a general discussion here).

Sole or even primary reliance on constitutional court’s decisions could prove to be counterintuitive in the long run given their instability as a result of, for example, a changing political climate and the selection of judges on the bench. Framing this also as a matter of human rights obligations may help bolster long term progressive change.

Concluding words

In 1976 the Bangladesh National Population Policy attempted to legalize abortion during the first trimester on imprecise medical and societal grounds. In 1979 a procedure named Menstrual Regulation (MR) was included in the national family planning program. Doctors and paramedics were encouraged to provide MR services in all government hospitals, health and family planning complexes, in pursuance of a Memorandum from the Population Control and Family Planning Division (PCFPD). The Memorandum states that MR is not regulated by the Penal Code 1860, since pregnancy is difficult or impossible to prove. Rather, MR is to be perceived as an ‘interim method of establishing non-pregnancy’ for a woman who happens to be at risk of being pregnant, whether or not she actually is pregnant (see, here).

Despite the availability of MR services, underpinned by the bureaucratic instruments such as the Memorandum mentioned above, many women resort to clandestine and unsafe abortions, due largely to the lack of awareness, ambiguity in the procedures’ legal implications and the categorical criminalization of abortion in general under the Penal Code (see here). Simpler for women is the decriminalization of abortion and freeing the procedure from the clutches of the colonial holdover. And in this regard, the newly filed writpetition is a nascent step.

Any ‘pro-choice’ outcome from the 2020 petition would have to hold the impugned sections unconstitutional in their present form, and to draw the attention of the legislature to the inconsistencies of the overly broad criminalization with the Constitution. In this regard, the binding obligations under the international human rights framework can be read into the more general rights under the Constitution (right to equality, non-discrimination, right to life, liberty, security, etc.) Additionally, reference can be made to the foreign decisions.

While Roe may certainly be a persuasive authority, primary and sole reliance on it could prove to be counterintuitive in the long run, given its fragility as a precedent even in the US. Therefore, in this case before the Bangladesh Supreme Court reference ought to be made to other progressive judicial decisions. For instance, reference may be made to the decision of the Irish Supreme Court which found that the prohibition of abortion in cases of fatal fetal abnormality and sexual crime is grossly incompatible with the human right to private and family life (see here). Furthermore, reference may also be made to the recent landmark ruling by the Mexican Supreme Court which observed that it is unconstitutional to punish abortion as a crime (see here) and thereby clearing the ground for legalizing abortion in the country.

In the end, perhaps Roe v Wade shows that a constitutional court decision alone is too fragile and abortion must be an issue that the legislature discusses as part of a wider societal debate on abortion to help secure hard won women’s rights from right-wing attacks. Should the Supreme Court decide overly broad ban on abortion is unconstitutional, there will be pressure for the legislature to address the gap between Bangladesh’s human rights obligations and its current legal and policy framework on abortion.