A Major Retrogression: UN Rights Experts on US Supreme Court Striking Down Roe v. Wade

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    A Major Retrogression: UN Rights Experts on US Supreme Court Striking Down Roe v. Wade

    The decision by the Supreme Court of the United States to strike down a nearly fifty-year-old legal precedent that has protected women’s right to choose to have an abortion is a serious regression of an existing right that will jeopardize women’s health and lives.

    By Melissa Upreti, Dorothy Estrada Tanck, Elizabeth Broderick, Ivana Radačić, Meskerem Geset Techane, Tlaleng Mofokeng, and Reem Alsalem

    Today, with the stroke of a pen and without sound legal reasoning, the Supreme Court of the United States has stripped women, girls and all persons capable of becoming pregnant in the country, of existing legal protections that are necessary to ensure their ability to determine the course of their lives and to live with dignity. The revocation of abortion rights established by Roe signals an expansion of women’s “missing rights” in the United States, as already stressed by the Working Group on discrimination against women and girls in the context of its official mission in the United States.

    The Supreme Court has completely disregarded the United States’ binding legal obligations under international human rights law, including those stemming from its ratification of the International Covenant on Civil and Political Rights, which protects a woman’s right to life from the harmful impact of abortion restrictions. “The Supreme Court was duly reminded of this binding obligation and others in a detailed amicus brief submitted by international independent human rights experts, which was completely disregarded by the Court in its decision.”

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    Legal protections for abortion access and abortion rights have been established under international law as a matter of ensuring women’s ability to enjoy their legally protected human rights to life, health, equality and non-discrimination, privacy, freedom from torture, cruel, inhuman, and degrading treatment and to ensure their freedom from gender-based violence.

    Personhood not established until birth

    The right of a woman to make autonomous decisions about her own body and reproductive functions is at the very core of her fundamental right to equality and privacy, concerning intimate matters of physical and psychological integrity. Experts noted that access to legal abortion is essential health care and pivotal to women’s enjoyment of a full spectrum of their human rights. The right to make autonomous decisions about the termination of a pregnancy must be supported by equitable access to dignified care, trained healthcare workers and accurate information.

    In recent decades many countries have liberalized their abortion laws for reasons of women’s human rights, including equality, health, and safety. This positive trend reflects the understanding that personhood is not established until birth. Those who believe that the foetus is already a human person with rights from the moment of conception are entitled to their personal beliefs, but a democratic State cannot impose their beliefs on others through the legal system. The true parameters of contestation are then between the rights of a born person who is the subject and repository of international human rights and any societal interest, valid as it may be, that there may exist in the process of gestation of a possible future person.

    The limits of intervention to promote any such societal interest must stop short of violating the human rights of the pregnant woman in whose body the gestation is to take place.

    Prima facie discriminatory

    Countries where access to abortion is decriminalized or legal and contraception is widely available have the lowest rates of maternal mortality. According to the World Health Organization, abortion is a common procedure with 6 out of 10 unintended pregnancies ending in induced abortion globally. An estimated 45 per cent of these abortions are unsafe. Restrictive laws do not reduce the individual need for abortion but are likely to increase the number of women and girls seeking clandestine and unsafe abortions. They fuel abortion stigma, and lead to the abuse of women in need of post abortion care and their incarceration. The stigma also affects healthcare workers who face the threat of violence in the execution of their expertise.

    In countries with legal restrictions or pervasive barriers, safe termination of pregnancy becomes a privilege of the rich, while women with limited resources have little choice but to resort to unsafe providers and practices. This court ruling enables structural discrimination, which is already widely prevalent in the United States, where socio-economically disadvantaged women of colour notably Black and indigenous women and others in situations of vulnerability, such as migrant women, those living with disabilities and victims of sexual violence and sex trafficking, face additional barriers to reproductive health care services.

