The U.S. Is Breaking International Human Rights Law With Roe Decision

Pro-abortion supporters march through London to the U.S. Embassy in solidarity with women in Texas, calling for protection of reproductive rights on Oct. 2, 2021 in London. (Wiktor Szymanowicz / Future Publishing via Getty Images)

“Abortion is banned with no exceptions for rape or incest.” As we obsessively refresh our Twitter tabs and news outlets tracking the latest fallout and analysis following the decimation of Roe, this phrase, used to describe numerous trigger bans that have been signed into law in the wake of Dobbs v. Jackson Women’s Health, is one we cannot shake.

Make no mistake: Forced pregnancy—when someone becomes pregnant without having sought or desired it—and denied, delayed or inaccessible abortions are wrong under any circumstance. But when it comes to rape or incest (although, in reality, nearly all instances of incest are also instances of rape), forcing a victim to carry a pregnancy to term by denying them access to abortion is nothing short of cruel and inhumane treatment.

This perspective is backed by numerous legal decisions. International reproductive rights organizations, including the Center for Reproductive Rights (CRR), Women’s Link Worldwide and the International Planned Parenthood Federation, have successfully argued before regional and international bodies that denying abortion, including in instances of rape, can constitute human rights violations on numerous grounds.

In Mexico, following litigation brought by the CRR and two national activist organizations, Alaíde Foppa and Grupo de Información en Reproducción Elegida (GIRE), the Inter-American Commission on Human Rights ruled in 2006 that the country violated a 13-year-old rape victim’s right to physical and psychological integrity and health when she was unable to obtain an abortion after she was raped during a home invasion.

In 2011, in L.C. vs. Peru, the U.N. Committee on the Elimination of Discrimination Against Women (CEDAW) said that denying abortion in such circumstances can constitute gender-based discrimination under its international treaty. Three organizations—the CRR, the Center for the Promotion and Defense of Sexual and Reproductive Rights and Estudio Rosas Ballinas—won the case on behalf of a 14-year-old rape victim who suffered lasting injuries as a result of being denied emergency healthcare because she was pregnant.

And in 2013, the European Court of Human Rights agreed with the arguments put forth by the CRR when it ruled that denying a 14-year-old Polish sexual violence victim an abortion violated her rights to respect for private life, liberty and freedom from inhuman and degrading treatment.

In all of these instances, human rights bodies held states accountable for denying abortion to survivors of rape in specific circumstances.

The dissolution of Roe means that Alabama, Arkansas, Missouri, South Dakota, Arizona, Tennessee, Texas and West Virginia have, or will soon have, abortion laws that do not include exceptions for rape or incest, leaving their citizens with less reproductive autonomy than women in countries that the United States has repeatedly criticized for egregious human rights abuses—including Sudan, Chad, Indonesia, Mexico, Mali, Brazil, Ethiopia, Eritrea and the Democratic Republic of the Congo.

It’s hard to believe that we’ve gotten to a point where the laws in any one of these U.S. states could be found to be a grave violation of fundamental human rights before international courts.

With the Supreme Court’s ruling in Dobbs vs. Jackson Women’s Health, the U.S. is violating the right to equality and nondiscrimination, the right to privacy, the right to life, the right to health and the right to be free from torture and cruel, inhuman or degrading treatment.

The U.S. is also in violation of its treaty obligations under the International Covenant on Civil and Political Rights (ICCPR), which has obligated the USA to provide safe, legal and effective access to abortion in circumstances where forcing a pregnancy would cause the pregnant person “substantial pain or suffering, most notably where the pregnancy is the result of rape or incest.”

Now more than ever, it is critical to take full advantage of international legal remedies to hold the United States accountable for eroding abortion rights and, therefore, women’s human rights.

For decades, grassroots women’s rights movements from Mexico to Ireland to Argentina to Keyna have used international human rights rulings and recommendations to pressure governments to liberalize abortion laws. The same must happen in the U.S., a country that hypocritically prides itself on upholding and advancing human rights.

Roe‘s overturning isn’t the finale of a legal and cultural attack on bodily autonomy. It merely represents the continuation of an organized, well-funded effort to maintain and support the patriarchal status quo. Ongoing and amplified pressure from the international human rights community will be crucial in the fight for abortion access.

Notes: We recognize that the precedents that we reference in this article specifically address women and girls and use feminine pronouns, but all people, regardless of their gender identity, deserve the same level of care, dignity, and rights when seeking healthcare, including access to abortion services. 

Additionally, while this piece focuses on survivors of sexual violence, we firmly believe that the only reason that a person needs to obtain an abortion is that they decide it is the best choice for them. Abortion should be affordable, accessible, and equitable for all. 

Sign and share Ms.’s relaunched “We Have Had Abortions” petition—whether you yourself have had an abortion, or simply stand in solidarity with those who have—to let the Supreme Court, Congress and the White House know: We will not give up the right to safe, legal, accessible abortion.

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About and

Jorie Dugan is a legal advisor for Equality Now based in New York City where she works on ending sexual violence. Dugan is a licensed lawyer in New York with public defense experience in the criminal justice system, child welfare system and anti-human trafficking. Additionally she has worked for human rights NGOs in Asia, Africa and North America to address gender equality and combat gender based violence.
Emma Stoskopf-Ehrlich is the North Americas communications officer at Equality Now and is based in New York City. She has spent the past decade working in the field of international human rights, reproductive rights and gender equality, both in the United States and in East Africa.