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Roe at 40 Podcast Series: Interview with Viviana Waisman

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Viviana Waisman

In the third installment of our podcast series examining the state of the reproductive health, rights, and justice movement in the United States on the occasion of the 40th anniversary of Roe v. Wade, we talk to Viviana Waisman, executive director of Women’s Link Worldwide. In recognition of International Women’s Day and the struggle for gender and reproductive justice throughout the world, she explains some of the successful strategies she has employed to enforce human-rights standards before a number of foreign and international courts and shares lessons that advocates around the world can adopt. 

Jessica Arons: My name is Jessica Arons, and I am the Director of the Women’s Health and Rights program here at the Center for American Progress. I am joined today by Viviana Waisman, who is the executive director and co-founder of Women’s Link Worldwide, a nonprofit organization that strives to advance women’s rights through the implementation of international human rights standards and strategic litigation. Viviana is an attorney and an expert in women’s rights and international human rights law.

Thank you very much for joining us today.

Viviana Waisman: Thank you so much for having me.

JA: We recently celebrated International Women’s Day and Viviana happened to be here in Washington, D.C., because of a case before the Inter-American Court [of Human Rights]. So this seemed like the perfect opportunity to have a conversation that connects human rights, U.S. constitutional law, and reproductive rights.

Viviana, can you tell us a little bit more about Women’s Link and its mission? How do you use international jurisprudence to promote gender justice, especially in the area of reproductive rights?

VW: Women’s Link is an international human rights organization. We work, as you said, strategically with the courts to advance gender equality. We have two offices: one in Bogota, Colombia, and one in Madrid, Spain. And from those offices we do global work on women’s rights issues, both in English and in Spanish.

We work predominantly in Latin America, Europe, and East Africa right now. And what we do is we use both comparative law and international human rights standards to advance rights, with a special focus on reproductive rights and abortion.

JA: Can you tell us how international precedent in this area of the law compares to the doctrine adopted by the U.S. Supreme Court in Roe v. Wade, and are the international and U.S. trends convergent or divergent?

VW: Yes. It’s a very interesting question. As I stated before, we work very much with comparative law, which means that we often look to see what the best arguments or what the arguments are that have advanced rights in different jurisprudences in different countries. To that end, we have an observatory—a gender justice observatory—that’s a free online tool anybody can use to see how rights have been interpreted. And what we have seen since we started to work in this field [is] that there is a real need when you do litigation around reproductive rights and abortion to make sure that the arguments that are used point to state obligations in this regard. And so I actually studied law in the United States and studied Roe v. Wade as a law student, and one thing that was clear to us was that it was dangerous to only rely—and I know that’s not what happened in the Court here—but that the evolution of the law of the right to abortion around the privacy issue can be very dangerous because it doesn’t call for state-paid support. We know in the United States and in other countries in the world that the issue of access to reproductive care and abortion is usually much more difficult or is really a problem for low-income women, women of ethnic minorities, immigrants, and rural women.

So the litigation that we did in Colombia—and I’ll come back to that—but we focused on the woman’s right to health and right to life, and we focused on public health issues generally, the right to dignity, and also the right to nondiscrimination. And in focusing on these rights and having these rights recognized by the national court, we were looking to force the state to take on its obligations in terms of health care and nondiscrimination toward women. And that is a trend that has since followed in Latin America in terms of how things are moving forward in recognizing reproductive rights and the right to abortion in certain circumstances.

JA: I see. So, in effect, what you’re seeing in the international arena in some cases is by using human rights law, not only are the rights respected but they’re protected by ensuring that governments have obligations to ensure access. So it’s not just that a woman can decide to have an abortion, but that she actually can afford to have an abortion, unlike here in the United States sometimes.

VW: Correct, because we do know that it is always a problem in all places. But I do want to make one distinction—which I think is important, especially for a U.S. audience—that when we’re comparing [the] United States to other countries, we often—and you just said, when you compared the United States to international—

JA: —not that the United States isn’t subject to international law, but as opposed to constitutional law—

VW: But it’s not because of that that I make the difference, and I understand that there is a lot of resistance, not just in the United States, but in almost all countries in the world to the use of international law and sometimes the concept of human rights. But we are doing our work in national courts and doing comparative law and using really the best arguments before the court that we have in front of us. Because we’re finding that in order for there to be a movement on reproductive rights and reproductive justice to go forward, courts can learn from each other. And that it’s much more likely that a judge in a Supreme Court in one country will look to what a judge or another court is saying in another national context because they all have the similar issues, which is that they want to use their own constitutions. In some places maybe they’re more open to using international human rights arguments, but when they’re not, we still are pushing for the standards, no matter where they’re coming from and what they are being called. And so in that sense, the United States can be seen as part of the international arena, another national court making decisions on these issues.

