How the US Abortion Landscape Stacks Up to International Recommendations
The United States abortion landscape post-Dobbs allows for states’ failure to meet international abortion recommendations.[1] Many international organizations release periodic reports and recommendations regarding abortion rights.[2] Additionally, abortion rights are raised in several international human-rights based treaties.[3] The Dobbs decision allows state non-compliance with many of these recommendations and allows state violations of United Nations treaties.[4]
In 2022, the World Health Organization (“WHO”) released an updated Abortion Care Guideline.[5] The WHO made three key recommendations related to abortion rights worldwide: the full decriminalization of abortion, limiting laws and other regulations that restrict abortion by grounds, and limiting laws and other regulations that prohibit abortion based on gestational age limits.[6] A grounds-based approach provides certain situations in which a pregnant person may be able to legally obtain an abortion.[7] These grounds commonly include rape or incest, severe fetal anomaly, or risk to the life of the pregnant person.[8]
The United Nations Human Rights Committee (“UN HRC”) states that countries “may not regulate pregnancy or abortion… in a manner that runs contrary to their duty to ensure that women and girls do not have to resort to unsafe abortion.”[9] Criminal sanctions applied to abortion compels pregnant people to seek unsafe abortions.[10] Grounds-based limitations increase costs and opportunity costs of obtaining a legal abortion and may lead to pregnant people seeking unsafe abortions instead of medical care.[11]
The Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”) is an international treaty adopted in 1979 by the United Nations General Assembly. The United States is a signatory to the CEDAW, but has not ratified it.[12] While this treaty does not mention abortion directly, Article 12 directs that nations should provide “appropriate services in connection with pregnancy.”[13] The CEDAW committee released a statement that to this end, nations “should legalize abortion at least in cases of rape, incest, [and] threats to the life and/or health of the mother” and should remove punitive measures for women who decide to abort.[14]
In 2022, the United States Supreme Court overruled Roe v. Wade and held that the Constitution does not confer a right to abortion.[15] The Dobbs decision left abortion regulation to the states, triggering the emergence of a mottled abortion landscape.[16] The most lenient states allow abortion without any grounds-based restrictions, while the most restrictive states do not allow abortion in any situation, even rape and incest.[17] The most restrictive states also purport to criminalize women who obtain abortions, either in their home state or elsewhere.
Texas is among the most restrictive states.[18] Texas prohibits abortions past six weeks gestation, prohibits procedures related to abortion, provides a private right of action against physicians who give abortions and women who receive them, and imposes criminal penalties.[19] Texas only allows abortion before a fetal heartbeat is heard and if “immediately medically necessary.”[20] This constitutes a grounds-based approach in direct contravention of the WHO Abortion Care Guideline.[21] The criminalization of abortion contravenes the UN HRC and the CEDAW.[22]
The Dobbs Decision has allowed states to decide whether to subject their residents to restrictions which meet international recommendations, or restrictions that do not. Some states meet and even exceed international standards for abortion.[23] At least 24 states do not meet international recommendations or standards.[24] Without a nationwide abortion policy or requirements, there is no way for the United States to ensure that its states are complying with international recommendations and treaties. While there are no ramifications, this failure raises major concerns about the safety and rights of pregnant people in the United States.
Carolyn Egervary is a staff member of Fordham International Law Journal Volume XLVII.
[1] See generally Dobbs v. Jackson Women's Health Org., 597 U.S. 215 (2022).
[2] See World Health Organization [WHO], Abortion Care Guideline (2022), https://www.who.int/publications/i/item/9789240039483; Human Rights Committee [HRC], General comment no. 36, Article 6 (Right to Life), U. N. Doc. CCPR/C/GC/35 (September 3, 2019); U.N. General Assembly, U.N. Convention on the Elimination of All Forms of Discrimination against Women, December 18, 1979, OHCHR.
[3] See U.N. General Assembly, U.N. Convention on the Elimination of All Forms of Discrimination against Women, December 18, 1979, OHCHR; see also U.N. General Assembly, U.N. Convention against torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, June 26, 1987, OHCHR.
[4] See Dobbs, 597 U.S. at 231 (holding that the Constitution does not protect abortion).
[5] See World Health Organization [WHO], Abortion Care Guideline (2022), https://www.who.int/publications/i/item/9789240039483.
[6] Id. at 24, 26, 28.
[7] See Fiona de Londras et al., The impact of ‘grounds’ on abortion-related outcomes: a synthesis of legal and health evidence, 22 BMC Public Health, May 10, 2022, https://bmcpublichealth.biomedcentral.com/articles/10.1186/s12889-022-13247-0#citeas.
[8] Id. at 1, 7.
[9] See Human Rights Committee [HRC], General comment no. 36, Article 6 (Right to Life) at 2, U. N. Doc. CCPR/C/GC/35 (September 3, 2019).
[10] Id. at 2.
[11] See Fiona de Londras et al., The impact of ‘grounds’ on abortion-related outcomes: a synthesis of legal and health evidence, 22 BMC Public Health, May 10, 2022 at 3-4, https://bmcpublichealth.biomedcentral.com/articles/10.1186/s12889-022-13247-0#citeas (discussing studies that indicate grounds-based approaches may lead to an increase in unsafe abortions).
[12] See Status of Ratification Interactive Dashboard, United Nations Human Rights Office of the High Commissioner, https://indicators.ohchr.org/ (last visited Feb. 4, 2024) (“A “Signatory” to a treaty is a State that provided a preliminary endorsement of the instrument and its intent to examine the treaty domestically and consider ratifying it.”).
[13] See U.N. General Assembly, U.N. Convention on the Elimination of All Forms of Discrimination against Women, December 18, 1979, OHCHR.
[14] Id.
[15] See Dobbs v. Jackson Women's Health Org., 597 U.S. 215, 231 (2022) (“We hold 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.”).
[16] Id. at 302.
[17] See After Roe Fell: Abortion Laws by State, Center for Reproductive Rights, https://reproductiverights.org/maps/abortion-laws-by-state/ (last visited Feb. 4, 2024).
[18] Id.
[19] Id.
[20] Id.
[21] See World Health Organization [WHO], Abortion Care Guideline (2022), https://www.who.int/publications/i/item/9789240039483.
[22] See U.N. General Assembly, U.N. Convention on the Elimination of All Forms of Discrimination against Women, December 18, 1979, OHCHR.
[23] See After Roe Fell: Abortion Laws by State, Center for Reproductive Rights, https://reproductiverights.org/maps/abortion-laws-by-state/ (last visited Feb. 4, 2024).
[24] Id.
This is a student blog post and in no way represents the views of the Fordham International Law Journal.