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University of New South Wales Law Journal Student Series |
FEMINIST JUDGMENT RE-WRITING
FROM THE CASE OF THE COMMITTEE ON THE RIGHTS OF THE CHILD: CAMILA V. PERU*
MAIDINA RAHMAWATI**
This essay will re-write a judgment from The Committee on the Rights of the Child (‘The Committee’). The complainant, referred to as ‘The Author,’ is Camila, a 16-year-old Peruvian. The Author claimed Peru had violated her rights, among others,[1] rights to life and rights to privacy.
The Author is an Indigenous child living in a rural area without adequate electricity and clean water access. She is economically dependent on her father. Her father began to sexually assault her when she was nine years old, and in September 2017, when she was 13 years old, she was raped by her father and became pregnant. In November 2017, the hospital confirmed that The Author was 13,6 weeks pregnant, and she indicated to them that she did not want to continue her pregnancy. Throughout December 2017, she came to the health facility three times, but her request for an abortion was ignored.
On 13 December 2017, on advice from an NGO called ‘Asociación pro Derechos Humanos’,[2] The Author submitted a request for therapeutic abortion, which is allowed under art 119 of the Peruvian Criminal Code 1924 and Ministry of Health Decision Number 486/2014 on the National Technical Handbook on therapeutic abortion. The service is performed by a doctor, with the consent of a pregnant woman or her legal representative, to save lives or avoid permanent health damage.[3] A woman can request a doctor for an abortion before 22 weeks of pregnancy. The hospital must assemble a panel of doctors to determine the approval of an abortion request within six days. The doctor forwards the request to the head of the Department of Gynaecology-Obstetrics, who forms a medical board to consider the request.[4] In this case, the hospital's medical board responded to The Author’s request a month later and required an extra medical examination. The Author never got the final answer to her request.
While waiting for the answer on 19 December 2017, the Author suffered from a medical condition that caused a miscarriage. She had to undergo emergency curettage. The hospital never informed her about the protocol for the disposal of foetal remains. Therefore, her grandmother buried it. Because of this, on 29 December 2017, the prosecutor opened an investigation against the Author, resulting in her conviction of self-abortion on 10 July 2018.
On 17 June 2019, her mother filed an appeal, and her conviction was overturned. It was reported that during the inquiries, police officers came to her house multiple times, causing a disturbance in her neighbourhood and compelling her to move out and stop her education.
The Author claimed Peru had violated her rights under the Convention on the Rights of the Child, among others, the right to life (art 6) and the right to privacy (art 16). The Committee, in its views, concluded that the lack of information on abortion services and failure to provide the Author with the abortion service constitutes a violation of the right to life.[5] Meanwhile, regarding the right to privacy, the Committee ruled that there was a violation, but limited to the existence of arbitrary interference from the police and health workers with their multiple visits during inquiries.[6] On the aspect of state party obligation, the Committee demanded Peru decriminalise abortion but did not provide clear principles to guarantee access.
This essay will re-write the previous judgment from The Committee on the Rights of the Child with a feminist perspective. Feminist judgement rewriting is an effort to develop a fictional judgement based on real cases through a feminist lens. It is a global movement that began when a group of Canadian lawyers and law professors produced the first Feminist Judgment Project, the Women’s Court of Canada (‘WCC’). In 2008, it published the first six rewritten decisions based on s 15 of Canada’s Charter of Rights and Freedom.[7] This feminist rewriting model was followed in the United Kingdom in 2010 that included twenty-three rewritten opinions from the actual cases tried in the House of Lords, the Court of Appeal, or the Privy Council.[8] Australian feminists followed this effort by publishing twenty four opinions from multiple courts in Australia in 2014.[9] Then, it was followed by many initiatives in the United States,[10] New Zealand,[11] Scotland,[12] India[13] and ongoing efforts in Africa with African Feminist Judgement Projects.[14]
Rewritten feminist judgments are developed using feminist theory, methods, and consciousness to achieve gender justice.[15] The projects emerged to contextualise feminism in a judging process that is fundamental to people's lives both at the individual level of the parties involved and on a societal scale[16] for legal reform. It presents how the cases should be tried differently, resulting in a different outcome that inclusively values all women’s gendered experiences. The feminist judgment rewriting starts from a perspective that the law, including international law, like in this case of The Author v. Peru, is dominated by masculine perceptions of human experience. Feminist judgement rewriting then takes the vital step of challenging and amplifying that male dominance.[17]
Not only the law but the legal profession is also inherently male-dominated.[18] The field of international law in which the Author seeks justice has also been controlled for a long time by men.[19] Meanwhile, research has revealed that biases related to race or other social categories can influence legal decision-making at many steps of the legal process.[20] The primary objective of feminist judgment rewriting is to dispel the myth that the judicial decision-making process is neutral and logical.[21]
Thus, the feminist judgement rewriting must feature the key feminist concerns such as asking about women’s problems, involving women, challenging gender bias, and requiring the judges to be open and held accountable for the choices and reasoning they made based on the contextualisation of the feminist theory to the case.[22] The judgment rewriting alters the justice outcome. It presents different perspectives that can bring improvement in legal doctrine and discourses. It impacts broader policy and socioeconomic outcomes,[23] which is beneficial for general legal reform[24] to ensure no one is left behind in the legal development.
