TW: Graphic Descriptions, Self-Harm

On June 24th 2022, the Supreme Court of the United States’ landmark decision in Dobbs v. Jackson removed the constitutionally guaranteed right to abortion previously established in Roe v. Wade. The Supreme Court’s decision led to different abortion bans in close to 26 states with states such as Arkansas and Utah implementing a near-total ban on abortion. Much of the legal discourse examines Dobbs as a violation of the rights to autonomy, liberty, and self-expression through a constitutional and feminist lens. There is little discussion of the issue from an international law perspective, particularly in the context of the role of the US within the broader international legal and political system.  

ARTICLE 3 OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: RIGHT TO LIFE, LIBERTY, AND SECURITY OF PERSONS

The United States “participated in the drafting of the United Nations Charter and the Universal Declaration of Human Rights” (UDHR). Despite this, the Dobbs decision threatens to undermine the US’s commitment to uphold these fundamental human rights principles, since restricting access to abortion amounts to a violation of article 3 of the UDHR. Banning abortion only bans safe abortion. Prior to the implementation of Roe v. Wade, the American College of Obstetricians & Gynaecologists estimated that close to 1.2 million women in the US resorted to unsafe abortions resulting in almost 5,000 women losing their lives. It seems likely that these pre-Roe statistics will become a reality for women in the US following the Dobbs decision. 

The US has the highest rate of maternal mortality of any developed country and Lauren Ralph, an epidemiologist at the University of California, is concerned that these numbers are likely to increase without the legal protection of the right to abortion. A five-year research project by the Bixby Center for Global Reproductive Health examined the health of 1,000 women who sought abortions across 30 facilities in the U.S. The study concluded that, when facilities turned women away, these women faced higher health risks than those who had abortions. This demonstrates that Dobbs is a direct violation of article 3 as it takes away the right to life, liberty, and security of women wishing to terminate their pregnancies. 

ARTICLE 26 OF THE INTERNATIONAL COVENANT ON CIVIL AND POLTIICAL RIGHTS: EQUALITY BEFORE THE LAW & FREEDOM FROM DISCRIMINATION

The International Covenant on Civil and Political Rights (ICCPR) states that “all persons are equal before the law and are entitled without any discrimination to the equal protection of the law.” The US ratified the ICCPR in 1992 and it became the “supreme law of the land” under the Supremacy Clause of the US Constitution, which gives the ICCPR a status equivalent to US Federal Law. Dobbs violates the right to equality before the law for ethnic minorities, gender minorities, and low-income women, all of whom are disproportionately impacted by bans on abortions.

A 2013 study highlighted that low socio-economic status women and women of colour are less likely to have access to family planning care and less likely to have insurance coverage for contraception and family planning. An article by The Washington Post stated that “in 2019, the abortion rate for Black women was 23.8 per 1,000 women. For Hispanic women, it was 11.7 per 1,000. And for White women, it was 6.6 per 1,000.” These statistics indicate the disproportionate impact that Dobbs will have on women of colour who are more likely to seek abortion relative to their white counterparts. 

ARTICLE 16 OF THE CONVENTION AGAINST TORTURE: FREEDOM FROM TORTURE OR CRUEL, INHUMAN, AND DEGRADING TREATMENT 

The restriction of abortion rights can and should be conceptualised as torture or ill-treatment. The Convention Against Torture (CAT) found that complete bans on abortion constitute torture and ill-treatment because they place women at dire risk of maternal mortality. Prior to Roe, unsafe, illegal abortions often resulted in the ill-treatment of women. Dr. Warren Hern was a medical student at Colorado General Hospital in 1963 when he witnessed women arriving “in septic shock, some probably hours from death” due to complications from unsafe abortions. In another case, a lack of legal abortion options led a woman to shoot herself in the stomach in an attempt to end her pregnancy. It seems likely that the abortion bans introduced following the Dobbs decision will once again force desperate women to undergo dangerous and degrading abortion procedures.

Women with disabilities are already more likely to experience degrading treatment when they seek an abortion. Following serious complications after an abortion, Giwa Onaiwu found that there were insufficient measures in place to aid communication with her as a woman with autism and ADHD, which exacerbated the stress of her experience. When Onaiwu requested more medication to treat the pain, the doctors mistrusted her and assumed that, due to the medication she was already on for ADHD and autism, she was “exaggerating and displaying drug-seeking behaviour”. This reiterates that Dobbs is likely to constitute a violation of article 16 of CAT, particularly for women with disabilities.

INTERNATIONAL LAW AND FUTURE CHALLENGES TO DOBBS

This article contextualises the human rights impacts of Dobbs from an international law perspective. Such an analysis is by no means exhaustive; a series of other international treaties and conventions, such as the Committee on the Elimination of Discrimination Against Women, also raise questions about the impact of the decision on women’s rights in the US. It is not yet clear to what extent, if at all, these violations of international law will shape future challenges to Dobbs. Nonetheless, the violations of the US’s international law obligations resulting from the decision should not be ignored and can be used to strengthen the fight in favour of a constitutionally guaranteed right to abortion for women in the US.

Salwa Mansuri is an incoming graduate candidate at the London School of Economics, MSc International Social & Public Policy (Research), Department of Social Policy 2022-2023.

Linkedin