“Roe” Is the Past, Human Rights Are the Future

“Roe” Is the Past, Human Rights Are the Future

Roe Is the Past, Human Rights Are the Future

Roe v. Wade didn’t guarantee unfettered abortion access in the United States. It’s past time human rights were placed at the center of our demands.


All of us in the abortion rights movement have long prepared for the day Roe v. Wade would be reversed. But nothing could fully brace us for the pain of reading Justice Samuel Alito’s majority opinion, which categorically declared that abortion is not a constitutional right. While we took to the streets to rage and mourn the destruction of our rights, we heard from feminist allies and partners around the world—some of whom had successfully fought deeply entrenched patriarchal forces to secure historic advances for abortion rights in their country and offered lessons for our struggle. There is an immense amount to learn from them, but there is one lesson in particular to embrace: We must place human rights at the center of our demands for unfettered access to abortion.

Since the Supreme Court decided Roe in 1973, the story of abortion access in the United States has been one of steady regression. In 1976, Congress passed the Hyde Amendment to restrict the use of federal funds for abortion except in limited circumstances. This decision was upheld by the Supreme Court in Harris v. McRae, which found that that neither the federal government nor states were required to pay for abortion services—severely undercutting the realization of a constitutional right. Subsequent years saw Planned Parenthood v. Casey limit Roe through the imposition of the “undue burden” standard, Gonzales v. Carhart limit later abortions, and National Institute of Family and Life Advocates v. Becerra limit regulation of anti-abortion “crisis pregnancy centers.” And just under 50 years after Roe, the court dealt its killing blow to abortion rights in Dobbs v. Jackson Women’s Health Organization.

Meanwhile, the international human rights system was on the opposite trajectory. The 1970s and 1980s saw the development of multiple human rights treaties—the International Covenants on Civil and Political Rights, and Economic, Social and Cultural Rights; the Convention against Torture; the Convention on the Elimination of All Forms of Discrimination against Women; and the Convention on the Elimination of Racial Discrimination. Over the past 50 years, these treaties (and others) have confirmed that reproductive autonomy is essential to achieving equality, and have been used to vindicate rights guaranteed for pregnant people the world over—from Peru to Ireland to Poland.

The robust protection of abortion at the international level—grounded in a range of rights that better accord with the lived realities of pregnant people and more accurately reflect the need for abortion access—should be the framework that all US advocates utilize going forward. Reproductive justice advocates, long aware of the limits of domestic legal and political frameworks and strategies, have already played a crucial role in reframing reproductive rights as human rights. They have argued time and again that Roe was the floor, not the ceiling, and the future needs to look beyond its codification.

The recently released guidelines on abortion from the World Health Organization (WHO) provide an important blueprint for the way forward. Taking an approach that melds health and human rights, the guidelines recommend that countries fully decriminalize abortion, have abortion be available on request, and do not regulate abortion based on the circumstances of the condition (for example only allowing access in cases of rape) nor based on gestational limits. This expansive foundation for abortion rights stands in stark contrast to the legal basis for Roe, whose constitutional privacy frame and somewhat arbitrary line of “viability” proved to be extremely vulnerable to attack. To use a cliche, the human rights approach is how we “build back better.”

This will require a fundamental shift in how US government officials and elites in domestic and foreign policy spaces view human rights. The United States often positions them as an international policy, not a vision for its own governing bodies to pursue. As a result, it’s not a surprise that the United States has ratified relatively few international human rights treaties, despite having played a leading role in the development and negotiation of many of these frameworks. For example, the US is one of only six countries in the world who has not ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Its bedfellows here are countries with abysmal records on women’s rights, including Sudan, Somalia, and Iran. Not only does this undermine the US’s self-asserted leadership on human rights, it also deprives people in the US of valuable protections.

So where to from here?

Beyond demanding the United States ratify all global human rights treaties with the intention to meaningfully implement them domestically, including CEDAW, Americans and the international community can insist that the country answer for its violations of three other relevant treaties—the Convention on the Elimination of Racial Discrimination, the International Covenant of Civil and Political Rights (ICCPR), and the Convention against Torture. Each of these treaties have been ratified by the US and protect abortion access as a matter of the rights to the pregnant person’s life, health, non-discrimination (on the grounds of gender, race and socioeconomic status), privacy, and freedom from torture, cruel, and degrading treatment. Importantly, these rights (and others) only apply at birth. Abortion regulations permitted under Dobbs are an infringement on these rights.

These issues are likely to draw significant attention in mid-August when the Committee on the Elimination of Racial Discrimination will scrutinize the United States’ record on various issues related to racial discrimination—including voting rights, mass incarceration, and police violence. The committee has also asked the US to report on its “[e]fforts to address restrictive legislation in the field of sexual and reproductive health and their disproportionate impact on women belonging to racial and ethnic minorities, including with regard to voluntary termination of pregnancy,” thanks to the leadership of US-based human rights organizations, including my own, which have pushed for a review of the United States’ abortion policies. These structural barriers to sexual and reproductive health care cannot be separated from other systems of oppression in the United States, including voter disenfranchisement, police brutality, and the carceral state—all of which the right has prioritized in its concerted attacks on democracy.

The Human Rights Committee, which monitors the ICCPR, and the Committee Against Torture (CAT), which monitors observance of the Convention against Torture, are also set to review the United States in the next two years. The ICCPR requires countries “to not introduce new barriers and should remove existing barriers that deny effective access by women and girls to safe and legal abortion.” The committee has found denial of abortion to violate a range of rights under the ICCPR. For example, in a pair of cases decided by the committee related to Ireland’s total abortion ban in 2016 and 2017, they found that forcing women to travel to access safe abortion services in certain circumstances resulted in “intense physical and mental suffering,” in violation of the treaty’s prohibition on cruel, inhuman, or degrading treatment. The committee ordered Ireland to provide compensation and other measures of remedy to the affected women, and called on the country to reform its abortion laws. Peru has similarly provided compensation to a girl who was denied access to abortion as a result of the committee’s decision. The Committee Against Torture has also found total abortion bans to constitute a violation of its provisions.

The international community has already responded with outrage to the Dobbs ruling and how devastating it will be for pregnant people in the United States. UN High Commissioner for Human Rights Michelle Bachelet called the decision “a huge blow to women’s human rights and gender equality.” The ruling has also drawn criticism from the WHO and human rights experts, as well as the leaders of allied countries, including France, Canada, and Belgium. French political leaders have announced that they are seeking to amend their Constitution to explicitly protect abortion to better cement protections, saying, “What happened elsewhere must not happen in France.”

To be sure, an international human rights strategy is just one part of a multifaceted approach that needs to be taken in the United States to build back the framework of reproductive rights in this country—and one that is far stronger than the frame overturned by Dobbs. But as we watch the decimation of rights and confront the limits of a 200+ year-old constitutional framework, it is imperative that Democratic leaders and activists look outward, with humility, and learn from the countries expanding rights, not restricting them. And it is far past time that the United States subjected itself to a human rights framework that it helped to build for others but has zealously withheld from its own people.

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