Developing a rights framework for abortion in international jurisprudence

Trigger warning: sexual violence, abortion rights

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Summary:

• This article uses recent legal decisions and comments by expert and treaty monitoring bodies to briefly outline the international human rights framework used to uphold and improve access to abortion.

• The key pillars of this framework are: right to privacy; to life; to health; to freedom from torture or cruel, inhuman or degrading treatment; and to equality and non-discrimination.

• International bodies are moving beyond articulating specific grounds under which abortion should be permitted; instead, rulings are setting broad minimum standards and bodies are encouraging States to guarantee access to safe abortion as a means of fulfilling a range of human rights.

Introduction

Whether there exists a ‘human right to abortion’ is contested. Abortion is not defined along other internationally-accepted standalone rights, like health, life, or privacy. However, several rights contained within international human rights treaties are supportive of abortion rights, or vice versa are fulfilled through access to safe abortion. Abortion has thus been protected and advanced with reference to a framework of human rights, and through these avenues treaty bodies have begun advancing the notion of access to abortion as being a right itself. This article sets out that rights framework. It draws on international legal decisions, primarily by the UN Human Rights Committee, and the General Comments produced by treaty monitoring bodies to clarify the application of rights in practice.

Right to privacy

In perhaps the most popularly well-known case concerning abortion, the United States Supreme Court in Roe v. Wade (1973) held that the US constitutional right to privacy included deciding whether to have an abortion. This notion is equally reflected in international jurisprudence: the UN Human Rights Committee found violations of the right to privacy (Article 7, International Covenant on Civil and Political Rights) in every case of State interference with abortion access since K.L. v. Peru in 2005.[1] Similarly, the European Court of Human Rights in 2012 (P. and S. v. Poland) applied respect for private life (Article 8, European Convention on Human Rights) to ‘decisions to become and not become a parent’.[2] The Human Rights Committee has also classed certain restrictions on abortion provision, including duties compelling health personnel to report cases of patients undergoing abortion, as violations of the right to privacy.[3]

Right to life

The claim that a zygote, embryo or foetus holds a right to life (Article 6, International Covenant on Civil and Political Rights), purported by many opponents to abortion, is not supported in international law. Drafters of the Covenant in the 1950s/60s explicitly rejected a right to life from conception; the concept of prenatal rights to life was again rejected as the UN elaborated a new General Comment on Article 6 in 2014.[4] The established interpretation of Article 6 is that rights to life accrue at birth and do not extend prenatally.[5] Even the American Convention on Human Rights, a regional treaty providing protection to ‘life from the moment of conception’ (Article 4.1), was in 2012 interpreted by the Inter-American Court of Human Rights (Artavia Murillo et al. v. Costa Rica) to mean that protections of life prior to birth are not absolute, but gradual and incremental.[6]

Instead, the UN Human Rights Committee stated in General Comment 36 on the Right to Life (2018) that States’ duty to protect life includes ensuring that women and girls do not have to undertake unsafe and life-threatening abortions. Jurisprudence usually considers this by relating to the right to health.

Right to health

Preventable deaths resulting from unsafe abortion have been internationally recognised as health concerns since 1994.[7] Abortion itself is increasingly considered integral to the right to the ‘highest attainable standard of physical and mental health’ (Article 12, International Covenant on Economic, Social and Cultural Rights). In 2021, the UN Special Rapporteur on health reported that states have a ‘core obligation’ to prevent unsafe abortion, that the right to health includes the right to control one’s health and body free from interference, and that safe and legal abortion is a necessary component of comprehensive health services.[8]

In contexts where abortion is generally criminalised, most States include explicit and often broad exemptions on physical and mental grounds. Where such exemptions remain unavailable or inaccessible, violations to the right have been found. In 2011, the UN Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW Committee) ruled on L.C. v. Peru. The girl L.C. became pregnant following repeated rapes by a man, and was denied an abortion despite attempting suicide. Doctors did not perform the spinal surgery she required as a result until after L.C. miscarried. The CEDAW Committee held that Peru violated L.C.’s right to access health services under Article 12 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) by not granting an abortion. The body called on Peru to decriminalise abortion in cases of rape and sexual assault and establish a mechanism to access therapeutic abortion.

