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Health and Human Rights Journal

perspective HHR_final_logo_alone.indd 1 10/19/15 10:53 AM

Challenging the US Supreme Court’s Majority Ruling

on Roe v. Wade at the International Human Rights
Level

marge berer

Abstract

This paper proposes that US human rights experts and abortion rights advocates challenge the striking

down of Roe v. Wade in June 2022 by the majority of US Supreme Court justices because of the multiple

human rights violations it has engendered. The paper has three parts. The first part summarizes the

compelling response of the three dissenting Supreme Court justices to the majority ruling, which spells

out those violations in detail. The second part offers a history of cases of violations of human rights

related to abortion in other countries that have been heard and adjudicated by a range of human rights

bodies in the last 20 years, and their outcomes. It shows that working on these cases has created working

relationships between national and international human rights experts and advocates. Based on this

information, the third part proposes that US human rights and abortion rights advocates take a case to

the Inter-American Commission on Human Rights against the US Supreme Court ruling, asking the

commission to direct the US government to void the majority ruling on Roe v. Wade—on the grounds
that it violates the human rights of anyone who seeks an abortion and potentially also of those whose

wanted pregnancies become a risk to their health and life and need to be terminated. And if the United

States does not agree, the commission should refer the case to the Inter-American Court of Human

Rights.

Marge Berer is newsletter editor, International Campaign for Women’s Right to Safe Abortion.
Please address correspondence to the author. Email: marge@margeberer.com.
Competing interests: None declared.
Copyright © 2023 Berer. This is an open access article distributed under the terms of the Creative Commons Attribution Non-Commercial
License (http://creativecommons.org/licenses/by-nc/4.0/), which permits unrestricted non-commercial use, distribution, and reproduction in any
medium, provided the original author and source are credited.

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m. berer / perspective, general papers, 195-206

Part I: The US Supreme Court’s majority Constitution is about equal protection under the
ruling in Roe v. Wade violates many human law for all citizens. The right to nondiscrimination
rights on the ground of sex is relevant to women’s human
rights as related to abortion access, even though
Human rights are rights we have simply because we abortion was not mentioned when this amendment
exist as human beings—they are not granted by any was added to the Constitution in the mid-19th
state. These universal rights are inherent to us all, century. In 1973, the US Supreme Court ruled in
regardless of nationality, sex, national or ethnic or- Roe v. Wade that state criminalization of abortion
igin, color, religion, language, or any other status.1 was unconstitutional. But on June 24, 2022, the
The following are defined as freedoms or US Supreme Court decision in Dobbs v. Jackson
rights in one or more of the Universal Declaration Women’s Health Organization overturned Roe v.
of Human Rights, the International Covenant on Wade, which opened the way for states to again
Economic, Social and Cultural Rights, and the In-
criminalize or restrict abortion. The majority of the
ternational Covenant on Civil and Political Rights:
Supreme Court justices, who opposed Roe v. Wade,
argued that because the 14th Amendment did not
• right to life
include a constitutional right to abortion, such a
• right to health right was not sufficiently embedded in US history
• right to equality and nondiscrimination to justify retaining it.4
In early 2023, however, during a criminal case
• right to liberty and security of the person
against several anti-abortion activists, US District
• right to equality before the law Court Judge Colleen Kollar-Kotelly of Washington,
• right to benefit from scientific progress DC, argued that the lack of mention of abortion in
the 14th Amendment did not rule out other relevant
• freedom from torture
amendments in the US Constitution that might
• freedom from slavery.2 apply instead, and pointed to the 13th Amendment
as a relevant example.5 The 13th Amendment made
Human rights are embodied in international hu- involuntary servitude and slavery illegal. As it is
man rights treaties that can be ratified by states everyone’s right to determine what to do with their
or are part of political declarations. They are also own bodies and lives, she considered that forced
recognized in the laws of individual countries, and pregnancy and its outcome, forced motherhood,
part of national policies and laws. States that have leading to the birth of an unwanted child, should
ratified international human rights treaties must surely be considered a form of involuntary servi-
comply with and respect, protect, and fulfill these tude imposed on girls and women, with potentially
human rights. Each of these rights is relevant in lifelong consequences. Unfortunately, this point
order to be able to access safe abortion. had not been discussed by the Supreme Court
The United States has ratified only the Con- justices in June 2022. But the three dissenting Su-
vention against Torture, the International Covenant preme Court justices provided 66 pages of equally
on Civil and Political Rights, the International compelling reasons why they rejected the majority
Convention on the Elimination of All Forms of opinion.
Racial Discrimination, and two optional protocols
on armed conflict and sale of children, prostitution, The dissenting arguments of Justices Breyer,
and child pornography to the Convention on the Sotomayor, and Kagan
Rights of the Child.3 The list it has not ratified is While the majority judgment drafted by Justice
much longer. Samuel Alito became front-page news in the United
The United States Constitution’s Bill of Rights States after it was leaked on May 2, 2022, the cogent
was ratified in 1791. The 14th Amendment to the US 66-page statement of dissent by Justices Stephen

