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November 22, 2021

Abortion rights as human rights diverge in U.S. and worldwide

As the U.S. Supreme Court considers the constitutionality of new abortion laws in Texas and Mississippi, and other states mount similar challenges to the right to an abortion, access to the procedure has gradually increased worldwide. That’s in keeping with international human rights laws that guarantee equality, safety, dignity and freedom from discrimination, oppression and inhumane treatment. Once a global trendsetter in reproductive rights, the United States has regressed since Roe v. Wade, raising interesting questions involving international laws and norms.

This state of affairs was discussed on a Nov. 19 webinar called “Protecting and Defending Women’s Reproductive Rights — as Human Rights — Under International Laws and Norms,” sponsored by the Section of International Law.

“It’s really clear that the trend in abortion laws across the world” is toward liberalization, said Nancy Northup, president and CEO of the Center for Reproductive Rights in New York City. The U.S. therefore is an outlier, she said. And in most other countries, abortion care is covered under health care, while in the U.S. abortion is not covered for military or government workers or Medicaid recipients, among others.

“The threat [to abortion rights] is higher than ever and it is increasing,” said Sen. Richard Blumenthal, D-Conn., in part because of hundreds of proposed state laws in recent years which, as the Texas and Mississippi laws show, are “becoming more vicious and venal than ever.”

The danger is not just coming from states, but from the federal courts, he said. One-third of federal judges were appointed by former President Donald Trump, Blumenthal noted, and all were verified as anti-choice by the Federalist Society and the Heritage Foundation.

The Supreme Court has a clear conservative majority, but the senator suspects they won’t reverse Roe, but opt instead to take big chips out of it. For instance, he said, they could say the Texas bounty-hunter statute is unconstitutional but uphold the Mississippi law and think they’re being reasonable and judicious. “But, of course, the net result is horrendous,” he said.

Meanwhile, what’s going on elsewhere in the world is quite different. Melissa Upreti, chair-rapporteur of the U.N. Working Group on Discrimination Against Women and Girls, said her group presented a report to the U.N. Human Rights Council in June that included recommendations to counter the politicization of women and girls in sexual and reproductive rights.

The working group also sends communications to countries with restrictions to abortion access, gender-based violence and reprisals against women who advocate for sexual and reproductive rights. “We’ve … sent several communications to the United States,” Upreti said. “We’ve had to.”

In addition, her group writes position papers that emphasize women’s autonomy; submit amicus briefs in cases around the world; testify before legislative and political bodies on reproductive health bills; and issue public statements, including one on the Texas law.

“Anti-abortion is recognized as a form of gender-based violence under international law,” and when states regress on meeting their obligations, “they may be deemed as having violated human rights,” said Upreti, who is also senior director of Program and Global Advocacy at the Center for Women's Global Leadership at Rutgers University in New Jersey.

Here in the U.S., “Congress can fix this,” Northup said, and “can address the bans and the medically unnecessary restrictions. The fix is the Women’s Health Protection Act,” sponsored by Blumenthal, which passed the House and has 48 Senate co-sponsors. The bill would give the Department of Justice enforcement power, but it needs two more votes to pass the Senate.

The program was moderated by Kerry McLean, assistant director of Human Rights and Public International Law at the Office of Social Justice Initiative at Columbia University.