In two recent papers, Meghan Grizzle argues that the phrases “reproductive health” and “family planning” are perfectly acceptable and that pro-lifers should fight for them. She argues that abortion is not a part of reproductive health in international law and contraceptives are not a part of family planning.
Grizzle is right, in part. There is no hard law international treaty defining reproductive health as including abortion. In fact, abortion is not mentioned in any treaties at all. Reproductive health is mentioned in one, the treaty on disabilities, and when it was adopted 15 nations insisted it did not include abortion. And it is true that while family planning is mentioned in three hard law treaties, it is not defined as including contraception.
Does it follow that we have nothing to fear from these phrases and that we should in fact embrace them? We suggest Grizzle is too sanguine about these terms and their threat. She is wrong in one important definition and she is overly optimistic to think these phrases can be captured for good uses.
International law is made though hard law treaties and through the recognition of customary international law, which comes about through universal state practice with the understanding of legal obligation.
Hard law treaties are silent on abortion. Even when reproductive health was mentioned in the disability treaty, it was only defined as a category of non-discrimination. But there is more to fear from treaties than plain words. Each treaty comes with a treaty monitoring body. In recent years these bodies have taken on quasi-judicial functions and essentially rewritten the treaties.
The committee that monitors the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) now interprets the treaty as including reproductive health and a right to abortion. To date they have directed more than 90 counties to change their laws on abortion. Some national courts have started to listen, most recently Argentina, which liberalized their abortion laws based on this reinterpretation. Grizzle is right to point out these committees are acting beyond their mandate. But they do, and with obvious effect.
The other way international law is made is through custom. Pro-abortion lawyers falsely assert that the repetitious use of the phrase reproductive health in non-treaty UN documents has created a customary right to abortion. They point most often to the Program for Action of the International Conference on Population and Development (Cairo, 1994).
Grizzle insists that the Cairo document cannot be used in this way because while it uses the phrase reproductive health, abortion is not included. Grizzle is simply wrong. The document says, “Reproductive health care in the context of primary health care includes . . . abortion as specified in paragraph 8.25.” Paragraph 8.25 says abortion may not be promoted as a method of family planning. It says changes in abortion law can only be decided at the national, state, or local level, and that where abortion is legal it should also be safe. Abortion, however, is very much in the document.
There are further problems with accepting these phrases. They are dangerously vague. The Cairo document, which Grizzle calls uncontroversial, defines reproductive health as “a state of complete physical, mental and social wellbeing, in all matters relating to the reproductive system and to its function and processes. Reproductive health therefore implies [emphasis added] that people are able to have a satisfying and safe sex life, and that they have the capability to reproduce and the freedom to decide if, when and how often to do so.” Grizzle says such legal gobbledygook is acceptable and even laudable.
There is no escaping the fact that these terms are controversial. Every time they appear in a UN draft document they cause a stir among delegations. At this year’s session of the UN Commission on the Status of Women some delegations were so forceful in pushing reproductive health and family planning that other delegations rejected the final document. And if these terms were harmless, then the Holy See would not try constantly to block them or, failing that, define them in an acceptable way in document reservations.
We would do well to look beyond the text of international instruments, whether binding or not, to understand the peril presented by the terms. Abortion and contraception are the staple of the diet promoted by UN agencies. Quite simply, powerful UN actors”agencies, NGOs, foundations, governments”continue to include abortion and contraception precisely under the name of reproductive health and family planning.
While Grizzle’s papers are a welcome departure from the commonly held views of the international community on reproductive health and family planning, trying to change the meaning of those terms is at best a quixotic struggle. No one really believes that the acceptance of these terms by Grizzle’s admittedly small NGO will convince the U.S., the UN, the EU, the donor countries of Scandinavia, billion-dollar foundations, and powerful NGOs to decide these terms no longer mean abortion and contraception.
The reality is that in recent decades, the “culture of death” has successfully transformed western social norms, especially those touching sexuality. The conjugal act is seen as a recreational activity detached from the natural and fundamental unit of society, the family. As a result, human life itself, which is the fruit of the conjugal act, is treated as a disposable commodity.
The very notion of reproductive health and family planning are based on the assumption that sex is a recreational activity, or an uncontrollable urge. If we really want to defeat the culture of death, we cannot compromise at all on the subjects of sexuality and the family. The terms reproductive health and family planning are a not so Trojan horse for anyone who would adopt them as a component of their social policy.
Austin Ruse is President of C-FAM (Catholic Family & Human Rights Institute). Stefano Gennarini is Director of the Center for Legal Studies at C-FAM.
RESOURCES
Meghan Grizzle, World Youth Alliance White Paper on Reproductive Health
Meghan Grizzle, World Youth Alliance White Paper on Family Planning
Meghan Grizzle, Reproductive Health, Reasserted
Meghan Grizzle, True Reproductive Health
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