However, in applying feminist analysis, the judge must not only challenge the content of the law but also prevent gender essentialism and the inclination to use a unitary voice of women’s experience.[25] It must be aware of the danger of silencing those who have traditionally been kept from speaking in feminism discourse, such as Black women, women of colour and Indigenous women.[26] It should be aware not to reproduce the racism in earlier feminist movements. White feminism in history strengthened white supremacy and ignored the intersectional experiences of women of colour and Indigenous women; they refused to engage in racial issues and racial hierarchy.[27] Thus, feminist judging requires the examination of gender, class, and race impact of the law and the contextual criticism of the law.[28] It needs to deeply analyse the disproportionate effect of the law on women of colour and Indigenous women specifically.
In this case, the Author’s experience of injustice includes intersections of race, class, and gender.[29] She is an indigenous woman from a low socioeconomic background and a victim of domestic and sexual violations. The feminist judgment requires an analysis of all those intersectional experiences connected with problematic Peruvian law on the criminalisation of self-abortion contributes to the violation of her rights. This method was absent in the Committee’s judgment.
In this judgment re-writing, I will posit myself as ‘The Committee’ as a judge, Camila will be referred to as ‘The Author’ and Peru as ‘State party.’
This judgment rewriting will focus on three aspects: violation of the right to life, right to privacy, and the judgment outcome on the state party’s obligation. It develops arguments that there are violations of the rights to life and the right to privacy, but from a feminist perspective. This judgment rewriting also evaluates the obligations of the state party to provide abortion care beyond the clinical-led model. The feminist advocacy has demanded access to abortion beyond formal access run by the state. It includes self-managed services that the community can provide.[30]
The Committee recalls the mandate of general measures of implementation of the rights of the child. It says that the realisation of the right to life must guarantee the survival and development of the child to the maximum extent possible.[31] The definition of ‘development’ must be read in the broadest sense as a holistic concept, guaranteeing the child’s physical, mental, spiritual, moral, psychological, and social development.[32] State party implementation measures should aim to achieve optimal development for all children.
The Committee will not only consider the experience of denial of abortion access of the Author. The Committee will validate all of the Author's life experiences to decide whether her inherent right to life has been violated. As a feminist judge, all experiences and identities of women must be taken seriously.[33] The Committee adopts an intersectionality framework as a powerful reminder to pay attention to the margins of all identity-based analysis.[34] The Committee must pursue the interrelation between race, class and gender-based barriers.[35] This theoretical intersectional feminist framework indeed corresponds to the obligation of the State party to guarantee the holistic development of the Author’s life, including her social development, especially as an Indigenous girl living in poverty.
The Author was raped by her father. Indigenous women in Peru are more likely to become the victim of domestic violence.[36] The Author also lives in poverty without adequate access to electricity and clean water.[37] Statistical data from 2005 – 2022 in Peru found that 19,8% of Indigenous peoples live in poverty.[38] The poor living condition of the Author is part of the global suffering of Indigenous peoples. Even though they comprise only 6% of the population, they account for 19% of the extremely poor.[39] Indigenous peoples’ life expectancy is 20 years lower than non-indigenous peoples.[40] There is also a higher risk of gender-based violence faced by Indigenous women.[41] The impact of gender-based violence is more severe in women facing marginalisation, racism, and discrimination.[42]
The Committee affirms the Report of the Special Rapporteur on Violence against Women in April 2022 on Violence against Indigenous women and girls. The Special Rapporteur highlights how the historical and systemic legacy of colonisation maintains patriarchal power structures, racism, exclusion, and marginalisation as the root cause of violence among Indigenous women. This systemic problem causes a high rate of poverty, financial hardship, social stress, and significant gaps in opportunities and well-being between Indigenous women.[43] It is the cause and consequences of the structural and institutional stereotyping, discrimination, and violence that indigenous women face from all sectors of society.[44]
The Committee notes that violence against Indigenous women is a global challenge that is rooted in colonisation and its continuing impact on masculinity and patriarchal society.[45] Indigenous Peoples are compelled to reside in states established and governed by the descendants of settler colonialists, such as in Australia, or states formed after the departure of the coloniser and governed by the elite of the predominant society in which the Author currently lives. Indigenous women experience discrimination, dispossession, and disempowerment. Indigenous peoples have been involuntarily displaced, their lands dispossessed, forests decimated, mountains exploited for resources, and valleys inundated by dam construction and flooding.[46]
In conclusion, The Committee views that all the experiences of the Author as an indigenous girl amount to the systematic failure of the State party to guarantee her fundamental right to life. The Author has lived in a rural area without access to basic needs, became a victim of rape by her father, and her request for abortion was unjustifiably denied by the State party. It breaches the State party’s obligation to guarantee the optimal development of the Author in physical, mental, spiritual, moral, psychological, and social aspects.
The Committee recalls General Comment Number 16 on the right to privacy under Article 17 ICCPR, which provides the right of every person to be protected against arbitrary or unlawful interference with their privacy. The ‘arbitrary interference’ can also extend to interference provided under the law.[47] It could be a form of legislation, such as the criminalisation of self-abortion in the State party’s legislation.