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Breyer (since retired), Sonia Sotomayor, and Elena choose an abortion is not “deeply rooted in US
Kagan, published on June 24, 2022, has received history”—(1) because abortion was illegal in the
little national or international attention by com- 19th century (p. 26) and (2) because it was not
parison.6 Their statement deserves to be known, until Roe v. Wade in 1973 that the right to have
however, because its analysis of the majority ruling an abortion fell within the list of the US Consti-
on constitutional and human rights grounds could tution’s guarantees of liberty. Thus, they implied
form the basis of future action to overturn the Su- that any rights currently guaranteed in the Unit-
preme Court’s majority ruling. ed States whose history does not stretch back to
The three dissenting justices argued that the at least the mid-19th century are not secure and
majority’s ruling was: i. based on personal political can easily be rejected. (p. 5)
opinions, not constitutional law; ii. went against • The Supreme Court majority did not appear
legal precedent, a bedrock of US legal decisions that to recognize that forced pregnancy, forced
was affirmed in Roe v. Wade (1973) in relation to childbirth, and forced motherhood implicate
other closely related rights, which were reaffirmed a woman’s rights to equality and freedom. Nor
in Casey v. Planned Parenthood (1992); iii. and did they appear to think there was anything of
violated a long list of human rights, particularly constitutional significance regarding a woman’s
women’s human rights. control over her own body and the path of her life.
The following summarize the main points (pp. 12, 47) Historically, however, the Supreme
made in the dissenting arguments. The page num- Court’s longstanding view has been that women
bers in parentheses refer to the pages in the official indeed have rights to make the most personal
text where these are found: and consequential decisions about their bodies
and their lives, thus protecting “bodily integri-
• Women’s rights and their status as free and equal ty.” And there are few greater incursions from
citizens have been curtailed. (p. 2) government intrusion than forcing a woman to
• The freedom to have an abortion that Roe and complete a pregnancy, give birth, and become a
Casey recognized is not a stand-alone freedom. mother. (pp. 21–22)
The Supreme Court has linked it for decades • Similarly, Planned Parenthood v. Casey (1992)
to other settled freedoms, including bodily recognized that equal citizenship for women is
integrity, family matters, familial relationships, inescapably connected to reproductive rights.
procreation, childrearing, the right to use con- (pp. 22–23) Moreover, Casey made it clear that
traception, the right of same-sex intimacy, the the precedents Roe most closely tracked were
right to marry a person of one’s choice, the right those involving contraception. Over the course
to have intimate relationships, and the right to of three cases, the Supreme Court had held that
decide with whom to have sex. These are all part a right to use and gain access to contraception
of the same constitutional fabric, protecting was part of the 14th Amendment’s guarantee of
autonomous decision-making in regard to the liberty. (p. 24)
most personal of life decisions, and crucially,
whether and when to have children. The freedom • Any interest of the state in protecting fetal life
required (or denied) inevitably shapes the whole played no part in the majority’s analysis. (p. 26)
nature and future course of a woman’s life (and • Most medical treatments for miscarriage are
often the lives of those closest to her). Thus, the identical to those used after induced abortions
court has long held that these freedoms belong when needed. Blanket restrictions on abortion
to the individual, and not to the government, as may therefore be understood to also deprive
the essence of liberty. (pp. 5, 22) women of effective treatment for miscarriage,
• The lone rationale for the judgment of the ma- which occurs in 10–30% of pregnancies. (p. 36)
jority of the Supreme Court was that the right to • The majority’s ruling invites a host of questions

