Roe v. Wade: No court of law should be permitted to take away women’s human rights: A proposal for action

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Roe v. Wade: No court of law should be permitted to take away women’s human rights.
A proposal for action to challenge the US Supreme Court

by Marge Berer, 6 December 2022

This paper has two parts. Part I discusses the many human rights violations contained in the rejection of Roe v. Wade by a majority of the US Supreme Court justices earlier this year in the context of national and international human rights law. It is based on the compelling response of the three dissenting Supreme Court justices to the majority ruling. Part II is a proposal to US abortion rights advocates to take a case against the US government to the UN Human Rights Committee, with support from the international abortion rights movement, to direct the USA government to void the ruling against Roe v. Wade on the grounds that it violates the human rights not only of all US women and girls, but through so many other countries’ laws too, the rights of all women and girls internationally. 

Part I: The US Supreme Court’s ruling in Roe v. Wade took away US women’s human rights

Today’s US Supreme Court is a party-political court
Who are the US Supreme Court justices politically who ruled on Roe v. Wade this year? Three were appointed by Donald Trump, who is known for his rejection of human rights and his anti-abortion stance. Two were appointed by George W Bush and one by George Bush Senior, both Republicans, both anti-abortion (though Bush Senior supported family planning but actively began to oppose abortion in order to become vice-president under Ronald Reagan [1]). All three presidents appointed anti-abortion judges. Two were appointed by Barack Obama and one by Bill Clinton, both Democrats, all three of whom were pro-choice judges. Thus, four of the five justices whose majority ruling rejected Roe v. Wade were appointed by three Republican Party presidents, and identify themselves as anti-abortion, and the three who defended Roe, who identify themselves as pro-choice, were appointed by two Democratic Party presidents.

Although judges and justices are not supposed to be political, this party political division is not new; as judges retire and new judges are appointed, the picture shifts. Thus, some people criticised Ruth Bader Ginsburg for not retiring in time to allow Obama to appoint a pro-choice justice in case Donald Trump was elected. Increasingly, the appointment of judges is a reflection of the wider rift in the politics and policies of the two main political parties, which was reflected in the elections on 10 November, and not only because of the rejection of Roe v. Wade.

What are human rights?
“Human rights are rights we have simply because we exist as human beings — they are not granted by any state. These universal rights are inherent to us all, regardless of nationality, sex, national or ethnic origin, color, religion, language, or any other status.” [2]

It was following the First and Second World Wars and the events leading up to them that a series of declarations and covenants were agreed by the United Nations General Assembly to articulate universal human rights. The first, in 1948, was the Universal Declaration of Human Rights. In December 1966, two international treaties were adopted: the International Covenant on Economic Social and Cultural Rights (ICESCR), and the International Covenant on Civil and Political Rights (ICCPR). Together, these three are known as the International Bill of Human Rights. [3] The following are defined as freedoms or rights in one or more of these:

  • Right to life
  • Right to health
  • Right to equality and non-discrimination
  • Right to liberty and security of the person
  • Right to equality before the law.
  • Right to benefit from scientific progress.
  • Freedom from torture
  • Freedom from slavery.

All of these are relevant to the freedom and the right to have a safe, legal abortion.

To realise human rights, all States must respect, protect and fulfil these rights. This means States must refrain from interfering directly or indirectly with them. States must also take measures to make sure that no one else interferes with these freedoms and rights, and must take steps to ensure these rights are realised.

An example of the violation of these rights, according to the United Nations Office of the High Commissioner for Human Rights (UN OHCHR), includes: “Denying a person access to information and services related to sexual and reproductive health (the right to health and the right to life).” [4] This certainly applies if abortion is made illegal, which the majority of the US Supreme Court opened the door to.

Human rights are also recognised by individual countries. The United States Constitution has been amended more than 27 times since its Bill of Rights was ratified in 1791. Relevant to human rights as related to abortion are the following:

  • Amendment 13: “Neither slavery nor involuntary servitude… shall exist within the United States, or any place subject to their jurisdiction.”
  • Amendment 14: This amendment is about equal protection under the law for all citizens.

Amendment 13 was aimed primarily at banning slavery. It also included involuntary servitude, primarily from a work point of view. However, forcing someone to continue a pregnancy against their will and give birth to and raise an unwanted child is, from the point of view of women’s right to determine what to do with their own bodies and lives, a form of lifelong involuntary servitude as well.

Women were not citizens until 1920. Hence, discrimination on the ground of sex was not included in Amendment 14 but has been seen to be relevant as regards discrimination against women on the ground of sex since 1920, under Amendment 19 (The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.)

The dissenting opinion of Justices Breyer, Sotomayor and Kagan
While the majority judgment drafted by Justice Samuel Alito became frontpage news in the USA after it was leaked [5] on 2 May 2022, the cogent, 66-page statement of dissent by Justices Stephen Breyer (since retired), Sonia Sotomayor and Elena Kagan, [6] published on 24 June 2022, has received little or no national or international publicity by comparison. Their statement of dissent deserves to be known to everyone, however, because its analysis of the majority ruling on constitutional and human rights grounds could and should form the basis of a future action to overturn the Supreme Court’s majority ruling. Part II of this paper calls for such action, led by US human rights and abortion rights advocates with the support of the international abortion rights movement.

In a few words, the three dissenting justices argued that the majority’s ruling:

  • was based on personal political opinion, not constitutional law, which violates the rule of law;
  • went against legal precedent, which is a bedrock of US legal decisions, that was affirmed in Roe v. Wade (1973) in relation to other closely related rights, and was re-affirmed in Casey v. Planned Parenthood (1992), and
  • violated a long list of human rights, particularly women’s human rights.

The following summarises these points and others in more detail and refers to the pages where the official text of the dissenting opinion can be found:

