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Does Dobbs Put the United States in Violation of its International Human Rights Obligations?

Updated: Mar 9, 2023

Meredith Sullivan (J.D. Candidate, Class of 2025) is a contributor. Her interests include human rights, tech policy, and international and comparative law. Meredith graduated from the Dual B.A. Program between Columbia University and Sciences Po with degrees in Political Science and holds an MPhil in Middle Eastern Studies from the University of Cambridge. Before law school, she worked as a paralegal at a legal aid organization, helping tenants in Massachusetts defend against eviction. Meredith speaks fluent French and proficient Arabic, Spanish, and German.

Pro-choice protest in Pittsburgh, PA, June 2022. Mark Dixon.

In Dobbs v. Jackson Women’s Health Organization, Justice Samuel Alito declared that it was “time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” This decision held that there was no Constitutional right to abortion, overruling decades of precedent. This January would have been the fiftieth anniversary of Roe v. Wade, the landmark case that protected abortion (until viability) as a fundamental constitutional right. However, last year’s Dobbs decision returned the issue of abortion to the political process, giving states a carte blanche to impose any and all abortion restrictions (albeit with federal law mandating that doctors provide abortion in medical emergencies.)

While the court has reversed course from a half century of American legal norms with the Dobbs decision, the battle over Roe and the right to abortion in the United States has not been waged in a vacuum. Despite many conservative justices’ stated reluctance to look beyond our borders and incorporate international law into their jurisprudence, global comparisons were an important undercurrent in the conservative analysis of the Dobbs case. Starting in the petition for writ of certiorari, the petitioners employed comparative legal analysis by referring to the laws of other countries to declare the United States as leading “the world in allowing nearly full developed children to be aborted.” Alito built on this in his majority opinion, discrediting Roe’s viability line as nonsensical and stating that it was “telling that other countries almost uniformly eschew such a line.” Chief Justice Roberts expanded on global comparisons in his concurrence, noting the small number of countries that permit elective abortions after viability. These viability arguments obscured the reality of abortion in other countries that have broad abortion exceptions and free healthcare, for example, in Europe. Interestingly, the petitioners and the Court took a comparative approach when contextualizing abortion laws in the United States, but neglected to mention human rights norms or international treaty obligations.

However, these arguments emphasize the continued relevance of international and comparative law in the American debate on abortion. The United States plays a major role in articulating international human rights standards and itself has binding obligations under international law as a State Party to some treaties and a signatory to many other agreements. As we move into the post-Dobbs era, it is important to examine how the decision and subsequent abortion bans in many states interact with the United States’ commitments under international law.


How do international legal norms apply to abortion in the United States?

Since the 1994 International Conference on Population and Development in Cairo, there has been global consensus that reproductive health is a basic human right. The International Covenant on Civil and Political Rights (ICCPR) is a primary source of human rights, including the right to sexual and reproductive health. In the international law amicus briefs submitted in Dobbs, numerous scholars and practitioners argued that abortion was protected by the ICCPR under the rights to life, privacy, and non-discrimination. In 2018, the United Nations (UN) Human Rights Committee (HRC) found that Article 6 of the ICCPR, the protection of the “inherent right to life,” included the right to safe and legal abortion. Further, the HRC urged in General Comment No. 36 that as part of their obligations under Article 6, states should work to remove existing barriers to “effective access” of abortion care, and that they “should not introduce new barriers.” The HRC explicitly stated that states should not apply criminal sanctions to women or girls for having obtained an abortion or to medical providers for having assisted them.

In addition to Article 6 of the ICCPR, advocates have argued that the right to abortion is protected by Article 17, the right to privacy. While a key part of Dobbs was dismissing abortion as a privacy right under substantive due process, that does not mean that international law cannot legitimately protect abortion under privacy rights. The assertion that abortion is included under the right to privacy is supported by multiple decisions of the HRC. The HRC first set this precedent in KL v. Peru (2002), declaring that Peru’s denial of abortion constituted an Article 17 violation. In both Whelan v. Ireland (2016) and in Mellet v. Ireland (2017) the Committee focused on the severe mental and emotional impact of denying abortion care and found that Ireland violated the women’s rights to freedom from cruel, inhuman or degrading treatment, privacy, and equality through its abortion ban. Although HRC decisions are not binding, they are considered reasonable interpretations of the treaty.

The United States has only signed and ratified a handful of human rights treaties, notably including the ICCPR and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). While the US reservation to the ICCPR ensured that the treaty is not self-executing, in an effort to curtail domestic litigation for direct enforcement of the treaty, the United States is still bound by the ICCPR–on the federal, state, and local levels. Under the ICCPR, and taking into consideration the HRC’s General Comment Nо. 36, the United States has a positive obligation to ensure safe and legal abortion access. Тhe criminal penalties that have been enacted or are pending in bills in multiple states, for either pregnant people or medical providers, are also contrary to the HRC’s interpretation of Article 6. Further, interference with a person’s right to abortion constitutes a violation of privacy under Article 17, which implicates the half of states that have already or are expected to enact bans or gestational limits.

