While more and more countries are taking steps to ensure that women have basic human rights, multiple states in the United States are taking a step back. The right for a woman to terminate her pregnancy has become an internationally recognized human right among nations and international organizations.[1] Eighty-seven percent of nations allow abortions under varying circumstances, including for the safety of women, rape and incest, and by request.[2] Even religiously and culturally traditional countries, such as Northern Ireland and Kenya, have recently taken steps to pass new legislation that expands or even legalizes abortion and makes access to termination easier for pregnant women and girls.[3] The recent passage of abortion ban bills in states, including Alabama, Louisiana, Ohio, Kentucky, and more, have led to an outcry across various generations of women fighting for their reproductive autonomy.[4] The bans passed in conservative states reflect those in strict patriarchal societies like Guatemala, Syria, El Salvador, and Chile.[5] Some states’ bans allow for abortions if the pregnancy was the result of rape or incest, while some of the stricter bans do not provide access to abortion services regardless of the situation that led to pregnancy. As of now, none of the bans have gone into effect due to ongoing litigation in courts, resolved litigation denying limitations and prohibitions, or the effective dates of legislation have not been reached. In ongoing cases, the judges have issued preliminary injunctions to prevent the legislations’ enactment until adjudication is complete. Some courts have already held that the state bans are unconstitutional, such as in Louisiana, Utah, and Iowa, and have permanently enjoined the legislation.[6]
International Human Right to Abortion
In October 2018, the United Nations Human Rights Committee drafted and adopted a General Comment on Article 6 of the International Covenant on Civil and Political Rights (ICCPR) regarding the right to life.[7] The Comment affirms that the right to life begins at birth and discusses, in detail, the right to an abortion.[8] The Comment is the result of three years of member States’ and non-government organizations’ discussions to create a global standard for the protection of women’s reproductive rights, prevention of maternal mortality, and access to abortion as a protected international human right.[9] This Comment acknowledges that the right to an abortion is an important and life-saving human right that women should be able to access without stringent State interference.[10] States have the right to legislate laws designed to limit voluntary abortions, those where women or girls choose to have an abortion, but such measures cannot interfere with the right to life of a pregnant woman or girl.[11] These measures cannot jeopardize the individuals’ lives, expose them to physical or mental suffering, discriminate against them, or arbitrarily interfere with their lives.[12] States must provide pregnant women and girls with “safe, legal and effective access to abortion” in situations where their lives are at risk.[13] They also must provide access in cases where carrying a fetus to full term would result in substantial pain or suffering, including cases of rape or incest.[14]
Further, according to the Comment, States must ensure that legal limitations on abortions does not result in women and girls seeking unsafe abortions.[15] This means that States “should not take measures such as . . . criminal sanctions against women and girls undergoing abortion or against medical service providers assisting them in doing so, since [these sanctions could] compel women and girls to resort to unsafe abortion.”[16] In order to prevent unsafe abortions, States should not introduce new obstacles to accessing termination and should attempt to decrease the obstacles already in place.[17] Access to prenatal and post-termination healthcare should be made available to women and girls seeking medical care.[18] Finally, States should assist in preventing abortions by “ensur[ing] access for women and men, and, especially, girls and boys, to quality and evidence-based information and education about sexual and reproductive health and to a wide range of affordable contraceptive methods.”[19]
The United States ratified the ICCPR in 1992 and as such, the ICCPR became the “supreme law of the land” under the Supremacy Clause in Article VI of the United States Constitution.[20] Because of the Senate’s ratification, the ICCPR applies to both federal and state government entities and actions, including legislation of abortion regulations.[21] While the Senate made several Reservations, Declarations, and Understandings (RUDs) in ratifying the ICCPR, it did not make any with regard to Article 6.[22] Importantly, the Senate declared that the ICCPR was not self-executing and that the ICCPR did not provide that Congress had to legislate any laws that were in direct violation of the United States Constitution.[23]