  • Women’s rights and their status as free and equal citizens have been curtailed. (p.2)
  • The freedom to have an abortion that Roe and Casey recognized does not stand alone. The Supreme Court has linked it for decades to other settled freedoms, including bodily integrity, family matters, familial relationships, procreation, child rearing, the right to use contraception, the right of same sex intimacy, and the rights to marry a person of one’s choice, have intimate relationships and decide whom to have sex with. These are all part of the same constitutional fabric, protecting autonomous decision-making in regard to the most personal of life decisions, and crucially, whether and when to have children…. The freedom required (or denied) inevitably shapes the whole nature and future course of a woman’s life (and often the lives of those closest to her). So, the Court has long held that these freedoms belong to the individual, and not to the government as the essence of liberty. (p.5, p.22)
  • The lone rationale for what the majority of the Supreme Court said is that the right to choose an abortion is not “deeply rooted in US history”, that is, because abortion was illegal in the 19th century (p.26), and because it was not until Roe v. Wade that the right to have an abortion fell within the list of the US Constitution’s guarantees of liberty. Thus, they imply that any and all rights currently guaranteed in the USA whose history does not stretch back to at least the mid-19th century are not secure and can easily be rejected. (p.5) [7]
  • The majority did not appear to recognise that forced pregnancy, forced childbirth and forced motherhood implicate a woman’s rights to equality and freedom at all. Nor did they appear to think there was anything of constitutional significance regarding a woman’s control over her own body and the path of her life. (p.12, p.47) However, the Supreme Court’s longstanding view has been that women indeed have rights to make the most personal and consequential decisions about their bodies and their lives, thus protecting “bodily integrity”. And that there are few greater incursions from government intrusion than forcing a woman to complete a pregnancy, give birth and become a mother. (p.21-22)
  • As Planned Parenthood v. Casey (1992) recognised, equal citizenship for women is inescapably connected to reproductive rights. (p.22-23) Importantly, Casey made clear that the precedents Roe most closely tracked were those involving contraception. Over the course of three cases, the Court had held that a right to use and gain access to contraception was part of the 14th Amendment’s guarantee of liberty. (p.24)
  • Equally importantly, any interest of the state in protecting fetal life played no part in the majority’s analysis. (p.26) This should surely affect anti-abortion attempts at US state level to write laws based on fetal protection or to grant fetal personhood (sic).
  • …[M]ost medical treatments for miscarriage are identical to those used after abortions…. Blanket restrictions on abortion therefore may be understood to also deprive women of effective treatment for miscarriage, which occurs in 10-30 percent of pregnancies. (p.36)
  • The majority’s ruling invites a host of questions about interstate conflicts. Can a State bar women from traveling to another State to obtain an abortion? Can a State prohibit advertising out-of-state abortions or helping women reach an out-of-state provider? Can a State interfere with the mailing of pills used for medical abortions? [8] The Constitution protects interstate travel and speech and commerce, so this ruling will give rise to a host of new legal battles. Far from removing the Supreme Court from the abortion issue, the majority’s ruling puts the Court at the center of “interjurisdictional abortion wars” that the dissenting judges could already see coming. (p.37)
  • For those who are told they will now have to continue an unwanted pregnancy, the outcome could be disastrous, especially for those without money and support…. In States that bar abortion, women of means will still be able to travel to obtain the services they need. It is women who cannot afford to do so who will suffer. Yet the latter are the women most likely to seek an abortion in the first place. Women living below the federal poverty line experience unintended pregnancies at rates five times higher than higher income women do, and nearly half of women who seek abortion care live in households below the poverty line. (p.50) This in itself makes the ruling discriminatory.
  • In the end, the majority ruled as they did because they personally believed Roe v. Wade and Casey were “egregiously wrong”. They overruled Roe v. Wade and Casey only because as individuals they oppose abortion, and because they had enough votes to discard both judgments. Thus, they substituted their individual opinions for the rule of law. (p.32,33)
  • In Planned Parenthood v. Casey (1992) the Supreme Court found that what Roe had said in 1973 was true, and had set a precedent. Thus, Casey was a precedent about an existing precedent, in line with the principle of stare decisis. [9] That is, in Casey, the Court reviewed the same arguments made for overruling Roe as in 2022, but found that overruling Roe was not warranted. (p.6)
  • Weakening stare decisis threatens to upend bedrock legal doctrines, far beyond this and any other single decision. Weakening stare decisis creates profound legal instability. As Casey recognised, weakening stare decisis in a hotly contested case like this one also calls into question the majority’s commitment to legal principle and to the rule of law. (p.57)
  • For all these reasons, the majority decision in this case has undermined the legitimacy of the US Supreme Court itself (p.59)

These are very serious criticisms indeed. You don’t have to be a legal expert to understand why they cannot just be sighed over and kept in a box in hopes of a better judgment sometime in the future. What is especially egregious in this case is that Chief Justice John Roberts, long known and admired for his strict adherence to constitutionality, clearly allowed his own personal opinions on abortion to be affected by the opinions of the four openly anti-abortion judges. Yes, he voted against getting rid of Roe v. Wade, but he did support the anti-abortion state law called Dobbs at the same time. Moreover, he did nothing to challenge these major violations of women’s rights or insist on a different outcome based on the very negative consequences of the majority judgment.

Worse, on September 11, 2022, Roberts was quoted in a news article as follows: “[He] warned against linking contentious decisions with court legitimacy…: “The court has always decided controversial cases and decisions have always been subject to intense criticism, and that is entirely appropriate.” [10]

No, it is not appropriate. This was not just a “contentious” decision because, as the three dissenting justices said, it violates legal precedent (stare decisis), the rule of law, and a long string of nationally and internationally recognized women’s and girls’ human rights and freedoms. Moreover, as an astute analysis of what happened has pointed out:

“Overturning Roe v. Wade has been a core priority of the Republican Party since Ronald Reagan’s election in 1980, if not earlier. Conservative organizations like Moral Majority, Focus on the Family and the Federalist Society worked to ensure overturning Roe was central to the party’s mission. Abortion has been prominent in the party’s platforms and the governing agenda of every Republican president for decades. Republicans have sought to put anti-abortion justices on the Supreme Court and other federal courts, and through a series of untimely deaths and unprecedented power moves by Mitch McConnell, the unlikely figure of Donald Trump managed to place enough of them there to achieve the goal.” [11]

Thus, above all, the majority decision was a party-political decision, and a gross violation of what is meant by “the rule of law”. Not only did the majority on the Court lose the Court its legitimacy; Chief Justice John Roberts himself sold his own reputation and his own legitimacy as a strict constitutionalist down the river as well.