There is also an argument that laws restricting abortion are discriminatory on the basis of sex and thus violate Articles 2 and 26 of the ICCPR. This is further advanced by the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) prohibiting “any distinction, exclusion or restriction” that impairs the ability of women to exercise “fundamental freedoms in the political, economic, social, cultural” fields. Article 12 of CEDAW urges states to take all measures to prohibit discrimination in health care and ensure access to health care, including family planning services. The CEDAW Committee made it clear in its General Recommendation No. 24 that access to reproductive healthcare was a basic right under the treaty. While sex discrimination arguments do not account for all potential abortion seekers, the right to access abortions is fairly entrenched within the sphere of non-discrimination. The United States signed, but has never ratified, CEDAW; thus, the treaty is not legally binding, but under customary international law, the United States must refrain from defeating its object and purpose. Now that there is no Constitutional protection for abortion, the United States undoubtedly contravenes the object and purpose of a treaty meant to expand abortion and reproductive health care as a basic right to achieve gender equality.

Non-discrimination arguments for abortion access start but do not end with sex discrimination. Under ICERD, Article 5(e)(iv) calls upon State Parties, like the United States, to eliminate racial discrimination and to guarantee the right of everyone to public health and medical care. The 2018 Report of the Special Rapporteur on extreme poverty and human rights acknowledged the unacceptable disparities in maternal mortality between white women and Black women in the United States and the persistence of racial discrimination in reproductive healthcare. Abortion access is a racial justice issue because certain individuals–Black, Indigenous, Latinx, and other people of color–are more significantly impacted by abortion bans. Due to the disparate impact of Dobbs, the United States is violating its international obligations to actively work to eliminate racial inequities and discrimination. Additionally, the UN Mandate Holders Amicus Brief discussed the intersectional implications of abortion bans; for example, prohibitions on abortion will severely impact low-income and disabled individuals and people living in rural areas. These disparate acts on certain individuals violate non-discrimination provisions of ICCPR’s Articles 2 and 26.

Finally, the nascent principle of non-retrogression underscores efforts to advance human rights on the international level and hold states to their obligations. Originating in a General Comment of the Committee on Economic, Social and Cultural Rights (CESCR), this doctrine prohibits states from regressing in their protection of human rights. This emerging principle has found increasing traction in international environmental law in the past few years and stems from concern over backsliding and states non-compliance. While the United States is only a signatory to the International Covenant (ICESCR), it still cannot act in contradiction to the treaty’s purpose and object of taking positive measures to promote human rights, implicating the principle of non-retrogression. This concept is further compatible with the emphasis on positive obligations in many human rights treaties, requiring that states make good faith efforts to comply and advance the rights therein. With 13 states having fully banned abortion since Dobbs, the United States has taken a huge step back in terms of human rights progress compared to 49 years of some degree of abortion access. While the doctrine of non-retrogression is an emerging norm, it seems applicable here, especially given the intersection of abortion access (or lack thereof) with gender, race, socioeconomic status, educational attainment, disability, and public health. Thanks to Dobbs, the United States has stepped half a century back in time. For a country that has long conditioned economic aid to foreign countries on human rights metrics, this domestic backsliding is both alarming and hypocritical. The positive obligations of treaties like the ICCPR and ICERD make the current state of abortion regulations in the United States unacceptable and in flagrant violation of international law. The repercussions of reduced or unsafe abortion access infringe on other basic rights protected by the ICESCR, to which the United States is a signatory, like rights to health and education.

International legal scholars and human rights organizations have also made compelling arguments that unsafe abortion constitutes cruel and inhumane treatment, which were affirmed in the aforementioned HRC decisions. However, the U.S. Reservation to the ICCPR narrowly defines cruel and inhumane treatment as limited to that prohibited by the Fifth, Eighth and Fourteenth Amendments, which makes it a less salient argument in the domestic context.


Conclusion

Since the early 1990s, only four countries have regressed in terms of abortion laws: Nicaragua, El Salvador, Poland, and the United States. While the Supreme Court has now actually made the United States an outlier in terms of denying pregnant people access to essential medical care, the federal government is still bound by its international obligations. By allowing states to prohibit abortion, the United States is in direct contravention of ratified treaties, like the ICCPR, and acting contrary to the object and purpose of signed treaties, like CEDAW. Further, this backsliding in abortion access constitutes a violation of the principle of non-retrogression and sets a dismal example for other countries with more nascent abortion movements.

Abortion access is firmly posited as a human right in international law and by UN agencies and international treaty bodies. As we navigate increased bans on abortion and procedures across the country, comparative law and activism will perhaps be instructive; the ongoing criminal prosecution of a Polish activist for helping a pregnant woman access abortion pills is a somber example of what will happen in states where abortion is criminalized and medical providers or “abettors” are also penalized. In a post-Roe United States, international pressure and advocacy framed in terms of binding international legal obligations and human rights norms will be one potential way forward.






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