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about abortion causing interstate conflicts. Can • Weakening stare decisis threatens to upend
one state bar women from traveling to another bedrock US legal doctrines, far beyond this
state to obtain an abortion? Can a state prohibit and any other single decision. Weakening stare
advertising of out-of-state, legal abortions or decisis creates profound legal instability. As
helping women reach an out-of-state provider? Casey recognized, weakening stare decisis in a
Can a state interfere with the mailing of abortion hotly contested case like this one also calls into
pills across state lines? The Constitution protects question the majority’s commitment to legal
interstate travel, speech, and commerce, so this principle and to the rule of law. (p. 57)
ruling will give rise to a host of new legal challeng- • For all these reasons, the dissenting justices
es. Far from removing the Supreme Court from argued that the majority decision in this case
the abortion issue, which the majority claim to
greatly undermined the legitimacy of the US
have intended, the majority’s ruling puts the court
Supreme Court itself. (p. 59)
at the center of “interjurisdictional abortion wars”
at the state level that the three dissenting judges
could already see coming. (p. 37) Globally, an average of one in three or four wom-
en of reproductive age has an induced abortion
• For those who are told they will now have to
in her lifetime; indeed, abortion is one of the
continue an unwanted pregnancy, the outcome
most common medical procedures accessed by
could be disastrous, especially for those without
women worldwide.7 Criminalizing them is sex
money or support. In states that bar abortion,
discrimination on a massive scale. Yet it does not
women of means will still be able to travel to
stop abortions; it only makes them illegal and of-
obtain the services they need. It is women who
ten unsafe. Ironically, it is rare for those who are
cannot afford to do so who will suffer. Yet the
anti-abortion, who often claim how “pro-life” they
latter are the women most likely to seek an
are, to acknowledge that dangerous abortions often
abortion in the first place. Women living below
kill those forced to resort to them. Nor did the Su-
the federal poverty line experience unintended
preme Court majority consider whether every man
pregnancies at rates five times higher than high-
or boy should be criminalized, too, if they make
er income women do, and nearly half of women
someone pregnant against their wishes, whether
who seek abortion care live in households below
accidentally or intentionally.
the poverty line. (p. 50) This in itself makes the
Both wanted and unwanted pregnancies can
ruling discriminatory.
suddenly become a life-threatening emergency. In
• In the end, the majority ruled as they did be- some cases, continuation of the pregnancy itself
cause they personally believed Roe v. Wade and may threaten the woman’s life, and emergency
Casey were “egregiously wrong” and because as obstetric care, including in the form of an induced
individuals they oppose abortion, and they had miscarriage, may be the only way to save her life.
enough votes to do so. (pp. 32, 33) The US Supreme Court majority took no account
• In Planned Parenthood v. Casey (1992) the then of this as a possible (and not uncommon) outcome
Supreme Court found that what Roe had said of a wanted pregnancy. Indeed, in the months since
in 1973 had set a valid precedent. Thus, Casey their ruling, this has been shown to be delaying
was a precedent about an existing precedent, in provision of emergency treatment for miscarriage
line with the principle of stare decisis (“let the in US states where abortion has been severely
decision stand”). That is, in Casey, the court re- restricted.8
viewed the same arguments made for overruling Moreover, forcing someone to continue an
Roe as in 2022, but found that overruling Roe was unintended or unwanted pregnancy may threat-
not warranted. (p. 6) en or destroy their physical and mental health,

