The International Journal of Human Rights

ISSN: 1364-2987 (Print) 1744-053X (Online) Journal homepage: https://www.tandfonline.com/loi/fjhr20

Indignity in unwanted pregnancy: denial of

abortion as cruel, inhuman and degrading
treatment

Isabella Moore

To cite this article: Isabella Moore (2019): Indignity in unwanted pregnancy: denial of abortion
as cruel, inhuman and degrading treatment, The International Journal of Human Rights, DOI:
10.1080/13642987.2019.1592160

To link to this article: https://doi.org/10.1080/13642987.2019.1592160

Published online: 22 Mar 2019.

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THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS
https://doi.org/10.1080/13642987.2019.1592160

Indignity in unwanted pregnancy: denial of abortion as cruel,

inhuman and degrading treatment
Isabella Moore
Independent Scholar

ABSTRACT ARTICLE HISTORY

The value of women’s reproductive role in society is often given the Received 24 April 2018
greatest weight in the debate over access to abortion. This article Accepted 20 February 2019
argues that by objectifying women as instruments of reproduction,
KEYWORDS
restrictions on abortion are discriminatory and may constitute cruel, Dignity; abortion; CIDT;
inhuman and degrading treatment by denying the fundamental women; reproduction
relationship between dignity, equality and autonomy, which
coalesce in the sphere reproductive choice. While the concept of
human dignity can be elusive, an understanding of what qualifies as
unjustifiable harm in this context can help to elucidate the intrinsic
worth that recognition of dignity seeks to protect.

1. Introduction
In 2015, Paraguayan authorities attracted international attention for their refusal to allow
a ten-year-old girl, five months pregnant as the result of rape, to undergo an abortion.1
Abortion is prohibited in Paraguay, even in the event of rape, unless the mother’s life
in danger, and the ten-year-old’s perceived good health excluded the possibility of a thera-
peutic abortion.2 During a congressional debate Senator Esperanza Martinez observed that
the focus on the girl’s physical ability to give birth overlooked her own wellbeing, and ‘this
girl became a uterus’.3In the event of unwanted pregnancy, to deny women and girls
autonomy over their bodies and the course of their lives is to objectify them as instruments
of reproduction in exactly the way Martinez describes. This is a failure to respect their
inherent dignity as human beings.4
The centrality of reproductive choices to human dignity has been acknowledged in the
approach that a number of national jurisdictions have taken to the legalisation of abor-
tion.5 As Blackmun J explained in the US case of Thornburgh v American College of Obste-
tricians and Gynaecologists, ‘[f]ew decisions are more personal and intimate, more
properly private, or more basic to individual dignity and autonomy, than a woman’s
decision … whether to end her pregnancy’.6
A similar articulation of human dignity has begun to emerge in international human
rights jurisprudence, in light of growing recognition that the decision to terminate a preg-
nancy should be protected from interference by the State. In their assessment of State com-
pliance with human rights obligations, human rights bodies have confirmed that laws
prohibiting or restricting access to abortion may constitute a violation of, amongst

CONTACT Isabella Moore imtmoore7@gmail.com

© 2019 Informa UK Limited, trading as Taylor & Francis Group
2 I. MOORE

other rights, a woman’s right to be free from cruel, inhuman and degrading treatment
(CIDT).
Where such rights violations have been ascertained, the primary focus has been on the
procedural rather than substantive availability of abortion, with regard not to the fact of a
pregnancy but its nature: when conception occurred as a result of rape or incest, where a
foetus was non-viable, or where pregnancy posed a serious risk to the health of the mother,
and where the consequent harm was the result of quantifiable or diagnosable physical or
mental suffering.
While this focus is still an important development, it obscures a more existential form
of harm, being the ways in which restrictions on abortion discriminate against women as
women by denying the fundamental relationship between dignity, equality and autonomy,
which coalesce in the sphere of reproductive choice.
Such obfuscation occurs because the concept of harm in human rights law is generally
constructed according to a masculine paradigm, based on the public experience of pain
and suffering. This operates to exclude what are often the private experiences of
women, as well as to maintain stereotypes about women’s role in society and particularly
in reproduction. Recognising this assumption and seeking to feminise the paradigm of
harm will better account for the ways in which women’s dignity is compromised by
restrictions on abortion, and in doing so better articulate what respect for human
dignity necessitates in the context of reproduction.

2. The concept of human dignity

2.1. A minimum core content
Christopher McCrudden asserted that international human rights law is yet to successfully
elucidate the basic premise of the Universal Declaration of Human Rights (UDHR) that
‘All human beings are born free and equal in dignity and rights’.7 McCrudden perceived
only a minimum core content for the concept of human dignity: that every human being
possesses an intrinsic worth, merely by being human (the ontological claim); this intrinsic
worth should be recognised and respected by others, and some forms of treatment by
others are inconsistent with, or required by, respect for this intrinsic worth (the relational
claim); and recognising the intrinsic worth of the individual requires that the state should
be seen to exist for the sake of the individual human being and not vice versa (the limited-
state claim). 8 McCrudden therefore questioned whether a secure foundation exists for the
application of the idea of dignity, given the multiple conceptions that exist across jurisdic-
tions and the challenge of holding them all coherently at the same time.9 However, while a
universal principle may still be beyond our grasp, the application of the concept of dignity
in a specific context offers the potential to fortify a common understanding in that
domain, at least, and so ground the substantive elements of relevant human rights
guarantees.
McCrudden adopted Andrew Clapham’s suggestion that:
concern for human dignity has at least four aspects: (1) the prohibition of all types of
inhuman treatment, humiliation, or degradation by one person over another; (2) the assur-
ance of the possibility for individual choice and the conditions for ‘each individual’s self-
fulfilment’, autonomy, or self-realisation; (3) the recognition that the protection of group
 THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS 3

identity and culture may be essential for the protection of personal dignity; (4) the creation of
the necessary conditions for each individual to have their essential needs satisfied.10

It is at the overlap of categories one and two that we can locate a concern for human
dignity in relation to access to abortion, and where we can seek to expand the concept
of human dignity beyond the minimum core content.
In relation to the prohibition of torture and CIDT, Elaine Webster suggested that
‘[s]ome very basic dimension of dignity’s meaning is often presumed to inhabit the
sphere of this right’11, a dimension that both she and Jeremy Waldron interpreted as
harm deriving from the treatment of a human person as if they are not a human
person.12 Such a notion of harm reflects the Kantian notion of indignity, of a person
being used in a way that is not sufficiently respectful of humanity as an end in itself.13
While the Kantian formula does not immediately offer an explanation of how it is to be
applied to the right in question, for Webster, ‘an interpretive link exists between the
idea of dignity and the kind of harm that counts as … cruel, inhuman or degrading’.14
(Emphasis original).
In regard to access to abortion, if we can accept a premise for McCrudden’s ontological
claim, the nature of humanity’s intrinsic worth, then we can begin to interrogate the rela-
tional claim, the kind of harm that counts, and seek to develop this interpretive link. The
premise here is that the intrinsic worth that human beings possess includes the auton-
omous moral agency to continue with or terminate a pregnancy.15

