Monday, February 29, 2016
On Wednesday when the Supreme Court hears oral argument in Whole Woman’s Health v. Hellerstedt, its first major abortion case in several years, Justice Scalia, the Court’s biggest opponent to abortion and international and foreign law will be missing. The Court is set to consider whether a Texas law that would shut down 75% of the state’s abortion clinics and leave vast swaths of the state without a legal abortion provider imposes an undue burden on women’s access to abortion. International human rights law could provide a useful perspective to aid the Court in its deliberations if the newly constituted Court is open to considering it.
As recognized in a recent post on this blog, around the world reproductive rights are recognized as an integral part of, and necessary pre-condition for, gender equality. The Supreme Court invoked equality values to support its Due Process analysis in Planned Parenthood v. Casey but has stopped short of adopting the Equal Protection clause as an independent basis for affirming women’s right to abortion. International law could help further develop and expand the Court’s equality analysis.
But, even if the Court continues to rely on the Due Process clause as the main source of women’s right to abortion, as set forth in an amicus brief submitted by the National Latina Institute for Reproductive Health (NLIRH) that CUNY Law School’s International Women’s Human Rights Clinic co-authored with NLIRH attorneys and Freshfields Bruckhaus Deringer, there are several ways that international law can provide helpful insights to inform the Court’s analysis.
Rights can’t just be theoretical. At the heart of Whole Woman’s Health is Texas’s argument that it may pass laws that shut down medical facilities that legally provide abortion without unduly burdening women’s access to abortion. The European Court of Human Rights and other human rights bodies have emphasized that where a country recognizes that a woman has a right to an abortion, it must ensure that the right can be meaningfully exercised. For instance in R.R. v. Poland, the European Court stated that when a state allows abortion in some situations “it must not structure its legal framework in a way which would limit real possibilities to obtain [an abortion].”
The Court must consider those most adversely affected. Human rights law emphasizes that the experience of the most marginalized populations should be at the center of determining whether laws violate human rights. The forced clinic closures will impose long waits for appointments, lengthy and expensive travel, including overnight stays, and increased costs for many Texas women seeking abortions. These barriers will have the greatest impact on women without the means or ability to travel. NLIRH’s brief describes the experience of Latina women working low wage jobs and in school - many of whom are mothers - who do not have access to cars, days off, child care or financial resources. Immigrant women and women in domestic violence situations will be particularly impacted because of the challenges they already face in traveling outside their communities. In determining whether the Texas law imposes an undue burden, the Court should consider the law’s impact on these women.
Impact of lack of clinical abortion services on women’s health: Another important factor for the Court to consider is the impact that the Texas law will have on women’s health. Around the world, it is well documented that when women do not have access to legal abortion services, the rate of unsupervised and unsafe abortion rises. As a result, international human rights bodies have warned that restrictive abortion laws lead to “unsafe, illegal abortions, with attendant risks to life and health.” Consistent with international experience, recent studies have found that self-induction in Texas is likely to increase if the law goes into effect and that Latinas living near the Mexico border and poor women facing barriers to reproductive health care are most likely to be affected.