The Committee acknowledges that the right to privacy is not absolute. It can be limited if the interference is lawful and unarbitrary. However, the interference must be based on law, which must comply with the provisions, aims and objectives of protecting human rights under the ICCPR.[48] The Committee recalls General Comment Number 36 on the rights to life under the ICCPR, which the State party ratified,[49] saying that voluntary termination of pregnancy must not result in violation of the right to life. In fact, state parties must provide access to abortion.[50] The general comment even emphasises that criminalisation of self-abortion jeopardises women's and girls’ lives, subjects them to physical or mental suffering that violates the right to be free from torture, discriminates against them and arbitrarily interferes with their privacy.[51] Therefore, the ICCPR itself has stated that the criminalisation of abortion does not comply with the objective of protecting human rights. Moreover, the State party must provide safe abortion.
The Committee also highlights that Article 12 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which the State party ratified,[52] mandates the State Party to guarantee equal access to health care for pregnancy.[53] In more detail, General Recommendation Number 24 of CEDAW on the right to health suggests that the State party should amend the criminalisation and punitive measures against women who undergo abortions in response to unwanted pregnancies among women.[54]
In the case of rape, which the Author experienced, the Peruvian Demographic and Health Survey (DHS) in 2014 found that 3-5% of rape resulted in unwanted pregnancies.[55] Among American Women, the rape-related pregnancy rate is 5.0%.[56] Meanwhile, a recent study in the United States from July 2022 to January 2024 found 12,4% rape-related pregnancies in the 14 states that implemented total abortion bans.[57] The Committee concludes that providing abortion care in response to unwanted pregnancy constitutes an urgent State party’s obligation.
Apart from the consideration of human rights obligations, The Committee also notes the discourse that surrounds the criminalisation of abortion. The construction of the foetus as a separate entity operates to disembody women’s legal selfhood and impacts the autonomy of women. This is a myth that materialises women's bodies. Female bodies and embryonic bodies, in history, are given legal definitions using biomedical discourses, yet that definition is not fixed in "natural facts." Instead, it is fluid and contingent[58] and is not definitive. The criminalisation of self-abortion is an attack on the fundamental autonomy of a person.
The other political myth is the trimesterisation of a pregnancy, a categorisation of gestational age into three semesters, which in practice operates to limit abortion services. This trimesterisation is discursive and political, which is not naturally definitive.[59] It does not represent the universal experience of pregnancy.[60] World Health Organization (WHO) guidelines on safe abortion have also emphasised that methods of abortion vary within gestational age; pregnancies can safely be terminated regardless of gestational age. WHO highlights that gestational age limits are not evidence-based. The gestation age limit restricts the possibility of abortion in every stage of pregnancy based on the developing technology to save women’s lives.[61] Therefore, the Committee concludes that the criminalisation of abortion is a violation of privacy. It is a political discourse rather than grounded in scientific justification.
However, The Committee wants to add the element of how to guarantee the right of privacy related to abortion in this case. The Committee does not refer this privacy right to undergo abortion as a negative right without further actions from the state. In the discourse of privacy rights, abortion is considered as decisional privacy.[62] It contains elements of positive action from the government to guarantee the environment or conditions to enable individuals to exercise their autonomy,[63] in this case, in accessing abortion services. The Committee also applies an intersectional analytical framework to emphasise this section.
The Committee critically views that providing abortion is not only a matter of choice.[64] The Committee amplifies this argument urged by the Black and intersectionality feminist movement. Framing abortion as a matter of choice is a form of gentrification of the abortion movement.[65] Abortion must be viewed as a matter of justice.[66] It is because not every woman has the same choice to access abortion.[67] The power structure in social, economic, and political contexts does not give everyone the same choice. Framing abortion only as a personal matter will not provide protection and dignity to the oppressed group by the structure of power.[68] It must consider the aspect of social justice to prevent only privileged women from having the exclusive choices of abortion.[69] The State party must guarantee the environment or conditions to enable individuals, including women of colour and indigenous women, to exercise their autonomy to undergo abortion.
Moreover, the key element of privacy is the capacity for autonomy. Autonomy itself is socially and politically embedded[70] , as is the impact of the social nature of the self.[71] Not all people have the same identities, which impacts their social position and identification with other individuals[72] based on race, class, and gender. Therefore, not all individuals have the same autonomy to exercise their rights to privacy. Privacy cannot protect autonomy by separating the self from society.[73] The alienation of autonomy from social elements such as consideration of race, gender and class will undermine someone’s autonomy.[74]
Reflecting on the Author’s experiences, The Committee recalls the systematic attack on sexual autonomy towards Indigenous women. Throughout history, Indigenous women around the world have experienced rape,[75] slavery,[76] and forced sterilisation,[77] including genocide,[78] on the ground of the political narrative of eugenics policies as a part of colonisation.[79] This is a targeted attack on Indigenous women’s autonomy. Meanwhile, currently, with the ongoing impact of colonisation, the State party continues to attack the Author’s autonomy as an Indigenous woman by the practice of criminalisation of abortion and the systemic failure of the State party to guarantee her basic life needs, prevent her from being a victim of rape, and provide her with abortion service.