Right to freedom from torture or cruel, inhuman or degrading treatment

Torture entails ‘any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person’ by state officials for any reason. The UN Human Rights Committee found in the case of K.L. v. Peru (2005) that K.L.’s right to be free from cruel, inhuman or degrading treatment by state officials (Article 5, Universal Declaration of Human Rights; 1987 Convention against Torture) for being illegally forced to carry a pregnancy to term. Recently, the Human Rights Committee produced similar rulings on Mellet v. Ireland (2016) and Whelan v. Ireland (2017). Both cases saw women receive diagnoses of fatal foetal impairment and travel to a foreign country to obtain legal abortion care. The Committee recognised that the ‘intense physical and mental suffering’ caused amounted to a violation of this right.

Right to equality and non-discrimination

Finally, a ‘rather novel’ but increasingly prevalent approach considers abortion in the context of gender equality and non-discrimination.[9]

The above-mentioned right to health must be exercised ‘without discrimination’. ‘Discrimination’, as CESR General Comment 16 and CEDAW Article 12 clarify, does not only occur when men and women are treated differently but also when services used only by women, including maternal and reproductive healthcare, are neglected. Indeed, a former Special Rapporteur on extrajudicial, summary or arbitrary executions reported the death of a woman following denial to a life-saving abortion not only violates the right to life but constitutes a ‘gender-arbitrary killing, only suffered by women, as a result of discrimination enshrined in law’.[10]

Discrimination arises also when gender-based stereotypes are privileged above women’s health. In L.C. v. Peru, the CEDAW Committee found that L.C. faced restrictions based on the ‘gender stereotype that understands the exercise of a woman’s reproductive capacity as a duty rather than a right’, and that the State had ‘considered her reproductive capacity of greater importance than her human rights’. The Human Rights Committee similarly found in the Ireland cases violations of the right to equal protection of the law (Article 26, International Covenant on Civil and Political Rights). In the case of Mellet v. Ireland, the Committee advanced that criminalisation of abortion reduces a woman ‘to her reproductive capacity’.

Some rulings, including by the CEDAW Committee furthermore reference the ‘right of women to autonomous decision-making’; it is likely that the language of self-determination and bodily autonomy will continue as points of reference.[11]

Conclusion

International jurisprudence outlines that the provision of abortion is justified by standalone rights, and itself fulfils the rights to health, and non-discrimination in particular. Human rights bodies have now explicitly directed States to set broad minimum standards for abortion, while urging further liberalisation to ensure that human rights to health and non-discrimination in particular are fulfilled.[12] Mellet v. Ireland hence marked the first decision from an international human rights body to view the criminalisation of abortion as a human rights violation ‘in and of itself’.[13]

In late 2021, the UN Special Rapporteur on health filed a brief to the US Supreme Court, setting out the rights framework upon which abortion access rests.[14] It will be interesting to see if the Court’s decision on Dobbs v. Jackson Women’s Health Organization acknowledges these international legal standards.

Author Bio

Helena Trenkić is a candidate for the PhD in History at Jesus College, and also earned her undergraduate and MPhil degrees from Cambridge. Her interest in human rights has led her to an internship with the United Nations Office of the Victims’ Rights Advocate, volunteer roles at the National Council of Women GB and Amnesty International, and participation in international conferences including the UN Commission on the Status of Women.

Key Decisions

L.C. v. Peru, 2011 (CEDAW/C/50/D/22/2009)

K.L. v. Peru, 2005 (CCPR/C/85/D/1153/2003)

Mellet v. Ireland, 2016 (CCPR/C/116/D/2324/2013)

Whelan v. Ireland, 2017 (CCPR/C/119/2425/2014)

References

[1] See the decisions of Whelan v. Ireland, para 7.8; Mellet v. Ireland, para 7.7; K.L. v. Peru, para 6.4, amongst others.

[2] European Court of Human Rights, P. and S. v. Poland. Information Note No. 156. October 2012. https://hudoc.echr.coe.int/fre?i=002-7226. [Accessed 24 March 2022].

[3] UN Human Rights Committee. CCPR General Comment No. 28: Article 3 (The Equality of Rights Between Men and Women). CCPR/C/21/Rev.1/Add.10, 2000, para 20.

[4] For the decision-making of the original drafters, see UN GAOR, Agenda Item 33, Report of the Third Committee, 97, 113, 120(e), A/3764, 1957. For an insight into the decision-making processes during the elaboration of General Comment 36 on the Right to Life, see Zilli, Livio. The UN Human Rights Committee’s General Comment 36 on the Right to Life and the Right to Abortion. OpinioJuris, March 2019. http://opiniojuris.org/2019/03/06/the-un-human-rights-committees-general-comment-36-on-the-right-to-life-and-the-right-to-abortion/. [Accessed 24 March 2022].