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well-being, and life plans; for example, adolescent vasive discrimination the ruling has exacerbated
girls may be forced to drop out of school and not be against Black, Latina, immigrant, and undoc-
able to return after having a baby. umented women as well as all those living in
The majority ruling also took no account of poverty and without access to affordable health
the following: care.
• Safe abortion methods are among the many
• Where abortion is illegal, the sudden appearance benefits of scientific research in human repro-
of a virus affecting fetal life, as happened with duction that were not available until the 20th
the Zika virus epidemic in 2015 in Brazil and century.
elsewhere, can force women to give birth to se-
verely damaged children who have no possibility
of an independent existence.9 In addition to this long list of rights violations,
the anti-abortion bias that underpinned the US
• The decision whether and when to have children, Supreme Court’s majority ruling is part of why
and the right to decide the number and spacing the ruling was considered a violation of the rule of
of children, have been confirmed as a woman’s law by the dissenting justices—as it followed party
right in the United Nations (UN) International political lines instead of constitutional law, let alone
Conference on Population and Development human rights law:
(1994) and the UN Conference on Women
(1995). Overturning Roe v. Wade has been a core priority of
• Research has shown that unwanted children the Republican Party since Ronald Reagan’s election
in 1980, if not earlier. Conservative organizations
fare substantially less well in life than wanted
like Moral Majority, Focus on the Family, and the
children. Hence, forced pregnancy and forced Federalist Society worked to ensure overturning
motherhood can also greatly damage chil- Roe was central to the GOP’s mission. Abortion
dren.10 has been prominent in the party’s platforms and
the governing agenda of every Republican president
• Infanticide continues to be practiced in soci-
for decades. Republicans have sought to put anti-
eties where women are unable to access safe or abortion justices on the Supreme Court and other
unsafe abortion. For example, research shows federal courts, and through a series of untimely
that many young women in Senegal were in jail deaths and unprecedented power moves by Mitch
in 2018 for infanticide.11 McConnell, the unlikely figure of Donald Trump
managed to place enough of them there to achieve
• Internationally, as many as half a million that goal.13
pregnant women died or suffered serious mor-
bidity annually due to lack of maternity care,
until the World Health Organization and the Part II: The active role of international
international women’s health movement began human rights bodies in hearing cases and
to campaign in the 1980s for the prevention of recognizing safe abortion as a human
maternal mortality and morbidity, of which rights imperative
complications of unsafe abortions were and It is possible for states, civil society organizations,
remain a substantial proportion.12 Making and and even individuals to report violations of human
keeping abortion safe and legal is the only way rights to UN treaty bodies and monitoring com-
to prevent avoidable maternal morbidity and mittees, including in relation to abortion rights,
mortality from unsafe abortions. This is a pub- and to seek an appropriate ruling or response,
lic health imperative. including redress for harms to individuals. There
• It is particularly important to highlight the per- is one important condition: the country concerned

