Abortion debates in the US: Back to the future
A contribution from Latin America regarding the legalization of abortion
By Angélica Peñas Defago* and Edurne Cárdenas**
*Angélica Peñas Defago holds a PhD in Law and Social Science and is a Researcher at the National Council of Scientific and Technical Research, Argentina (CONICET). She co-directs the Gender, Law and Society Programme at the Research Center for Law and Social Sciences (CONICET/National University of Cordoba, Argentina).
**Edurne Cárdenas is an Argentinian lawyer and feminist activist. She served as General Director of Public Affairs at the first Ministry of Women, Gender and Diversity of Argentina (2019-2021). Prior to that, she worked at the Center for Legal and Social Studies (CELS) where she coordinated the work on gender and women's rights (2013-2019).
Much has been written in recent months about the US Supreme Court's decision in DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION, since the draft of the majority vote had unofficially been known for months, even before its official publication on June 24. Through this ruling the US Supreme Court overruled both Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), overturning the decision that abortion is a right protected by the constitution under the right to privacy.
The decision was expected, in addition to the leakage of the majority vote, because it is the expression of a new majority of conservative judges, elected under a government that showed little respect for the rule of law, on an issue that has been disputed and challenged for decades by the conservative electorate.
We write this brief contribution from Argentina, where abortion is a right recognized and guaranteed by law since 2020, after decades of social mobilization and multiple activisms.
The Court's decision in “Roe” was a turning point in global discussions on reproductive rights, and in particular on the right to abortion. The arguments of the US Supreme Court in “Roe” and its subsequent ones, especially in “Casey”, for years sparked the debates towards the legalization of abortion and the advancement of human rights in other countries.
Almost 50 years after the Roe ruling, the Supreme Court takes a step back, with its eyes set on the past, a past where women and many other people were not considered subjects of full rights.
“[..] a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.” (Justice Samuel Alitos`s Majority opinion)
Although in the Dobbs ruling the Supreme Court clarifies that it will not prohibit abortion in a general way allowing each state to set its own abortion laws, the truth is that in the US the setbacks in terms of sexual and reproductive rights have already been made obvious in the last years. According to recent information provided by the Guttmacher Institute, five states are enforcing total bans: Alabama, Arkansas, Missouri, Oklahoma and South Dakota; four states are enforcing six-week bans: Ohio, South Carolina, Tennessee and Texas, and in three states providers have stopped offering abortion care due to uncertainty about whether pre-Roe abortion bans have taken effect: Arizona, West Virginia and Wisconsin.
Therefore, the Supreme Court breaks the equal basis among women and people with the capacity to gestate in the US. The right to develop their life project, plan their future, enjoy their sexual and reproductive rights will depend on where they live.
“Dobbs” calls us to reflect on the threats and challenges that sexual and reproductive rights in the face of the advancing of conservative agendas. Although the dissenting vote in the Dobbs case mentions the reforms aimed at liberalizing abortion in Latin America in general as important antecedents, perhaps the processes that made these reforms possible are worth considering in more detail given the current scenario in the US.
Nowadays, there is no doubt that sexual and reproductive rights are human rights and therefore deserve that States protect, promote, guarantee and respect them.
The criminalization of abortion and the lack of adequate access to services for safe abortion constitute discrimination based on sex, in contravention of Article 2 of the International Covenant on Civil and Political Rights, to which the United States is a party. The human rights of women and people with the capacity to gestate, and even more so of those from the most disadvantaged groups, are deeply affected by this decision.
The progressive realization principle and non-regression, typical of the Economic Social and Cultural Rights (ESCR), which includes the right to health, cannot be read or thought of outside the rights to freedom and equality. The US Court does not seem to account for this at all. It has only been taken up by the dissenting votes when they mentioned that there is no freedom without equality, which is graphed, in part, with the data that these votes provide:
“abortions increase maternal mortality by 21 percent, with white women facing a 13 percent increase in maternal mortality while black women face a 33 percent increase. Only 20 percent of private-sector workers have access to paid family leave, including a mere 8 percent of workers in the bottom quartile of wage earners” (BREYER, SOTOMAYOR, and KAGAN, JJ., dissenting).