2.2. The nature of intrinsic worth

Ronald Dworkin attempted to dispel the intellectual confusion surrounding opposition to
abortion by looking past the notion of personhood and identifying a crucial distinction
between two lines of reasoning for protecting foetal life.16
The derivative objection to abortion presupposes that foetuses have the same rights and
interests as other human beings. Thus, abortion is wrong in principle because it violates a
foetus’ right not to be killed. The detached objection does not consider the foetus to be a
right-holder but rather recognises that all human life has an innate, intrinsic value, pos-
sessed from the beginning of biological life and so distinct from any subsequent capacity
to have interests or rights. From this standpoint, abortion is wrong because it disregards
the intrinsic value of human life.17
Dworkin considered that, on reflection, most people who object to abortion would
identify with the detached ground: they do not truly believe in prenatal personhood but
do ascribe a certain sacredness to human life, as McCrudden’s ontological claim suggests.
It is confusion with the derivative ground that has made the issue of legality so intractable,
and so recognition of intrinsic value would allow us to more easily reconcile apparently
conflicting views, for example, when opponents to abortion make concessions where
there is a risk to the life of the mother or the pregnancy is the result of rape. It would
also allow us to acknowledge that many supporters of abortion rights still consider
human life to have an inherent worth and grieve its loss.18
Dworkin explained that if all human life has intrinsic value, it is intrinsically regrettable
when a life, once begun, ends prematurely, and the value is wasted.19 This waste can occur
not only through the loss of life, but also when the progression of life is interrupted. This is
4 I. MOORE

because intrinsic value derives from two sources of creative investment, the natural/bio-
logical investment and the personal/human investment. The origin of the natural invest-
ment may be divine or evolutionary, depending on one’s beliefs; the human investment is
both internal, what a person invests in themselves, and external, what others invest in
them. The notion of unrealised human investment explains why we may perceive one
loss of life as more tragic than another, for example, a young adult compared a very
elderly person. At the same time, two individuals may disagree on the weight of the
two types of investment, their personal or religious beliefs inclining them to consider
the natural investment before the creative, or vice versa. 20 As a result, despite a shared
assumption that human life is intrinsically valuable, debate can persist over the nature
of the greater frustration.
For Dworkin, ‘Abortion wastes the intrinsic value of a human life and is therefore a
grave moral wrong unless the intrinsic value of other human lives would be wasted in a
decision against abortion’.21 A pregnant woman, therefore, is entitled to have regard to
how the birth of a child might, through loss of life or frustration of creative investment,
waste the intrinsic value of other human lives concerned: the child, depending on its
health and the situation of its birth; her partner, her existing children, and other such
close relationships; and, most importantly, herself.
A woman’s ability to weigh these considerations must be a function of her own intrinsic
value. Distinct from the more easily quantifiable concept of creative investment, and
anchoring the value of human life, is the notion of human dignity, which Dworkin under-
stood as grounding for human beings ‘the moral right – and the moral responsibility – to
confront the most fundamental questions about the meaning and value of their own lives
for themselves, answering to their consciences and convictions’.22
This conception of dignity does not necessarily exclude contemplation of a foetus as a
‘morally considerable person’, to use Kate Greasley’s formulation.23 Greasley questioned
whether Dworkin was too quick to dismiss the derivative claim of prenatal personhood
in accounting for the public conflict about abortion, since given the likelihood that
people will hold ambivalent and possibly contradictory views about such complex and
emotionally charged issues, we cannot be surprised by a failure to adhere to a consistent
position. Moreover, we should also expect that some concessions would originate in stra-
tegic necessity rather than flawed rationale.24 But even if we cannot dismiss a derivative
account of abortion opposition, we can still refer to the notion of intrinsic worth to
resolve the question that persists on either ground for objection, when a woman seeks
to end her pregnancy.
That question is not simply, as Greasley posed, ‘whose life is sacred, and why?’,25
because there is a choice to made that does not permit the equivalence that personhood
initially implies. Rather the question is, whose life is more sacred, and why? Regardless
of what it is that constitutes the endowment of moral status – whether there is some
sort of post-conception threshold such as viability, or whether it is acquired completely
and instantaneously – we cannot escape a fundamental difference in moral standing main-
tained by the incontrovertibility of human biology.
 THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS 5

2.3. Moral agency and asymmetry

Elizabeth Wicks observed that both prior to and after the point of viability, a moral asym-
metry exists between a woman and her foetus because the foetus, ‘innocently and inevita-
bly’, has breached the bodily integrity of the woman.26 The innocence of the foetus in this
scenario does not negate the assertion by Judith Jarvis Thomson that the right to life does
not guarantee a right to be given or to continue the use of another person’s body.27 Thus,
Wicks argued, the right to life of a viable foetus, while protecting it from being killed in the
interests of its mother, does not entail the right to remain within, and use, its mother’s
body; in other words, the woman may ask for it to be removed.28 While this conclusion
seems callous, it does not presuppose that the foetus would be denied neonatal care.
Rather, Wicks’ claim is that the right to life ‘does not guarantee the foetus, any more
than it guarantees the rest of us, that its life will be preserved. It must take its chances
in the dangerous world outside its mother’s body’.29
This argument reflects a more general understanding that while a human being’s right
to life extends beyond merely a negative right not to be killed and requires the State to take
reasonable measures to preserve life, it does not extend so far as to impose an obligation on
others to permit the violation of their fundamental rights.30 Similarly, while Rhonda
Copelon et al did not recognise even a viable foetus as possessing human rights prior to
birth, they asserted that, in any case, foetal personhood would not extinguish women’s
right to abortion because no person has the right to subordinate another person in the
way that an unwanted pregnancy subordinates a woman.31
In being relegated to the position of vessel, women are deprived of the ability Dworkin
described to answer fundamental questions about the meaning and value of their own lives
for themselves. Motherhood is one such fundamental question because of the inextricabil-
ity of the existence and identity of the foetus from that of its mother. Catriona McKenzie
argued that pregnant embodiment, ‘the gradual differentiation and development from
within [a woman’s] own body of another being which is now a part of herself’, affects a
woman’s sense of self because it alters her ‘mode of being-in-the-world’, both physically
and morally, in the sense that the existence of the other being alters her position of
moral responsibility.32 By consequence, in choosing whether or not there continues to
exist a being to whom she is in a situation of moral responsibility,33 a woman is asserting
her right to autonomous moral agency with respect to her own life.34
The significance of this moral agency to the concept of dignity was described in Thorn-
burgh. It was also central to the plurality opinion in Planned Parenthood vs. Casey, which
explained that procreation
involv[es] the most intimate and personal choices a person may make in a lifetime, choices
central to personal dignity and autonomy … At the heart of liberty is the right to define one’s
own concept of existence, of meaning, of the universe, and of the mystery of human life.35

Of course, in exercising what is ostensibly a personal choice, an individual may disrespect

human dignity in a more universal sense, which a State could have a detached responsi-
bility to protect. Would it be proportionate, for example, for a State to deny access to sex-
selective abortion given the implications for gender equality and public health? That ques-
tion seems to exemplify the challenge that McCrudden described of trying to reconcile
multiple conceptions of dignity at the same time, such as the emphasis in American
6 I. MOORE

law on individuality and autonomy, versus the concept in German law that in the exercise
of self-determination a person is still related to and bound to a community.36 What may
help to inform such reconciliation is the fact that human rights bodies have begun to set
the limit on interference with women’s autonomy by affirming those human rights that
the State cannot subordinate in seeking to restrict access to abortion.

