The US Position on Abortion and International Human Rights Law
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The US Position on Abortion and International Human Rights Law

On June 24, 2022, the Supreme Court of the United States, in Dobbs v. Jackson Women’s Health Organization, overturned Roe v. Wade with a 6-3 majority. This judgment raises multiple constitutional law and due process issues. However, this article will not be addressing these issues. The focus of this piece is to analyze and highlight the importance of the right to abortion within the international human rights law (IHRL) framework and the American obligation to protect this essential right.

US Obligation to IHRL

In 1992, the United States ratified the International Covenant on Civil and Political Rights (ICCPR). The ICCPR became the “supreme law of the land” upon ratification, in accordance with the Supremacy Clause of the U.S. Constitution, which grants ratified treaties the force of federal law. The United States must comply with and implement the requirements of the treaty as it would any other domestic legislation, subject to any Reservations, Understandings, and Declarations (RUDs) it signed when it ratified the treaty. A “not self-executing” declaration affixed by the U.S. Senate is designed to limit litigants’ capacity to suit in court for direct enforcement of the ICCPR, despite the fact that the government retains its commitment to comply with the treaty. Including all state and local governments in the United States, the ICCPR applies to all government institutions and agencies. When the Senate ratified the ICCPR, it included an understanding that recognized the federal system of government and stated that the treaty “shall be implemented by the Federal Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered” by the treaty “and otherwise by the state and local governments,” with support from the federal government for the fulfillment of the covenant.

To keep tabs on how the ICCPR is being implemented, a Human Rights Committee was established. Every four years, countries that have ratified the ICCPR must submit a report to the committee. Concluding observations are issued by the committee after a thorough examination of the report. U.S. reports have been submitted on various occasions, the first in 1994, the second and third in 2005 and the most recent in December 2011. The U.S. Department of State writes and coordinates the answers and appearances before the Human Rights Committee while using an interagency process. The committee issued a list of issues prior to the submission of the United States’ fifth periodic report on April 2, 2019. The United States and the Human Rights Committee agreed in 2017 to intimate a list of issues before reporting, and now it is expected to start seriously forming its fifth periodic report.

IHRL Provisions Violated by the Ban on Abortion

Women’s reproductive rights got a huge push at the 1994 International Conference on Population and Development (ICPD), held in Cairo, and the 1995 Fourth World UN Conference on Women, held in Beijing. Further development to the protection of the right of abortion was made by the United Nations Human Rights Council (UNHRC) and the International Covenant on Civil and Political Rights of 1966 (ICCPR), which makes the right to life explicit. Article 6(1) of the ICCPR states that every human being has the intrinsic right to life. In General Comment No. 6 (right to life), the UNHRC, which serves as the ICCPR’s interpretation authority, emphasizes that the inherent right to life should not be interpreted in a restrictive way. General Comment No. 6 demands States Parties take affirmative steps to guarantee the right to life, notably to improve life expectancy. In addition, the UNHRC’s General Comment No. 28 on the equality of rights between men and women requests that States Parties, when reporting on Article 6’s right to life, “give information on any measures taken by the State to help women prevent unwanted pregnancies, and to ensure that they do not have to undergo life-threatening clandestine abortions.” General Comment No. 28 also examines laws or policies where States impose a legal obligation on doctors and other health personnel to report cases of women who have undergone abortion, a potential violation of the right to life (Article 6) and the right not to be subjected to torture or cruel, inhuman, or degrading treatment or punishment (Article 7).

In some cases, the HRC’s concluding observations require States Parties to take concrete measures to realize women’s right to life in the context of abortion. The HRC’s concluding observations also give strong support for women’s right to access abortion. For instance, the committee has shown a connection between unsafe and illegal abortions and high rates of maternal death (See here, here, here and here). The HRC has also underlined that unlawful abortions pose grave risks to the lives, health and the well-being of women. The HRC has voiced concern about draconian abortion legislation, particularly when the lives of women are at stake. Specifically, the HRC has voiced concern over the criminalization of abortion, especially where the pregnancy is the consequence of rape, and has affirmed that such law is incompatible with Article 6’s protection of women’s right to life. In this context, the HRC has suggested that State Parties implement measures to protect the right to life for women who choose to terminate their pregnancies, such as guaranteeing access to health services and emergency obstetric care. In its 1998 concluding observations to Ecuador, the HRC found the restrictions on abortion to be incompatible with the right to life of adolescents and recommended that the State Party adopt all legislative and other measures, including expanding access to adequate health and education facilities, to address the problem.