Several United Nations Human Rights bodies remarked on these issues in response to the Majority Decision in the Dobbs case. For instance, the statement published by the UN High Commissioner of Human Rights indicates:
Access to safe, legal and effective abortion is firmly rooted in international human rights law and is at the core of women and girls’ autonomy and ability to make their own choices about their bodies and lives, free of discrimination, violence and coercion.
This decision strips such autonomy from millions of women in the US, in particular those with low incomes and those belonging to racial and ethnic minorities, to the detriment of their fundamental rights.
Likewise, the Joint statement by UN Human Rights experts indicates:
The Supreme Court has completely disregarded the United States’ binding legal obligations under international human rights law, including those stemming from its ratification of the International Covenant on Civil and Political Rights, which protects a woman’s right to life from the harmful impact of abortion restrictions. [...]
Furthermore, the CEDAW Committee highlighted in its statement the need for the United States to pay off its historic debt and ratify the Treaty signed in 1980.
Considering how human rights approaches have been applied in Latin America to advance in the recognition of sexual and reproductive rights, especially on the abortion issue, can be useful for rethinking how we can start from similar questions to those raised in Dobbs but arrive at profoundly different outcomes. Let's see some examples in this sense.
In Mexico, on September 7 2021, the National Supreme Court of Justice ruled unanimously by ten votes, that it is unconstitutional to criminalize abortion in an absolute manner and ruled in favor of guaranteeing the right of women and people with the capacity to gestate to decide, without facing criminal consequences. Like the US, Mexico is a federal republic and each state has its own penal code. Also, as in the US, abortion laws differ from state to state, especially in front of the backlash promoted by conservative actors after abortion was decriminalized in Mexico City in 2007. Since this decision was voted unanimously its jurisprudence is mandatory for every judge in Mexico; both federal and local. As was already mentioned in this blog, the ruling is significant and not only for the Mexican context. This ruling highlights a series of social, political and legal debates that women's, feminist and human rights movements have been holding for years. Debates, realities and perspectives that the US Supreme Court seems to ignore, at least in the votes of the majority.
A key point that the Mexican sentence covers refers to the basic guidelines that should guide decisions and judicial work, namely, the gender and human rights perspective.
The ruling recognizes the importance of incorporating these perspectives that help to: "detect and eliminate all barriers and obstacles that discriminate against persons on the basis of sex or gender, i.e. it involves judging from situations of disadvantage which, on the basis of gender, discriminate and prevent equality" (para. 6). As part of the background that informs this perspective, the Supreme Court of Mexico mentioned what was established by the CEDAW Committee in its General Observation No. 35: “the criminalisation of abortion, denial or delay of safe abortion and post-abortion care, forced continuation of pregnancy, abuse and mistreatment of women and girls seeking sexual and reproductive health information, goods and services, are forms of gender-based violence that, depending on the circumstances, may amount to torture or cruel, inhuman or degrading treatment” (para. 18).
Another salient point of this ruling is how it marks a crucial difference from the majority in Dobbs in terms of interpretations of the constitution. While in Dobbs, the majority vote maintains that the key question is: "if the law [legalizing abortion] is deeply rooted in [our] history and tradition", the Court in Mexico considers key to its ruling "the present context, answering for one of the hand of the cultural changes and dynamics of Mexican society; having its general bases in the fundamental principles that define the Mexican State: democracy, secularism, plurality, the very social vocation of the Political Constitution of the United Mexican States, through a narrative of human rights and from public reason” (para.49). This kind of interpretation was also remarked and criticized by the dissenting vote in Dobbs:
As an initial matter, note a mistake in the just preceding sentence. We referred there to the “people” who ratified the Fourteenth Amendment: What rights did those “people” have in their heads at the time? But, of course, “people” did not ratify the Fourteenth Amendment. Men did. So it is perhaps not so surprising that the ratifiers were not perfectly attuned to the importance of reproductive rights for women’s liberty, or for their capacity to participate as equal members of our Nation. Indeed, the ratifiers—both in 1868 and when the original Constitution was approved in 1788 (BREYER, SOTOMAYOR, and KAGAN, JJ., dissenting).
