A few years back, I was working full-time in global health and human rights, often in the areas of sexual and reproductive health, equality and nondiscrimination, and helping to improve national health systems as they relate to international human rights law. Most of this work was in partnership with fantastic organizations in developing countries—these orgs were trying to make progress in the face of restrictive policies, corruption, and blatantly discriminatory legislation. Odd, then, that Alabama, Missouri, Georgia, and potentially other US states are facing these exact challenges, and that the health data and human rights arguments we’d use in developing country contexts are applicable here.
It’s a slightly different perspective than I’m seeing, so here are a few thoughts.
The public health and human rights rationale for safe, legal abortion care is overwhelming.
Let’s talk about unsafe abortions
Worldwide, about 25 million unsafe abortions occur every year. This is mostly in developing countries (though it may be worth adding a new category for developed countries regressing under idiots).
Restrictive abortion laws—similar to the recent Alabama bill—are associated with high rates of unsafe abortions. Here’s the key point from a recent study by the World Health Organization and the Guttmacher institute, published in the Lancet:
“In countries where abortion is completely banned or permitted only to save the woman’s life or preserve her physical health, only 1 in 4 abortions were safe; whereas, in countries where abortion is legal on broader grounds, nearly 9 in 10 abortions were done safely. Restricting access to abortions does not reduce the number of abortions.”
Again, on that last part:
Restricting access to abortions does not reduce the number of abortions.
Restricting access to abortions does not reduce the number of abortions.
Restricting access to abortions does not reduce the number of abortions.
All it does is make them less safe.
This is a preventable cause of maternal mortality and morbidity. The consensus on the public health impact of unsafe abortions has existed since at least 1967, and is supported in study after study, and numerous declarations and resolutions signed by nearly every country in the world, including the United States. Speaking of those…
Let’s talk about human rights
Here’s a non-exhaustive list of human rights—rights that the United States is obligated to respect, protect, and fulfill—that are hindered by such a law: the right to equality and nondiscrimination; the right to life, liberty, and security of the person; the right to autonomy and bodily integrity; the right to the highest attainable standard of health; the right to decide whether to have children, the number and spacing of children, and the information and the means to have children; the right to be free from torture and other forms of cruel, inhuman, or degrading treatment; the right to enjoy the benefits of scientific progress; and the right to privacy.
Conventions and treaties under which these rights fall include the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the International Covenant on Civil and Political Rights (ICCPR), International Convention on Economic, Social and Cultural Rights (ICESCR), the Convention on the Rights of the Child (CRC), the Convention on the Rights of Persons with Disabilities (CRPD), and more.
The right to life
We could analyze every one of these rights at length, but let’s take a closer look at the right to life, as that seems to be misused in this context with alarming frequency. The following is from General comment No. 36 (2018) on article 6 of the International Covenant on Civil and Political Rights—to which the United States is a State Party and is legally bound--on the right to life:
“restrictions on the ability of women or girls to seek abortion must not, inter alia, jeopardize their lives, subject them to physical or mental pain or suffering which violates article 7, discriminate against them or arbitrarily interfere with their privacy. States parties must provide safe, legal and effective access to abortion where the life and health of the pregnant woman or girl is at risk, and where carrying a pregnancy to term would cause the pregnant woman or girl substantial pain or suffering, most notably where the pregnancy is the result of rape or incest or is not viable.
In addition, States parties may not regulate pregnancy or abortion in all other cases in a manner that runs contrary to their duty to ensure that women and girls do not have to undertake unsafe abortions, and they should revise their abortion laws accordingly. [9] For example, they should not […] apply criminal sanctions against women and girls undergoing abortion or against medical service providers assisting them in doing so, since taking such measures compel women and girls to resort to unsafe abortion.
States parties should not introduce new barriers and should remove existing barriers that deny effective access by women and girls to safe and legal abortion, including barriers caused as a result of the exercise of conscientious objection by individual medical providers. States parties should also effectively protect the lives of women and girls against the mental and physical health risks associated with unsafe abortions.”
The right to health
The International Covenant on Economic, Social and Cultural Rights, in Article 12, recognizes the Right to the Highest Attainable Standard of Health. CESCR General Comment No. 14 includes, in direct interpretation of the normative content of the right, “the right to control one’s health and body, including sexual and reproductive freedom, and the right to be free from interference.” Also in relation to Article 12, “A major goal should be reducing women’s health risks, particularly lowering rates of maternal mortality […] [t]he realization of women’s right to health requires the removal of all barriers interfering with access to health services, education and information, including in the area of sexual and reproductive health.”
In 1999, the Committee on the Elimination of Discrimination against Women recognized the barrier posed by “laws that criminalize medical procedures only needed by women and that punish women who undergo those procedures.” The US has signed but not ratified CEDAW—which means it still must not violate the spirit and purpose of the treaty. 189 other countries have ratified.
Regional recognition
Regionally, the African Charter on Human and Peoples’ Rights, in the additional Protocol on the Rights of Women in Africa, recognizes abortion under health and reproductive rights in Article 14. A number of cases in the European Court of Human Rights have found breaches of article 8 (respect for private life) of the European Convention on Human rights based on the states’ restrictive abortion laws (e.g. Poland and Ireland; Tysiąc v. Poland, RR v. Poland and ABC v. Ireland.) There are numerous decisions before international human rights bodies affirming such rights, and of course, a vast array of cases in national court systems.
Simply put, overly restrictive abortion laws directly violate numerous human rights, and indirectly jeopardize realization of other human rights.
Why does this matter? Isn’t the whole idea of the law just to challenge Roe v. Wade in the US national court system?
The public health rationale is self-evident. Even those claiming moral opposition must concede that if the abortion is to happen anyway, it’s preferable that it happens under safe conditions. We have good data on this from numerous countries.
As for international human rights law and treaties, these can be considered (at minimum) persuasive authority should the US Supreme Court end up hearing one of these cases. More importantly, a country violating human rights law in no way invalidates the underlying human rights norms and principles, in much the same way violating a law in a national system doesn’t invalidate the law. The United States was instrumental in constructing the human rights system; it would be a shame if we allow bad data, sloppy thinking, parochialism, and short-sighted value signaling to undermine the health and human rights of half of our population. Internationally, reproductive rights, and women’s rights in general, operate as a sort of canary in the coal mine for a state’s human rights and well-being. Those most restrictive tend to lack in human development, health indicators, and economic growth.
A favorite attorney saying is that if you’ve got the facts, pound the facts. If you’ve got the law, pound the law. And if you’ve got neither, pound the table. With the health rationale, and the legal rationale—domestic and international—we’ve got facts and law. Pound away.
Sources:
https://www.who.int/reproductivehealth/publications/unsafe_abortion/9789241548434/en/
https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(18)30624-X/fulltext
https://www.thelancet.com/journals/langlo/article/PIIS2214-109X(18)30029-9/fulltext
UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12 of the Covenant), 11 August 2000, E/C.12/2000/4, available at: https://www.refworld.org/docid/4538838d0.html [accessed 17 May 2019]
https://www.ohchr.org/Documents/HRBodies/CCPR/CCPR_C_GC_36.pdf
https://www.guttmacher.org/fact-sheet/induced-abortion-worldwide