    Further, the criminalization of abortion and the denial and delay of safe abortion and post-abortion care may amount to torture, or cruel, inhuman or degrading treatment. Laws, judgments or public policies that restrict the right to personal liberty by criminalizing conduct related to the consequences of a lack of access to and enjoyment of the highest attainable standard of health, or of obstetric violence, or which criminalize the exercise of women’s reproductive rights, must be considered to be prima facie discriminatory and may lead to arbitrary detention.

    A nightmare scenario

    Experts expressed concern about the patchwork of abortion restrictions that will be created in the United States with the revocation of the right to choose abortion previously protected under Roe v. Wade, because of the existing trigger bans and new legislation, either recently or soon to be introduced by state legislatures. This is translated into lack of clarity about the legal parameters of abortion which will now vary by geographic location and creates the risk of prosecution, faced by women and abortion providers, including those prosecutions triggered by private citizens.

    The intimidation and stigma that will be faced by pregnant women and girls in need of safe abortion services and abortion providers is poised to create a nightmare scenario for those faced with the uncertainty and trauma of an unplanned pregnancy.

    We are deeply concerned about the plight of women who will be forced to leave their homes and travel to other states to terminate an unwanted pregnancy safely or face the prospect of a forced pregnancy and motherhood. It is unclear whether certain states may even restrict their ability to travel to seek abortion and private businesses may be penalized for assisting pregnant women who need abortions.

    The level of legal uncertainty arising from the dismantling of a legal protection that has withstood several legal challenges over a period of nearly fifty years is deeply truly terrifying.

    Recognise right to health

    The decision whether to continue a pregnancy or terminate it, must fundamentally and primarily be a woman’s decision, as it will shape her whole future personal life as well as family life. These are decisions that have a far-reaching impact on women’s education, career, economic security, safety, and ability to participate in public life.

    Experts noted that “access to legal abortion is essential health care and pivotal to women’s enjoyment of a full spectrum of human rights and must be taken out of the realm of partisan politics. Now that the protections under Roe v. Wade have been taken away, new measures must be urgently introduced to mitigate the harm that many pregnant women are likely to experience and to create the conditions and legal frameworks needed to ensure their safety.”

    The right to access safe abortion services must be codified in law in accordance with human rights standards that require ensuring the availability, accessibility, affordability, acceptability and quality of abortion services, free and informed decision-making, adequate financial investment, based on respect for the right to life of women. All branches of government, office bearers and political actors are duty bound to fulfil these obligations. Those serving in a legislative, executive or a judicial capacity equally carry these obligations and must not be complicit in violating human rights. Sufficient recognition to the right to health should be given in the national political and legal system to bring a human rights-based approach to their national public health strategy.

    Erosion of democratic values

    We call upon the Biden administration to take all necessary measures to mitigate the potential consequences of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, such as through executive orders to protect access to abortion, ensure funding for states for the provision of safe abortion services, and prevent restrictions on measures aimed at limiting the movement of abortion seekers and abortion providers across state lines.

    It is within the power of State legislature to protect abortion rights and access and the State of New York is a leading example. The Federal Government should strongly encourage other states to follow suit and provide Federal funds to states that are willing to ensure greater access to abortion services through new legislative measures and, in this time of crisis, allocate funds to cover the expenses of women who will have to travel to other states to access abortion, for legal aid and relocation expenses to avoid prosecution in their state of origin. Measures protecting private businesses that support women’s access to abortion from being attacked and penalized must be introduced and the right of freedom of expression and peaceful assembly of individuals advocating for abortion access must be fully protected.

    The revocation of abortion rights established by Roe signals is a major retrogression that will further entrench structural discrimination and violence against women and girls and all persons capable of becoming pregnant in the country.

    What has happened in the United States today is a profound setback for the rule of law and for gender equality. The excessive use of the legislative process, executive power, and judicial authority over the years to restrict and criminalize abortion rather than to expand it and ensure equitable access to safe abortion services, signals a deeply troubling erosion of democratic values and process.


    Image: Norma McCorvey (Jane Roe) and her lawyer Gloria Allred on the steps of the Supreme Court, 1989 by Lorie Shaull / Wikimedia

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