The risks of a constitutional interpretation unanchored from the real historical contexts were also considered in 2022 by the Colombian Constitutional Court by decriminalizing abortion in all cases up to 24 weeks of gestation. Although the Constitutional Court of Colombia mentions that in the legal history of its country, the definition of abortion as a crime dates back to the first Penal Code of 1837, considers in its last sentence that said regulation must be reviewed in the light of the current social frameworks, since "the representation of women in the legislative instances at that time was null".
The Colombian Court points out the misreading that involves considering the history of abortion in criminal law isolated from the historical conditions of those who were not subjects of rights at that time. This Court also determines that in order to decide about abortion it is necessary to consider how the criminalization of abortion has a differential impact on certain sectors of the population, for example, women in an irregular migratory situation.
The intersectional approach of how the criminalization of abortion affects women differently was also considered in the dissenting vote in Dobbs when it states that: “experts estimate that a ban on abortions increases maternal mortality by 21 percent, with white women facing a 13 percent increase in maternal mortality while black women face a 33 percent increase. Only 20 percent of private-sector workers have access to paid family leave, including a mere 8 percent of workers in the bottom quartile of wage earners”. The dissenting vote also mentions that in Mississippi, the state where the Dobbs dispute originates, several barriers to protect and guarantee the access to sexual and reproductive health exist: " Sixty-two percent of pregnancies in Mississippi are unplanned, yet Mississippi does not require insurance to cover contraceptives and prohibits educators from demonstrating proper contraceptive use"(BREYER, SOTOMAYOR, and KAGAN, JJ., dissenting).
Furthermore, the intersectional approach to human rights, strongly promoted by black and global south feminist movements, does not only allow us to see how women were left out of the idea of “people” in constitutional history in most of our countries, but also highlights a serie of challenges on how we think about current democracies and the exercise of full citizenship.
An example of this is the Argentine case where in December 2020 the National Congress legalized abortion in the country up to the first 14 weeks of pregnancy. The struggles of the feminist movements in Argentina, who inaugurated the use of the green neck scarves as a symbol, cover not only the human rights frameworks in the demand for abortion legalization, they also claim that: "the legalization of abortion is a debt of democracy towards the people with gestational capacity". Part of these demands are reflected in the articles of the Argentinian law:
The purpose of this law is to regulate access to the voluntary interruption of pregnancy and post-abortion care, in compliance with the commitments assumed by the Argentine State in matters of public health and human rights of women and people with other gender identities with the ability to gestate and in order to contribute to the reduction of preventable morbidity and mortality (Art. 1st).
Constitutional regulatory framework. The provisions of this law are framed in article 75, paragraph 22, of the National Constitution, the human rights treaties ratified by the Argentine Republic, especially the Universal Declaration of Human Rights, the American Convention on Human Rights, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and its Optional Protocol, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the Inter-American Convention to Prevent , Punish and Eradicate Violence against Women "Convention of Belém do Pará", the Convention on the Rights of Persons with Disabilities, the Convention on the Rights of the Child and the Convention against Torture and Other Cruel, Inhuman or Degrading, by virtue of the protection they grant to sexual and reproductive rights, to dignity, to life, to autonomy, health, education, integrity, bodily diversity, gender identity, ethnic-cultural diversity, privacy, freedom of belief and thought, information, to enjoy of the benefits of scientific advances, real equality of opportunities, non-discrimination and a life free of violence (Art. 3rd).
Given the current challenges facing the human rights of women, girls and people with other gender identities with the ability to gestate, it may be time for activists from the global south and global north to join forces. Even more, maybe this is a time to strongly bring reproductive justice proposals back to the heart of the sexual and reproductive rights debate.
Dobbs' case makes it more urgent today than ever to think about different legal, political, and sociocultural strategies, among others. One key point to consider is how to make visible and dismantle the deep reproductive injustices in which the people live, due to their social, economic, racial, migrant or other status, and in many of our countries, without forgetting that these factors are strongly interconnected to discussions about the environment, forced displacement, among others.
The absence of intersectional human rights perspectives based on the principle of progressive realization in the Dobbs case is a cause for alarm, even for countries that have made progress in legalizing abortion. As activists and scholars concerned with women and LGBTQIA's rights, it is key to consider how to make visible and dismantle the profound reproductive injustices in which people live, due to their gender, but also social, economic, racial, migratory or other conditions, in several of our countries.
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