Just over a year ago, in June 2022, the U.S. Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___ (2022) (No. 19-1392), overturning Roe v. Wade and Planned Parenthood v. Casey and dismantling nearly 50 years of U.S. precedent protecting the right to abortion. The one-year anniversary of the Dobbs decision calls for an assessment of its impact. This article examines the fallout of Dobbs, places the decision in the context of international human rights law and the global trend toward liberalization of abortion, and suggests that efforts to rebuild the right to reproductive autonomy in the United States draw from both comparative and human rights law.
The Impact of Dobbs
In overturning Roe and federal constitutional protection for abortion, Dobbs opened the floodgates to state efforts to ban abortion. At the time of publication, 13 states currently ban or have nearly banned abortion with narrow exceptions, with some bans imposing criminal penalties for health professionals who provide abortion care. Access to medication abortion is under threat nationwide, even in states where the right to abortion is protected.
In recent months, research studies and media reports have made clear the decision’s impact on people’s lives, health, and well-being. Preliminary results of a study by researchers at Advancing New Standards in Reproductive Health (ANSIRH) contain stories from medical providers offering obstetric and gynecologic care post-Dobbs, showing that abortion bans are forcing medical professionals to deviate from the standard of care and leading to delays in care and adverse health outcomes. A joint study by Physicians for Human Rights, the Center for Reproductive Rights, and Oklahoma Call for Reproductive Justice found widespread confusion about Oklahoma’s abortion laws at hospitals throughout the state, showing how near-total abortion bans fuel confusion about clinicians’ ability to provide care during obstetric emergencies, with risk to the lives, health, and safety of pregnant people. States passing abortion bans have been found to have high maternal mortality rates and insufficient maternal health providers.
In March 2023, our organization, the Center for Reproductive Rights, filed Zurawski v. State of Texas on behalf of five Texas women denied abortion care after facing severe and dangerous pregnancy complications, along with two Texas obstetricians-gynecologists. An Amended Complaint, filed in May 2023, added eight plaintiffs who experienced severe harm as a result of Texas’s abortion bans and details harm experienced throughout the country.
Abortion bans and restrictions disproportionately impact communities already facing barriers to health care, including Black, Indigenous, and other people of color, people living on low incomes and in poverty, people who are disabled, undocumented people, people in rural areas, and young people. In states where abortion remains legal, available resources are strained, clinic appointments are taking longer to schedule, and patients must travel longer distances and incur greater expenses for transportation, childcare, and lodging.
U.S. Regression on Abortion Violates International Human Rights and WHO Guidance
The Dobbs decision and the resulting proliferation of abortion bans in the United States are counter to human rights. Over the past 25 years, international human rights experts and mechanisms have recognized that restrictive abortion laws violate human rights, including rights to life, privacy, health, equality and non-discrimination, and freedom from cruel, inhumane, and degrading treatment. Many of these protections are contained in treaties ratified by the United States. For example, the International Covenant on Civil and Political Rights, ratified by the United States in 1992, protects the right to life, which limits the restrictions that states can place on abortion access and obligates governments to ensure access to abortion services. United Nations (UN) human rights experts explained the full scope of human rights protections for abortion access in an amicus brief filed in Dobbs.
Human rights experts and the global community have widely condemned the Dobbs decision and its discriminatory impacts on marginalized communities. For example, in August 2022, at the conclusion of its review of the United States, the UN Committee on the Elimination of Racial Discrimination noted deep concerns with Dobbs and recommended the United States address the disparate impact it will have on racial and ethnic minorities, Indigenous women, and those with low income.
The extreme abortion restrictions enacted in states throughout the United States also clearly contradict global public health guidance. The World Health Organization’s (WHO’s) most recent Abortion Care Guideline recognizes that restrictive abortion laws result in people seeking out unsafe abortions and that abortion should be available on request. Further, WHO recognizes that criminalization of abortion has a chilling effect on the provision of legal abortion services, can delay access to life-saving care, and disproportionately impacts marginalized populations, which are more likely to face prosecution for seeking abortion care.
Abortion Liberalization Globally
The Dobbs decision stands in stark contrast to nearly 50 years of progress globally on abortion rights. When Roe v. Wade was decided in 1973, it served as a guidepost for advocates seeking to overturn restrictive abortion laws in other countries. Since then, there has been an overwhelming trend toward the liberalization of abortion law, and jurisprudence on abortion globally has evolved to better encompass human rights and states’ affirmative obligations on abortion access.
Since 1994, when the Center for Reproductive Rights began tracking laws for our World Abortion Laws Map, over 60 countries have expanded the grounds under which abortion is legal. By contrast, the United States is one of only four countries to remove legal grounds for abortion during the same timeframe. The other three countries are El Salvador, Nicaragua, and Poland—all countries where the rule of law and judicial independence are under attack.
In the wake of Dobbs, a series of progressive reforms swept across Europe, as Finland and San Marino enacted laws to allow abortion on request, the Netherlands abolished its mandatory waiting period, and England and Wales permanently enabled people to have medication abortions at home. Further, the European Parliament adopted a resolution calling for the right to abortion to be enshrined in the Charter of Fundamental Rights of the European Union. This trend is not limited to Europe: Israel expanded access to medication abortion and eased the process around approvals for abortion care. Thailand extended its gestational limit from 12 to 20 weeks.
Further, as the United States has rolled back abortion rights, the Green Wave movement has achieved progress throughout Latin America, where Argentina, Colombia, and Mexico all have enacted groundbreaking reforms. In Colombia and Mexico, the highest courts in the land affirmed abortion rights as fundamental human rights and overturned restrictive abortion laws. In Judgment C-055/2022, the Colombian Constitutional Court recognized the right to health is a fundamental and inalienable right that includes sexual and reproductive rights. In decriminalizing abortion until 24 weeks gestation, the court recognized how the criminalization of abortion violates the rights to equality and non-discrimination, particularly of marginalized and underserved populations that are more likely to both need abortion services and be criminalized for obtaining them.
In recognizing a constitutional right to safe, legal, and free abortion early in pregnancy, the Supreme Court of Mexico recognized in Acción de Inconstitucionalidad 148/2017 that the right to human dignity includes a woman’s right to make decisions about her body and determine whether her identity should include becoming a mother. The court further recognized that the right to freedom of religion or conscience includes the right to one’s own moral values and beliefs, and the state must both protect and refrain from imposing religions and beliefs on individuals. The court ordered the government to take a host of positive measures to ensure abortion is accessible in practice, including providing free abortion care in public health care settings and ensuring high-quality services, dignified treatment, privacy, and freedom from discrimination for people seeking abortion care.
Rebuilding Reproductive Autonomy in the United States
Roe ensured critical federal constitutional protections for abortion, and the Supreme Court’s decision in Dobbs, overturning Roe, has devastated abortion access across the United States. But, as long made clear by women of color leading the reproductive justice movement, Roe was never enough to ensure abortion access, particularly for people living on low incomes, Black and Indigenous people, other people of color, people with disabilities, immigrants, young people, and LGBTQIA+ people. And while Roe provided an important foundation for reproductive autonomy rights beyond abortion, the jurisprudence failed to develop constitutional protections for the right to have a healthy pregnancy, to safely raise children in a healthy environment, and to live without fear of being prosecuted for conduct during pregnancy.
As U.S. advocates work to rebuild constitutional protections for abortion, developments around the globe, including comparative jurisprudence and human rights, can provide inspiration and the touchstone for a renewed and more robust understanding of what is necessary to protect and ensure full reproductive autonomy in the United States.