JA: That’s a helpful clarification. So that actually, I think, is a good segue to another question I had, which is: I wanted to hear more about the significant victory that Women’s Link won for reproductive rights several years ago in Colombia, which you just referred to. And I especially wanted to hear about the strategies that you used to achieve that win because I think they were fairly novel—and then whether you think there are lessons from that experience that could apply elsewhere.

VW: We brought a challenge to the Constitutional Court in Colombia that in 2006 led to a historic decision that legalized abortion under three circumstances. In order to take the case on, we used a methodology that we have since then replicated, which is to do, before we start any project, what we call a mapping exercise in order to understand the best legal avenue and also to make sure that we understand the audience that we have in front of us.

I think this is more common in terms of how litigation is done in the United States but not as common outside of the United States. We do an alliance strategy, which means that we look to see—not necessarily for agreement on how we’re doing things, but really the understanding that all women’s rights groups, reproductive rights groups, and human rights groups have a role to play in what we are trying to achieve. And then also a very strong communications strategy.

One of the objectives that we were looking for when we brought the case—of course we wanted to change the law, but we wanted to change the terms of the public debate. The debate at that time was very polarized. The only voices that were being heard were the Catholic Church, and then, seen as very extreme, the feminist movement, kind of being called radicals for demanding rights. And there were no other voices being heard, in terms of doctors, public health specialists. And through the litigation we were able to bring those voices into the debate.

And the litigation that we did in Colombia that led to the decision in 2006 was the first time that, in the region, strategic litigation started to be a way, an advocacy tool for achieving social change. And we have seen that, since then, strategic litigation is talked about left and right and we really are very pleased to see that women’s rights and reproductive rights groups are seeing the courts as a place to seek social change, which was something that was not happening before our case in 2006.

JA: I’ll just add one anecdote that I am aware of, that I know a strategy you used was actually looking at what was in the libraries of the justices in the Colombian Supreme Court and then sending them publications to be in their libraries, their personal libraries, so that they would have resources that could help them inform their decision. That’s correct, right?

VW: Yeah, that’s true. It’s one thing that we always say—and it goes back to my point of saying of groups thinking of the courts as a place to seek social change—when we go speak at forums and there’s a lot of different groups that work on reproductive rights from all different spectrums of specialties. Everyone produces publications and then you ask them if they—on their list of who they send the publications—have judges, and almost nobody sends these publications to judges. So one strategy that we use, and we urge others to use, is that the publications should be sent to the judges in your own country and other countries, because maybe then they don’t have a case in front of them, but when they do, then they’ll turn around to the publications that organizations in our sector are producing with the information that they need on the different aspects of reproductive rights.

JA: In the United States there’s a strong conventional wisdom that when Roe was decided, it created a legal, political, and cultural backlash, including the violence that we’ve seen so often against abortion providers and clinics. There also has been a sharp reaction by some to the liberalization of the abortion laws in Colombia that likewise include a violent streak. Can you talk a little bit about how those experiences compare if they do in your mind, and what your own thoughts are on backlash theories?

VW: Yes. And actually I want to answer that question and then I want to go back to something you asked me that I didn’t answer about whether the trends are convergent or divergent, and I think those two things come together.

We have found everywhere we work that there’s always a backlash. And so I think that the experience of the United States in that respect is not unique. And we think of working on these issues and working on reproductive rights and the issues that are hardest for society as a pendulum. And one thing we have seen is that the larger the victory, the more the pendulum swings, and it’s higher, and the backlash will probably be stronger. But the upside of seeing it that way is realizing that things come and go. So if there is a bad decision, then you can fight for a good decision. But also it’s important to always be ready. Once you’ve won, you can’t let your guard down, because you know that the pendulum is going to swing in the other direction. So I do think that’s something that’s shared everywhere—everywhere that we have worked at least on these issues.