Some facts

  1. Globally, an average of one in four women of reproductive age has an induced abortion in her lifetime. In fact, induced abortion is one of the most common medical procedures accessed by women worldwide. Criminalising one in every four women is discrimination on a global scale. Even so, as evidence over the past 40 years has proved, it does not stop abortions, it only makes them unsafe.
  2. The Court’s majority did not define as a crime the act of unprotected sexual intercourse on the part of every man who makes a woman or girl pregnant against her wishes, whether accidentally or intentionally. Thus, the majority opinion allows for the criminalisation of women for terminating an unwanted pregnancy but excuses from culpability the male persons who made them pregnant. This makes a mockery of any notion of equality between men and women and promotes, not just permits, discrimination on the grounds of sex.
  3. Both a wanted and an unwanted pregnancy can kill and cause serious morbidity in a pregnant girl or woman, and preventing this requires steps to be taken to protect their health and their life. In some cases, continuation of the pregnancy itself may threaten their life and emergency obstetric care in the form of an induced miscarriage may be the only way to save their life. [12] The majority who ruled in this case took no account of this. Indeed it is rare for anyone who is anti-abortion ever to acknowledge that making abortion illegal kills women and girls.
  4. Forcing someone to continue a pregnancy may threaten or destroy their physical health, their mental health, their well-being, and their life plans. This constitutes punishment for being born a woman at all. The misogyny is blatant and should be defined as a form of hate crime in law.
  5. Forced pregnancy, like forced sex, violates the right of girls and women to liberty and security of the person. This has long been understood in Latin America as a form of violence against women.
  6. Special protection before, during and after a birth are not possible when pregnancy and motherhood are forced on a girl or woman, especially on those who do not have the means to have a(nother) child. The majority in this ruling took no account of this.
  7. Rape in war in countries where abortion is illegal should be considered as a form of torture as defined in the UN Convention against Torture, as the intent is to inflict severe physical and mental pain and suffering, affecting women, their partners and their families, as well as any child that may be born from the rape. Psychological torture seeks to inflict mental suffering, affecting the mind and emotions of the intimidated person(s), and involves the interaction of intimidation, isolation, arbitrariness, and humiliation. [13] These are the intentions of rape in war, and perhaps all rape. The majority in this ruling took no account of this.
  8. Whether and when to have children, and the right to decide the number and spacing of children, have been confirmed in countless UN conferences, most famously the International Conference on Population and Development, Cairo, 1994 and the UN Conference on Women, Beijing, 1995. The majority in this ruling took no account of this.
  9. Involuntary servitude was made illegal in the USA under the 13th Amendment to the US Constitution, which freed the slaves. Forced pregnancy, leading to the birth of an unwanted child, and its outcome, forced motherhood, should be considered as a form of involuntary servitude and sex discrimination, imposed on girls and women. The majority in this ruling took no account of this.
  10. Research has shown that unwanted children fare substantially less well in life than wanted children. Hence, forced pregnancy and forced motherhood can also greatly damage children. [14] The majority in this ruling took no account of this.
  11. Infanticide continues to be a widespread practice in societies where women are unable to access either safe or unsafe abortions. See for example the research on why many women in Senegal are in jail. [15] The majority in this ruling took no account of this consequence.
  12. Internationally, as many as half a million pregnant women died or suffered serious and sometimes lifelong morbidity every year until the World Health Organization and the international women’s health movement began to campaign for preventing maternal deaths [16] in the 1980s. Complications of unsafe abortions were a substantial part of these deaths and morbidity. Making and keeping abortion safe and legal is the only way to prevent avoidable maternal morbidity and mortality from unsafe abortions. This is a public health imperative. The majority in this ruling took no account of this.
  13. Safe abortion methods are one of the many benefits of science and scientific research in human reproduction that were not available until the 20th century. This is one of the reasons why it took so long for abortion to be made legal. It is not a valid reason to reject abortion as essential health care. The majority in this ruling took no account of this either.

Indeed, they took no account of women’s lives at all. 

*******
Part II. 
An action proposal: A coalition of US abortion rights advocates, with support from the international abortion rights movement, should take a case against the US Supreme Court to the UN Human Rights Committee, calling for the Roe v. Wade ruling to be withdrawn because it violates women’s human rights 

First, some history.

The evolution of human rights norms to recognise safe abortion as a human rights imperative 
In 2017, three US legal experts published an evidence-based summary of the evolution of international and regional human rights norms that have recognised safe abortion as a human rights imperative. [17] They showed how the progressive interaction of judicial and legislative developments on abortion rights across the globe have played a critical role in liberalising national laws, influencing high court decisions that have recognised access to abortion as a legal or constitutional guarantee, and served as an important resource in advancing law and policy reform. The countries whose law reforms they discussed included: Argentina, Bolivia, Brazil, Colombia, Nepal, Peru, Rwanda, Spain and Uruguay. This was their main conclusion:

“This increasingly progressive jurisprudence demonstrates the significant progress toward recognizing abortion as a human right and signals the transformative potential of such norms. Undoubtedly, translating these normative gains into concrete change in countries across the globe will continue to require sustained and concerted efforts by reproductive rights advocates and civil society actors more broadly, especially in light of the extensive stigma and discrimination — as well as lack of political will — surrounding abortion in many contexts. But by continuing to establish women’s and girls’ right to decide whether to carry a pregnancy to term as a fundamental aspect of the realization of their human rights, human rights bodies can further support the promise of gender equality. These normative developments can have a catalytic and transformative impact on national-level jurisprudence, laws, and policies, resulting in greater recognition globally of abortion as a fundamental aspect of women’s reproductive autonomy and self-determination and ensuring women greater access to this essential reproductive health service.” [18]

Most people believe that the Supreme Court in their countries is the highest one can go for a ruling on the law. The USA is no exception. Yet regional and international human rights law has been developing and expanding since 1945, as a consequence of the gross violations of human rights during and between the two world wars and ever since. In fact, there is a rich body of human rights treaties and conventions, a long list of human rights treaty bodies and several regional and international courts. It is true that regional human rights courts, for example, do not have the power to enforce their decisions, and UN human rights bodies are not judicial bodies. While their power to challenge human rights violations, let alone enforce human rights policies, is limited, they play a crucial role. That role is to convince countries of the rightness and the value of protecting and fulfilling  human rights. Our movements would benefit from working as closely as possible with them and involving them as advocates.

The words “human rights” are not a magic wand. We can stamp our feet or write thousands of words and shout: “But this is a human right!!” till we are blue in the face. The question is: Where does the power of enforcement lie? Human rights bodies have contributed both a rich tableaux of human rights covenants, conventions and treaties that we can rely on to underpin our work for abortion rights and reproductive justice, but we need people with the legal know-how to show governments why it is in their interests to implement human rights in national policy.

Combining this support with the persuasive political power of a critical mass of support in our own countries is surely the best formula for making change happen. How to get from here to there?? First, some history of the international human rights universe…

International Bill of Human Rights
“Following the Second World War, a series of declarations and covenants began to articulate universal human rights. In 1948, for the first time, countries agreed on a comprehensive list of inalienable human rights. In December of that year, the United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR), a milestone that would profoundly influence the development of international human rights law. In December 1966, the UN General Assembly adopted two international treaties that would further shape international human rights: the International Covenant on Economic Social and Cultural Rights (ICESCR), and the International Covenant on Civil and Political Rights (ICCPR). These are often referred to as ‘the International Covenants’. Together, the UDHR and these two Covenants are known as the International Bill of Human Rights.” [19]

The Human Rights Committee monitors the ICCPR, [20] and the Committee on Economic, Social and Cultural Rights monitors the ICESCR. [21]

International human rights conventions
Since these two covenants were ratified, specific conventions have been published, signed and ratified under the aegis of the United Nations, including the following: [22]

  • Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT)
  • Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).
  • Convention on the Rights of the Child (CRC)
  • Convention on the Rights of Persons with Disabilities (CRPD)
  • International Convention on the Elimination of All Forms of Racial Discrimination (CERD).

The above covenants and conventions are all relevant to and support the right to safe abortion. The USA has signed all of them but has ratified only the ICCPR and CAT.

Regional courts

  • European Court of Human Rights 

This is the court of the Council of Europe, which interprets the European Convention on Human Rights and hears applications alleging breaches of one or more of the human rights enumerated in the European Convention or its optional protocols to which a member state is a party. 

  • Interamerican Court of Human Rights 

This court covers all of the Americas. Together with the Inter-American Commission on Human Rights (IACHR), it was formed by the American Convention on Human Rights, a human rights treaty ratified by members of the Organization of American States. Its purpose is the application and interpretation of the American Convention on Human Rights (ACHR). The IACHR can only rule on cases brought before it which occur in a state that has accepted its jurisdiction. In addition to ratifying the Convention, a State party must voluntarily submit to the Court’s jurisdiction in order for the Court to be competent to hear a specific case involving that state. Once again, the USA signed the ACHR in 1977 but has not ratified it. [23,24] A second list of human rights, including the right to health, was added those recognized by the ACHR and came into effect in 1999. This should greatly strengthen the support for a right to safe abortion in this Court, but this has not yet been tested.