3. The state’s obligations to pregnant women

3.1. An implicit limit
United Nations (UN) treaty monitoring bodies, like many regional and national courts,
have recognised that if States do not eliminate regulatory and administrative barriers to
abortion in particular circumstances, they may not meet obligations to respect, protect
and fulfil the right to life, the right to non-discrimination, the right to the highest attain-
able standard of health, the right to be free from cruel, inhuman and degrading treatment
and the rights to privacy, confidentiality, information and education.37
This is despite the fact that, with a single exception, international human rights instru-
ments do not explicitly entertain the notion that a woman is entitled to obtain an abor-
tion.38 Only the Protocol to the African Charter on Human and People’s Rights of
Women in Africa specifically addresses abortion as a human right.39 Article 14(2)(c) of
the Protocol requires States Parties to
protect the reproductive rights of women by authorising medical abortion in cases of sexual
assault, rape, incest, and where the continued pregnancy endangers the mental and physical
health of the mother or the life of the mother or the foetus.40

Instead of a codified right, the right to voluntary motherhood, and therefore the right to
obtain an abortion, has been inferred as integral to a ‘constellation’ of human rights that
includes the rights to equality, life, health, security of person, private and family life,
freedom of religion, conscience and opinion, and freedom from torture and CIDT.41
As Copelon et al observed, ‘it is not insignificant that from their inception and as a
matter of international law, human rights begin at birth’.42 Rita Joseph argued Article 1
of the UDHR asserts a right to be born on the basis that ‘if some human beings are
denied the right to be born, then all human beings are not “born free in equal dignity
and rights”’.43 Very clearly, however, the language of Article 1 conceptualises human
rights as taking effect at birth, and not prior: the assertion is one of status – human
beings are born free – not of entitlement – that human beings shall be born or everyone
has the right to be born. The effect of the terminology is to intentionally exclude the ante-
natal application of human rights, an interpretation reinforced by the rejection of a pro-
posed amendment to the UDHR to remove the word ‘born’.44 A proposed amendment to
the International Covenant on Civil and Political Rights (ICCPR) that would have estab-
lished a right to life before birth was also rejected,45 and so the UDHR, ICCPR, European
Convention on Human Rights (ECHR) and Inter-American Human Rights Agreement all
recognise human rights as arising at birth.46
In respect of the right to life protected by Article 2 of the ECHR, the European Court of
Human Rights (ECtHR) has explicitly given precedence to rights of a pregnant woman
over any purported right of the foetus. In Paton v. UK, the Court recognised that if the
Article 2 made absolute protection of the right to life of the foetus, prohibiting abortion
 THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS 7

even where the mother’s life was at risk, ‘the unborn life of the foetus would be regarded as
being of a higher value than the life of the pregnant woman’.47 Two decades later, the
Court confirmed this position in Vo v. France, asserting that right to life of the unborn
child is implicitly limited by the mother’s rights and interests.48

3.2. The recognised exceptions to prohibitions on abortion

In recognition of the primacy of the mother’s rights, the liberalisation of domestic abortion
laws been encouraged by the UN, European, Inter-American and African human rights
systems. 49 Over time there has been an important evolution in the understanding of
the State’s obligation in this domain, shifting from the procedural to the substantive.

3.2.1. Safety and accessibility

The Programme of Action from the 1994 International Conference on Population and
Development, which heralded an emerging understanding of women’s reproductive
rights as human rights, asserted that where abortion is legal, the procedure should be
accessible and safe, but did not explicitly call for its legalisation.50 Since the late 1990s,
the Human Rights Committee (CCPR), the Committee on the Elimination of Discrimi-
nation Against Women (CEDAW), the Committee on the Rights of the Child (CRC)
and the Committee on Economic, Social and Cultural Rights (CESCR) have all identified
the links between unsafe abortions and maternal mortality and morbidity, and have
encouraged states to review restrictive abortion laws that are incompatible with the
right to life and the right to health. The recommendations have included both legal and
procedural elements, in respect of decriminalising abortion as well providing access to
abortion services and post-abortion health care services. The CCPR has repeatedly
called upon States Parties to the ICCPR to bring laws in line with the ICCPR Article 6
right to life and amend restrictions on abortion where women’s lives are at risk and
where restrictions compel women to seek illegal abortions.51 Recognising that the crimi-
nalisation of abortion leads women to obtain unsafe illegal abortions, the CCPR and
CEDAW have referred to punitive abortion legislation as a violation of the right to
life.52 CEDAW has also framed legislation criminalising abortion as a barrier to
women’s right to health, while safe abortion as an element of the adolescent right to
health has been recognised by the CRC.53 Although the ICCPR does not expressly
protect the right to health as the ICEDAW and ICRC does, women’s right to life has
been linked to conditions of health by the CCPR,54 which has recommended that States
Parties incorporate health exceptions to abortion law beyond circumstances where a
woman’s life is at risk. 55
It is a more holistic understanding of health that the World Health Organisation
(WHO) has applied in considering access to safe abortion as an aspect of the right to
health.56 Defining health as ‘a state of complete physical, mental, and social well-being
and not merely the absence of disease or infirmity’,57 the WHO instructs that assessment
of the risk to health posed by pregnancy must include physical conditions, including those
that aggravate pregnancy and those aggravated by pregnancy, as well as psychological dis-
tress or mental suffering, which may be caused by coerced or forced sexual acts and diag-
nosis of severe foetal impairment.58 Social circumstances must also be considered.59
Although no treaty-monitoring body is yet to interpret a right to abortion for socio-
8 I. MOORE

economic reasons or upon request, the ICCPR, ICESCR, ICEDAW and ICESR could con-
ceivably support the existence of such a right in safe-guarding the established scheme of
human rights.60