In conclusion, The Committee reiterates that the criminalisation of self-abortion is a violation of the right to privacy. It is an arbitrary and unlawful interference with the autonomy of women. The construction of the foetus as a separate entity is a myth, non-scientific, that disembodies women’s legal selfhood. Trimesterisation of a pregnancy that limits abortion access is also political, not naturally definitive. In guaranteeing access to abortion as a privacy right, The Committee demands the State party to frame abortion as a decisional privacy. Abortion is not merely an attack on personal choices.[80] The State party is obliged to guarantee an enabling environment and conditions to support the fulfilment of this right. This requires a rethinking of a system of justice.[81] It demands the state party’s active action guarantee justice to protect those who do not have equal autonomy, hindered by the system of power based on race, gender, and class.[82] The detailed state obligation’s consideration will be explained more in the following section.
The Committee notes that self-abortion constitutes a criminal offence in the State party unless it is a therapeutic abortion performed by a doctor with the consent of a pregnant person. However, an abortion is lawful only if there is a medical emergency or if less than 22 weeks gestation age and if there is approval by the medical board in the health facility.
The Committee recalls the General Comment Number 15 of 2013 on the right of a child to the enjoyment of the highest attainable standard of health under Article 24 (1) of the CRC. It mandates the State party to ensure that health systems and services can meet the specific sexual and reproductive health needs of adolescents, including safe abortion services.[83] This mandate is a response to the high rate of pregnancy among adolescents.[84]
Adolescent mothers face higher risks of eclampsia, puerperal endometritis and systemic infections, and babies of adolescent mothers face higher risks of low birth weight, preterm birth, and severe neonatal conditions.[85]
Access to safe abortion for adolescents must be guaranteed regardless of the legality of abortion.[86] The right of a child to give consent for abortion services under their evolving capacities is also guaranteed.[87] The Committee also reiterates the earlier point that criminalisation of abortion is a human rights violation and providing the service is a state-party obligation. Therefore, access must not be limited by the criminalisation of the gestation age limit or by the approval of the authority to determine abortion.
The Committee is concerned with this State party's current legal framework. Within Peruvian law, only doctors as medical board members can determine and perform an abortion.[88] It removes the autonomy of the pregnant persons. It is a form of the medicalisation of abortion, meaning that only a formal health system is authorised to approve and provide the service. It is a clinical-led service model, that is considered a form of liberalisation of abortion services, a middle-class preference, displacing abortion from community to clinic.[89]
Moreover, there was a prolonged problem of access to abortion through the formal health system in Peru; one of them was related to the personal preference of health workers to provide the services, which resulted in the lack of accountability for how the approval was given.[90] Notable cases were brought to the human rights complaint mechanism within the UN system.[91] In the case of KL v. Peru, a director of a hospital disapproved the abortion request, although there was a medical diagnosis of anencephaly in the foetus.[92] The Human Rights Committee criticised the unaccountable disapproval, which resulted in KL’s mental health disturbance. The state party was in omission of not enabling the KL to benefit from therapeutic abortion, while the detrimental health impact to KL was preventable.[93]
The problem of this medicalisation of abortion was also found in the case of LC v. Peru. The CEDAW Committee criticised the decision of the medical board of a hospital that denied the abortion for LC. LC was a minor who became a victim of rape; she also suffered from a disease that required her to undergo spine surgery. Her surgery was delayed by the medical board to purportedly protect her pregnancy. Because of this delay, she is paralysed.[94] The CEDAW Committee stated that the decision to postpone the surgery was due to the stereotype that the protection of the foetus should prevail over the health of the mother.[95]
The Committee is also concerned that even a decade after the issuance of the National Guidelines, the institutional problem of therapeutic abortion still occurs. A survey of 160 obstetrics and gynaecology specialists from 15 academic public hospitals in Peru found:
63.7% of them stated that the hospital where they work does not offer abortion training. Most of the participants consider that the position of the Peruvian government regarding therapeutic abortion is indifferent or deficient. The major limitations to providing therapeutic abortions included Peruvian law (53.8%), hospital policies (18.8%), and lack of experts (10.6%).[96]
Relying on the formal health system to provide abortion care is challenging not only for all women but also specifically for Indigenous women. The CEDAW Committee issued General Recommendation Number 39 (2022) on the rights of Indigenous women and girls. It emphasises that Indigenous women frequently experience difficulties in securing access to sexual and reproductive health services, including safe abortion.[97] This difficulty is caused by the fact that health facilities are inaccessible. Indigenous Peoples in Peru, on average, live eight hours away from health facilities.[98] There is also the prevalence of race biased attitudes of health workers toward indigenous communities.[99] Indigenous peoples commonly experience abusive treatment, stereotyping, and a lack of quality in the care provided,[100] including racism,[101] which discourages them from accessing the care.[102]
From these past cases, the institutional problems, and injustice experienced by the Indigenous communities, the Committee considers it necessary to generate a breakthrough measure as the State party’s obligation. The State party must review the current legal framework that limits abortion to only allowed under the approval of official doctors. The State party is obligated to guarantee services of safe abortion comprehensively.[103] This obligation cannot only be realised without the consideration of systemic inequality in the health care system faced by Indigenous women.