Who can take a case to one of these bodies?
It is possible for states, NGOs and even individuals to report violations of human rights to one of these bodies, as appropriate, seek a ruling from them and, in certain cases, also seek redress for harms done. [25]

Specific cases in which violations of human rights in relation to abortion were heard by one of these bodies

  • KL v. Peru

A 17-year-old Peruvian woman was forced to continue a pregnancy in spite of the fact that the fetus was found to have anencephaly, a fatal anomaly incompatible with life, and even though Peruvian law allows therapeutic abortion. KL was not only forced to carry the pregnancy to term but also to feed the baby until she inevitably died. A complaint was filed with the UN Human Rights Committee by Peruvian NGOs together with the Center for Reproductive Rights. It pointed to the State’s failure to protect KL’s right to be free from inhumane and degrading treatment. In 2005, the Committee issued its ruling, establishing that denying access to legal abortion violates women’s most basic human rights. The decision stated that the Peruvian government had violated Article 17 (the right to privacy), and Article 24 (special protection of the rights of a minor). It was the first decision of any international human rights body that made a government accountable for failing to ensure access to legal abortion services. [26,27]

Women’s Link Worldwide described this case as “a landmark ruling that confirms a State’s positive obligation to provide therapeutic abortion when the pregnancy poses mental or physical threats to the girl/woman, especially if she is a minor.” Equally importantly, “the Committee also recognised that mental suffering caused by the inability to access legal therapeutic abortions amounts to torture and cruel, inhuman and degrading treatment (Article 7).” [28]

In an appendix to the KL v. Peru ruling, Human Rights Committee Member Hipólito Solari-Yrigoyen included a Dissenting Opinion: “It is not only taking a person’s life that violates article 6 of the Covenant but also placing a person’s life in grave danger, as in this case. Consequently, I consider that the facts in the present case reveal a violation of article 6 of the Covenant.” The numbers of women and girls whose lives have been lost or even more that have been put at grave risk from complications of illegal, unsafe abortion are well known and underline the importance of this statement in future cases.

  • Mellet v. Ireland

In the 2016 case Mellet v Ireland, [29] the UN Human Rights Committee found that the Irish State had subjected Amanda Jane Mellet (who went to them for redress) to cruel, inhuman and degrading treatment, to discrimination, and to an arbitrary (and therefore unlawful) interference with her right to privacy by interfering with her decision as to how best to cope with a non-viable pregnancy. In her 21st week of pregnancy in 2013, Mellet had scans at the Rotunda hospital in Dublin and was informed that her fetus had congenital heart defects. A week later, she was informed that the fetus also had trisomy 18 and would die in utero or shortly after birth. She had only two options: carry the pregnancy to term anyway or have a termination in another country. She travelled to England and received medication at the Women’s Hospital in Liverpool to induce labour. Feeling weak and bleeding, she had to travel back to Dublin only 12 hours after the delivery as she and her husband could not afford to stay in England. After her return to Dublin, she received no aftercare at the Rotunda Hospital. Moreover, although she sought bereavement counselling to cope with the loss of the pregnancy and the trauma of travelling abroad for the termination, the hospital did not offer counselling at the time to those who had terminated a pregnancy as a result of fatal fetal anomalies but only to those who had experienced a spontaneous stillbirth. [30] The Human Rights Committee found that Ireland’s abortion law violated the International Covenant on Civil and Political Rights and called on the government to offer her compensation and counselling, and to change the laws to allow for abortion in cases of fatal fetal abnormality. [31] And indeed they did so.

There have been three court cases where the European Court of Human Rights ruled on complaints brought by individual women who were denied abortions that were legal, one from Ireland and two from Poland.

  • Artavia Murillo et al v. Costa Rica

The American Convention on Human Rights was drafted in 1969 by legal experts, mainly from Latin America. They included the following at the time, in Article 4.1: “Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.” [32] The ‘moment of conception’ clause had obvious anti-abortion implications. However, it was successfully challenged in a case opposing the criminalisation of in vitro fertilisation (IVF) in Costa Rica, which was heard by the Inter-American Commission on Human Rights, called Artavia Murillo et al v. Costa Rica. In August 2010, the Commission ruled that Costa Rica could not criminalise IVF, as it was a violation of the right to life, personal identity, and the individual autonomy of those who sought to use this technology in order to have biological children. The Commission further found that Costa Rica’s ban violated the right to be free from arbitrary interference with one’s private life, to create a family, and to equality. When Costa Rica failed to comply with this ruling, the Commission submitted the case to the jurisdiction of the Inter-American Court of Human Rights (ACHR) in July 2011. Overall, the Court declared that Costa Rica had violated several provisions of the Convention related to reproduction and having a family, including Articles 5.1 (personal integrity), 7.1 (personal liberty), 11.2 (private life), 17.2 (family), and 1.1 (equality). [33]

Two of the most crucial points the ACHR made were that:

  • no other international human rights conventions and declarations protect the right to life prior to birth, and
  • by forbidding IVF, the embryo’s rights were made more important than the woman’s rights, indicating that the woman was to be seen simply as an instrument of reproduction.

The importance of these points for abortion rights cannot be overstated.

  • Tysiac v. Poland

This case, in 2007, was on behalf of Alicja Tysiac from Poland, who was denied a therapeutic abortion despite health indications. The European Court of Human Rights decided that her right to privacy had been violated and Poland was directed to pay her financial compensation. Moreover, the Court recommended introducing an appeal mechanism into the Polish legal system, to enable women in a similar situation to file an appeal against a doctor’s refusal to provide a legal abortion. In September 2009, the Polish Government established the office of Ombudsperson for Patient’s Rights and an appeal commission. [34] 

  • RR v. Poland

A second case from Poland was a woman who was denied access to antenatal genetic testing and subsequently to a lawful abortion, despite a finding of serious fetal malformation. As a result, she had a baby with Turner’s disease. In 2011, for the first time in history, the Court issued a landmark decision: that the denial of access to antenatal testing and lawful abortion is a human rights violation and constitutes inhumane and degrading treatment. The Court also ruled that it was a violation of RR’s private life. She received financial compensation of €45.000. [35]

  • ABC v. Ireland

In 2010, the European Court heard ABC v. Ireland, the cases of three Irish women who had had to travel abroad for an abortion. “The first applicant had children in the care of the state as a result of personal problems and considered a further child would jeopardise the successful reunification of her existing family. The second applicant was not prepared to become a single parent. The third applicant was in remission from cancer when she became pregnant. Unaware that she was pregnant she underwent a series of check-ups contraindicated during pregnancy. She claimed she could not obtain clear advice about the risks to her health and life and to the fetus if she continued to term. The judges ruled unanimously that Ireland’s failure to implement the existing constitutional right to a lawful abortion in Ireland when a woman’s life is at risk violated Article 8 of the European Convention on Human Rights. The Court unanimously found that Ireland’s abortion law violated women’s human rights and that Ireland must make life-saving abortion services available.” [36]

Nowicka also gives examples of important comments, e.g. to Ecuador, Poland and Nicaragua, that were made on violations of abortion rights. Despite the strong criticisms of national abortion policy that they contained, however, she acknowledges that: “[C]onservative governments rarely comply with the recommendations of the human rights bodies regarding reproductive rights”.