3.2.2. Procedural availability

Since the early 2000s, the right to be free from torture and CIDT has provided an anchor
for establishing the responsibility of States for suffering caused by denial of access to abor-
tion. In the first individual communications on the issue, the CCPR and ECtHR recog-
nised that the operation of procedural barriers to abortion where it was legally available
could be a breach of that right as well as related protections.
In K.L. v. Peru, a 17 year-old girl pregnant with an anencephalic foetus was denied a
request for an abortion despite the fact that Peruvian law permitted abortion to save
the mother’s life or to avoid serious damage to her health.61 K.L. became severely
depressed following the birth, and subsequent death, of her child, and the CCPR deter-
mined that Peru was in breach of its ICCPR obligations under Articles 2, 3, 7, 17 and
24. The CCPR read mental health into Peru’s serious damage to health rule, finding a vio-
lation of the Article 17 right to privacy on the basis that, given the legal availability of abor-
tion, the refusal to perform it was unjustified.62 Furthermore, the foreseeable and
preventable mental distress experienced by K.L. as a result of the refusal to perform the
abortion was a violation of the Article 7 prohibition on CIDT, a finding that did not
rest on the legal availability of the procedure.63 In this respect, the CCPR effectively
inferred a substantive right to access therapeutic abortion.
For Christina Zampas and Jaime M. Gher the K.L. decision ‘articulate[s] the important
intersections between foetal impairment, women’s mental and physical health and the
rights to privacy and to be free from inhuman and degrading treatment’.64 These intersec-
tions were later relevant in L.M.R v. Argentina.65 L.M.R, a mentally disabled teenager,
became pregnant as a result of rape and sought an abortion, which was legal in Argentina
in such circumstances. Despite this, multiple hospitals refused to treat L.M.R, and at one
stage a judge granted an injunction preventing a hospital performing the procedure, an
exercise not provided for by Argentine law. L.M.R was also pressured by Catholic organ-
isations and members of the public not to undergo an abortion. The CCPR found that the
severe humiliation and pain L.M.R experienced in being denied access to a legal abortion
procedure constituted a violation of her Article 7 rights, in addition to a violation of her
Article 17 rights.
Similar rights violations, in the incarnation of the ECHR Article 3 right to free from
torture and Article 8 right to privacy, were at the centre of two cases against Poland in
the ECtHR. As in the CCPR communications, both claimants were effectively denied
access to abortion by its procedural, rather than legal unavailability. In R.R. v. Poland,
the Court established an Article 3 violation on the basis that, having been denied prenatal
genetic testing because of a concern that she would seek an abortion, R.R. suffered severely
in not knowing whether her foetus was healthy.66 In P. and S. v. Poland, the Court deter-
mined that in being denied access to abortion and subjected to significant public and
media pressure to continue her pregnancy, P, a fourteen-year-old rape victim, experienced
a violation of her Article 3 rights. P’s age and public victimisation were emphasised in the
Court’s findings.67 Furthermore, the Court found in both cases that the absence of a
 THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS 9

procedural framework guaranteeing the claimants’ access to lawful abortions constituted

violations of their Article 8 right to privacy.

3.2.3. Substantive availability

Ireland and Northern Ireland’s historic refusal to permit abortion in any circumstances
except where the mother’s life is at risk has been repeatedly criticised by human rights
bodies.68 In 2016, following the Universal Periodic Review, the Human Rights Council
called for Ireland to decriminalise abortion, provide women and girls with full information
on abortion services, and amend its constitution to allow for such reforms.69 Ireland,
however, rejected all related recommendations except the recommendation that it
engage in consultations with stakeholders on possible constitutional and legal reform.70
Eventually, in May 2018, a referendum saw 67 per cent of voters choose to repeal the con-
stitutional amendment that recognised the right to life of the unborn.71
Prior to the referendum, in two findings against Ireland, the CCPR made explicit the
inference drawn in K.L. v. Peru and asserted that the criminalisation of abortion in
itself, and not merely its procedural unavailability, may constitute a violation of human
rights. In Mellet v. Ireland, Ms Mellet was required to travel to England to obtain an abor-
tion after her foetus was diagnosed with a fatal abnormality.72 The CCPR found that the
operation of the legal restrictions that denied Ms Mellet access both to information about
abortion and to the procedure itself amounted to contravention of the ICCPR on a
number of grounds:

i. Article 7 (the right to be free from torture and CIDT), because the law exacerbated
the anguish associated with a pregnancy affected by fatal foetal abnormality. In being
compelled to travel to England, Ms Mellet was deprived of material and emotional
support as well as appropriate care both during and after the abortion. Further,
the shame and stigma associated with the criminalisation of abortion in Ireland
exacerbated Ms Mellet’s suffering.73
ii. Article 17 (the right to privacy), because the law amounted to an unjustifiable inter-
ference with Ms Mellet’s decision-making around her pregnancy. Where Ireland
argued that its interference was proportionate to its aim of balancing the rights of
the pregnant woman against those of the foetus, the CCPR found that because the
law violates the right to be free from inhuman and degrading treatment, the restric-
tions it places on the right to privacy and bodily integrity could not be considered
compatible with international law.
iii. Article 26 (the right to non-discrimination), because Ireland affords different treat-
ment to those women who choose to carry a nonviable pregnancy to term, who
receive State-funded care, and those who terminate the pregnancy, who do not.
Since the laws did not meet the requirements of reasonableness objectivity and legiti-
macy, they constituted discrimination.

In Whelan v. Ireland, the complainant was also forced to obtain an abortion in England
following a diagnosis of foetal abnormality, and the CCPR found violations of Article 7, 17
and 26 on the same grounds as in Mellet.74
To Alyson Zureick, the willingness of human rights bodies to find that the denial of
access to abortion may constitute torture or CIDT demonstrates two major developments
10 I. MOORE

in human rights law.75 Firstly, ‘an understanding that certain restrictions on abortion – or
the State’s failure to act to prevent de facto restrictions – are unjustifiable and dispropor-
tionate to lawful State aims’.76 Secondly, ‘a limited but important recognition that depri-
vations of autonomy in the reproductive rights context can lead to the kind of pain and
suffering that is unacceptable in modem societies’.77 And within these development
there is budding recognition that it is human dignity that makes those restrictions unjus-
tifiable and the pain they cause unacceptable.