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must have ratified the whole or the relevant sections liberalizing national laws, influencing high court
of the treaty or convention it is accused of violating. decisions on access to abortion as a legal or con-
First, it is imperative to understand that stitutional guarantee, and served as an important
women have a right to life as a human right. This resource in advancing international human rights
is crucial in seeking an appropriate ruling or re- norms and national law and policy reform. The
sponse, including in challenging the US Supreme countries whose law reforms they discussed in-
Court majority’s ruling, because many anti-abor- cluded Argentina, Bolivia, Brazil, Colombia, Nepal,
tion movements, in the United States and elsewhere, Peru, Rwanda, Spain and Uruguay. They concluded:
seek to criminalize abortion on the ground that
there is a competing “right to life from concep- This increasingly progressive jurisprudence
tion.” However, a human rights-based analysis by demonstrates the significant progress toward
Rhonda Copelon et al., published in 2005, argued recognizing abortion as a human right and signals
that embryos and fetuses attain human rights only the transformative potential of such norms.
Undoubtedly, translating these normative gains
after they have been born (alive), not before birth.14
into concrete change in countries across the globe
Moreover, the Convention on the Rights of the will continue to require sustained and concerted
Child says nothing about there being fetal rights efforts by reproductive rights advocates and civil
before birth.15 society actors more broadly, especially in light of
In 2018, the Human Rights Committee re- the extensive stigma and discrimination—as well
viewed the meaning of “the right to life” for many as lack of political will—surrounding abortion
reasons, controversy over abortion being one of in many contexts. But by continuing to establish
women’s and girls’ right to decide whether to carry
them. After widespread consultation, it published
a pregnancy to term as a fundamental aspect
General Comment 36 on article 6 of the Interna- of the realization of their human rights, human
tional Covenant on Civil and Political Rights, rights bodies can further support the promise of
revising the existing definition of the right to life. gender equality. These normative developments
The document includes one paragraph in relation can have a catalytic and transformative impact on
to abortion (para. 8, page 2): national-level jurisprudence, laws, and policies,
resulting in greater recognition globally of abortion
Although States parties may adopt measures as a fundamental aspect of women’s reproductive
designed to regulate voluntary terminations of autonomy and self-determination and ensuring
pregnancy, such measures must not result in women greater access to this essential reproductive
violation of the right to life of a pregnant woman or health service.17
girl, or her other rights under the Covenant. Thus,
restrictions on the ability of women or girls to seek Thus, on June 24, 2022, the same day that the US
abortion must not, inter alia, jeopardize their lives, Supreme Court majority struck down Roe v. Wade,
subject them to physical or mental pain or suffering,
which violates article 7, discriminate against them
a long list of UN human rights experts denounced
or arbitrarily interfere with their privacy.16 their decision. No one could have written a stron-
ger statement condemning the court’s majority
Violations of abortion rights are increasingly being rejection of Roe v. Wade. It points to the implicit
taken up by international human rights bodies. violence, the absence of sound legal reasoning, and
In 2017, three legal experts from the Center for the utter disregard of the United States’ binding
Reproductive Rights published an evidence-based legal obligations under international human rights
summary of the evolution of international and law displayed in the rejection of Roe v. Wade. In so
regional human rights norms that have recog- doing, the statement supported and reinforced the
nized safe abortion as a human rights imperative. dissenting arguments of Justices Breyer, Sotomay-
This showed how the progressive interaction of or, and Kagan. And they left no doubt, if there was
judicial and legislative developments on abortion any, that the court’s majority had discredited itself
rights across the globe has played a critical role in in its judgment and violated the rule of law.18