She concludes: “…sexual and reproductive rights, despite significant successes internationally and in some cases at the national level, will long remain controversial and contested. A backlash has clearly been visible since the turn of the century; it has inhibited further progress in developing international standards and paralyzed successful implementation of recognized agreements in many parts of the world. At the same time, this backlash, which is so evident in so many forums, is in a way also a reaction to progress and a sign of many successes” .[37]

And this is precisely why I would argue that the abortion rights movement, nationally and internationally, needs to work more closely with human rights bodies in challenging and seeking to overturn, anti-human rights judgments, such as (but not only!) the rejection of Roe v. Wade.

Abortion-related comments, ruling and prohibitions by international human rights bodies

  • Human Rights Committee [38]

The Human Rights Committee, in its General Comment 36 on the “right to life”, included one paragraph where the right to life is discussed in relation to abortion. It prohibited States from regulating abortion in a manner that runs contrary to their duty to ensure that women and girls do not have to undertake unsafe abortions. It also affirmed that “[a]lthough States parties may adopt measures designed to regulate voluntary terminations of pregnancy, such measures must not result in violation of the right to life of a pregnant woman or girl, or her other rights under the Covenant. Thus, restrictions on the ability of women or girls to seek abortion must not, inter alia, jeopardise their lives, subject them to physical or mental pain or suffering which violates article 7, discriminate against them or arbitrarily interfere with their privacy.” [39] The text said nothing about a right to life before birth. [40] 

  • CEDAW Committee

In 1979, the Convention on the Elimination of All Forms of Discrimination against Women became the comprehensive international convention addressing women’s rights across political, civil, cultural, economic, and social life. [41] CEDAW’s overriding purpose is deceptively simple: to ensure that women have not only human rights but equal rights.

With 189 States parties who have ratified it, this is the only treaty that comprehensively protects women’s sexual and reproductive health rights. Ironically, although the USA played a significant role in drafting this Convention and was the first State to sign it in July 1980 under President Jimmy Carter, the USA remains one of only six States (plus the Vatican) worldwide that has not ratified it. The others are Somalia, Sudan, Iran, Palau and Tonga. [42] How embarrassing for the USA.

The CEDAW Committee, in its General Recommendation 35 on gender-based violence against women in 2017, recognized the criminalization of abortion, as well as the denial or delay of safe abortion and post-abortion care, not only as violations of women’s sexual and reproductive health and rights, but also as “forms of gender-based violence that … may amount to torture or cruel, inhuman or degrading treatment.” [43] Similar to other treaty bodies, the CEDAW Committee has also called on states to decriminalize abortion. [44]

On 1 July 2022, in response to the Roe v. Wade ruling, CEDAW wrote to the USA and urged them to adhere to the CEDAW Convention in order to respect, protect, fulfil and promote the human rights of women and girls. They endorsed “the statement by the (then) High Commissioner for Human Rights, Michelle Bachelet, that ‘access to reproductive rights is at the core of women and girls’ autonomy, and ability to make their own choices about their bodies and lives, free of discrimination, violence and coercion’.” [45]

  • Committee against Torture (CAT) [46]

CAT has issued three recommendations regarding abortion to date, on the basis that denying someone an abortion constitutes cruel and degrading treatment:

– In 2013, CAT called on all States to ensure free access to abortion in cases of rape. [47]
– In 2019, CAT recommended along with the CEDAW Committee that States eliminate medically unnecessary waiting periods for abortion. [48]
– In 2020, CAT issued recommendations on decriminalisation of abortion in concluding observations on several countries. [49]

  • Committee on the Rights of the Child (CRC)

In 2015, the CRC urged states to decriminalize abortion; [50] in 2016 they called for the decriminalization of abortion in “all circumstances;” [51] and in their General Comment 20 on the implementation of the rights of the child during adolescence, they urged States “to decriminalize abortion to ensure that girls have access to safe abortion and post-abortion services”. [52]

  • Two recent National Constitutional Court rulings

The Supreme Court of Mexico ruled in September 2021 that it is unconstitutional to punish abortion as a crime. [53] The Supreme Court of Colombia legalised abortion in the first 24 weeks of pregnancy in February 2022, and retained the existing, more limited legal grounds after 24 weeks. Justices from the two countries discussed these rulings at a panel hosted on 21 October 2022 at Harvard Law School. [54] One of the main reasons why these rulings were supported by both their courts, they said, was that safe abortion had not only become an issue of public health in both countries but also that unsafe, illegal abortion was understood to be a form of violence against women and girls, no longer a religious or moral issue. Indeed, the Causa Justa movement was launched in Colombia 25 years ago to fight for abortion rights on precisely those grounds. [55] These two major national victories for human rights combine the right to health with the right to life and protection from the violence of unsafe abortion, alongside the right to bodily autonomy.

  • Human Rights Council: Universal Periodical Review (UPR)

The UPR is a three-stage process to assess the human rights situation in every UN Member State, conducted by the Human Rights Council. Every country is required to make a report every five years, receive a response that includes recommendations for action and policy change, and then report back on their progress implementing those recommendations within a specified period of time. “The UPR assesses how states are putting human rights into practice, looking at their human rights obligations as set out in the Universal Declaration of Human Rights…. The UPR is designed to ensure equal treatment for every country when their human rights situations are assessed. The ultimate aim of this mechanism is to improve the human rights situation in all countries and address human rights violations wherever they occur.” [56]

The USA presented its national report to the Human Rights Council UPR on 9 November 2020. In response, they were sent an eight-page letter signed by Michelle Bachelet, then UN High Commissioner for Human Rights, dated 17 May 2021, with commendations for steps already taken, which included “revoking previous policies in order to promote and protect reproductive health and rights of women and girls in the United States and globally”. [57] However, the bulk of the letter consisted of criticisms of US failure to ensure and fulfil many human rights, including in relation to the right to health, maternal mortality, reproductive rights and abortion:

  • Extending access to affordable health care to a greater part of the population and addressing disparities faced by African-Americans, indigenous peoples and other minorities in realizing the right to the enjoyment of the highest attainable standard of health.
  • Reducing the maternal mortality rate, including by addressing the root causes of increased maternal mortality, particularly among African-American women.
  • Ensuring that women have effective access to reproductive health services and information, including safe and legal abortion, and that the provisions of the Patient Protection and Affordable Care Act regarding insured access to contraceptives are universally enforced.
  • Ensuring that the laws permitting the refusal of health care and services based on religious and moral beliefs do not restrict women’s sexual and reproductive health rights. [58]

Yet the USA has taken many giant steps backwards since then. They are due to reply to the Council’s recommendations by 2023. What will they say they have achieved by rejecting Roe v. Wade? Causing an orgy of anti-abortion misogyny and non-stop violations of women’s rights? How will the Council respond?