In response to this, abortion activism in Peru has demanded abortion care beyond the formal health care facility, promoting community empowerment[104] and self-managed services.[105] They develop Acompañantes, a community who are empowered to provide self-managed abortion. They provide accurate information about the service and give emotional support, legal guidance, and postabortion care.[106]
A self-managed abortion framework is a combination of technological developments with feminist strategies to ensure access to safe abortions beyond the state.[107] This movement is a critique of the medicalisation or liberalisation of abortion. It revives the indigenous practice of abortion. Midwives and homeopaths have provided abortion services since the mid-19th century; they have helped women restore their menstrual cycle with various natural ingredients made from herbs.[108]
Along with health technology development, the WHO acknowledges this similar service. Its new abortion guidelines introduce the medical self-managed abortion services. The protocol involves two drugs (mifepristone and misoprostol), which are recommended for use for abortion below 12 weeks of pregnancy. It is safe and does not require the involvement of doctors.[109] This service has been progressively accepted, especially during the Covid-19 pandemic, which has caused in-person health services to be immediately closed.[110]
The Committee concludes that the State party is not only obligated to decriminalise self-abortion in all conditions for all women, including Indigenous adolescents, but also evaluate the current ineffective of the therapeutic abortion system in the view to guarantee self-managed abortion services available for all pregnant persons.
* Committee on the Rights of the Child, Views No. [1]36/2021, UN Doc CRC/C/93/D/136/2021 (15 May 2023).
** The author would like to acknowledge the feedback and assistance of Professor Christine Forster.
1 The Author claimed the violation of rights: right to equality and non-discrimination (art 2), to life (art 6), to express those views freely in all matters affecting her, freedom of expression, to privacy, access to information and material from a diversity of sources, enjoyment of the highest attainable standard of health, free from torture or other cruel, inhuman or degrading treatment or punishment, physical and psychological recovery and social reintegration as a child victim, and to be treated in dignity and self-worth in a criminal process as alleged as, accused of, or recognised as having infringed the penal law. See Committee on the Rights of the Child, Views No. 136/2021, UN Doc CRC/C/93/D/136/2021 (15 May 2023), 1 (‘Camila v Peru’).
[2] Ibid [2.9].
[3] Luis Távara Orozco et al, ‘Barriers to Access to Safe Abortion in the Full Extent of the Law in Peru’ (2016) 62(2) Peruvian Journal of Gynecology and Obstetrics 2. <https://www.redalyc.org/journal/3234/323446799003/html/#redalyc_323446799003_ref2>.
[4] Peru Ministry of Health, Decision No. 486-2014/MINSA [6.2.2] – [6.2.5] <https://cdn.www.gob.pe/uploads/document/file/201667/198435_RM486_2014_MINSA.pdf20180926-32492-173opqg.pdf?v=1594243299>.
[5] Camila v Peru, UN Doc CRC/C/93/D/136/2021 (n 1) [8.7].
[6] Ibid [8.13].
[7] Diana Majury, ‘Introducing the Women’s Court of Canada’ (2006) 18(1) Canadian Journal of Women and the Law 1, 2.
[8] Rosemary Hunter, Claire McGlynn and Erika Rackley (eds) Feminist Judgments: From Theory to Practice (Hart Publishing, 2010).
[9] Heather Douglas et al (eds) Australian Feminist Judgments: Righting and ReWriting Law (Hart Publishing, 2014).
[10] Kathryn M Stanchi, Linda L Berger and Bridget J Crawford (eds) Feminist Judgments: Rewritten Opinions of the United States Supreme Court (Cambridge University Press, 2016).
[11] Elisabeth McDonald et al (eds) Feminist Judgments of Aotearoa/New Zealand: Te Rino - A Two-Stranded Rope (Hart Publishing, 2017).
[12] Sharon Cowan, Chloë Kennedy and Vanessa E Munro (eds) Scottish Feminist Judgments: (Re)Creating Law from the Outside In (Hart Publishing, 2019).
[13] Aparna Chandra, Jhuma Sen and Rachna Chaudhary, ‘Introduction: The Indian Feminist Judgements Project’ (2021) 5(3) Indian Law Review 261–4; Rachna Chaudhary, ‘Rewriting Charu Khurana and Others v. Union of India and Others for the Indian Feminist Judgments Project: Some Reflections’ (2023) 14(4) School of Human Studies <https://www.scielo.br/j/rdp/a/JmWfjb5g87fbRYYPbLgZ9mw/?format=pdf&lang=en>
[14] Vanessa E Munro, ‘Feminist Judgments Projects at the Intersection’ (2020) 29 Feminist Legal Studies 2. <https://www.pure.ed.ac.uk/ws/portalfiles/portal/154770394/MunroEtalFLS2020FeministJudgmentsProjects.pdf>
[15] Rosemary Hunter, ‘Can Feminist Judges Make a Difference?’ (2008) 15 International Journal of the Legal Profession 7; Rosemary Hunter, ‘Feminist Judging in the “Real World”’ (2018) 8(9) Onati Socio-Legal Series 1275.
[16] Kristin Kalsem, ‘Feminist Judging: Theories and Practices’ in Deborah Brake, Martha Chamallas and Verna L Williams (eds), The Oxford Handbook of Feminism and Law in the United States (Oxford University Press, 2022) 521.
[17] Catharine A MacKinnon, ‘Introduction: The Art of the Impossible’ in Feminism Unmodified (Harvard College, 1987) 1, 5.
[18] David Podmore and Anne Spencer, ‘The Law as a Sex-Typed Profession’ (1982) 9(1) Journal of Law and Society 21–4.