4. What counts as harm

4.1. An inconsistent conceptualisation
Human rights bodies have been inconsistent in their conceptualisation of when the phys-
ical or psychological pain experienced by women denied access to abortion crosses the
threshold to become CIDT.78 Zureick suggested that the use of Manfred Nowak’s justifia-
bility/proportionality test may explain why the denial of abortion amounts to CIDT in
some cases and not others. The test states that the infliction of pain or suffering may be
justifiable, and thus not an act of CIDT, if the action is legal according domestic law,
has a lawful purpose as its aim, and is necessary in the particular circumstances to
achieve any of the State’s lawful purposes.79 Its application establishes that those cases
in which denial of abortion is most likely to constitute CIDT are where women are unlaw-
fully harassed or obstructed when seeking access to a lawful abortion, where the pregnancy
is the result of an autonomy deficit, such as rape or mental disability, or where women are
distressed by the potential suffering of child.80
For human rights bodies to respond only to these particular forms of suffering is pro-
blematic because it serves to perpetuate stereotypes in international law about what is
understood as the ‘proper role’ of women in society.81 The jurisprudence of the ECtHR
shows a reliance on such stereotypes. Half a decade before Mellet and Whelan, in A, B
and C v. Ireland, three women had each travelled to the UK to obtain abortions. A did
so for mental health reasons and B after the failure of her contraception, situations
which did not fall under the risk to life exception to the criminalisation of abortion in
Ireland.82 C had become pregnant while in remission from cancer and did not feel able
to inquire as to whether she entitled to a lawful abortion because of the potential risk
to her health. A, B and C claimed that being denied access to information about abortion
and post-abortion care in Ireland and being required to travel abroad to obtain an abor-
tion was a violation of their Article 3 right to be free from torture and CIDT and Article 8
right to privacy. For all three women, the Court declined to consider the claim under
Article 3 on the basis that their treatment did not reach the minimal level of severity to
fall within the article. There is a clear comparison to made here with the CCPR cases of
K.L. v. Peru and L.M.R. v Argentina, where there were findings of CIDT, because A, B
and C were adult women who sought abortions to protect their own wellbeing, rather
than teenagers carrying non-viable foetuses.
In relation to A and B, the Court found Ireland’s regulation of abortion to be a lawful
State purpose provided for in the exception to Article 8, given that Ireland was pursuing
the legitimate aim of the protection of morals. Only in relation to C did the ECtHR find a
violation of Article 8, on the basis that the criminal provisions of Irish law would
 THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS 11

constitute a significant chilling factor for both women and doctors during medical consul-
tations. This meant that Ireland did not fulfil its positive obligation to provide an effective
and accessible consultation process that would have allowed C to ascertain the lawfulness
of an abortion.
Three years previously, in Tysiac v. Poland, the ECtHR had refused to consider the
Article 3 implications of the denial of an abortion to a woman whose pregnancy threa-
tened to cause the loss of her eyesight.83 The Court found only an Article 8 violation,
on the basis that the woman’s legal right to abortion, on the basis of the threat to her
health, had been interfered with by the absence of a comprehensive legal framework to
ensure she could access appropriate medical treatment. In the subsequent cases
R.R. v. Poland and P&S v. Poland the Court did find Article 3 violations, having regard
once again to the health of the foetus and vulnerability of the women, as well as
Poland’s failure to repair its procedural framework.84
The R.R. and P&S cases do show progress in the Court’s jurisprudence in recognising
the potential for denial of access to abortion to constitute CIDT, a potential it did not
accept in A, B and C and Tysiac.85 However, where it relies on procedural deficits, the vul-
nerability of the women in question or her particularly distressing experience of pregnancy
and birth, recognition of this potential hinges on what harm the existing domestic law
rates as significant enough to override the value of women’s reproductive role. No
regard is had to the discrimination inherent in that legal system and its disregard of
certain forms of pain and suffering

4.2. The words themselves

Waldron suggested that in using evaluative rather than descriptive predicates, the pro-
visions governing CIDT present a standard, rather than rule. This poses the challenge
of elaborating on the basic meaning of the words, which are used ‘to indicate to us
what the particular sort of badness is supposed to be’.86 Given that ‘cruelty’ refers to an
inappropriate attitude to suffering or distress, whether to humans or to animals, this
word may not convey is a distinctive standard of human dignity.87 However, in regard
to ‘inhuman’ and ‘degrading’, by examining the sort of badness that is at issue, we can
strengthen the interpretive link between the idea of dignity and the kind of harm that
counts as inhuman or degrading in a particular context.88
Waldron contended that contemplation of inhuman treatment requires consideration
not of ‘suffering that no human can endure, but about suffering that no human should
reasonably be expected to endure’.89 As such, inhuman treatment, on a victim-centric
view, describes treatment that prevents the person experiencing it from continuing the
basic elements of human functioning, such as self-control, rational thought and care of
self. Such a formulation can be perceived in the reasoning of the ECtHR, which suggests
only certain experiences of pregnancy would interfere with those basic elements of human
functioning, and so obtain the minimum level of severity.
In comparison, the notion of degrading treatment seems to accommodate more
complex and existential elements of human functioning. Waldron described four
species of degradation: bestialisation; instrumentalisation; infantilsation; and demonista-
tion.90 It is the second species of degrading treatment, instrumentalisation, that best cap-
tures that particular badness of denial of access to abortion. Waldron explained this
12 I. MOORE

particular harm as ‘being used in a way that is not sufficiently respectful of humanity as an
end in itself’,91 and in being treated as reproductive instruments, and denied both bodily
autonomy and moral agency, women are consistently deprived of sufficient respect for
their human dignity.

4.3. Making the harm public

Human rights bodies have tentatively sought to reject the objectification of women as
reproductive instruments and recognise this as a basis for findings of discrimination
and CIDT. Unlike the ECtHR in A, B and C, the CCPR in Mellet and Whelan explicitly
rejected the claim that Ireland was pursuing the legitimate aim of the protection of
morals in restricting access to abortion. Instead, the Committee concluded that the
anguish experienced by the claimants invalidated the argument of proportional interfer-
ence. This corresponds to the position in German law that where an intrusion upon
human dignity has been established, the principle of proportionality is not a
consideration.92
However, while the CCPR did find that Ms Mellet and Ms Whelan had been discrimi-
nated against in violation of article 26, it only went so far as to acknowledge the differential
treatment that the claimants were subjected to in relation to other women who chose to
carry their unviable pregnancies to term.
It was in a number of the Individual Opinions that the two women found support for
their claims of gender discrimination under articles 2(1), 3 and 26, on the basis that they
had been stereotyped as reproductive instruments. In its submissions in both communi-
cations Ireland contended that its abortion laws do not discriminate against women
because there are fundamental biological differences between men and women, and its
legislation seeks to balance the rights of the foetus and the rights of the woman. In
Mellet, this argument was rejected by Sarah Cleveland, who noted that Ireland’s crimina-
lisation of abortion services imposes no equivalent burden on men’s access to reproductive
health care. While Ireland pointed to a facially non-discriminatory purpose for its legal
regime – the protection of the foetus – Cleveland found that the law prioritised the repro-
ductive role of women above their physical health, mental health and autonomy.93
In Whelan, Yadh Ben Achour observed that, while the CCPR initially acknowledged
that male patients in Ireland are not expected to disregard their health needs and moral
agency in relation to their reproductive functions in the same way that female patients
are, the Committee then abandoned this logic in addressing the author’s claim.94 Ben
Achour returned to the issue and concluded ‘The act of reducing the author to an instru-
ment of procreation constitutes discrimination and simultaneously infringes her freedom
of self-determination and her right to gender equality and personal autonomy’.95
What emerges from the Individual Opinions is a challenge to the false assumption that
Charlesworth, Chinkin and Wright argued underlies all law, including human rights law:
the notion that human society can be separated into two distinct spheres, the public and
the private.96 The false assumption makes it possible to preserve the mechanisms that
operate to repress women in the private sphere, as they are deprived of the protection
of the human rights guarantees that operate in the public sphere. Hence, ‘[i]nternational
law might be said to have a gender in the sense that it is constructed upon the particular
 THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS 13

