Beyond the fact that the U.S. is legally bound by human rights treaties it has ratified, the devastation unleashed by the reversal of Roe should compel us to look for stronger foundations for abortion rights.
The election of Donald Trump to a second term has abortion rights advocates across the country worried about a renewed assault on abortion access. These fears are well-founded—but they must also account for successful ballot measures and other victories that demonstrate sustainable, popular support for abortion rights expansion. This enthusiasm for progress is perhaps best encapsulated by the movement to recognize abortion as a human right.
In October, members of Congress introduced a resolution that commended state and local governments for “championing reproductive rights as human rights.” These efforts represent a growing movement that rejects past compromises on abortion rights and sees human rights recognition as the only path forward for safe and accessible abortion care in the United States. Given the Supreme Court’s recent failure to rule definitively on the right to abortion during life-threatening health emergencies, this movement couldn’t come at a more critical moment.
The current momentum behind recognition of “abortion as a human right” in the United States reflects the strength of progress cemented by global civil society organizations, enduring work by international expert bodies, and the growing popular realization that the status quo under Roe v. Wade was never enough.
On the international stage, human rights bodies have issued consistent findings over the years that confirm that criminal abortion bans violate a range of fundamental human rights. These include the rights to life, health, privacy, non-discrimination and to be free from torture and other cruel, inhuman or degrading treatment or punishment, many of which are grounded in international treaties to which the United States has signed and ratified.
Threats to these rights are made very clear in the recent legal challenges to Idaho’s near-total abortion ban, which only allows abortions if the pregnant person’s life is in jeopardy. In June, the U.S. States Supreme Court was set to decide whether a federal law (Emergency Medical Treatment and Labor Act) protecting medical care in emergency situations preempts Idaho’s extremely restrictive abortion law. Yet, instead of ruling definitively on this urgent question, the Court dismissed the case and sent it back to the lower courts.
On Dec. 10, the Ninth Circuit Appellate Court will hold hearings in the case and hopefully settle this important legal question. An amicus brief recently filed in this case by human rights organizations details the disastrous impact of the Supreme Court’s delay by explaining how Idaho’s restrictive abortion law, despite being amended, still violates the human rights of Idahoans. It outlines how the right to life is imperiled due to the complete inaccessibility of life-saving abortion care, as Idaho’s near-total abortion ban prevents doctors from exercising their medical and ethical obligations to provide life-saving abortion care in fast-evolving circumstances. The right to be free from torture and other cruel, inhuman and degrading treatment is also imperiled when denial of abortion care in the state leads to severe physical and mental suffering, which the U.N. Committee Against Torture has confirmed can amount to torture. No matter how you look at it, Idaho’s law remains a human rights disaster.
Understanding how Idaho’s extremely restrictive abortion law violates a range of human rights, however, is only half the picture. The evolution of human rights around abortion also provides a positive, more comprehensive vision for abortion rights that stands in stark contrast to current realities in the United States. While local governments and courts have been steadily chipping away at abortion rights since Roe v. Wade was decided in 1973, the international human rights system has been interpreting and applying human rights treaties in a manner that accounts for the pivotal role that reproductive healthcare—including abortion care—plays in individuals’ lives as well as the achievement of social, gender, racial and economic justice more broadly. Human rights experts and bodies also consistently confirm that reproductive autonomy is essential to both equity and equality.
Notably, reproductive rights advocates in countries like Ireland and Poland have leveraged international human rights norms and standards to secure major victories for abortion rights. The World Health Organization also recently issued new guidelines on safe abortion that rely on extensive public health evidence and human rights norms and standards. These guidelines expressly recognize abortion as a human right and call for the full decriminalization of abortion, the removal of all restrictions on abortion (including gestational limits) and other measures to ensure that abortion is returned to its proper place—as healthcare that is essential to individuals’ dignity and autonomy.
In stark contrast to these developments, the United States has become a global outliner. As the majority of countries have liberalized their abortion laws in the last two decades, safe and legal abortion access is disappearing across the U.S., disproportionately harming those most marginalized.
Thanks, in part, to the steady march of the international human rights movement, support for a more expansive alternative to Roe is at an all-time high in the United States. But this push is not novel or new. The reproductive justice movement, led by Black women, has long articulated a need to go beyond Roe by embracing a “human right” to control one’s own reproduction and to live and parent in safe and sustainable communities. And this work is gaining ground. A recently published memo inspired by the reproductive justice movement Abortion Justice Now is calling for federal legislation that fully protects and funds abortion care for all who need it.
Until now, reproductive rights organizations in the United States have been hesitant to fully embrace the human rights framework, worrying that it won’t resonate with judges, politicians or the general public. Beyond the fact that the United States is legally bound by the human rights treaties it has ratified, the devastation unleashed by the Supreme Court’s reversal of Roe should compel us to look for stronger foundations for abortion rights. Human rights, with their origin in the dignity and equality of all people, is that foundation.
