Appendix "A"

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A.1 The ultimate goal of the U.S.-based Center for Reproductive Rights is to establish what it calls "hard norms" - treaty-based international laws150- that recognize access to abortion as a fundamental human right.151 It plans to develop a "culture of enforcement" that will compel governments to respect this 'right'152 and enforce it against third parties - physicians and other health care workers.153 Even as it works toward this end, it is cultivating "soft norms" in the form of statements by international, regional, and intergovernmental bodies.154

A.2 Professor Bernard M. Dickens appears to follow this strategy in a standard text, Canadian Health Law and Policy. In his chapter on Informed Consent, addressing the topic of conscientious objection and disclosure of relevant information to a patient, he notes that Canada has ratified the 1998 Treaty of Rome constituting the International Criminal Court. Within the context of a discussion of the refusal of physicians or institutions to advise women about the availability of the morning after pill "in order to oblige continuation of any pregnancy that may occur," he continues:

Articles 7 and 8 of the treaty characterize forced pregnancy following rape as a crime against humanity and as analogous to torture. Human rights commissions may share this view, reinforcing their concerns about non-disclosure constituting both discrimination against women and inhuman and degrading treatment. Accordingly, the right to object to perform or immediately participate in medical procedures on grounds of conscience carries no parallel right to refuse to inform those eligible to receive these procedures where or how they are practically accessible.155

A.3 The goal here is clear enough. Readers of Canadian Health Law and Policy are to be persuaded that a health care worker who declines, for reasons of conscience, to direct a patient to the morning after pill or abortion commits the offence of "forced pregnancy." The passage is meant to convince them that, if this is not actually a crime against humanity analogous to torture, it is at least a gross violation of human rights that ought to be prosecuted by human rights commissions.

A.4 Dickens here glosses over the distinction between "forced pregnancy following rape" (the subject of the Treaty) and his broader claim concerning a "medically indicated procedure" (the subject of his essay). Moreover, while he asserts only a duty of disclosure, the logic of his argument implies (as he argues elsewhere) that there is a similar duty to refer or otherwise facilitate the procedure.

The Treaty of Rome: "forced pregnancy" and "torture"

A.5 What first attracts critical attention is that Dickens refers to the Treaty of Rome in his text, but actually cites a different document as authority for his claim that "forced pregnancy following rape" is "a crime against humanity. . . analogous to torture."156 Why cite a secondary source rather than the Treaty itself?

A.6 A review of the Treaty157 suggests one possible answer. The Treaty does not support Dickens' claims. Specifically:

• In order to constitute a crime against humanity or war crime, the offence of "forced pregnancy" must be "committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack" [Art. 7(1)], or during war [Art. 8(2)b]

• Pregnancy is only "forced" within the meaning of the Treaty if a woman is unlawfully confined after having been raped "with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law." [Art. 7(2)f; Art. 8(2)b(xxii)]

• The definition of "forced pregnancy" must not "in any way be interpreted as affecting national laws relating to pregnancy," which include laws restricting or prohibiting abortion [Art. 7(2)f]

• "Torture" is not, at any point in the Treaty, associated with pregnancy, whether forced or not. It is specifically defined as "the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused." [Art 7(2)e]

The Elements of Crimes: "forced pregnancy" and "torture"

A.7 The Elements of Crimes simply confirms the provisions of the Treaty, both with respect to torture and "forced pregnancy." The document adds nothing that even remotely suggests that conscientious objection to medical procedures or services could be a crime against humanity, or that it is analogous to torture. Again: why cite this document in preference to the Treaty of Rome?

A.8 Perhaps the answer lies, not in what The Elements of Crimes includes, but in what it leaves out. It leaves out reference to the Treaty provision that recognizes the right of states to restrict or prohibit abortion by law, which is not relevant to the purpose of the document [Art. 7(2)f]. But the provision is highly relevant to Dickens' claim that delaying access to abortion is a violation of human 'rights,' since it flatly contradicts the notion that abortion is a human 'right.'

What else has been left out

A.9 Neither the Treaty of Rome nor The Elements of Crimes associates "forced pregnancy," even as it is defined by the Treaty, with torture. It is grouped with "rape, sexual slavery, enforced prostitution . . . enforced sterilization, or any other form of sexual violence of comparable gravity," but not with torture [Art. 7(1)g]. Nonetheless, Professor Dickens somehow manages to conclude that the documents "characterize forced pregnancy following rape . . .as analogous to torture."

A.10 The only possible explanation for this is that Professor Dickens considers "forced pregnancy" analogous to torture because both are included among the crimes against humanity listed in Article 7(1) of the Treaty. On this basis, then, every crime in the list is analogous to all of the others, so that "forced pregnancy" is analogous not only to torture, but to murder, forcible transfers of population, enforced disappearance of persons and apartheid, while murder is analogous to unlawful imprisonment, deportation, etc. If this is how Professor Dickens arrived at his singular conclusion, it is an open question whether his reasoning does a greater disservice to the law or to the English language.

A.11 In any case, the Treaty itself has something to say about analogy:

The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted. [Art. 22(2)]

Thus, the kind of extension of meaning advocated by Professor Dickens is expressly prohibited by the Treaty. This, too, Professor Dickens leaves out of his essay.

Summary

A.12 Professor Dickens very selectively borrows terms from the Treaty of Rome. He arranges his material to make it appear that conscientious objection that delays access to the morning after pill or abortion is actually or very nearly a crime against humanity analogous to torture, or, at least, an egregious violation of human rights.

A.13 In addition to selective borrowing, Dickens leaves out everything necessary for a proper understanding of the Treaty of Rome, which, incidentally, includes everything that might cause a reader to question his claims. Finally, he directs the reader not to the Treaty, which includes a provision that is arguably fatal to his thesis, but to a document that omits the provision.

A.14 Professor Dickens' polemic seamlessly weaves the agenda of the Center for Reproductive Rights into a standard Canadian reference work. There is no doubt that this is advantageous to the Center and its allies, but it brings into question the reliability of Canadian Health Law and Policy. Perhaps it is time for a third and more carefully revised edition of the book.

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