assumptions and experiences of life where men and the male are taken to represent the
human experience’.97
The prohibition on torture and CIDT, as a civil and political right, generally operates in
the public domain, and in resting on the scenario of the detainee or prisoner, promotes the
notion of discrete instances of suffering, deliberately penalising the victim for some act or
omission. It excludes from its purview the comparable suffering experienced by women in
contexts traditionally considered private. 98 Consequently, the State is excused from
responsibility for its complicity in the structural denial of rights, having maintained ‘a
legal and social system in which violations of physical and mental integrity are endemic’.99
These violations, and the discrimination at their core, are slowly being brought into the
public sphere. Following its 2018 inquiry into abortion services in Northern Ireland, the
CEDAW asserted that a restriction affecting only women from exercising reproductive
choice and resulting in women being forced to carry almost every pregnancy to full
term involves mental and physical suffering constituting violence against women. 100
While this notion of violence may not always ground a claim of CIDT, the CEDAW
report is an acknowledgement that States do participate in a structural denial of rights
by diminishing the autonomy of women in order to exploit their reproductive utility,
and there is real and significant injury in the denial of gender equality and self-
determination.

5. Conclusion
If it is a fundamental function of human dignity to be able to confront questions about the
meaning of our lives, complete restrictions on abortion impose what Ben Achour charac-
terises as ‘a disproportionate, abnormal and unjust existential burden on women, by virtue
of being women’.101 This burden, the degradation of women through the diminishment of
their human dignity, is one imposed on women as individuals and as members of their
gender. Because traditionally women’s experience of harm has not been given a public
platform, we have only a limited social understanding of the ways in which the objectifica-
tion of women as reproductive instruments violates their physical and mental integrity. As
more feminine experiences are incorporated into human rights law we can use the growing
understanding of harm to strengthen that interpretive link between the idea of dignity and
inhuman and degrading treatment.
Of course, because of the constellation of rights in which reproductive autonomy is sig-
nificant, to consider restrictions on abortion through the lens of only one right, and with
an emphasis on the concept of harm, does not facilitate a comprehensive view of the moral
and legal issues such restrictions entail. In particular, Ronli Sifris warned against the risk of
focusing on extraordinary scenarios of pain and suffering during pregnancy ‘at the expense
of the “ordinary” experiences of women dealing with an unwanted pregnancy’.102 It was
this ordinary experience that Cleveland and Ben Achour recognised in Mellet and
Whelan, of a shared burden and a gendered form of harm, while the CCPR was occupied
with the quantification of individual anguish.
By helping to define the content of human dignity in the context of reproduction, the
guarantees of other human rights may be more meaningfully elucidated to better protect
all women’s personal autonomy and self-determination. If it is inconsistent with the
intrinsic worth of every human being to deny the moral agency involved with the
14 I. MOORE

termination of a pregnancy, then we can define at least one facet of intrinsic worth in this
context: central to autonomy and equality, and thus to dignity, is choice.

Notes
1. Associated Press in Asunción, ‘Paraguay Failed Pregnant Rape Victim Aged 10, UN Human
Rights Experts Say’, The Guardian (12 May 2014). http://www.theguardian.com/world/2015/
may/11/paraguay-failed-pregnant-victim-10-un-human-rights-experts-say
2. Associated Press in Asunción, ‘Paraguay Failed Pregnant Rape Victim Aged 10, UN Human
Rights Experts Say’.
3. Michael Miller, ‘The Horrific Child Rape Case that is Tearing Paraguay Apart’, The Age (12
May 2015). http://www.theage.com.au/world/the-horrific-child-rape-case-that-is-tearing-
paraguay-apart-20150512-ggzcb2.html?skin=dumb-phone
4. This article makes no distinction between ‘dignity’ and ‘human dignity’.
5. Christopher McCrudden, ‘Human Dignity and Judicial Interpretation of Human Rights’, The
European Journal of International Law 19, no. 4 (2008): 655–724, 688.
6. Thornburgh v American College of Obstetricians and Gynaecologists 476 US 747 (1986).
7. UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A
(III), Article 1.
8. McCrudden, ‘Human Dignity and Judicial Interpretation of Human Rights’, 679.
9. Ibid., 723.
10. Andrew Clapham, Human Rights Obligations of Non-State Actors (2006), 545–6.
11. Elaine Webster, ‘Interpretation of the Prohibition of Torture: Making Sense of “Dignity”
Talk’, Human Rights Review 17, no. 3 (2016): 371–90, 375.
12. Webster, ‘Interpretation of the Prohibition of Torture: Making Sense of “Dignity” Talk’, 375;
Jeremy Waldron, ‘Cruel, Inhuman, and Degrading Treatment: The Words Themselves’,
New York University Public Law and Legal Theory Working Papers (2008) 98, 38.
13. Waldron, ‘Cruel, Inhuman and Degrading Treatment: The Words Themselves’, 38; Imma-
nuel Kant, Groundwork of the Metaphysics of Morals, ed. Mary Grego (Cambridge: Cam-
bridge University Press, 1998), 37–8.
14. Webster, ‘Interpretation of the Prohibition of Torture: Making Sense of “Dignity” Talk’, 375.
15. This article does not seek to resolve the question of whether there is a gestational limit on the
exercise of such agency.
16. Ronald Dworkin, Life’s Dominion (New York: Vintage Books, 1994), 10–11.
17. Ibid., 11–13.
18. Ibid., 15.
19. Ibid., 68–9.
20. Ibid., 86–94.
21. Ibid., 60.
22. Ibid., 166.
23. Kate Greasley, Arguments about Abortion: Personhood, Morality and Law (Oxford: Oxford
University Press, 2017).
24. Greasley, Arguments about Abortion: Personhood, Morality and Law, 18–19.
25. Ibid., 31.
26. Elizabeth Wicks, The Right to Life and Conflicting Interests (Oxford: Oxford University Press,
2010), 168.
27. Judith Jarvis Thomson, ‘A Defense of Abortion’, Philosophy and Public Affairs 1, no. 1 (1971):
47–66.
28. Wicks, The Right to Life and Conflicting Interests, 172.
29. Ibid.
30. Wicks, The Right to Life and Conflicting Interests.
 THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS 15

