Going Beyond Roe

President Trump has nominated Neil Gorsuch to the Supreme Court. A conservative judge, his past rulings indicate his views put women’s rights in jeopardy. Many women are concerned that if confirmed he would move the court closer to the votes needed to overturn Roe v. Wade if a case against it came before the bench. As American women face the largest attack on their long-established rights in decades, it is perhaps time to examine the judgment in Roe and the marginal protections it affords. Comparing Roe to the more powerful and robust principles of international law that safeguard a women’s right to choose makes it clear there is room for improvement domestically.

The Constitutional basis for abortion rights in the U.S. rests on the right to privacy–which is not an express right stated in the founding document’s text. Instead, the Supreme Court recognized a ‘zone of privacy’ rooted “in the penumbras of the Bill of Rights,” including the First Amendment, the Fourth and Fifth Amendments, the Ninth Amendment, and the Fourteenth Amendment. By locating the abortion right in the category of privacy, the Supreme Court placed it with other conduct including marriage, family relationships, procreation, contraception, and child rearing and education. In Roe, the Court said “this right of privacy… is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

But because penumbras make for poor protections, over the course of the past four decades this “fundamental right” has been so gutted it is now nearly unrecognizable. Under today’s standard, an abortion regulation will only be struck down if it places an “undue burden” on a woman’s ability to obtain an abortion.

Looking at international law, the protections of Roe appear relatively weak. Let’s take for example, the Geneva Conventions. As a set of international treaties securing the rights of the wounded and sick, prisoners, and civilians in times of war, they set forth a powerful equality standard for the provision of abortion services. Under the Geneva Conventions, girls and women raped in war have the right to all necessary medical care without discrimination based on sex. This legal standard is premised on the fact that the outcome for victims must be the same, regardless if they are women or men, even if it requires dissimilar treatment based on biological differences—like abortion.

We can also consider the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Under this Convention, restricting access to abortions in certain settings, including rape, could harm a woman’s mental and physical health and constitute inhuman treatment. The Convention Against Torture Committee has found that impediments to abortion access, in particular for rape victims, lead to “grave consequences, including the unnecessary deaths of women.” They have also concluded that denial of abortions under all-out bans could amount to torture in violation of the treaty.

As a party to these treaties, the U.S. has a duty to fulfill its obligations under them, and ensure abortion access for women raped in war as a part of their right to all necessary medical care and right to be free from cruel treatment. These are rights that American women are entitled to beyond Roe that many are not aware of. International treaties the U.S. has not ratified also have strong abortion protections that could serve as a blueprint for domestic policies.

The Geneva Conventions’ equality standard is the same one required by the international human rights treaty the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Of the 193 UN member states, there are only six that have not ratified CEDAW, including the U.S. CEDAW requires its member states to do everything in their power to remove barriers to equality for women and ensure access to health care, including family planning. With so many state parties, CEDAW has created norms in the international community that the U.S., by not ratifying, disregards.

These treaties encompass fundamental human rights and by intentionally ignoring them, the U.S. not only denies women their rights but also makes the world a more dangerous place by neglecting international laws and norms. In these uncertain times ahead, American women’s rights would be better secured under laws that reflect the standards of equality, non-discrimination, the right to sexual and reproductive health, and the right to be free from cruel, inhuman or degrading treatment, rather than just a right to privacy.

As American women face the possibility of losing Roe, it is time to consider domesticating international law’s more substantial standards to guarantee a woman’s right to choose in the U.S. To quote one famous American woman, “human rights are women’s rights and women’s rights are human rights”—and when they are treated as such, American women are the better for it.

Elena Sarver is the Legal Fellow at the Global Justice Center and holds a J.D. from Benjamin N. Cardozo School of Law. While in law school, Elena participated in two year-long clinics where she researched sexual and gender-based violence crimes for regional human rights litigation. She also interned at the National Institute for Reproductive Health. Elena received her B.A. in Political Science from Macalester College and studied abroad in Egypt at the American University in Cairo.

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