The HRC has also urged State Parties to reform restrictive abortion laws to assist women in avoiding unplanned pregnancies and unsafe abortions and to bring legislation into conformity with Article 6 of the ICCPR. For instance, in its 2004 concluding observation to Poland, the HRC voiced grave concern about the country’s restrictive abortion legislation, which encourages women to seek unsafe, illegal abortions, with associated dangers to their lives and health. The HRC highlighted the inaccessibility of abortion in Poland, even when the law allows it, owing to a lack of information and the use of conscientious objection by medical practitioners, and recommended that Poland liberalize its abortion laws and practices.

To lower the abortion rate and address the occurrence of unsafe abortions, the HRC has suggested expanding access to family planning services and education. The HRC has also made explicit reference to the obligation of State Parties to safeguard all lives, including those of women who choose abortion. For instance, the HRC suggested that Chile modify its abortion prohibition to provide exceptions. In a similar vein, the committee urged that Guatemala offer the necessary information and resources to protect women’s right to life and provide other exceptions to the country’s abortion statute, which currently only authorizes abortions when a woman’s life is in danger.

Potential Implications of Overturning Roe v. Wade from an International Law Perspective

There are multifarious implications that may arise from the U.S. Supreme Court’s recent judgement overturning Roe v. Wade. First, as discussed before, Article 6(1) of the ICCPR gives every human an absolute right to life. However, the ICCPR warrants that the right to life is not applicable to an unborn fetus. In Dobbs, the Court conferred a right to life to an unborn child to justify the ban on abortion. This decision runs anti-parallel to the provisions of ICCPR. As a matter of fact, it was the U.S. delegation that deliberately voted against including wording declaring that the right to life begins at conception when working on the ICCPR. Thus, the United States is not only violating the ICCPR but also setting unpredictable and erratic records.

Second, despite Dobbs‘ denial of a constitutional right to privacy, the ICCPR protects the right to privacy as a fundamental right. Article 17 states, “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.” According to a recent ruling, forcing an Irish woman to choose between sustaining an undesirable pregnancy or paying for her own travels to another country to have an abortion was an invasive interference in violation of the ICCPR. After Dobbs, women in roughly 24 states face the same predicament today.

Third, the right to protection against discrimination, which is warranted under Article 26 of the ICCPR, is violated according to authoritative guidelines published by the UN Human Rights Committee by interfering with women’s access to reproductive health care, including failing to ensure that pregnant women do not “undergo life-threatening clandestine abortions.” This is another violation of the ICCPR that the United States would have to be held accountable for.

Last, the Dobbs judgement accounts a cosmic retrogression to a patriarchal twentieth-century civilization. Several states made recommendations to the United States during the Universal Periodic Review to strengthen equal access to comprehensive sexual and reproductive health, rights, services and information for all people in the country. This was vehemently supported by the U.S. in its statement. Scrapping the U.S. structure that has safeguarded abortion access for over half a century will result in increased breaches of the human rights of women and girls. Numerous states have “trigger” abortion bans that would go into effect.

The continuing worldwide trend of liberalizing abortion laws will be disrupted due to the Dobbs decision. European countries have maintained a trend of liberalizing abortion laws in the past decades. The United States has made itself an “anti-model” nation, like Poland and Nicaragua, where abortion laws are extremely outdated and prejudiced against protecting women and the notion of body autonomy—especially in instances of rape, incest and inviable pregnancies. This judgement by a country like the United States will have catastrophic effects on third-world countries still grappling with the abortion debate.

Conclusion

At least 70,000 women die annually from complications associated with unsafe abortions. It is estimated that unsafe abortions account for 13 percent of all maternal fatalities globally and 60 percent of maternal deaths in certain countries. There is a substantial association between abortion legality and abortion safety; thus, women in countries with restrictive abortion laws often resort to unsafe, clandestine abortions, putting their lives and health at risk. The ICCPR creates an obligation to provide safe access to abortion, which has been trampled by Dobbs v. Jackson Women’s Health Organization. Such a draconian judgment, especially from the U.S. Supreme Court, must be opposed on all fronts until the right to abortion is protected once again.

 

Ahan Gadkari is a final-year BA LLB candidate at Jindal Global Law School. He serves as a Research Assistant to Dr. Aniruddha Rajput, Member, UN International Law Commission. Sofia Dash is a second-year BA LLB candidate at Jindal Global Law School. She is the youngest Researcher at the Centre for Research in Criminal Justice, MNLU.

 

Suggested citation: Ahan Gadkari and Sofia Dash, The US Position on Abortion and International Human Rights Law, JURIST – Student Commentary, July 25, 2022, https://www.jurist.org/commentary/2022/07/gadkari-dash-dobbs-international-human-rights/.


This article was prepared for publication by Hayley Behal, JURIST Commentary Co-Managing Editor. Please direct any questions or comments to her at commentary@jurist.org


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