  • Working Group on Discrimination against Women and Girls of the Human Rights Council, and the Special Rapporteurs of the Office of the High Commissioner of Human Rights

The Working Group on Discrimination against Women and Girls is an expert group, established by the Human Rights Council in 2010, whose members are appointed by them. The Working Group was established because: “there has been a need to constantly reiterate, even within the human rights system, that women are not just another vulnerable group, as they are often treated by some. They are half of the world population and often the majority of each of the vulnerable groups, hence eliminating the persistent discrimination and backlashes against women’s rights should be addressed both as a stand-alone goal and as a mainstreaming issue.” [59]

There are also Special Rapporteurs, appointed by the Human Rights Council, who work closely with the Working Group, such as the Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, and the Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment.

No one could have written a stronger statement condemning the rejection of Roe v. Wade than that of the Working Group, published on 24 June 2022. It points to the implicit violence, the absence of sound legal reasoning, and the utter disregard of the United States’ binding legal obligations under international human rights law displayed in the US Supreme Court majority’s rejection of Roe v. Wade. [60] In so doing, it supports and reinforces the dissenting opinion of US Supreme Court Justices Breyer, Sotomayor, and Kagan. It leaves no doubt that the US Supreme Court has discredited itself in its judgment and violated the rule of law.

A proposal for action

  • This is a proposal to US abortion rights and reproductive justice movements, with the support of such movements in all countries, to appeal the US Supreme Court majority ruling to CEDAW, the Human Rights Committee and CAT for violations of girls’ and women’s human rights.

I started this paper, with a lot of help from the human rights experts acknowledged below, to find out whether there was any international human rights body to whom an appeal against the US Supreme Court’s Roe v. Wade majority ruling could be lodged. In fact, almost every human rights body described here would be a relevant body, as I hope this paper has shown.

CEDAW is surely the most obvious Convention upon which to base a challenge to the Supreme Court’s majority rejection of Roe v. Wade. At the same time, because the USA has ratified the ICPPR and the CAT, the Human Rights Committee and the Committee against Torture should surely be the treaty bodies to whom an appeal for a ruling is addressed, based not only on the intended rejection of girls’ and women’s rights but also the intended cruel, inhuman and degrading treatment of women and girls and abortion providers that has been unleashed in many parts of the USA thanks to the Supreme Court’s majority ruling. The USA will not have to report to the Human Rights Council again until 2025, but we could start now to prepare documents insisting on the reinstatement of the right to abortion at the federal level.

The US Government is averse to being judged by any international body for any (alleged) violations of human rights, no matter how egregious. US law appears to make it easy to avoid this by not ratifying international treaties and conventions. Under the US Constitution, while the US president has the power to sign an international treaty or convention, the “advice and consent” of a two-thirds majority of US Senators is needed for it to be ratified. [61] While any new ratification would be impossible in today’s political climate, the USA did ratify the ICCPR and the CAT. Hence, these (and CEDAW, which is relevant without ratification) are the bodies to appeal to.

However, the striking down of Roe v. Wade was not just the act of a handful of misogynistic right-wing justices, ignorant or dismissive (or both) of human rights law, deciding to reject settled law based on their personal prejudices, even though that is what they have done. No, this is the culmination of everything that has happened in the past 40 years in the USA, due to the rejection by a misogynistic anti-abortion movement of women as rights-holders, based in a claim to support “life” but only life before birth, and ignoring the consequences of being forced to give birth to an unwanted child, both for the life of the pregnant woman and to the child. People with these views hold political power in many countries, and their abortion laws and practice reflect that.

In the USA, the blame also falls on a long list of presidents and members of Congress who may not have been outright anti-abortion, but who have always done too little to support abortion rights in order to avoid controversy, not to mention all those who made politicised choices when appointing judges to sit in so many state and federal courtrooms. All these represent a failure of democracy and the rule of law. Many people in the USA have not come to understand or accept the role of international human rights law, but they are anything but unique in this.

Lastly, I believe it is the ill-conceived federal vs. state structure of the US legal system that is at fault, not only for allowing US states the apparent freedom to pass contradictory and conflicting laws on one and the same subject without federal controls, but also letting even the smallest town think, even for a minute, that they can make abortion illegal within their city limits if they feel like it. This has apparently already happened in towns in Nebraska, Iowa, Ohio, Texas and Louisiana, who are calling themselves “sanctuary cities for the unborn”. [62]

According to many media reports, no one appears to know whether it is legal to force a doctor who has provided an abortion to a sexually abused child to hand over that child’s medical records to police in the state she lives in, so as to obtain evidence to prosecute the doctor. Here is the human rights response − patient confidentiality is a human right:

“Human rights standards recognise extraction of confessions or denunciations, and the mandatory reporting of suspected illegal abortion as a condition of care, whether by legal duty or feared repercussion (“aiding and abetting”), as a form of inhuman and degrading treatment and a violation of the right to privacy.” [63]

What about the claim that it is illegal to cross a state line to get a legal abortion? Crossing a state line per se is not illegal in the US, and happens innumerable times every day. How can getting an abortion in a state where it is legal be illegal, given states’ independence to pass different laws? The fearmongering and the implicit underlying threats involved must certainly be seen as inhuman and degrading treatment.

Lastly, the “unborn” (sic), who are only persons with rights after they have been born alive, do not have human rights that can be used as a weapon to deny women’s rights. Artavia Murillo et al v. Costa Rica settled that. The last thing anyone needs is the legal chaos that would force US lawyers to spend the rest of their lives in an endless series of debilitating state and federal courtroom battles over what is and is not legal, aimed only at exhausting them. The destruction of the rule of law would be complete.

So, what next? Action!!!

As an outsider, albeit a US émigré, I offer the following suggestions, based on the human rights mechanisms which exist. I can also share a recommendation from Melissa Upreti, a member of the Working Group on Discrimination against Women and Girls, who knows the situation extremely well. She wrote:

“Legal and policy reform in most countries that have liberalised their abortion laws or gone as far as to decriminalise abortion has been shaped by international norms and jurisprudence on abortion. This is because activists have relied heavily on this framework to develop their vision, draw attention to violations, and call for the fulfilment of the relevant binding legal obligations. In the US, at the very least, it could be helpful for people to understand that abortion protections fall within the scope of the ICCPR, which applies to all government entities and agents, including those at the state and local level, and can extend to private actors.

“Although CEDAW has not been ratified by the US government, the government is obligated to refrain from undermining its objective and purpose.” [64]

I support this as a call for action with several parts, led in the USA by US abortion rights and reproductive justice advocates, but also by networks in all our countries, for all our countries and
for all women’s sakes internationally. We need to do more to inform people across the world of the importance of human rights treaties and conventions, to convince them that anti-abortion rulings must be challenged, not accepted, because they violate both the ICCPR and CAT, and women’s rights as protected by CEDAW.

A US network called Cities for CEDAW, [65] which includes some 190 national and state-level groups working for a wide range of women’s, social justice and rights issues, is only one example of the many existing networks in the USA that can share information with their members and support change. Many others can be found in the long list of abortion information hotlines and other groups in the US, published in July 2022. [66] A recently formed network is Lawyering for Reproductive Justice: If When How. [67]

The media will obviously also be crucial in helping to explain and share this information, giving examples of the differences human rights make; social media are equally important.

