Payal Shah writes: As the US eliminates the right to abortion, global community should act in solidarity for reproductive rights
In 1973, the Supreme Court of the United States’ decision in Roe v. Wade established critical protections against violations of individuals’ rights to bodily autonomy, health, and equality. (Photo: Reuters)
For half of a century, women and pregnant people in the United States have relied on the right to abortion to make decisions about their lives, health, and well-being. In 1973, the Supreme Court of the United States’ decision in Roe v. Wade established critical protections against violations of individuals’ rights to bodily autonomy, health, and equality. Roe’s legacy was not only felt in America. Around the world, national courts relied upon Roe to articulate their own constitutional recognition of reproductive rights and bodily autonomy, including in India.
On June 24, the Supreme Court of the United States overturned Roe v. Wade in a 6-3 vote, unequivocally eliminating the constitutional right to abortion in the country and sending the decision to state legislatures. Within mere hours of this momentous decision in Dobbs v. Jackson Women’s Health Center, nine states have already banned abortion. Overall, 26 states are certain or likely to ban abortions in the coming weeks.
In many parts of the US, pregnant individuals and health workers seeking to provide abortion will be increasingly subject to criminal penalties for seeking access to abortion even in the early stages of pregnancy. The impacts of these criminal laws will be felt most acutely by marginalised individuals who have limited means to seek safe and legal services and who are already subject to greater criminalisation, including low-income women and women of colour. Some may be able to travel or access medication abortion, but that will not be an option for everyone.
Access to abortion is a human right and essential to ensuring health, equality, and autonomy. United Nations treaty-monitoring bodies and experts have repeatedly recognised the harm resulting from criminal abortion laws, which discourage women from taking steps to protect their health and cause preventable maternal mortality and morbidity. The Special Rapporteur on the right to the highest attainable standard of health has stated that “[w]here abortion is illegal, women may face imprisonment for seeking an abortion and emergency services for pregnancy-related complications, including those due to miscarriages.”
Under international human rights law, countries must repeal discriminatory criminal laws, including laws that criminalise abortion, and ensure that women and other pregnant persons are able to access safe abortion services both in law and in practice. As United Nations Special Rapporteurs stated in their amicus curie brief submitted to the Supreme Court in this case, ‘the United States would contradict international human rights law by overturning its established constitutional protections for abortion access—both by failing to recognise abortion access as necessary for women’s autonomy, equality and non-discrimination and by retrogressing on human rights contrary to international law.’
These rights have now been stripped from people in the United States, as the dissenting opinion of three justices in the Dobbs decision emphasises:
“The Court today says that from the very moment of fertilization, a woman has no rights to speak of. A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs… The majority’s refusal even to consider the life-altering consequences of reversing Roe and Casey is a stunning indictment of its decision.”
Medical professionals recognise that abortion is healthcare. The World Health Organisation has stated that abortion is an essential part of the package of evidence-based, rights-respecting reproductive health interventions. Yet around the world, human rights advocates have documented how criminal abortion bans impede health workers’ ability to support patients’ reproductive health goals.
At my organization, Physicians for Human Rights, we are alarmed that health workers in the United States will soon be placed in the difficult position of having to decide between adhering to new anti-abortion laws or fulfilling their medical ethics to provide comprehensive, evidence-based health care to their patients. Violence and threats against health workers who provide reproductive health services were already rising. The death threats, violence, and obstruction will likely increase as abortion is outlawed in states across the country.
A statement by United Nations human rights experts emphasises the link between the Court’s attack on gender equality and broader struggles for democracy. The experts stated,
“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 criminalise abortion rather than to expand it and ensure equitable access to safe abortion services, signals a deeply troubling erosion of democratic values and process.” By allowing states to effectively force individuals to carry pregnancies to term, the Court has placed the US amongst a small set of countries that in recent years have backtracked on abortion rights: El Salvador, Honduras, Iran, Nicaragua, and Poland.
The US Supreme Court’s decision stands in stark contrast to the global trend towards the liberalisation of abortion laws and out of step with other democracies. In countries from Colombia to Argentina to Ireland to the Democratic Republic of the Congo, critical law reform has occurred to remove barriers to abortion.
Similarly, India just last year amended its 50-year-old abortion law—passed just two years before Roe—to further expand access. While decisions are not uniform, in cases spanning issues such as maternal health, access to contraception, forced and involuntary sterilisation, abortion, sexual and reproductive health rights of adolescents, employment discrimination on grounds of pregnancy or childcare, among others, Indian courts have developed robust jurisprudence that not only reflects but also advances global human rights standards.
In the months and years to come, the reversal of Roe may be cited as grounds for retrogression in the jurisprudence of other countries globally. We must not let that happen. We must recognise abortion jurisprudence in the US as the anti-democratic, idiosyncratic, and anti-health development it is and instead, hold its lawmakers accountable for the cruelty, violence, and devastating health impacts that this court decision will cause.
Further, all of us, wherever we live, must push back on the criminalisation of abortion in all its forms. Even in countries like India where there has been recent progress, the continued inclusion of abortion in the penal code—albeit with exceptions—has been documented to have a harmful impact on the exercise of reproductive autonomy and access to care, including on marginalized populations. We must call upon our governments to treat abortion as an essential health service and advocate for reforms to ensure health workers and patients are not criminalised for termination of pregnancy.
In the face of such an egregious setback on human rights, we cannot be silent. We must act in solidarity with pregnant people and health workers under threat, wherever they are.
The writer is the Director of the Programme on Sexual Violence in Conflict Zones at Physicians for Human Rights and the former acting Regional Director for Asia at the Center for Reproductive Rights. She is a Fellow with the International Programme on Sexual and Reproductive Health Law at the University of Toronto Faculty of Law.