Recent developments in women’s rights have led to changes worldwide granting access to abortions in countries where women were previously prohibited from having them. This year alone has seen vast changes globally resulting in the decrease of abortion regulations. In South Korea, the Constitutional Court held that restrictive abortion laws are unconstitutional and that the legislature has until 2020 to pass new legislation legalizing abortion.[24] North Macedonia removed regressive barriers to abortion and extended the gestational limit from ten weeks to twelve weeks, or up to twenty-two weeks in cases of rape or incest, fetal malformation, or for socio-economic reasons.[25] Iceland also extended the gestational limit this year to twenty-two weeks, establishing one of Europe’s most liberal abortion laws.[26] While abortion in Kenya is still illegal, Kenya’s High Court ruled in June 2019 that abortions will be allowed if the mother’s life is at risk, including risks caused by physical or mental states, and can be performed by permitted medical health practitioners.[27] Most recently, Northern Ireland passed new legislation decriminalizing abortion, permitting women and girls to terminate their pregnancies without fear of prosecution and permitting healthcare workers to perform abortions in the State.[28]
As of this writing, only twenty-six countries prohibit abortion under any circumstances, prohibiting abortions to roughly ninety million women of reproductive age.[29] Thirty-nine countries permit pregnancy termination when the woman’s life is at risk, applying to 359 million women worldwide.[30] Fifty-six countries allow abortions to preserve the health of women and girls with twenty-five of these countries including mental health.[31] Fourteen percent of women and girls worldwide fall into the fourteen countries that permit abortions based on broad social or economic grounds.[32] Countries that allow abortions to preserve the woman’s health “often consider a woman’s actual or reasonably foreseeable environment and her social or economic circumstances in considering the potential impact of pregnancy and childbearing.”[33] Finally, sixty-seven countries, including the United States, permit abortions on request with the most common gestational limit being twenty-two weeks.[34] Over thirty-six percent of women, or roughly 590 million women, live in countries that permit abortions on request.[35]
Recent Challenges to Abortion in the United States
Between 2011 and July 2019, states enacted 483 new restrictions on abortions, totaling nearly forty percent of all restrictions since the decades of Roe v. Wade.[36] Each state has its own regulations on pregnancy termination which can include state-directed counseling before the termination, restrictions on insurance coverage, consent needed by parents of a pregnant minor, and a required ultrasound before termination.[37] The Supreme Court upheld Roe in 1992 but established an “undue burden” test in determining whether a state’s abortion regulation would cause an undue burden on the pregnant woman or girl.[38] “An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”[39] In 2016, the Supreme Court clarified the undue burden test by deciding that abortion legislation must pass a heightened scrutiny standard, one in which there must be a valid state interest and the benefits of the abortion regulations outweigh the burden on women.[40]
Nine states have attempted to enact gestational age bans, or those that limit abortions before the second trimester.[41] Alabama enacted a total ban on abortion regardless of the length of pregnancy with no exceptions for rape or incest.[42] The U.S. District Court for the Middle District of Alabama issued a preliminary injunction prohibiting the ban to go into effect until the court can hear the case.[43] Georgia, Kentucky, Louisiana, Mississippi, and Ohio all issued “heartbeat” bills, banning abortion at six weeks when a fetal heartbeat can typically be detected.[44] Kentucky’s legislation was blocked by a federal judge, while the other states’ laws are in current litigation.[45] Missouri banned abortion at eight weeks, while Arkansas and Utah limits abortions up to eighteen weeks of pregnancy.[46] Arkansas, Kentucky, Missouri, and Tennessee have legislated “trigger bans,” currently found in four other states, which would ban abortion if the Supreme Court overturns Roe.[47] Besides gestational bans, other legislation was proposed and adopted this year against abortions based on different circumstances. Indiana and North Dakota banned the method that is the current standard for surgical abortions after fourteen weeks of pregnancy.[48] Arkansas, Kentucky, Missouri, and Utah banned abortions of fetuses that might have Down syndrome.[49] Kentucky and Missouri banned abortions based on the race or sex of the fetus and Kentucky banned abortions based on the fetal anomalies.[50]
The Supreme Court has agreed to hear a case in its upcoming term concerning a Louisiana restriction that could leave the state with only one legal abortion provider.[51] The law provides that only doctors who have admitting privileges at a nearby hospital are permitted to perform abortions.[52] The Louisiana law is similar to a Texas regulation that was determined by the Supreme Court in 2016 to be an undue burden on women’s rights to access an abortion.[53] With the new appointment of two conservative justices to the Supreme Court bench, conservative states, legislators, and citizens are hoping that the Supreme Court will uphold the law and slowly reverse Roe’s holding.