[19] Fareda Banda and Catharine A MacKinnon, ‘Sex, Gender, and International Law’ (2006) 100 Proceedings of the Annual Meeting (American Society of International Law) 246–7.
[20] Jennifer S Hunt, 'Diversity and Bias in Legal Decision-Making: Broadening Frameworks and Addressing Overlooked Issues' in Monica K Miller, Logan A Yelderman, Matthew T Huss and Jason A Cantone (eds), in The Cambridge Handbook of Psychology and Legal Decision-Making (Cambridge University Press, 22 February 2024) 32–7.
[21] Linda L Berger, Kathryn M Stanchi and Bridget J Crawford, ‘Learning from Feminist Judgments: Lessons in Language and Advocacy’ (2019) Scholarly Works 1271, 41.
[22] Heather Douglas et al, ‘Introduction: Righting Australian Law’ in Heather Douglas et al (eds), Australian Feminist Judgments: Righting and Rewriting Law (Hart Publishing, 2014) 8.
[23] Ibid 34.
[24] Erika Rackley, Women, Judging and the Judiciary: From Difference to Diversity (Routledge, 2013) 69.
[25] Angela P Harris, ‘Race and Essentialism in Feminist Legal Theory’ (1990) 42(3) Stanford Law Review 585.
[26] Koa Beck, ‘Separate but Unequal: How “Feminism” Officially Became White’ in White Feminism: From the Suffragettes to Influencers and Who They Leave Behind (Atria Books, 2021) 25–37.
[27] Bell hooks, Feminist Theory: From Margin to Center, (Routledge, 2015) 4–5.
[28] Kalsem (n 16).
[29] Studies area that become the focus of intersectionality feminist analytical framework are race, class and gender. See Patricia Hill Collins and Sirma Bilge, Intersectionality (Polity Press, 2016) 80–1.
[30] Naomi Braine, Abortion beyond the Law: Building a Global Feminist Movement for Self-Managed Abortion (Verso, 2023) 10–2.
[31] Committee on the Rights of the Child, General Comment No. 5: General Measures of Implementation of the Convention on the Rights of the Child, 44th sess, UN Doc CRC/GC/2003/5 (2003) (27 November 2003) 4.
[32] Ibid.
[33] Christine A. Littleton, ‘Feminist Jurisprudence: The Difference Method Makes’ (1989) (Book Review) 41 St. Louis University Law Review 751.
[34] Angela Harris and Zeus Leonardo, 'Intersectionality, Race-Gender Subordination, and Education' (2018) 42(1) Review of Research in Education 4-5.
[35] Harris, (n 25).
[36] Wilson Center Latin American Program, ‘Prevalence of Violence Against Women Among Peruvian Ethnic Groups’ (Publication Data, 2018) <https://www.wilsoncenter.org/sites/default/files/media/documents/publication/ethnic_groups_peru_eng.pdf>;Jorge M. Agüero ‘Prevalence of Violence against Women among Different Ethnic Groups in Peru’ (Publication Data, Inter-American Development Bank, July 2018), 19-26, <https://publications.iadb.org/en/prevalence-violence-against-women-among-different-ethnic-groups-peru#:~:text=About%20half%20of%20Peruvian%20women,ethnic%20group%20and%20over%20time.>
[37] Camila v Peru, UN Doc CRC/C/93/D/136/2021 (n 1) [2.1].
[38] Statistia Research Department ‘Share of indigenous population living in poverty in Peru from 2005 to 2022’ (Data, Statistia, November 2023) <https://www.statista.com/statistics/1289352/share-indigenous-population-living-poverty-peru/#:~:text=Peru%20had%2C%20in%202022%2C%20almost,the%20poverty%20line%20as%20well.>
[39] World Bank, 'Understanding Poverty: Indigenous People, Context' (6 April 2023), <https://www.worldbank.org/en/topic/indigenouspeoples>
[40] Ibid.
[41] Maia C Behrendt, 'Settler Colonial Origins of Intimate Partner Violence in Indigenous Communities' (2022) Sociology Theses, Dissertations, & Student Research Sociology, Department of, University of Nebraska <https://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1081&context=sociologydiss>
[42] Kimberly L Gammage , Cathy van Ingen and Kirina Angrish, ‘Measuring the Effects of the Shape Your Life Project on the Mental and Physical Health Outcomes of Survivors of Gender-Based Violence' (2022) 28(11) Violence Against Women 2722–41; Bushra Sabria and Douglas A. Granger 'Gender-based violence and trauma in marginalized populations of women: Role of biological embedding and toxic stress' (2018) 39(9) Health Care for Women International 1038–155.
[43] Reem Alsalem, Report of the Special Rapporteur on Violence Against Women, Its Causes and Consequences, UN Doc A/HRC/50/26 (21 April 2022), [24].
[44] Ibid.
[45]Angela Wei, YangBo Zhang (Emma), Emma Robertson, Jeremy Steen, Christopher Mushquash, Christine Wekerle, 'Global Indigenous Gender Concepts, Gender-based Violence and Resilience: A scoping review' (2024) 148:106185 Child Abuse and Neglect 10.
[46] Signe Leth, 'Violence against Indigenous Women: A Global Challenge' (The International Work Group for Indigenous Affairs IWGIA report, 25 July 2022) <https://www.iwgia.org/en/news/4863-violence-against-indigenous-women-a-global-challenge.html>
[47] Human Rights Committee, General Comment No. 16: Article 17 (Right to Privacy), 32nd sess, UN Doc HRI/GEN/1/Rev.9 (Vol. I) (8 April 1988) [4].
