National Ministry of Health for the Certification of Sexual Violence leading to Unwanted Pregnancy (6). The development and application of such a protocol is an important means of clarifying the terms and conditions under which services can legally be provided to institutions that provide abortion services, those who provide the services, those who are seeking the services, and all women who are at risk of needing the services. By applying the protocol in health service institutions, and training health care providers in its use, the legal standards by which abortion services can be provided become clear, and therefore are less apt to be interpreted arbitrarily and unfairly. The protocol also ensures transparency and fairness for women in clarifying the conditions that would entitle them to lawful, safe abortion services. Operationalization of other legal indications for abortion, such as for the preservation of life and health, is also necessary to ensure that women have access to services for purposes for which abortion is legal. For example, operationalizing a legal indication for health reasons might necessitate the development of a protocol that clarifies the general health conditions that would satisfy the health indication. It might clarify, for instance, that pregnant women who have malaria or who are HIV-positive are entitled to abortion for health reasons. Such a list of health indications should not be exhaustive, but only suggestive of the health reasons that would justify an abortion. Experience in several countries shows that where the lists are exhaustive, health care providers are reluctant to provide abortions for analogous health reasons that would clearly come within a health indication. Moreover, health situations can change over time and according to each woman’s particular circumstances. Health care providers should be able to exercise their professional clinical judgment of what is in the best health interests of their adult and adolescent patients. 20 REBECCA J. COOK Book ch.02.qxd 11.2.2005 10:36 Page 20 The right to liberty and security of the person, including fairness in the operation of abortion laws In 1977, social science research was used to demonstrate the inequitable operation of the restrictive abortion law in Canada. The government failed to address this inequity, but, ten years later in 1988, the Supreme Court of Canada invoked this evidence to rule that the restrictive law violated women’s right to security of the person, and was therefore unconstitutional. Recognizing that juries in the 1970s would not convict a doctor who did not comply with the then restrictive abortion law, the Canadian government appointed a Committee, chaired by Professor Robin Badgley, a social scientist, to look into the operation of the abortion law (7). The general terms of reference were “ to conduct a study to determine whether the procedure provided in the Criminal Code for obtaining therapeutic abortions is operating equitably across Canada. ” (7, p. 27) The more specific terms of reference included: ● The determination of the availability of the procedure by location and type of institution. ● The timeliness of the procedure in light of what is desirable for the safety of the applicant. ● The views of the health care providers and those members of the hospital abortion committees. ● Patient pathways to obtaining abortions within Canada and outside of Canada. ● The cost of abortion and related services. The criminal abortion law that prevailed at the time in Canada allowed abortion if, in the opinion of a majority of members of a therapeutic abortion committee, “ the continuation of the pregnancy would or would be likely to endanger the life or health of the female person ” (8). The findings of the Badgley Committee were extensive and found that: There was no uniformity across the nation involving the standards of medical care relating to the quality of services of the requisite facilities required to undertake the abortion procedures in general hospitals (7, p. 28). 21 ABORTION, HUMAN RIGHTS AND THE ICPD Book ch.02.qxd 11.2.2005 10:36 Page 21 Furthermore: On average women took 2.8 weeks after they first suspected they had become pregnant to visit a physician. After this contact had been made there was an average interval of 8.0 weeks until the induced abortion operation was done (7, p.146). The Committee’s overall conclusion was that the law operated inequitably, and itself caused unnecessary hazards to women’s health. These and other findings were invoked by the Supreme Court of Canada in declaring that the Criminal Code provisions violate women’s security of the person protected by the Canadian Charter of Rights and Freedoms, and therefore to be of no legal effect. In the words of the then Chief Justice, the Court found that: [ f] orcing a woman, by threat of criminal sanction, to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman’s body and thus a violation of security of the person (9). As a result of the work of the Badgley Committee and its use by the Supreme Court of Canada in 1988, abortion is now decriminalized and regulated in Canada like any other medical procedure. Like the Supreme Court of Canada, other courts and regional and international human rights