Analysis
The enactment of the various abortion bans across the country this year have been in direct defiance of the precedent set in Roe and Casey by the Supreme Court. Conservatives are anxious to have the cases heard before the newly conservative Supreme Court bench and only time will tell how the Court will decide on these new laws. Whether the Court upholds Roe and Casey or throws out years of precedent, women’s rights in the United States have become a hot topic button for debate. While States around the world are decriminalizing abortions or expanding the rights to access, conservative states in the United States are impeding on women’s rights to reproductive autonomy at an alarming rate. Although the United States ratified the ICCPR before the recent Comment on Article 6, some American states are not acknowledging the Comment’s new determinations with regards to pregnancy termination. In fact, conservative states are enacting laws that provide for the exact opposite of the Comment’s recommendations.
The UN’s Comment is based on the right to life, a right that is guaranteed after the birth of an individual. The gravest concern that the UN addresses is the protection from maternal mortality, in essence the right for women’s and girls’ lives. Banning abortions is not the way to prevent women and girls from having them. Limiting access to legal and safe abortions causes women and girls to seek different, illegal and unsafe avenues for pregnancy termination, increasing the likelihood of maternal mortality. There are other alternatives states could take in order to prevent unwanted pregnancies, including sex education. Only twenty-four states and Washington D.C. require sex education, with six states and D.C. enacting that legislation this year.[54] Further, there are only twenty-nine states that currently have healthcare legislation guaranteeing coverage of contraceptives.[55] Instead of focusing on the restriction of women’s bodies, states should focus on providing education and medical access to preventative measures.
Conclusion
While the international world is progressing in its understanding of women’s rights, conservative states in the United States are attempting to deny or restrict access to needed medical procedures. Federal courts throughout the country have recognized that the state legislatures are passing unconstitutional laws and are striking them down in court. Instead of taking steps to prevent unwanted pregnancies, state legislatures are openly defying legal precedent to limit access to abortion. State legislatures are crossing the line between governmental power and women’s bodily autonomy, a line that was clearly drawn decades ago by the Supreme Court. If state legislatures are truly concerned about the number of abortions in their states, they should focus on preventative measures and sex education.
[1] This post discusses the rights of individuals who identify as women as addressed in the General Comment on Article 6 of the International Covenant on Civil and Political Rights. This post is not meant to exclude individuals who do not identify as women and can still become pregnant. The right to terminate pregnancy should be available to any individual regardless of their gender classification.
[2] Ctr. For Reproductive Rights, The World’s Abortion Laws, https://reproductiverights.org/worldabortionlaws (last visited Feb. 16, 2020).
[3] Id.
[4] See Laurel Wamsley, Across the Country, Protestors Rally to Stop States’ Abortion Bans, NPR (May 21, 2019), https://www.npr.org/2019/05/21/725410050/across-the-country-protesters-rally-to-stop-states-abortion-bans; Uma Mishra-Newbery and Jaime Todd-Gher, Abortion Bans Strip People of Their Human Rights. Here’s Why We Must Stand In Solidarity Against Them, TIME (Sept. 27, 2019), https://time.com/5684858/international-safe-abortion-day/.
[5] See supra note 2; Amnesty International, How Some of the World’s Most Restrictive Abortion Laws Turn Women into Criminals, https://www.amnestyusa.org/how-some-of-the-worlds-most-restrictive-abortion-laws-turn-women-into-criminals/ (last visited Feb. 16, 2020).
