UN Human Rights Committee Recognizes That Criminalization and Denial of Abortion Access Violates Human Rights

(Nov. 1, 2018) UN Human Rights Committee Recognizes That Criminalization and Denial of Abortion Access Violates Human Rights, by Cynthia Soohoo:

While U.S. politicians continue to talk about criminally prosecuting women who have abortions and the Trump Administration seeks to provide greater protections for health care providers who refuse to provide abortion and other health services for religious reasons, a respected U.N. human rights body has made it clear that governments should not criminalize individuals for terminating their own pregnancy or abortion providers and that the governments must ensure that “conscience claims” do not create a barrier preventing access safe and legal abortion.

This week, the U.N. Human Rights Committee released General Comment 36 “on the right to life," which provides an authoritative interpretation of human rights protected under the International Covenant on Civil and Political Rights (“ICCPR”). In addition to addressing the death penalty, the use of deadly force by law enforcement and assisted suicide, the Comment summarizes current human rights standards on access to abortion. The Comment recognizes that access to abortion is not just a privacy right and that prohibiting pregnant people from voluntarily terminating their pregnancies can also violate the right to life and health of a pregnant person (in cases where the pregnancy endangers their life or health) and that in certain situations forcing a pregnant person to continue a pregnancy against their will can be torture or cruel inhuman and degrading treatment.

The General Comment provides that while governments can adopt measures designed to regulate abortion “such measures must not result in violation of the right to life of a pregnant woman or girl, or her other rights.” Any state "restrictions on the ability of women or girls to seek abortion" cannot “jeopardize their lives, subject them to physical or mental pain or suffering . . . discriminate against them or arbitrarily interfere with their privacy.” The Comment reflects Concluding Observations made to state parties to the ICCPR by the Human Rights Committee as well as decisions the Committee has issued stating that a woman must have safe, legal, and effective access to abortion where (1) the pregnancy endangers her life or health, (2) where the pregnancy is the result of rape or incest, or (3) where the pregnancy is not viable.  Other UN Human Rights bodies have issued similar Concluding Observations and decisions.

Further, because governments must not regulate abortion in a way that results in women or girls undertaking unsafe abortion, the Comment provides that states “should not take measures such as criminalizing pregnancies by unmarried women or apply criminal sanctions against women and girls undergoing abortion or against medical service providers assisting them in doing so, since taking such measures compel women and girls to resort to unsafe abortion.” (footnote omitted)

Finally, the Comment recognizes that while governments can regulate abortion, they should not introduce new barriers and must remove existing barriers that deny effective access to safe and legal abortion.  In particular, the Comment provides that states should remove “barriers caused as a result of the exercise of conscientious objection by individual medical providers.”

The U.S. ratified the ICCPR in 1992.  Its next report to the Human Rights Committee is due in 2019.