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Examples of specific cases heard by human arbitrary and unlawful interference with her right
rights bodies involving violations of abortion to privacy and that Ireland’s abortion law violated
rights the International Covenant on Civil and Political
Human Rights Committee Rights. It called on the government to offer her
• KL v. Peru: This was the first decision of any compensation and counseling, and to change the
international human rights body to hold a gov- laws to allow for abortion in cases of fatal fetal
ernment accountable for failing to ensure access abnormality.21
to legal abortion services. A 17-year-old was
forced to continue a pregnancy even though the Committee on the Elimination of Discrimination
fetus had anencephaly and Peruvian law allows against Women
therapeutic abortion. KL was not only forced to • LC v. Peru: In 2006, at age 13, LC began to be sex-
carry the pregnancy to term but also to feed the ually abused by a man in his thirties, and became
baby until it inevitably died. The complaint de- pregnant. In a state of depression, she attempted
fined this as inhumane and degrading treatment. suicide by jumping from a building, suffering
In 2005, the Human Rights Committee ruled that damage to her spine, causing paraplegia in her
denying access to legal abortion violates women’s upper and lower limbs, and requiring emergency
most basic human rights and that Peru had vio- surgery. The surgery was postponed because she
lated the right to privacy and special protection was pregnant. She was refused an abortion but
of a minor’s rights. Women’s Link Worldwide miscarried. Due to the long delay before the sur-
described this case as “a landmark ruling that gery, she became paralyzed from the neck down
confirms a State’s positive obligation to provide and unable to walk again, requiring constant
therapeutic abortion when the pregnancy poses care. The Committee on the Elimination of Dis-
mental or physical threats to the girl/woman, crimination against Women recommended that
especially if she is a minor.”19 The committee also Peru “provide reparations that include adequate
recognized that “mental suffering caused by the compensation for material and moral damages
inability to access legal therapeutic abortions and measures of rehabilitation, commensurate
amounts to torture and cruel, inhuman and de- with the gravity of the violation of her rights and
grading treatment.”20 the condition of her health, in order to ensure
• Mellet v. Ireland: In her 21st week of pregnancy, that she enjoys the best possible quality of life
Amanda Jane Mellet was informed that her fetus … [and] review its laws with a view to establish
had congenital heart defects and trisomy 18, a mechanism for effective access to therapeutic
and would die in utero or shortly after birth. She abortion under conditions that protect women’s
had only two options: carry the pregnancy to physical and mental health.”22
term anyway or have a termination in another
country. She traveled to England and received • Special inquiry on Northern Ireland: In Decem-
medication at a hospital in Liverpool to in- ber 2010, the Committee on the Elimination
duce labor. Feeling weak and still bleeding, she of Discrimination against Women received in-
traveled back to Dublin only 12 hours after the formation alleging that the UK had committed
delivery, as she could not afford to stay in En- grave and systematic violations of rights under
gland. After her return, she received no aftercare the Convention on the Elimination of All Forms
at the hospital. Moreover, although she sought of Discrimination against Women (CEDAW)
bereavement counseling, the hospital did not owing to the restrictive access to abortion for
offer it at that time except to those who had ex- women and girls in Northern Ireland. The com-
perienced a stillbirth. In 2013, the Human Rights mittee’s ruling called for, among other things,
Committee found that this constituted cruel, inhu- the repeal of the sections of the UK’s Offences
man, and degrading treatment, discrimination, and against the Person Act 1861 that criminalize