[48] Ibid [3].
[49] OHCHR, ‘View the ratification status by country or by treaty: Peru’ (webpage, no date) <https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=136&Lang=EN>
[50] Human Rights Committee, General Comment No. 36: Article 6 - Right to Life UN Doc CCPR/C/GC/36 (3 September 2019) [8].
[51] Ibid.
[52] OHCHR (n 49).
[53] Convention on the Elimination of All Forms of Discrimination against Women, adopted and opened for signature, ratification and accession 18 December 1979 (entry into force 3 September 1981) art 12(1)(2).
[54] Committee on the Elimination of Discrimination against Women, General Recommendation No. 24: Article 12 of the Convention (Women and Health), 12th sess, UN Doc A/54/38/Rev.1, chap. I art.13(c).
[55] Camila Gianella, 'Debating Rape-Related Abortion in Peru' (webpage Center for Health and Human Rights 28 October 2014, Harvard University) <https://fxb.harvard.edu/2014/10/28/blog-debating-rape-related-abortion-peru/>
[56] Melisa M Holmes et al 'Rape-related pregnancy: estimates and descriptive characteristics from a national sample of women' (1996) 175(2) American Journal of Obstetrics and Gynecology 320–4 .
[57] Dickman, Samuel L et al, ‘Rape-Related Pregnancies in the 14 US States With Total Abortion Bans’ (2024) 184(3) JAMA internal medicine 331.
[58] Isabel Karpin and Roxanne Mykitiuk, 'Feminist Legal Theory as Embodied Justice' in Martha Fineman (eds), Transcending the Boundaries of Law: Generations of Feminism and Legal Theory (Routledge, 2011) 122.
[59] Barbara Baird and Erica Millar, 'Abortion at the Edges: Politics, Practices, Performances' (2022) 80:102372 Women's Studies International Forum 5.
[60] Ibid.
[61] World Health Organization, Abortion Care Guideline (World Health Organization, 2022) 28.
[62] Michele Estrin Gilman, 'Feminism, Privacy and Law in Cyberspace' in Deborah L. Brake, Martha Chamallas, and Verna L. Williams (eds), Oxford Handbook of Feminism and Law in the U.S. (forthcoming 2021). 3-4.
[63] Georgina Dimopoulos, 'Re-thinking Privacy in Australia in the Wake of Dobbs v Jackson Women’s Health Organization' (2022) 28:2-3 Australian Journal of Human Rights 428.
[64] The US Supreme Court judgment Roe v. Wade classified abortion right in the first trimester as a personal choice: Roe v. Wade, Syllabus, [1973] USSC 43; [1973] 410 US 113 (1973) 153-155; Rebecca Petchesky, Abortion and Woman's Choice: The State, Sexuality, and Reproductive Freedom (Northeastern University Press, 1984) 289–94.
[65] Jessie Kindig, Introduction, in Natalie Adler, Marian Jones, Jessie Kindig, Elizabeth Navarro, Anne Rumberger (eds), We Organize to Change Everything: Fighting for Abortion Access and Reproductive Justice (Verso Reports and Lux Magazine, June 2022). Epub, 9-10.
[66] Ibid.
[67] Ibid.
[68] Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty, ( Pantheon Books,1997), 309–10.
[69] Loretta Ross, et al ‘Centering Reproductive Justice: Transitioning from Abortion Rights to Social justice.” in L. J. Ross, & L. Roberts (eds), Radical Reproductive Justice: Foundation, Theory, Practice, Critique. (Feminist Press at CUNY, 2017), 174.
[70] Ibid.
[71] Joseph L Cohen, Configuring the Networked Self: Law, Code, and the Play of Everyday Practice (Yale University Press, 2012) 110.
[72] Michael Sandel, Liberalism and the Limits of justice (Cambridge: Cambridge University Press, 1982) in Dorota Mokrosinska, 'Privacy and Autonomy: On Some Misconceptions concerning the Political Dimensions of Privacy' (2018) 37(2) Law and Philosophy 121.
[73] Dorota Mokrosinska, 'Privacy and Autonomy: On Some Misconceptions concerning the Political Dimensions of Privacy' (2018) 37(2) Law and Philosophy 123.
[74] Ibid. 122.
[75] Judy Atkinson, Violence in Aboriginal Australia: Colonisation and Gender (1990) 14(2) Aboriginal and Islander Health Worker Journal 11-12.
[76] Kindig (n 65) Epub, 82.
[77] Sanjana Manjeshwar, ‘America’s Forgotten History of Forced Sterilization’, (webpage, Berkeley Political Review, November 4, 2020). <https://bpr.studentorg.berkeley.edu/2020/11/04/americas-forgotten-history-of-forced-sterilization/>
[78] Irene Watson, 'The Aboriginal Tent Embassy 28 Years After it was Established: Interview with Isobell Coe' [1998] IndigLawB 7; [2000] 48(1) Indigenous Law Bulletin 17.
[79] Aileen Moreton-Robinson, Talkin Up to the White-women: Aboriginal-women and Feminism (University of Queensland Press: 2000), 33-43.