Having President Joe Biden and Vice-President Kamala Harris on board would be a hugely valuable addition. Convincing them to seek the support of the international human rights bodies to help them shape public policy and the political discourse on abortion in the US might be exactly what they are missing, and surely the three dissenting Supreme Court Justices would support that too.

Bringing the USA into the international human rights community, to acknowledge, accept and implement international human rights law and standards, calling for the ratification of CEDAW (finally), and ensuring that all US laws and rulings on abortion at both state and national level are in line with CEDAW as well as the ICCPR… now that would be a coup.

Acknowledgements: Grateful thanks for encouragement, helpful comments, valuable edits and a crash course with references on human rights and human rights bodies to Melissa Upreti, OHCHR Committee on Discrimination against Women and Girls; Rada Tzaneva, Amnesty International; and Aintzane Márquez, Women’s Link Worldwide. Any errors are my own.

Visual: National Network of Abortion Funds, USA

**************
References
1 George Bush Sr. on Abortion. On the Issues. (undated). https://www.ontheissues.org/celeb/George_Bush_Sr__Abortion.htm
2 Universal Declaration of Human Rights. https://www.ohchr.org/en/universal-declaration-of-human-rights. United Nations, 1948.
3 Ibid.
4 Ibid.
5 Politico, May 2, 2022. https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473 
6 This is the official dissent document: 597__U.S. (2022), Breyer, Sotomayor, and Kagan, JJ. Dissenting. Supreme Court of the United States. No.19-1392. Thomas E. Dobbs…v. Jackson Women’s Health Organization et al. https://s3.documentcloud.org/documents/22067259/dobbs-dissent.pdf, 24 June 2022. Page numbers in brackets are from this document. I used the following version so that I could copy the text as needed: https://www.documentcloud.org/documents/22067259-dobbs-dissent?utm_source=Eye+on+the+Rights&utm_campaign=7b48a4f60e-EMAIL_CAMPAIGN_2022_07_06_09_53&utm_medium=email&utm_term=0_8a25c9edb6-7b48a4f60e-228545360&mc_cid=7b48a4f60e&mc_eid=f7375bd183 
7 It should be added, moreover, that they ignored the fact that women were denied citizenship until 1920, and hence were effectively denied any rights or freedoms at all and have had to fight against male dominance to achieve and maintain any such rights and freedoms ever since. The majority ruling is among the nastiest of such examples.
8 In the USA the term used is “medication abortion”.
9 Meaning: “let the decision stand”. In Anglo-American law, the principle that “a question once considered by a court and answered must elicit the same response each time the same issue is brought before the courts”.
10 John Roberts defends Supreme Court as Kamala Harris lashes out at Roe ruling. The Guardian, by Maya Yang, 11 September 2022.
11 Seth Masket. Politico. 19 November 2022. https://www.politico.com/news/magazine/2022/11/19/republicans-roe-abortion-midterms-00069484 
12 I began to write this paper on the 10th anniversary of the death of Savita Halappanavar in Ireland, who was refused an emergency abortion when she began to miscarry, even though her 17-week wanted pregnancy was unviable. She died of sepsis. See: Berer M. Termination of pregnancy as emergency obstetric care: the interpretation of Catholic health policy and the consequences for pregnant women. An analysis of the death of Savita Halappanavar in Ireland and similar cases. Reproductive Health Matters 2013;May;21(41):9-17. https://pubmed.ncbi.nlm.nih.gov/23684182/ . This is not an unusual happening. A growing number of such cases are now being reported in the US media. See this recent case in Texas: https://edition.cnn.com/2022/11/16/health/abortion-texas-sepsis/index.html  
13 Rape in war. International Campaign for Women’s Right to Safe Abortion Newsletter, 19 August 2016. https://www.safeabortionwomensright.org/news/mental-health-outcomes-stigma-and-acceptance-among-women-raising-children-born-from-sexual-violence-related-pregnancies/ 
14 Henry David. Born unwanted: Mental health costs and consequences. American Journal of Orthopsychiatry 2011;81(2):184–92. https://doi.org/10.1111/j.1939-0025.2011.01087.x Abstract at https://psycnet.apa.org/record/2012-11012-006 
15 Nandini Archer, Alice Finden, Hannah Pearson. The law, trials and imprisonment for abortion in Senegal. International Campaign for Women’s Right to Safe Abortion Newsletter. April 23, 2018. https://www.safeabortionwomensright.org/news/senegal-the-law-trials-and-imprisonment-for-abortion/ 
16 Erica Royston, Sue Armstrong, editors. Preventing Maternal Deaths. Geneva: World Health Organization, 1989. https://apps.who.int/iris/handle/10665/39933
17 Johanna B Fine, Katherine Mayall, Lilian Sepúlveda. The role of international human rights norms in the liberalization of abortion laws globally. Health and Human Rights Journal 2017;June; 19(1): 69–80.
18 Ibid.
19 International Bill of Human Rights: a brief history and the two International Covenants. https://www.ohchr.org/en/what-are-human-rights/international-bill-human-rights
20 https://www.ohchr.org/node/33623 
21 https://www.ohchr.org/en/treaty-bodies/cescr 
22 OHCHR Dashboard, List, Human Rights Instruments, USA, Ratification of 18 International Human Rights Treaties, https://indicators.ohchr.org/
23 Wikipedia. Inter-American Court of Human Rights. https://en.wikipedia.org/wiki/Inter-American_Court_of_Human_Rights
24 American Convention on Human Rights. https://en.wikipedia.org/wiki/American_Convention_on_Human_Rights 
25 Reporting violations [of human rights] https://www.ohchr.org/en/reporting_violations 
26 Center for Reproductive Rights. KL v. Peru (United Nations Human Rights Committee). At: http://reproductiverights.org/en/case/kl-v-peru-united-nations-human-rights-committee
27 Eszter Kismödi, Judith Bueno de Mesquita, Ximena Andión Ibañez, Rajat Khosla, Lilian Sepúlveda. Human rights accountability for maternal death and failure to provide safe, legal abortion: the significance of two ground-breaking CEDAW decisions. Reproductive Health Matters 2012. https://www.tandfonline.com/doi/pdf/10.1016/S0968-8080%2812%2939610-9?needAccess=true 
28 Women’s Link Worldwide. Peru. Human Rights Committee. K.L v. Peru: 3 November 2005. Why It Matters. The full decision can be found here.
