IBAHRI expresses concern over US Supreme Court potential curbing of the right to abortion

Wednesday 11 May 2022

The possibility that more than half of the United States could ban abortion if the contents of a leaked draft opinion become reality and Roe v Wade is overturned is of concern to the International Bar Association’s Human Rights Institute (IBAHRI).

A leaked draft majority opinion of the Supreme Court of the United States (SCOTUS) in the case of Dobbs v Jackson Women’s Health, which considers the constitutionality of a Mississippi law that bans most abortions after 15 weeks, holds that ‘Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision...’.

In the landmark Roe v Wade decision (1973), upheld in Planned Parenthood v Casey (1992), the SCOTUS held that the US Constitution protects the right to choose to have an abortion prior to foetal viability, based on an implicit right to privacy in the Due Process Clause of the Fourteenth Amendment.

IBAHRI Co-Chair, and immediate past Secretary General of the Swedish Bar Association, Anne Ramberg Dr Jur hc, stated: ‘Roe v Wade is the backbone of reproductive rights in the United States, ensuring a woman’s right to choose for almost 50 years. To overrule it would reverse one of the most important precedents in US history and represent a backwards step at a time when several countries in the Americas – including Argentina, Colombia, and Mexico – are moving forwards in the protection of reproductive rights. The IBAHRI urges the Supreme Court to protect the rights of women, including to have an abortion’.

As highlighted by United Nations Special Procedure mandate holders in an amicus curiae brief before Dobbs v Jackson Women’s Health, international human rights law protects safe and legal abortion access through the right to the highest attainable standard of health, which includes reproductive rights.

IBAHRI Director, Baroness Helena Kennedy QC, noted: ‘The right to choose whether to have an abortion is a fundamental pillar of women’s reproductive rights. Yet factors such as disability, gender identity, poverty and race are inherently intertwined with access to abortion services. Overruling Roe v Wade would have a devastating impact on the lives of women, especially for low-income women and women from marginalised communities. Permitting abortion bans will not stop women from undergoing this procedure, but will rather cause a rise in unsafe abortions, which according to the Office of the High Commissioner for Human Rights, result in almost eight per cent of maternal deaths annually.’

An interactive map by the Center for Reproductive Rights suggests that, if Roe v Wade is overturned, abortion rights would be protected in fewer than half of the US states and none of the US territories. Many states in the South, Midwest, and Great Plains of the US, where Black, Hispanic and Indigenous women make up a significant proportion of the population, are assigned under the ‘Not Protected’ and ‘Hostile’ categories. These states, where many women already face barriers in accessing abortion services due to structural and intersectional discrimination, could halt legal protections for abortion or prohibit them entirely if Roe v Wade is reversed.

IBAHRI Co-Chair Mark Stephens CBE commented: ‘If the legal right of millions of women in the US to have a safe abortion is reversed, that would be contrary to settled law and result in a direct assault on the legal rights, dignity and lives of women.

‘A woman's bodily autonomy is an inalienable right in international human rights law. Denying access to health services that only women require, including abortion, is an example of gender-based discrimination, and can constitute gender-based violence, torture and/or cruel, inhuman and degrading treatment.

‘Ensuring access to abortion services in accordance with human rights standards is part of the United States’ obligations in law to eliminate discrimination against women and to ensure women’s right to health as well as other fundamental human rights.

‘Treaty body jurisprudence has consistently recognised the universal principle, that denying women access to abortion will amount to decriminalisation, and also violations of a woman's rights to health, privacy and, in certain cases, the right to be free from cruel, inhumane and degrading treatment – by being arbitrarily required by law to carry a foetus to term.’

Stephens added: ‘It needs to be remembered that the need for legal abortion to be safe and accessible was supported by states at the International Conference on Population and Development (ICPD), held in Cairo in 1994. At that Conference, states recognised unsafe abortion as a major public health concern, and whilst pledging their commitment to reducing the need for abortion through expanded and improved family planning services, at the same time recognising that, abortion should be safe. And also recalling that the exact same language on abortion was adopted by states in the Beijing Platform for Action, which was agreed at the 1995 Fourth World Conference on Women.

‘International human rights law not only protects safe and legal abortion access it also safeguards the right to equality and non-discrimination. To overturn or curtail constitutional protections to abortion access constitutes a gross violation of human rights law’.

Dobbs v Jackson Women’s Health marks the first time since Roe v Wade that a pre-viability abortion ban has been placed before the SCOTUS. However, the Mississippi law is not the only instance of legislative restrictions to US women’s reproductive rights in recent years. In March 2022, Arizona and Florida passed 15-week abortion bans. Prior to that, in September 2021, Texas passed a law that bars abortions after cardiac activity can be detected in the embryo, even in situations of rape or incest. Georgia, Kentucky and Ohio have also passed similar legislation, although legal challenges have blocked some laws.

Many states have already curbed access to abortions by introducing restrictive measures. The District of Columbia, and 33 US states, prohibit the use of state funds for abortions except in those cases where federal funds are available; for example, where the patient’s life is in danger or the pregnancy is the result of rape or incest. Forty-five states allow individual health care providers to refuse to perform abortions.

As a state, the US is party to several international human rights treaties, including the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It has also signed, inter alia, the Covenant on Economic, Social, and Cultural Rights and the Convention on the Elimination of All Forms of Discrimination Against Women, and must therefore refrain from defeating their object or purpose under Article 18 of the Vienna Convention on the Law of Treaties.

ENDS