[5] This is codified in Article 31 (General Rule of Interpretation) of the Vienna Convention on the law of treaties and backed by long-established principles of interpretation. Debate has instead been raised over the 1989 preamble to the Convention on the Rights of the Child, which refers to ‘legal protection before as well as after birth’. Again, however, the Convention itself does not provide that any rights should be attributed to an unborn foetus. Comments advanced by the Committee on the Rights of the Child suggest that this phrasing does not create foetal rights. Furthermore, in a recent legal brief, the UN Special Rapporteur on Health firmly asserted that this notion of ‘protection’ was ‘never intended to trump women and girls’ right to life in the context of abortion access’. For further discussion, see Section 6 of Bates, Charlotte. Abortion and a Right to Health in International Law: L.C. v Peru. Cambridge Journal of International and Comparative Law, 2:3, 2013. 640-656; Brief of United Nations Mandate Holders as Amici Curiae in Support of Respondents, Dobbs et al. v. Jackson Women’s Health Organization, et al.. United States Court of Appeals for the Fifth Circuit. 19-1392. https://www.supremecourt.gov/DocketPDF/19/19-1392/193045/20210920163400578_19-1392%20bsac%20United%20Nations%20Mandate%20Holders.pdf [Accessed 24 March 2022].

[6] For discussion, see de Jesus, Ligia M. The Inter-American Court on Human Rights’ Judgment in Artavia Murillo v. Costa Rica and its implications for the creation of abortion rights in the Inter-American System of Human Rights. Oregon Review of International Law, 16. 2014. 225-248.

[7] At both the 1994 International Conference on Population and Development and 1995 Beijing World Conference on Women, States were called upon to strengthen commitments to women’s health by addressing unsafe abortion.

[8] Right of everyone to the enjoyment of the highest attainable standard of physical and mental health. UN General Assembly, Seventy-sixth session, 75(b). A/76/172, 2021.

[9] Kapelańska-Pręgowska, Julia, ‘The Scales of the European Court of Human Rights: Abortion Restriction in Poland, the European Consensus, and the State’s Margin of Appreciation’, Health and Human Rights Journal, 23:2 (2021), pp. 213-224, p. 220. It is worth noting that the late Justice Ruth Bader Ginsburg, in ‘Some thoughts on autonomy and equality in relation to Roe v. Wade’ (1985), lamented the emphasis of the US Supreme Court’s ruling on privacy, and believed ‘the court should have adverted specifically to sex equality considerations’. This view is ‘novel’ in international legal rulings as opposed to feminist legal thought.

[10] Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions on a gender-sensitive approach to arbitrary killings. Human Rights Council, Fifty-third session, 3. A/HRC/35/23, 2017, para 94.

[11] This relates to Article 16(e) of CEDAW, which affirms the right to decide the number and spacing of one’s children. For language on autonomy and self-determination, see Right of everyone to the enjoyment of the highest attainable standard of physical and mental health. UN General Assembly, Seventy-sixth session, 75(b). A/76/172, 2021, para 40.

[12] For example, the Committee on the Rights of the Child urging states to decriminalise abortion, or the CEDAW Committee directing states to ensure that sexual and reproductive health includes a right to abortion. See Fine, Johanna B., Mayall, Katherine, Sepúlveda, Lilian. The Role of International Human Rights Norms in the Liberalization of Abortion Laws Globally. Health and Human Rights Journal, 2017. https://www.hhrjournal.org/2017/06/the-role-of-international-human-rights-norms-in-the-liberalization-of-abortion-laws-globally/. [Accessed 24 March 2022].

[13] See Fine et al. The Role of International Human Rights Norms in the Liberalization of Abortion Laws Globally.

[14] Brief of United Nations Mandate Holders as Amici Curiae in Support of Respondents, Dobbs et al. v. Jackson Women’s Health Organization, et al.. United States Court of Appeals for the Fifth Circuit. 19-1392. https://www.supremecourt.gov/DocketPDF/19/19-1392/193045/20210920163400578_19-1392%20bsac%20United%20Nations%20Mandate%20Holders.pdf [Accessed 24 March 2022].