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abortion, and the legalization of abortion if there ternational Women’s Day, March 8, 2023, in
is a threat to the woman’s physical or mental Los Angeles, California, United States. Six civil
health, or grounds of rape or incest, or severe society organizations—Ipas Brazil; Latin Amer-
fetal abnormality.23 ican and Caribbean Committee for the Defense
of Women’s Rights; Center for Reproductive
Inter-American Commission on Human Rights Rights; Anis–Instituto de Bioética; Criola; and
• Artavia Murillo et al. v. Costa Rica: This 2010 Portal Catarinas—provided information to the
case was about in vitro fertilization (IVF) but commission on the situation of sexual and re-
with major implications for abortion rights. Its productive rights in Brazil, using two exemplary
importance cannot be overstated. The American cases from the states of Santa Catarina and Piauí.
Convention on Human Rights, drafted in 1969 These illustrated what was happening nationally:
by legal experts, mainly from Latin America, the systematic denial of access to abortions that
stated in article 4.1 that “every person has the are legal under Brazilian law and institutional
right to have his life respected. This right shall barriers for women and for girls under the age of
be protected by law and, in general, from the 12. These cases also revealed intersectional dis-
moment of conception. No one shall be arbi- crimination that disproportionately affects Black
trarily deprived of his life.”24 This clause had women and girls living in situations of poverty
obvious anti-abortion implications. However, it and vulnerability. The group asked the commis-
was successfully challenged in a case opposing sion to make concrete recommendations to the
the criminalization of IVF in Costa Rica, heard Brazilian state to ensure that legal abortion is
initially by the Inter-American Commission on available in all states, and particularly to ensure
Human Rights. In August 2010, the commission that for girls, abortion is never refused, even
ruled that Costa Rica could not criminalize IVF, when the pregnancy is 22 weeks, and that girls
as it was a violation of the right to life, personal should be considered autonomous to make their
identity, and individual autonomy of those who own informed decisions about whether or not to
sought to use this technology in order to have continue a pregnancy resulting from rape. The
biological children. The commission further Brazilian government was represented by the
found that Costa Rica’s ban violated the rights to Ministry of Foreign Affairs, which spoke for the
be free from arbitrary interference with one’s pri- Women and Racial Equality departments and
vate life, to create a family, and to equality. When the Ministry of Health. The ruling is pending.26
Costa Rica failed to comply, the commission
submitted the case to the Inter-American Court The Committee against Torture, the Committee on
of Human Rights in July 2011. The court declared the Rights of the Child, and the European Court of
that Costa Rica had violated several provisions Human Rights have also heard cases comparable to
of the convention related to reproduction and those above and made recommendations related to
having a family, including the articles on person- abortion. These are not summarized here only for
al integrity, personal liberty, private life, family, reasons of space.
and equality.25
The court pointed out that no other international The special roles of CEDAW and the Working
human rights convention or declaration protected Group on Discrimination against Women and
the right to life prior to birth and that the IVF ban Girls
made the embryo’s rights more important than the In 1979, CEDAW became the comprehensive in-
woman’s rights, making the woman simply an in- ternational convention addressing women’s rights
strument of reproduction. across political, civil, cultural, economic, and social
life.27 CEDAW’s overriding purpose is to ensure
• Brazil: The most recent case was heard on In- that women not only have human rights but equal

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rights. It is also the only convention that compre- ies and lives, free of discrimination, violence and
hensively protects women’s sexual and reproductive coercion’.”31
health and rights. CEDAW has been ratified by 189 The Working Group on Discrimination
state parties. Ironically, although the United States against Women and Girls was established in 2010
played a significant role in drafting this convention and its members appointed by the Human Rights
and was the first state to sign it in July 1980 under Council because
President Jimmy Carter, the United States remains
one of only six states worldwide that has not ratified there has been a need to constantly reiterate, even
it. The others are Somalia, Sudan, Iran, Palau, and within the human rights system, that women are
not just another vulnerable group … They are half
Tonga (plus the Vatican). An analysis published by
of the world population …; hence, eliminating the
the Heinrich Boll Stichtüng in 2019 argued: persistent discrimination and backlashes against
women’s rights should be addressed both as a stand-
The United States is the only established democracy alone goal and as a mainstreaming issue.32
in the world failing to ratify CEDAW. While
common justification lies in the realm of patriarchy Recent decriminalization of abortion by the
and religion, another lies in the notion of American
Supreme Courts of Mexico and Colombia: Two
exceptionalism—its … hubristic assumption that
the United States is “above” or an “exception” to the
national role models
law.28 The Supreme Court of Mexico ruled in September
2021 that it is unconstitutional to punish abortion
At the same time, Melissa Upreti, a member of the as a crime. Each Mexican state now has the power
OHCHR Committee on Discrimination against to revise its existing laws accordingly.33 Six of the
Women and Girls, argues that “although CEDAW 31 states plus the Federal District had done so as
has not been ratified by the US government, the of March 8, 2023, the date when Puebla joined the
government is obligated to refrain from undermin- other five. The ruling states that “no woman or
ing its objective and purpose.”29 pregnant person, nor any health provider who re-
The Committee on the Elimination of ceives advice, assistance or defense from any of the
Discrimination against Women, in its General Rec- three organizations that presented the amparo may
ommendation 35, paragraphs 18 and 29, in 2017 on be denied the medical service nor criminalized for
gender-based violence against women, recognized having or assisting an abortion.” It also declares
the criminalization of abortion and the denial or that the criminalization of abortion in Puebla’s
delay of safe abortion and post-abortion care not penal code is unconstitutional.
only as violations of women’s sexual and repro- The Supreme Court of Colombia legalized
ductive health and rights, but also as “forms of abortion in the first 24 weeks of pregnancy in Feb-
gender-based violence that … may amount to tor- ruary 2022 and retained the existing, more limited
ture or cruel, inhuman or degrading treatment.”30 legal grounds after 24 weeks. Justices from the two
On July 1, 2022, in response to the Supreme countries discussed these rulings at a panel hosted
Court’s majority ruling on Roe v. Wade, the on October 21, 2022, at Harvard Law School.34 One
Committee on the Elimination of Discrimination of the main reasons why both courts made these
against Women wrote to the United States and rulings, they said, was not only that safe abortion
urged it to adhere to CEDAW in order to respect, had become an issue of public health but also that
protect, fulfill, and promote the human rights of unsafe, illegal abortion was understood to be a
women and girls. It endorsed “the statement by the form of violence against women and girls, and no
[then] High Commissioner for Human Rights, Mi- longer a religious or moral issue. Indeed, the Causa
chelle Bachelet, that ‘access to reproductive rights Justa movement launched in Colombia 25 years
is at the core of women and girls’ autonomy, and ago fought for abortion rights on precisely those
ability to make their own choices about their bod- grounds.35 These two major national victories for

