Tuesday, June 20, 2017
by Cindy Soohoo
Since the Presidential election last fall, we’ve seen intensified attacks on women’s reproductive health. In the current political environment, it’s even more crucial that U.N. human rights bodies call out the U.S. when it violates human rights. Yesterday, United Nations human rights experts sent a letter to the U.S. government expressing concern about criminalization of abortion and the declining access to reproductive health services. The letter welcomed state efforts to turn back the “negative trend on women’s reproductive rights” and urged states to adopt laws to help ensure that women’s human rights are respected, like the Reproductive Health Act currently pending in the New York state legislature.
Human rights bodies have repeatedly recognized that women’s access to reproductive health services implicates multiple human rights including the right to dignity, autonomy, personal integrity, health, non-discrimination and freedom from cruel, inhuman and degrading treatment. Given the range of rights involved, U.N. experts on health, violence against women, and discrimination against women banded together to write a joint letter to the U.S. expressing their concerns.
The experts’ letter focused on two current threats to reproductive rights – “the failure to provide adequate access to services for the termination of an unwanted pregnancy” and the “criminalization of abortion.” Last year, the U.N. Working Group on Discrimination Against Women criticized the “ever-increasing barriers . . . created to prevent [women’s] access to abortion procedures” in the U.S. Yesterday’s letter reiterated these concerns and specifically focused on laws that allow women to be criminally prosecuted for terminating their own pregnancies.
The human rights experts emphasized that criminalizing women for having abortions “instrumentalizes women’s bodies, undercuts women’s autonomy and puts their lives and health and risk” because women who experience complications will not seek medical help for fear of prosecution. The letter also warned that because symptoms of spontaneous miscarriage and self-induced abortion can be similar criminalizing abortion often results in “collateral consequences, including the imprisonment of women who have had miscarriages.” Last month, the experts criticized an El Salvador law criminalizing abortion noting that, in addition to violating the rights of women who chose to terminate their pregnancies, the law resulted in the arrest and prosecution of women who suffered miscarriages.
Human rights law emphasizes that governments must ensure that people can meaningfully access their human rights. In the U.S. context, this means that a constitutional right to abortion is not sufficient if women cannot actually access abortion and family planning or are punished or penalized for their reproductive health choices. The experts expressed concern that criminal prosecution of self-induced abortions “has discriminatory effects on economically disadvantaged women whose limited resources render them unable to access safe reproductive health services in the same manner as privileged women.”
In addition to the onslaught of anti-choice laws that are being passed in Texas and other states, laws criminalizing women who have abortions are often remnants of laws passed before Roe v. Wade that were never repealed. For instance, New York still has a pre-Roe law on the books that imposes criminal penalties on women for self-inducing an abortion. It also criminalizes health care providers who perform abortions after 24 weeks -- even if the abortion is necessary to preserve a woman’s health or if the fetus is not viable. Human rights bodies have recognized that forcing a woman to continue a pregnancy knowing that the fetus she is carrying will not survive is cruel, inhuman and degrading treatment. And denying a woman access to an abortion when necessary to preserve her health violates the U.S. Constitution.
The experts’ letter is addressed to the U.S. government, but the experts aren’t holding their breath awaiting a reply from the Trump Administration. Instead, the letter urges New York to pass the Reproductive Health Act, which would repeal the criminal abortion provisions, and encourages similar state efforts to bring their laws in compliance with human rights law.