29 ICCPR, Human Rights Committee, CCPR/C/116/D/2324/2013. Reported in: https://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/CCPR-C-116-D-2324-2013-English-cln-auv.pdf, 9 June 2016. Summarised in: Wanda Nowicka. Sexual and reproductive rights and the human rights agenda: controversial and contested. Reproductive Health Matters 2011;19(38):119–128. https://www.tandfonline.com/doi/pdf/10.1016/S0968-8080(11)38574-6
30 Irish Council for Civil Liberties (undated). https://www.iccl.ie/her-rights/privacy/case-focus-amanda-mellet/#:~:text=In%20the%202016%20case%20of,with%20her%20right%20to%20privacy.
31 See: ICCPR, C/116/D/2324//2013 for a detailed outline of the case and the findings, 9 June 2016.
32 Ibid.
33 Artavia Murillo (“In Vitro Fertilization”) v. Costa Rica. https://uniteforreprorights.org/resources/artavia-murillo-et-al-vitro-fertilization-v-costa-rica/ 
34 European Court of Human Rights. Judgment: Case of Tysiac v. Poland (Application No.5410/03), Strasbourg, 20 March 2007, reported in Nowicka, op cit ref 12.
35 European Court of Human Rights. Judgment: Case of RR v. Poland (Application No.27617/04), Strasbourg, 26 May 2011, reported in Nowicka, op cit ref 12.
36 European Court of Human Rights. Judgment: A B and C v. Ireland (Application No.25579/05), Strasbourg, 16 December 2010, reported in Nowicka, op cit ref 12.. See also www.ifpa.ie/eng/Hot-Topics/abortion/ABC-v-Ireland
37 Ibid.
38 OHCHR. Treaty Bodies: Human Rights Committee. https://www.ohchr.org/en/treaty-bodies/ccpr#:~:text=The%20Human%20Rights%20Committee%20is,of%20law%2C%20policy%20and%20practice 
39 Human Rights Committee, General Comment 36, General Comment 36 (Article 6: Right to Life), UN Doc. CCPR/C/GC/36 (2018), para. 8.
40 I (and I am sure many others) made a submission to the Committee urging them to recognise that they would never be able to satisfy the demands of the anti-abortion movement by attempting to create a compromise, but should stand firm on supporting women’s right to life and therefore to safe abortion – which they did in the published text.
41 Convention on the Elimination of All Forms of Discrimination against Women New York, 18 December 1979. https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-elimination-all-forms-discrimination-against-women 
42 Heinrich Boll Stiftung Green Political Foundation, by Liane Schlalatek, 10 December 2019.
43 CEDAW Committee, General Recommendation 35, supra note 23, para. 18. CEDAW/C/GC/35. 26 July 2017.
44 CEDAW Committee, General Recommendation 35, supra note 23, para. 29(c)(i).35. CEDAW/C/GC/35. 26 July 2017.
45 Access to safe and legal abortion: Urgent call for United States to adhere to women’s rights convention, UN CEDAW Committee, 1 July 2022. https://www.ohchr.org/en/statements/2022/07/access-safe-and-legal-abortion-urgent-call-united-states-adhere-womens-rights 
46 UN Convention Against Torture (CAT): Overview and Application to Interrogation Techniques. https://www.everycrsreport.com/reports/RL32438.html 
47 CAT Committee, Concluding Observations: Peru, Para.15(a), UN Document CAT/C/PER/CO/5-6. 2013.
48 CAT Committee, Concluding Observations: Poland, Paras. 33(d), 34(e), U.N. Document CAT/C/POL/CO/7. 2019.
49 Center for Reproductive Rights. The right to abortion services and information, in: Treaty Monitoring Bodies on Reproductive Rights. Breaking Ground 2020, pp.12-15. https://reproductiverights.org/wp-content/uploads/2020/12/Breaking-Ground-2020.pdf 
50 Convention on Rights of the Child (CRC) Committee. Concluding Observations: Gambia, UN Doc. CRC/C/GAM/CO/2-3 (2015), para. 63(b); Dominican Republic, UN Doc. CRC/C/DOM/CO/3-5 (2015), para. 52(d); Morocco, UN Doc. CRC/C/MAR/CO/3-4 (2014), para. 57(b). 2015.
51 CRC Committee, Concluding Observations: Peru, UN Doc. CRC/C/PER/CO/4-5 (2016), para. 56(b); Kenya, UN Doc. CRC/C/KEN/CO/3-5 (2016), para. 50(b); Haiti, UN Doc. CRC/C/HTI/CO/2-3 (2016), para. 51(c); Senegal, UN Doc. CRC/C/SEN/CO/3-5 (2016), para. 54(d); Ireland, UN Doc. CRC/C/IRL/CO/3-4 (2016), para. 58(a). 2016.
52 CRC Committee, General Comment 20 on the implementation of the rights of the child during adolescence, UN Doc. CRC/C/GC/20 (2016), (hereinafter: CRC Committee, General Comment 20), para. 60. 2016.
53 Mexico: Supreme Court of Justice of the Nation ruling sets the scene for national decriminalisation of abortion. ICWRSA Newsletter, 8 September 2021. https://www.safeabortionwomensright.org/news/mexico-supreme-court-of-justice-of-the-nation-ruling-sets-the-scene-for-national-decriminalisation-of-abortion/ 
54 Asher J. Montgomery. The Harvard Crimson, 24 October 2022. https://www.thecrimson.com/article/2022/10/24/latin-american-abortion-rights-talk/ 
55 Ana Cristina González Vélez, Causa Justa, el movimiento que dio un giro al debate sobre el aborto en Colombia. LSE Blogs, 17 March 2022.
56 UN Human Rights Council. Universal Periodic Review. https://www.ohchr.org/en/hr-bodies/upr/upr-main. 
57 Letter from Michelle Bachelet, UN High Commissioner for Human Rights, to Anthony J Blinken, US Secretary of State, 17 May 2021, pages 1 and 7. https://www.ohchr.org/sites/default/files/lib-docs/HRBodies/UPR/Documents/Session36/US/HCLetter-USA.pdf 
58 Ibid.
59 About the mandate, https://www.ohchr.org/en/special-procedures/wg-women-and-girls/about-mandate 
60 Upreti M, Estrada Tanck D, Broderick E, et al. Joint web statement by UN Human rights experts on Supreme Court decision to strike down Roe v. Wade. 24 June 2022. https://www.ohchr.org/en/statements/2022/06/joint-web-statement-un-human-rights-experts-supreme-court-decision-strike-down 
61 United States Senate: About Treaties. https://www.senate.gov/about/powers-procedures/treaties.htm 
62 US National Public Radio, 23 November 2022.
63 Human Rights Committee, General Comment 28 (equality of rights between men and women), UN Doc. CCPR/C/21/Rev.1/Add. 10 (2000), para. 20; The Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, UN Doc. A/HRC/22/53 (2013), para. 75.
64 E-mail from Melissa Upreti, 14 November 2022.
65 United Nations Association of the USA, UNA Women Affinity Group, Cities for CEDAW. Promoting Women’s Equality in Your Community. Guidelines and Toolkit. https://unausa.org/wp-content/uploads/2021/06/UNAWomenCEDAWToolkit.pdf?emci=05d81494-9cbc-eb11-a7ad-501ac57b8fa7&emdi=4a713dd8-70c5-eb11-a7ad-501ac57b8fa7&ceid=2749364#:~:text=The%20purpose%20of%20the%20Cities,US%20cities%2C%20towns%20and%20counties. 
66 Abortion Information Helplines and Other Sources of Help for US women, as of 7 July 2022. ICWRSA Newsletter. 29 July 2022. https://www.safeabortionwomensright.org/news/icwrsa-special-report-united-states-of-america/ 
67 https://www.ifwhenhow.org/ 

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