31. Rhonda Copelon, Christina Zampas, Elizabeth Brusie, and Jacqueline deVore, ‘Human
Rights Begin at Birth: International Law and the Claim of Fetal Rights’, Reproductive
Health Matters 13, no. 26 (2005): 120–9, 126.
32. Catriona McKenzie, ‘Abortion and Embodiment’, Australasian Journal of Philosophy 70, no.
2 (1992): 136–55, 151.
33. Dworkin, Life’s Dominion, 137.
34. Ibid., 154.
35. Planned Parenthood v Casey 505 US 833 (1992), 851.
36. McCrudden, ‘Human Dignity and Judicial Interpretation of Human Rights’, 700.
37. World Health Organisation, Safe Abortion: Technical and Policy Guidance for Health
Systems, 2nd ed. (Geneva, 2012), 88. http://apps.who.int/iris/bitstream/10665/70914/1/
9789241548434_eng.pdf
38. Christina Zampas and Jaime M. Gher, ‘Abortion as a Human Right – International and
Regional Standards’, Human Rights Law Review 8, no. 2 (2008): 249–94.
39. African Union, Protocol to the African Charter on Human and People’s Rights on the Rights of
Women in Africa, 11 July 2003.
40. African Women’s Protocol, Art 14(2)(c).
41. Zampas and Gher, ‘Abortion as a Human Right – International and Regional Standards’, 287;
Copelon et al., ‘Human Rights Begin at Birth: International Law and the Claim of Fetal
Rights’, 126.
42. Copelon et al., ‘Human Rights Begin at Birth: International Law and the Claim of Fetal
Rights’, 126.
43. Rita Joseph, Human Rights and the Unborn Child (Martinus Nijhoff Publishers), 47.
44. Zampas and Gher, ‘Abortion as a Human Right – International and Regional Standards’, 263.
45. Copelon et al., ‘Human Rights Begin at Birth: International Law and the Claim of Fetal
Rights’, 121–5.
46. Zampas and Gher, ‘Abortion as a Human Right – International and Regional Standards’,
262–8; Copelon et al., ‘Human Rights Begin at Birth: International Law and the Claim of
Fetal Rights’, 121–5.
47. Paton v. UK, App. No. 8416/78, 3 Eur. H.R. Rep. 408 (1980).
48. Vo v. France, No. 53924/00, Eur. Ct. H.R. (2004).
49. Zampas and Gher, ‘Abortion as a Human Right – International and Regional Standards’, 251.
50. Zampas and Gher, ‘Abortion as a Human Right – International and Regional Standards’, 251;
Report of the International Conference on Population and Development, Cairo, 5-13 Sep-
tember 1994, A/CONF.171/13/Rev.1 (1995), Chapter VIII C. Women’s Health and Safe
Motherhood para 8.2.
51. UN Human Rights Committee, Concluding Observations: Chile, 18 May 2007, UN Doc
CCPR/C/CHL/CO/5, para. 8; UN Human Rights Committee, Concluding Observations: El
Salvador, 22 August 2003, UN Doc CCPR/CO/78/SLV, para. 14; UN Human Rights Com-
mittee, Concluding Observations: Poland, 2 December 2004, UN Doc CCPR/CO/82/POL,
para. 8.
52. UN Human Rights Committee, Concluding Observations: Guatemala, 27 August 2001, UN
Doc CCPR/CO/72/ GTM, para. 19; UN Human Rights Committee, Concluding Observations:
Kuwait, 19 July 2000, UN Doc CCPR/CO/69/KWT, A/55/40, para. 16; UN Human Rights
Committee, Concluding Observations: Lesotho, 8 April 1999, UN Doc CCPR/C/79/
Add.106, para. 11; UN Human Rights Committee, Concluding Observations: Trinidad and
Tobago, 3 November 2000, UN Doc CCPR/ CO/70/TTO, para. 18; UN Human Rights Com-
mittee, Concluding Observations: United Republic of Tanzania, 18 August 1998, CCPR/C/79/
Add.97, para. 15; UN Committee on the Elimination of Discrimination Against Women,
Concluding Comments of the Committee on the Elimination of Discrimination Against
Women: Belize, 01 July 1999, UN Doc A/54/38, para. 56; UN Committee on the Elimination
of Discrimination Against Women, Concluding Comments of the Committee on the Elimin-
ation of Discrimination Against Women: Chile, 25 August 2006, UN Doc CEDAW/C/CHI/
CO/4, para. 19.
16 I. MOORE

53. UN Committee on the Rights of the Child, Concluding Observations: Guatemala, 9 July 2001,
UN Doc CRC/C/15/Add.154, para. 40; UN Committee on the Rights of the Child, Conclud-
ing Observations: Chad, 24 August 1999, UN Doc CRC/C/15/Add.107, para. 30; UN Com-
mittee on the Rights of the Child, Concluding Observations: Nicaragua, 24 August 1999,
UN Doc CRC/C/15/Add.108, para. 35.
54. UN Human Rights Committee, Concluding Observations: El Salvador, 22 August 2003, UN
Doc CCPR/CO/78/SLV; para. 14; UN Human Rights Committee, Concluding Observations:
Mali, 16 April 2003, UN Doc CCPR/CO/77/MLI, para. 14; UN Human Rights Committee,
Concluding Observations: Poland, 2 December 2004, UN Doc CCPR/CO/82/POL, para. 8.
55. UN Human Rights Committee, Concluding Observations: Chile18 May 2007, UN Doc CCPR/
C/CHL/CO/5, para. 8; UN Human Rights Committee, Concluding Observations: Guatemala,
27 August 2001, UN Doc CCPR/CO/72/ GTM, para. 19; UN Human Rights Committee,
Concluding Observations: Mali, 16 April 2003, UN Doc CCPR/CO/77/MLI, para. 14.
56. World Health Organisation, Safe Abortion: Technical and Policy Guidance for Health
Systems, 92.
57. World Health Organisation, Constitution of the World Health Organization, 47th ed.
(Geneva, 2009).
58. World Health Organisation, Safe Abortion: Technical and Policy Guidance for Health
Systems, 92.
59. World Health Organisation, Safe Abortion: Technical and Policy Guidance for Health
Systems, 2nd ed. (Geneva, 2012), 9.
60. Zampas and Gher, ‘Abortion as a Human Right – International and Regional Standards’, 287.
61. UN Human Rights Committee, K.L. v Peru, 22 November 2005, UN Doc CCPR/C/85/D/
1153/2003.
62. K.L. v Peru, para. 6.4.
63. K.L. v Peru, para. 6.3.
64. Zampas and Gher, ‘Abortion as a Human Right – International and Regional Standards’, 286.
65. UN Human Rights Committee, L.M.R. v Argentina, CCPR/C/101/D/1608/2007.
66. R.R. v. Poland, No. 27617/04 Eur. Ct. H. R. (2011).
67. P. and S. v. Poland, No. 57375/08 Eur. Ct. H.R. (2008).
68. Ireland v. United Kingdom, Eur. Ct. H.R. No. 5310/71, 167 (1978); A, B and C v. Ireland, No.
25579/05 Eur. Ct. H.R. (2010); UN Committee against Torture, Concluding Observations:
Ireland, 17 June 2011, CAT/C/IRL/CO/1; UN Human Rights Council, Report of the
Working Group on the Universal Periodic Review: Ireland, 21 December 2011, A/HRC/19/
9; UN Human Rights Committee, Concluding Observations: Ireland, 4 July 2014, UN Doc
CCPR/C/IRL/CO/4; UN Human Rights Council, Report of the Working Group on the Uni-
versal Periodic Review: Ireland, 18 July 2016, UN Doc A/HRC/33/17; UN Human Rights
Committee, Mellet v. Ireland, 17 November 2016, UN Doc CCPR/C/116/D/2324/2013;
UN Human Rights Committee, Whelan v. Ireland, 12 June 2017, UN Doc CCPR/C/119/
D/2425/2014; UN Committee Against Torture, Concluding Observations: Ireland, 11
August 2017, UN Doc CAT/C/SR.1565, CAT/C/SR.156.
69. UN Human Rights Council, Report of the Working Group on the Universal Periodic Review:
Ireland, 18 July 2016, A/HRC/33/17.
70. UN Human Rights Council, Report of the Working Group on the Universal Periodic Review:
Ireland, Addendum, 20 September 2016, A//HRC/33/17/Add.1.
71. ABC/Reuters, ‘Ireland Abortion Referendum Returns Huge Majority for Yes Campaign in
Historic Vote’, ABC News. http://www.abc.net.au/news/2018-05-27/abortion-referendum:-
ireland-votes-to-liberalise-laws/9803848
72. UN Human Rights Committee, Mellet v. Ireland, 17 November 2016, UN Doc CCPR/C/116/
D/2324/2013.
73. This is issue that may soon come to prominence in Australia. Abortion in the state of Tas-
mania was decriminalised in 2013, but government will not commit to providing funding to
maintain a public provision service. Rather, a travel allowance will be provided for women to
travel interstate. In light of Mellet and Whelan, where a Tasmanian woman’s pregnancy is
 THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS 17