When you asked me before and I didn’t answer you about whether the trends in the United States and in other countries and in the international arena are convergent or divergent—I think they are very much convergent in two very important aspects. One is that, from what I understand, that the reproductive rights movement and now the reproductive justice movement in the United States is very much working toward focusing on access to reproductive rights and abortion for women who have less access. And so I think that’s a trend that’s the same in different parts of the world, including the United States.

And the other trend that I see that’s convergent and worrisome, is how the opposition is attacking fundamental rights. I understand in the United States there is a move toward personhood bills. And something very similar is happening in different countries in Latin America, which are having their constitutions protect the right to life in the moment of conception. And we’re seeing a trend in that direction—which is really seeking the same thing, which is seeking to protect the fetus and focusing away from the rights of the woman, the protection of the woman. And in that respect, for example, in the Dominican Republic, such a law, was passed—I mean, the constitution was changed to protect from the moment of conception and the consequences are terrible. And just last year a young woman, a 16-year-old woman, was pregnant and had leukemia, and she was not given access to an abortion. And what was cited in the case was the fact that life was protected from the moment of conception in the constitution. So that’s something that’s a very worrisome trend.

But there’s an upside that I think is nice to point out, which is that there was a recent decision from [the] Inter-American Court of Human Rights, which focused on in vitro fertilization—it’s a case out of Costa Rica. And in that case the Supreme Court in Costa Rica said that it was OK to ban in vitro fertilization because they were protecting life. And the Inter-American Court diverged and went against Costa Rica, saying that the embryos don’t have rights and the right to life is not an absolute, which is another trend that we’re seeing in Latin America, which is understanding that not all life gets the same protection. And the constitutional court in Colombia did something similar in explaining the different times in which the right to life exists and the different degrees of protection. And importantly, the Inter-American Court in this decision talks about the woman as the one who is the subject of the protection and not the fetus. And this is [a] very important decision both for women who want to have children and for women who need to end pregnancies.

JA: And just to close the loop on that question about divergence and convergence, how do you see the trends of U.S. constitutional law as it compares to international law or other national decisions around the world?

VW: It’s a difficult comparison to make because of the way that reproductive rights, contraception, and abortion have been interpreted under the U.S. Constitution, under the clauses that they’ve been interpreted. Because the way that this litigation has happened in other countries, it happens under more direct rights—under right to life, under right to health, under right to nondiscrimination.

JA: In international human rights documents or under national laws?

VW: Using both national laws—the constitutions—and interpretations from the U.N. treaty-monitoring bodies. In Colombia the way that the Court did it is that they looked—the Colombian Constitutional Court, first of all, has a 1991 constitution, which is very different than interpreting a constitution that’s more than 200 years old. The modern constitutions in that regard are easier to interpret in these rights because you don’t have to be looking for the rights within other rights. But what they did is they looked not just at the—all these rights are in the national constitutions, the right to life is in every single constitution, and the right to nondiscrimination is in almost every single constitution and every international human rights document has a nondiscrimination clause.

But they had also been looking at what the treaty-monitoring bodies had been saying to Colombia. And they were using a doctrine in which they were looking at it as a constitutional bundle—to translate it, “un bloque constituciónal.” And the only issue in which they had not done that was on the issue of abortion. And so when we brought the case to the constitutional court in Colombia, we asked them to just be coherent in the way that they were looking at international human rights as part of the constitution of Colombia, and look at the recommendations by the U.N. treaty-monitoring bodies, which all were recommending that there be a liberalization of the very strict abortion laws in Colombia.

JA: I think my last question will be: Do you see any opportunities to use international human rights norms here in the United States to advance reproductive rights?

VW: I think I am going to go back to my explanation that I said earlier. I think it doesn’t matter what we call the rights. It doesn’t matter if we’re citing an international convention or a constitution or using comparative law. What matters is that the standard be applied. And I do hope that someday the U.S. Supreme Court will look to other supreme courts around the world or to international human rights treaties the way some constitutional courts do in other countries. But if not, we can only hope that within the interpretation of the U.S. Constitution, those rights will be upheld in the same way whether they are being called international human rights or not. I think it’s the strategy, and getting the results is what matters as opposed to saying that we are using international human rights standards.

JA: Thank you very much for your time today.

VW: Thank you.

This interview was edited for clarity and length.

Jessica Arons is the Director of the Women’s Health and Rights Program at the Center for American Progress.

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This is part of a special series: Roe at 40 Podcast Series

For more from this series, click here