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NICARAGUA: Total Ban on Abortion Violates Human Rights, Says UN

José Adán Silva

MANAGUA, May 28 2009 (IPS) - The United Nations Committee against Torture (CAT) described the criminalisation of abortion under any circumstances in Nicaragua as a violation of human rights.

At its 42nd session in Geneva, the CAT expressed its profound concern about Nicaragua’s strict ban on abortion, urging the government to repeal the 2006 law that banned therapeutic abortion and to make its legislation on abortion more flexible, especially in cases of rape or incest.

In October 2006, the Nicaraguan parliament approved a draft law to revoke article 165 of the criminal code, which had permitted abortion for medical reasons since 1893.

Under that law, therapeutic abortion had been legal in cases where the mother’s life was in danger, the foetus was deformed, or the pregnancy was the result of rape or incest. It required certification by at least three doctors, and authorisation by the pregnant woman or her family.

Nicaragua thus became one of the few countries in the world where abortion is illegal even under such circumstances, joining Chile, El Salvador and the Dominican Republic in Latin America, and Malta and the Philippines in the rest of the world.

In its May 14 report on Nicaragua, the CAT said the ban on abortion for rape and incest victims condemns them to constant exposure to the violations they have suffered and subjects them to serious traumatic stress and the risk of prolonged psychological problems like anxiety or depression.

The ban on therapeutic abortion was passed by Congress with the support of the two leading parties, the leftwing Sandinista National Liberation Front (FSLN) and the then governing rightwing Liberal Constitutional Party (PLC), in the midst of the 2006 election campaign in which current President Daniel Ortega returned to office again.

Women’s rights organisations say the veteran Sandinista leader forged a pact with the Catholic Church and evangelical groups to back the strict ban on abortion for the purpose of gaining votes.

Analysts concur that Ortega’s return to power was facilitated by a political-religious pact with Cardinal Miguel Obando y Bravo, who has chaired a government commission on reconciliation, peace and justice since retiring as archbishop of Managua.

Ortega governed Nicaragua from 1979 to 1990, first as a member of the ruling junta established by the Sandinista guerrillas after the revolution that toppled the Somoza family dictatorship, and after 1985, as democratically elected president. During that period, Obando y Bravo was a leading opponent of the Sandinista government.

In its report, the CAT urged Nicaragua to decriminalise therapeutic abortion, as recommended by the United Nations Human Rights Council, the Committee on the Elimination of Discrimination against Women (CEDAW) and the United Nations Committee on Economic, Social and Cultural Rights. More specifically, it asked the country to study the possibility of allowing exceptions to the general ban on abortion in cases of risk to the mother’s life and pregnancies resulting from rape or incest, in line with World Health Organisation (WHO) directives.

The Health Ministry, the Office of the Prosecutor for the Defence of Human Rights, the Nicaraguan Women’s Institute, and the Communication and Citizenship Council (CCC) headed by First Lady Rosario Murillo declined to respond to IPS requests for comment on the CAT report.

For its part, the archbishop’s office in Managua told IPS that the Catholic Church’s stance on abortion is immovable.

The Autonomous Women’s Movement, a local NGO that has played a leading role in the struggle to decriminalise therapeutic abortion, said the CAT report amounts to an “international condemnation of Nicaragua.”

“The Committee has stated that the penalisation of abortion under all circumstances, without exception, violates the legal status of women by not allowing them to save their own lives or reduce the risk to their physical or psychological health,” Juana Jiménez, the head of the Movement, commented to IPS.

Jiménez said the position expressed by the CAT supported the women’s groups in Nicaragua who have protested the total ban on abortion as a politically motivated measure that “runs counter to conventions on human rights and the rights of women.”

The Autonomous Women’s Movement was one of the civil society organisations that drafted a document delivered to the CAT expressing their concerns and arguing that the ban on therapeutic abortion “contains all of the elements of torture as specified in article 1 of the Convention against Torture.”

Dozens of women’s rights groups, doctors’ associations and human rights organisations have demanded that the Supreme Court declare the strict ban on abortion unconstitutional.

But the groups that have brought legal action complain that the case is stalled in the Supreme Court.

In April, the vice president of the Supreme Court, Justice Rafael Solís, announced that a draft ruling existed to decriminalise therapeutic abortion, in response to the dozens of lawsuits brought by civil society groups.

The announcement apparently formed part of a shift in Ortega’s relations with the Catholic Church leadership, with which he was at loggerheads because the Church joined its voice to accusations that the FSLN committed fraud in the November 2008 municipal elections.

But this month, Solís said there had been a change, and that the issue would not be resolved at this time. The judge said relations between the Ortega administration and the Church had improved.

Supreme Court magistrate Sergio Cuarezma, who has close ties to the rightwing opposition, told IPS that there is no draft ruling favourable to repealing the ban on therapeutic abortion. But he did not comment on the CAT report.

Since Ortega took office in January 2007, he has clashed with local women’s rights groups and other NGOs, which he accuses of being “agents of the empire” (the United States) and of conspiring against his government.

Women’s rights activist Jiménez said the authorities should urgently adopt the recommendations of the CAT, “because to be singled out for committing torture against women, who represent more than half of the population of Nicaragua, brings a risk of being classified internationally as a state that violates human rights.”

The Convention on which the CAT is based defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”

“The law against therapeutic abortion amounts to torture,” said Jiménez. “It causes pain and suffering, was imposed for a specific reason, is intended to intimidate or coerce women and doctors, attempts to impose a religious belief at the cost of health – even though the country is secular according to the constitution – and is imposed as a state policy,” she argued.

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