It’s Time to Call Abortion Bans What They Are—Torture and Cruelty

It’s Time to Call Abortion Bans What They Are—Torture and Cruelty

It’s Time to Call Abortion Bans What They Are—Torture and Cruelty

The US must learn from other countries where denials of abortion are considered intentional, state-inflicted torture and cruel, inhuman, or degrading treatment.

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On August 24, 2022, Mayron Hollis sought an abortion after receiving news that her pregnancy was endangering her life and its continuation would likely result in uterine rupture and organ damage. Unfortunately, August 24 was also the day that Tennessee’s near-total ban on abortion went into effect. Denied care in her own state and unable to travel to one where she could get the care she needed, Hollis was forced to endure a dangerous pregnancy and birth, where she ultimately suffered severe hemorrhaging and lost her uterus, destroying her ability to give birth to any more children.

There are many terms to describe Mayron Hollis’s experience of being denied an abortion in Tennessee—harrowing, agonizing, unconscionable—but we should also call it what it is: torture and cruelty.

Torture often evokes images of individuals being interrogated in detention settings—a prisoner of war held in isolation. However, under the international human rights framework, torture and cruel, inhuman, or degrading treatment (also known as “ill-treatment”) encompass a broad range of acts that cause severe physical or mental harm, including—in certain cases—the denial of abortion services. It’s past time that we acknowledge and treat cases like Hollis’s as torture and ill-treatment.

Not even a year after the overturning of Roe v. Wade by the Supreme Court, we are witnessing a full-scale human rights crisis in the United States, making the trauma and suffering experienced by Hollis all too common. In Texas, a group of women, including Amanda Zurawski, who testified before the Senate Judiciary Committee about her distressing experience, have filed a lawsuit against the state after they were each denied abortion care despite being diagnosed with severe pregnancy complications that endangered their lives and health. In Florida, Deborah Dorbert was forced to carry to term a fetus with a lethal condition. And in Oklahoma, Jaci Statton was told she would need to be on the brink of death to receive treatment for her partial molar pregnancy and was forced to travel out of state to access emergency abortion care. These are just a few of the stories we know about. Many more are suffering in silence.

We have seen similar cases in other countries where abortion care has been highly restricted, such as El Salvador, Poland, and Ireland. International human rights experts and regional human rights courts have recognized the suffering and harm caused by restrictive abortion bans as violations of the rights to life, health, nondiscrimination, and freedom from torture and ill-treatment.

In one such case K.L., a 17-year-old girl, was denied access to abortion care (and forced to carry her pregnancy to term) in Peru after a diagnosis of a severe fetal impairment. The ambiguity around the country’s abortion law led to clinicians stating that the procedure was not permitted under the law’s health-and-life exceptions. In 2005, when the UN Human Rights Committee examined K.L.’s case, it considered the physical and mental pain she had to endure, including “the distress of seeing her daughter[]…and knowing she would die very soon.” The committee found that her treatment violated the prohibition on torture, cruel, inhuman, or degrading treatment or punishment in the International Covenant on Civil and Political Rights—which has been ratified by 173 countries, including the United States—and ordered the payment of reparations (which were eventually paid in 2015).

The United States will be reviewed by this committee for its compliance with the treaty this fall.

Other decisions are also instructive, such as a pair of cases that were litigated during the period when Ireland’s total abortion ban was in place. Amanda Mellet and Siobhan Whelan were both denied abortion care after receiving diagnoses of severe fetal abnormality, and both were forced to travel to the United Kingdom to access abortion services.In both cases, the UN Human Rights Committee found that Ireland’s abortion law violated the prohibition against cruel, inhuman, or degrading treatment because of the mental anguish inflicted on the women by health care providers, their inability to receive the care they needed, and their being forced to choose between continuing a nonviable pregnancy or traveling to obtain an abortion while carrying a dying fetus. Both were issued reparations.

Like K.L, Amanda Mellet, and Siobhan Whelan, Mayron Hollis, Amanda Zurawski, Deborah Dorbert, and Jaci Stratton have spoken out about the significant suffering they experienced in the face of denials of abortion after being told that their pregnancies were nonviable. For example, Amanda Zurawski who reports facing depression, PTSD, and difficulty conceiving as a result of Texas’ abortion ban, testified about her experience in Congress, stating,

What I needed was an abortion, a standard medical procedure. An abortion would have prevented the unnecessary harm and suffering that I endured. Not only the psychological trauma that came with three days of waiting, but the physical harm my body suffered, the extent of which is still being determined.

Similarly, in Florida, Deborah Dorbert was forced to carry for 13 weeks a fetus that she knew would die almost immediately, all against a backdrop of criminalization if she sought abortion care in her home state. In the wake of this experience, she spoke out about the severe anxiety and depression she felt for the first time in her life. Their stories illustrate the physical and mental trauma that denial of abortion care can result in and point toward violations of their human rights to be free from torture and ill-treatment.

The Human Rights Committee is only one of multiple international bodies that have found that the denial of abortion care can violate global prohibitions on torture and ill-treatment. For example, the UN Committee against Torture, which monitors the Convention against Torture and Other Forms of Cruel, Inhuman, and Degrading Treatment or Punishment (which the United States ratified), has found that denial of abortion care and restrictive abortion laws can in some cases cause “physical and mental suffering so severe in pain and intensity as to amount to torture.” The committee has also found that abortion laws that lack exceptions in cases of life or the health of a pregnant person, or in cases of rape, incest, or fetal impairment, may constitute torture and ill-treatment. Most recently, the Colombian Constitutional Court cited the fact that human rights bodies have found that denial of abortion services can constitute torture and ill-treatment in its decision to decriminalize abortion under all circumstances to 24 weeks.

Until these laws are repealed, anti-abortion policy-makers will continue to instrumentalize the US health care system to commit human rights violations. In contravention of scientific evidence, we are seeing cases of health care workers in the United States forced to be complicit in inflicting torture and ill-treatment on patients who are entrusting them with their lives. The American Medical Association and the World Medical Association have been clear—support for patient autonomy is at the heart of medicine and health care workers must not participate in or facilitate torture or other forms of cruel, inhuman, and degrading treatment.

Acknowledging that abortion bans have led to torture and ill-treatment can be consequential for abortion law reform. For example, the UN Human Rights Committee’s decision regarding Ireland was recognized as critical in spurring a constitutional referendum that ultimately resulted in liberalizing the country’s abortion law in 2018.

Legislators, judicial actors, government officials, and medical associations in the United States must learn from the lessons of their counterparts in Ireland, Colombia, and elsewhere, where denials of abortion are considered intentional, state-inflicted torture and cruel, inhuman, or degrading treatment. These troubling experiences are not isolated incidents. Rather, these denials of care reflect the foreseeable result of laws with severe penalties that make abortion provision extremely risky—both personally and professionally—and that include only narrow and vague exceptions. Until these dangerously restrictive laws are repealed, the fundamental human rights of millions to be free from torture and ill-treatment are at risk.

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