[6] K.K. Rebecca Lai, Abortion Bans: 9 States Have Passed Bills to Limit the Procedure this Year, The New York Times (May 29, 2019), https://www.nytimes.com/interactive/2019/us/abortion-laws-states.html?auth=login-email.
[7] Human Rights Committee, General Comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, On the Right to Life, Office of the UN High Commissioner for Human Rights CCPR/C/GC/36 (Oct. 30, 2018), https://www.ohchr.org/Documents/HRBodies/CCPR/CCPR_C_GC_36.pdf.
[8] Ctr. For Reproductive Rights, UN Human Rights Committee Asserts that Access to Abortion and Prevention of Maternal Mortality are Human Rights (Oct. 31, 2018), https://reproductiverights.org/press-room/un-human-rights-committee-asserts-access-abortion-and-prevention-maternal-mortality-are.
[9] Id.
[10] Supra note 7 at 2.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Am. C.L. Union, FAQ: The Covenant on Civil & Political Rights (ICCPR), https://www.aclu.org/other/faq-covenant-civil-political-rights-iccpr(last updated Apr. 2019).
[21] Id.
[22] See U.S. Reservations, Declarations, and Understandings, International Covenant on Civil and Political Rights, 138 Cong. Rec. S4781-01 (Apr. 2, 1992).
[23] Id.
[24] Yoonjung Seo, South Korea to Legalize Abortion after 66-Year Ban, CNN (Apr. 11, 2019), https://www.cnn.com/2019/04/11/health/south-korea-abortion-ban-ruling-intl/index.html.
[25] Int’l Planned Parenthood Fed’n – Eur. Network, North Macedonia’s Abortion Care Law Signals New Dawn for Reproductive Freedom (Apr. 4, 2019), https://www.ippfen.org/blogs/north-macedonias-abortion-care-law-signals-new-dawn-reproductive-freedom-0.
[26] Jelena Ćirić, Abortion Bill Passed in Icelandic Parliament, Iceland Review (May 14, 2019), https://www.icelandreview.com/news/abortion-bill-passed-in-icelandic-parliament/.
[27] Devdiscourse News Desk, Abortion is Illegal in Kenya but Allowed on Conditions, Order High Court, Devdiscourse (June 12, 2019), https://www.devdiscourse.com/article/law-order/558092-abortion-is-illegal-in-kenya-but-allowed-on-conditions-order-high-court.
[28] Marie-Louise Connolly, Northern Ireland Abortion Law Changes: What Do They Mean?, BBC (Oct. 22, 2019), https://www.bbc.com/news/uk-northern-ireland-50125124.
[29] Supra note 2.
[30] Id.
[31] Id.
[32] Id.
[33] Id.
[34] Id.
[35] Id.
[36] Guttmacher Institute, State Facts about Abortion: Indiana (Sept. 2019), https://www.guttmacher.org/fact-sheet/state-facts-about-abortion-indiana.
[37] Id.
[38] Planned Parenthood v. Casey, 505 U.S. 833, 874 (1992).
[39] Id. at 878.
[40] Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016).
[41] Elizabeth Nash et al., State Policy Trends at Mid-Year 2019: States Race to Ban or Protect Abortion, Guttmacher Institute (July 1, 2019), https://www.guttmacher.org/article/2019/07/state-policy-trends-mid-year-2019-states-race-ban-or-protect-abortion.
[42] Id.
[43] Anna North, All the Near-Total Abortion Bans Passed this Year Have Now Been Blocked in Court, Vox (Oct. 29, 2019), https://www.vox.com/2019/10/2/20895034/alabama-abortion-ban-blocked-georgia-law.
[44] Supra note 41.
[45] Supra note 6.
[46] Supra note 41.
[47] Id.
[48] Id.
[49] Id.
[50] Id.
[51] Alice Miranda Ollstein, SCOTUS will Review Louisiana Abortion Law, Setting up Blockbuster Election Year Showdown, Politico (Oct. 4, 2019), https://www.politico.com/news/2019/10/04/supreme-court-review-louisiana-abortion-restrictions-000275.
[52] Id.
[53] Id.
[54] Supra note 41.
[55] Id.
