Equal rights—unless you are pregnant

Seventy four years after the Universal Declaration of Human Rights, the inherent, inalienable, and universal rights of freedom and self-determination remain under threat. This is particularly true for women. At critical points over their life course, women’s rights to their bodies—such as they are—are suspended by law or custom. Across the world, the question of a woman’s right to choose when and whether to become pregnant and whether to carry the pregnancy to term is a subject that can make or break governments; can result in women’s incarceration, including in the event of spontaneous abortions (miscarriage); and is a major cause of morbidity and mortality when there is a lack of access to safe abortion services.1

The right to the highest attainable standard of health is enshrined in international law—with no caveats. This includes sexual and reproductive health. All states that are party to international law have agreed to this and have further reinforced their agreements through a plethora of international agreements which include:

1. The Universal Declaration of Human Rights;

2. The International Covenant on Civil and Political Rights;

3. The Convention on the Elimination of All Forms of Discrimination Against Women; and

4. The Convention on the Rights of the Child

States have made further commitments to the protection of the right to health through agreements such as the Millennium Development Goals and the Sustainable Development Goals. These agreements are key to the governance and operationalisation of multilateral, bilateral and philanthropic initiatives. So events in the US that unwind those basic protections that do exist to guarantee safe abortion for women will have global repercussions.

In 1973, the Supreme Court of the United States (SCOTUS) established a woman’s constitutional right to an abortion in the case of Roe v. Wade. The decision pivoted on the Due Process Clause of the 14th Amendment to the constitution and relied on a qualified right to privacy. SCOTUS held that the decision to have (or not to have) an abortion is a private matter and is, therefore, protected from government (legislative) interference.

A recently leaked draft majority opinion from SCOTUS in the case of Dobbs v. Jackson Women’s Health Organisation is set to overturn that federally protected right.2 The author, Associate Justice Samuel Alito, observed the absence of any direct reference to abortion in the US constitution. Nonetheless, rewriting Roe v. Wade will require judicial scrapping of 50 years of precedent—“settled law”—as the socially conservative Associate Justice Kavanaugh described it in his US Senate confirmation hearing.

When the SCOTUS decision becomes law, it will set the United States against a 50 year global trend towards greater protections for legalised abortions.3 With a high probability, the change will endanger the health and wellbeing of US citizens and residents, and reinforce layers of intersecting inequalities based on religion, gender, geography, and socioeconomic position.456789 In its judgement, the Court will reveal the depth of the gendered truth behind the phrase, “We hold these truths to be self-evident, that all men are created equal...”

In an amicus brief to the Court, the UN Human Rights Council’s “mandate-holders” (appointed to report and advise on human rights from a thematic or country-specific perspective) argued thus. “[S]afe and legal abortion access constitutes a critical part of human rights and, in particular, the right to the highest attainable standard of health (which includes reproductive rights) as well as other human rights including the rights to non-discrimination and equality, respect for private life, the right to life, and the right to freedom from torture and cruel, inhuman and degrading treatment.”

Public health evidence and human rights jurisprudence have effectively influenced the international liberalisation of abortion laws.17 In 2019, United Nations member states committed themselves to Universal Health Coverage (UHC). UHC includes SRH services (Art. 29), and access to safe, affordable abortion is an essential part of those services.7

The US arguments about abortion rights suggest that abortion services require special legal provisions. There is no obvious reason why this should be so.10 Comprehensive sexual and reproductive health care (SRH) services exist as a part of a right to health, and abortion services are one among many SRH services.7 Also, much like those other health services, abortion services deliver the most significant positive impact on health and wellbeing when they are effective, available, affordable and accessible to all those in need.11

The criminalisation of abortions establishes a hierarchy of human worth in violation of numerous human rights instruments. For the nine months of any pregnancy, women are not equal to men. They do not have the same rights of self-determination, dignity, and autonomy enjoyed by men. They may not seek their own ends—whether to continue or not to continue the pregnancy. For the period of an unwanted pregnancy, their bodies are vessels in the service of others, including governments.12 After decades of gains in women’s equality, this would be a serious erosion of women’s rights that will have repercussions across global health and international development.