Macedonian court backs restrictive abortion law, overrules NGO challenge

28th November 2014
H.E.R.A signing gender platform declaration

In June 2013, the Republic of Macedonia’s Parliament rushed through a restrictive new law on the termination of pregnancy. This month, the Constitutional Court refused an appeal by civil society organisations and human rights groups. The majority of Constitutional judges appear to have made their decision on the basis of personal convictions about abortion. Macedonian women’s human rights are at stake, explains Bojan Jovanovski, Executive Director of H.E.R.A (Health Education and Research Association), IPPF’s Macedonian member association.

“The 2013 law puts women’s lives and health at potentially serious risk. It hampers their constitutionally guaranteed right to decide freely on the matter of conceiving children and terminating a pregnancy. Restrictive provisions include compelling women to file a written request with the appropriate health institution if they wish to terminate a pregnancy. The law also includes mandatory counselling about the potential advantages of continuing the pregnancy. The woman then faces a compulsory waiting period of three days before any medical intervention can be carried out.

In September 2013, H.E.R.A. filed a request to challenge the law in Macedonia’s Constitutional Court, together with a group of allies:  the Helsinki Committee for Human Rights, Sexual and Health Rights of Marginalized Communities, Reactor-Research in Action, and Law Professor Karolina Ristova-Asterud from the Ss. Cyril and Methodius University in Skopje.

In October 2014, the Court reached a majority decision that the 2013 law did not obstruct women’s right to choose to terminate a pregnancy, and rejected the appeal.  It considered that the new law neither prohibits abortion nor questions the freedom of a woman’s decision, but rather that it simply regulates the procedure and leaves it to professionals from the hospitals and the commissions (expert committees) to decide on next steps.

Court decision based on personal beliefs and fears

Instead of providing legal arguments, many of the Constitutional judges used their own personal beliefs, experiences and fears as a basis for their decision. Their statements contained a shared view that abortion is “murder”, and a debate ahead of the decision highlighted moral considerations about relationships between parents and children, and abortion and infidelity. Some of the judges also criticised “liberal values”, and the “threat” posed by same-sex marriages to national existence.

Denial of women’s reproductive rights

Meanwhile, restrictions imposed by the new law have already begun to put the health and lives of pregnant women who want to terminate their pregnancy at serious risk. H.E.R.A. has gathered information about several cases of brutal violations of reproductive rights, including one woman carrying a dead foetus who was forced to wait for three days for an abortion because gynaecologists insisted on the mandatory waiting period although the woman’s life was at risk.

In another case, a woman who was carrying a foetus diagnosed with serious malformations was not allowed to choose an abortion as her health was not judged to be directly under threat. This woman went through a humiliating process in which a counsellor tried to persuade her to keep the baby by saying that it “may not be beautiful, but it will be intelligent”. This example shows the biased, non-medical and non-professional character of the mandatory counselling. It also shows that the procedure for terminating the pregnancy is not being properly and fairly implemented. When the pregnant woman wanted to file her request for the termination, she was told that the form did not exist and that she had to create her own because the hospital had not received guidance on the form and content from the Ministry of Health, as laid down in the law.

Another barrier is posed by the dysfunctional organisation of the bodies responsible for granting access to the termination of pregnancy after 10 weeks. According to the law, a primary commission (expert committee) should decide on submitted requests for termination of pregnancy after the 10th week. But in the case above, even after the woman managed to file a request on her own, the primary commission made no decision and forwarded it to a secondary commission, which should be appointed by the Minister of Health. The bureaucratic process took a long time. Eventually, the secondary commission and the Health Minister himself decided that the legal terms for abortion were not met and refused to allow the termination of the pregnancy, even though the woman still legally had the right to access the procedure. This case shows the law’s aim of limiting and obstructing women’s right to decide freely even in the second trimester due to personal circumstances.

The NGOs’ position was echoed by Judge Natasha Gaber Damjanovska, who opposed the Court’s decision. She stressed that “this law places administrative obligations on pregnant women and restricts their right to decide for themselves. It is discriminatory to force a woman to ask for permission for something that is really intimate and sensitive and concerns her physical integrity. There is no such process for any other medical intervention. Should a rape victim really have to ask for a confirmation document from a public prosecutor? Should a woman carrying a dead foetus be forced to wait 3 days for written permission? Should a girl under 18 have to get permission from her parents?”

The landscape in Macedonia clearly remains very challenging. But H.E.R.A., together with its partners, will continue to fight for women’s abortion rights by monitoring the implementation of the law, raising public awareness about women’s right to choose, collecting individual cases/testimonies and using domestic and international human rights mechanisms to defend women’s rights.”