Human Rights Perspectives on Access to Misoprostol

Johanna B. FineLegal FellowCenter for Reproductive Rights

Summary• Human rights related to access to

medicines, such as misoprostol:• Right to health• Right to the benefits of scientific progress• Right to information

• Focus on misoprostol and abortion

• Emergency medical treatment and abortion

Right to Health And Essential Medicines

• Several international and regional covenants recognize a right to health

• ICESCR, Art. 12(1): “The States Parties … recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”

• CESCR, General Comment 14:

• ¶ 12(a): “Functioning public health and health-care facilities, goods and services, as well as programmes, have to be available in sufficient quantity within the State party … They will include … the underlying determinants of health, such as … essential drugs, as defined by the WHO Action Programme on Essential Drugs.”

• ¶ 43(d): States have a minimum core obligation to: “(d) To provide essential drugs, as from time to time defined under the WHO Action Programme on Essential Drugs.”

Right to Health And Essential Medicines

Right to Health And Essential Medicines

• WHO Model List of Essential Medicines

• List of minimum medicines needed for a basic health‐care system, listing the most efficacious, safe and cost‐effective medicines for priority conditions

• In 2005, WHO added misoprostol

• Governments should therefore prioritize this medicine for budgetary allocations and procurement

 

Right to the Benefits of Scientific Progress and Essential Medicines

• UDHR, Art. 27(1): “Everyone has the right … to share in scientific advancement and its benefits.”

• ICESCR, Art. 15(1)(b): States Parties “recognize the right of everyone … [t]o enjoy the benefits of scientific progress and its applications.”

• San Salvador Protocol, Art. 14(1)(b) : States Parties “recognize the right of everyone … [t]o enjoy the benefits of scientific and technological progress.”

• Requires access to medications:• Essential medicines and • Safe and available reproductive health technologies, including medical

abortion

Right to Information and Essential Medicines

• Grounded in several rights in UN and regional covenants, such as:

• Life• Health• Dignity • Privacy• Freedom of expression• Decide on the spacing of one’s children

Focus on rights to health and freedom of expression

Right to Information and Essential MedicinesRight to Health: CESCR, General Comment 14: • ¶ 12(c) – States must guarantee “the right to seek, receive and impart information and ideas concerning health issues.”

• ¶ 21 – “The realization of women's right to health requires the removal of all barriers interfering with access to health services, education and information, including in the area of sexual and reproductive health.”

• ¶ 34- “States should refrain from limiting access to …means of maintaining sexual and reproductive health, from censoring, withholding or intentionally misrepresenting health-related information”.

• ¶ 44(d) – A core priority of States includes “provid[ing[ education and access to information concerning the main health problems in the community, including methods of preventing and controlling them”

Right to Information and Essential Medicines

UN: Right to Freedom of Expression

Article 19(2) of the ICCPR:“Everyone shall have the right to freedom of expression; this

right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers,

either orally, in writing or in print, in the form of art, or through any other media of his choice. “

Right to Information and Essential Medicines

Regional: Right to Freedom of Expression/Information•European Convention (Art. 10): “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers …”

•American Convention (Art. 13): “Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice.”

•Banjul Charter (Art. 9): “1. Every individual shall have the right to receive information. 2. Every individual shall have the right to express and disseminate his opinions within the law.

Right to Information and Essential Medicines

Right to Freedom of Expression:

• Each Covenant (except Banjul) imposes restrictions on this right

• Restrictions must be provided by law and include those necessary for:

• Respect of the rights or reputations of others• Protection of national security or of public order • Public safety, health or morals• Prevention of disorder or crime (European Convention)

• Generally restrictions interpreted narrowly

Right to Information and Essential Medicines

•States may try to justify restricting access to information about medicines used to procure abortions on grounds of public health or morals

•Case Study: Open Door Counselling and Dublin Well Woman Centre and Others v. Ireland

• Failure to provide information about health services permitted by law constituted a violation of the right to receive and impart information (Art. 10).

Emergency Medical Treatment and Abortion

International Human Rights and Emergency Medical Treatment

• CESCR, General Comment 14: – ¶ 14 – Art. 12.2 requires measures that include

“access to …emergency obstetric services and access to information, as well as to resources necessary to act on that information.”

– Emergency obstetric services may include abortion

Emergency Medical Treatment and Abortion

National Laws: Necessity Defense• Countries without an explicit life exception may

permit abortion on criminal defense of “necessity.” – Criminal liability excused if a criminal act is performed in

order to save one’s own life or the life of another– Although abortion not expressly permitted by law, it could

be performed because it was necessary to preserve life

• BUT:– Generally theoretical – Can only be invoked once criminal charges are faced– Fact specific