affected by fatal foetal abnormality the requirement to travel outside Tasmania would con-
ceivably constitute a violation of Article 7; Clementine Ford, ‘Women in Tasmania Might
Soon Be Unable to Get Abortions’, The Age (2 March 2018). https://www.theage.com.au/
lifestyle/health-and-wellness/women-in-tasmania-might-soon-be-unable-to-get-abortions-
20180301-p4z2ez.html
74. UN Human Rights Committee, Whelan v. Ireland, 12 June 2017, UN Doc CCPR/C/119/D/
2425/2014.
75. Alyson Zureick, ‘(En)gendering Suffering: Denial of Abortion as a Form of Cruel, Inhuman,
or Degrading Treatment’, Fordham International Law Journal 38, no. 1 (2015): 99–138, 1010.
76. Zureick, ‘(En)Gendering Suffering: Denial of Abortion as a Form of Cruel, Inhuman and
Degrading Treatment’, 101.
77. Ibid.
78. Zureick, ‘(En)Gendering Suffering: Denial of Abortion as a Form of Cruel, Inhuman and
Degrading Treatment’, 131.
79. Ibid., 132; Manfred Nowak and Elizabeth McArthur, ‘The Distinction Between Torture and
Cruel, Inhuman or Degrading Treatment’, Torture 16 (2006):147, 149.
80. Zureick, ‘(En)Gendering Suffering: Denial of Abortion as a Form of Cruel, Inhuman and
Degrading Treatment’, 134–5.
81. Ibid., 140.
82. A, B and C v. Ireland [2010] ECHR 2032.
83. Tysiac v. Poland, Appl. No. 5410/03 Eur. Ct. H.R. (2007).
84. R.R v Poland; P. and S. v. Poland.
85. Zureick, (En)Gendering Suffering: Denial of Abortion as a Form of Cruel, Inhuman and
Degrading Treatment’, 117.
86. Waldron, ‘Cruel, Inhuman and Degrading Treatment: The Words Themselves’, 24.
87. Ibid., 29.
88. The circumstances in which denial of access to abortion may constitute torture, and whether
this would require a purposive element, are not contemplated in this essay.
89. Waldron, ‘Cruel, Inhuman, and Degrading Treatment: The Words Themselves’, 33.
90. Ibid., 37.
91. Ibid., 38.
92. McCrudden, ‘Human Dignity and Judicial Interpretation of Human Rights’, 699.
93. Mellet v. Ireland, Annex II: Individual opinion of Committee member Sarah Cleveland
(concurring).
94. Whelan v. Ireland, Annex I: Individual opinion of Committee member Yadh Ben Achour
(concurring).
95. Whelan v. Ireland, Annex I: Individual opinion of Committee member Yadh Ben Achour
(concurring), para. 6.
96. Hilary Charlesworth, Christine Chinkin, and Shelley Wright, ‘Feminist Approaches to Inter-
national Law’, The American Journal of International Law 85, no. 4 (1991): 613–45, 627.
97. Hilary Charlesworth and Christine Chinkin, ‘The Gender of Jus Cogens’, Human Rights
Quarterly 15 (1993): 63–76, 65.
98. Ronli Sifris, Reproductive Freedom, Torture and International Human Rights: Challenging the
Masculinisation of Torture (United Kingdom: Routledge, 2014), 19, 57; Zureick, ‘(En)Gen-
dering Suffering: Denial of Abortion as a Form of Cruel, Inhuman and Degrading Treat-
ment’, 105.
99. Charlesworth, Chinkin and Wright, ‘Feminist Approaches to International Law’, 628–9.
100. UN Committee on the Elimination of Discrimination Against Women, Report of the Inquiry
Concerning the United Kingdom of Great Britain and Northern Ireland under Article 8 of the
Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against
Women, 23 February 2018, CEDAW/C/OP.8/GBR/1.
101. Pamela Laufer-Ukeles, ‘Reproductive Choices and Informed Consent: Fetal Interests,
Women’s Identity, and Relational Autonomy’, American Journal of Law and Medicine 27
18 I. MOORE

(2011): 567–623, 572; Whelan v. Ireland, Annex I: Individual opinion of Committee member
Yadh Ben Achour (concurring), para. 5.
102. Ronli Sifris, ‘Restrictive Regulation of Abortion and the Right to Health’, Medical Law Review
18, no. 2 (2010): 185–212, 190.

Disclosure statement
No potential conflict of interest was reported by the author.

Notes on contributor
Isabella Moore holds a Bachelor of Laws from University College London and a Master of Public
and International Law from the University of Melbourne. She works in public policy.