Written by Risa E. Kaufman, Director, U.S. Human Rights, Center for Reproductive Rights
As the threat of U.S. retrogression on abortion rights increases, so do demands for human rights.
This year, state legislatures throughout the United States enacted historic numbers of abortion restrictions and bans. Texas Senate Bill 8 illustrates the extreme nature of these efforts. The law bans abortion as early as six weeks of pregnancy and includes an unprecedented provision that incentivizes private individuals to file lawsuits seeking its “enforcement.” Just two days after a lower court halted enforcement of the law, a federal appeals court reinstated it, meaning that the ban is in effect. The impact of Texas SB 8, like other abortion bans and restrictions, falls hardest on Black, Indigenous, and other people of color, people with disabilities, people in rural areas, young people, and those having difficulty making ends meet.
Texas SB 8 is just the latest in an avalanche of abortion restrictions enacted by state legislatures. And it is exemplary of the profound retrogression on the right to access abortion care within the United States.
Human rights experts and the global community are taking notice.
UN human rights mandate holders issued a strong statement condemning Texas SB 8 as a violation of human rights and calling on the United States to halt implementation of the law, prevent retrogression in access to abortion in the U.S., and enact positive measures to ensure access. The statement highlights the particular impact that SB 8 will have on marginalized communities. And it follows a letter, issued last year by UN mandate holders, raising alarm at efforts by several U.S. states, including Texas, to restrict abortion access during the COVID-19 pandemic.
Similarly, the European Parliament approved a resolution condemning Texas SB 8 and retrogression in the U.S. as a violation of human rights. The resolution calls for urgent action to restore reproductive rights in the United States.
And UN experts, European and comparative law scholars, and international human rights organizations have filed amicus briefs with the U.S. Supreme Court in Dobbs v. JWHO, a case in which the state of Mississippi is asking the Court to overrule almost 50 years of precedent protecting the right to terminate a pregnancy up until the point of viability. The amicus briefs, filed in support of the last remaining abortion clinic in Mississippi, detail the ways in which retrogression on abortion in the United States is counter to both the global trend towards liberalization of laws on abortion and international human rights.
Far from merely rhetorical, these appeals to human rights are meaningful.
First, human rights provide an important normative frame for protecting access to abortion as central to women’s autonomy and reproductive health, and to achieving gender equality. As such, they can be instructive to U.S. courts’ understanding of U.S. constitutional protections.
For example, the human rights briefs filed in Dobbs v. Jackson Women’s Health Organization detail for the U.S. Supreme Court the ways in which human rights protect access to abortion as integral to the right to health, life, privacy, equality and non-discrimination, and freedom from torture and cruel, inhuman and degrading treatment. And, engaging a human rights framework, they center the impact that abortion restrictions and bans have on people experiencing multiple and intersecting forms of discrimination. The briefs note that the protections contained in the International Covenant on Civil and Political Rights (ICCPR) are of particular relevance to the United States, as the ICCPR is one of the few human rights treaties that the U.S. has ratified. This articulation and analysis of rights can provide an important lens for understanding U.S. constitutional protections for abortion.
Second, human rights and comparative law place the U.S. in a global context and contrast U.S. retrogression with global liberalization of abortion laws. Amicus briefs in Jackson Women’s Health Organization detail how, in the past twenty-five years, over 50 countries have liberalized their abortion laws, including twenty countries that have removed complete abortion bans. The few examples of retrogression are in countries where democratic institutions have eroded, such as Poland and Nicaragua.
Analysis of human rights and comparative law can also correct misleading narratives. U.S. abortion opponents attempt to paint the U.S. as being “out of step” with global norms on abortion by trotting out simplistic tallies of gestational limits that fail to analyze the full legal and social systems in which abortion laws around the world operate. Yet, proper comparative law analysis, as contained in the brief by comparative law scholars in Jackson Women’s Health Organization, articulates the flaws in this “nose-counting” exercise and reveals that in fact many countries with gestational limit restrictions, particularly those in Europe, simultaneously allow for broad exceptions, including for economic or social circumstances and physical or mental health, thus allowing for abortion later in pregnancy. Moreover, unlike in the United States, people in many countries have access to subsidized or fully funded abortion services and other supports, and they face fewer legal impediments like mandatory waiting periods and ultrasounds, allowing for greater access to legal abortion services earlier in pregnancy.
Third, attention from the international human rights system and the global community can place positive pressure on the U.S. federal government to fulfill its renewed commitment to advancing sexual and reproductive health and rights, both domestically and globally.
For example, the statement by UN mandate holders and the resolution by the European Parliament condemning Texas SB 8 both call on the federal government to enact federal protections for abortion access, with the European Parliament specifically calling on the United States to enact the Women’s Health Protection Act (WHPA), which would protect against abortion restrictions and bans, like the ones at issue in Mississippi and Texas. The U.S. House of Representatives recently passed WHPA, and the U.S. Senate must now take up the law. In fact, human rights undergird WHPA. The legislative findings contained in the bill note that core human rights treaties ratified by the United States protect access to abortion and acknowledge that UN independent human rights experts have expressed concern about barriers to abortion services in the United States.
As the United States faces significant retrogression in access to abortion, appeals to human rights and global norms are more than a rhetorical flourish. They can have real impact.
Please note that blog posts are not peer-reviewed and do not necessarily reflect the views of SRHM as an organisation.