[80] Berta E Hernandez, 'To Bear or Not to Bear: Reproductive Freedom as an International Human Right' (1991) 17 Brooklyn Journal of International Law 325-343.
[81] Karpin and Mykitiuk (n 58) 129.
[82] Roberts (n 68) 309–10.
[83] Committee on the Rights of the Child, General comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health (art. 24), 62nd sess, UN Doc CRC/C/GC/15 (17 April 2013) [56].
[84] Ibid.
[85] World Health Organization, 'Adolescent Pregnancy' (2 June 2023) <https://www.who.int/news-room/fact-sheets/detail/adolescent-pregnancy.>
[86] Committee on the Rights of the Child (n 83) [70].
[87] Ibid [31].
[88] Human Rights Watch, ‘V. Obstacles to Therapeutic Abortion’ <https://www.hrw.org/reports/2008/peru0708/5.htm>
[89] Barbara Baird, “Somebody Was Going to Disapprove anyway”: Re-thinking Histories of Abortion in South Australia, 1937 – 1990’, PhD thesis, Flinders University, 1998, 293; Baird and Millar (n 59) 2.
[90] Human Rights Watch, My Rights, and My Right to Know: Lack of Access to Therapeutic Abortion in Peru (Research Report, 8 July 2008) <https://www.hrw.org/report/2008/07/08/my-rights-and-my-right-know/lack-access-therapeutic-abortion-peru>
[91] Human Rights Committee, Views Communication No. 1153/2003, 85th sess,UN Doc CCPR/C/85/D/1153/2003 (22 November 2005) (‘KL v Peru’); Committee on the Elimination of Discrimination against Women, Views Communication No. 22/2009, 15 sess, UN Doc CEDAW/C/50/D/22/2009 (4 November 2011) (‘LC v Peru’).
[92] Human Rights Committee, Views Communication No. 1153/2003, 85th sess,UN Doc CCPR/C/85/D/1153/2003 (22 November 2005) (‘KL v Peru’) [2.3]
[93] Ibid [6.2] – [6.3],
[94] Committee on the Elimination of Discrimination against Women, Views Communication No. 22/2009, 15 sess, UN Doc CEDAW/C/50/D/22/2009 (4 November 2011) (‘LC v Peru’) 8.18].
[95] Ibid [8.15].
[96] Juan Matzumura, Hugo Gutierrez-Crespo, Enrique Guevara, Luis Meza, and Mauricio La Rosa, 'Support Systems and Limitations in Therapeutic Abortion Care by the Gynecologist-Obstetrician of Public Hospitals in Peru' (2022), 44(6) Revista brasileira de ginecologia e obstetrićia 560–66.
[97] Committee on the Elimination of Discrimination against Women, General Recommendation No. 39 (2022) on the Rights of Indigenous Women and Girls, UN Doc CEDAW/C/GC/39 (31 October 2022) [51].
[98] Akram Hernández-Vásquez, Guido Bendezu-Quispe, and Efrain Y. Turpo Cayo, 'Indigenous Communities of Peru: Level of Accessibility to Health Facilities' (2022) 17(5) Journal of Taibah University Medical Sciences <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9396069/>
[99] Committee on the Elimination of Discrimination against Women UN Doc CEDAW/C/GC/39 (n 97).
[100] Annette J Browne and Jo-Anne Fiske, ‘First Nations Women’s Encounters with Mainstream Health Care Services’ (2001) 23(2) Western Journal of Nursing Research 126–47.
[101] Billie Allan, and Janet Smylie, ‘First Peoples, Second Class Treatment: The Role of Racism in the Health and Well-being of Indigenous Peoples in Canada’ (Toronto: Wellesley Institute, 2015) 9-11.
[102] Andrew Leyland, et al, ‘Health and Health Care Implications of Systemic Racism on Indigenous Peoples in Canada: Indigenous Health Working Group’ [Fact sheet] (The College of Family Physicians of Canada, 2016). 2-3.
[103] Committee on the Elimination of Discrimination against Women UN Doc CEDAW/C/GC/39 (n 97) [52(b)].
[104] Deirdre Niamh Duffy, Cordelia Freeman, and Sandra Rodríguez Castañeda, 'Beyond the State: Abortion Care Activism in Peru' (2023) 48(3) Journal of Women in Culture and Society 624-627.
[105] World Health Organization (n 61), 2-3, 12.
[106] Suzanne Veldhuis, Georgina Sánchez-Ramírez, and Blair G. Darney, "'Becoming the Woman She Wishes You to Be': A Qualitative Study Exploring the Experiences of Medication Abortion Acompañantes in Three Regions in Mexico" (2021) Contraception 109, 39–44.
[107] Braine (n 30) 10-12.
[108] Lizzie Presser “Maybe Abortion Isn’t as Complicated as We’ve Been Led to Believe The Underground Network of Midwives, Herbalists, Nurses, and Activists Providing Home Abortions across America” in Natalie Adler, Marian Jones, Jessie Kindig, Elizabeth Navarro, Anne Rumberger (eds.), We Organize to Change Everything: Fighting for Abortion Access and Reproductive Justice (Verso Reports and Lux Magazine, June 2022) epub, 153.
[109] World Health Organization (n 61) 98-100.
[110] Baird and Millar (n 59) 1-2.
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