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m. berer / perspective, general papers, 195-206

women’s human rights—combining the right to States across the country, and the consequences
health, the right to life, protection from the vio- of the Supreme Court decision in the case of
lence of unsafe abortion, and the right to bodily Dobbs v. Jackson Women’s Health Organization
have reverberated throughout the entire legal and
autonomy—are a beacon for the future for supreme
policy system ... essentially dismantling 50 years
courts in other countries as well. of precedent protecting the right to abortion in the
country.36
Part III: A proposal that abortion rights
advocates ask the Inter-American The complicated federal versus state power struc-
Commission on Human Rights to direct ture of the US legal system, devised to limit federal
the US government to void the Supreme control, complicates this situation, not only giving
Court majority ruling on Roe v. Wade US states and courts the freedom to pass contra-
dictory and conflicting laws on one and the same
The US government, like many others, is averse to subject, causing legal chaos, but even letting the
being judged by any international body, including smallest towns make abortion illegal within their
for (alleged) violations of human rights. city limits, as has happened in Nebraska, Iowa,
The striking down of Roe v. Wade was not just Ohio, Texas, and Louisiana, dubbing themselves
the act of anti-abortion justices deciding to reject “sanctuary cities for the unborn.”37
settled US law based on their personal opinions, In this context, the question is whether an ap-
even though that is part of what has happened. It is peal to the Inter-American Commission on Human
also the culmination of everything that has taken Rights has any chance of success. I believe such an
place in the past 40 years in the United States, influ- appeal could serve as a motivating force, offering a
enced both by powerful members of the Republican potential lifeline. Certainly the appeal tabled by the
Party and by anti-abortion groups who reject any Brazilian civil society organizations in March 2023
notion of women as rights holders and who claim was well received by the Inter-American Commis-
to support “life” but when it comes to pregnancy, sion and gave cause for hope, especially with the
support only fetal life before birth, ignoring the potential for turning to the Inter-American Court
consequences of forced pregnancy and mother- of Human Rights for adjudication further down the
hood for the woman and for the child. People with line.38
these views hold political power in many countries, Of course, for such a course of action to
and their abortion laws and treatment of pregnant succeed, the US legal and judicial system, and espe-
women seeking abortions reflect these views. In the cially the president and the Congress, would really
United States in the last four years, these views took need to step up too.
control among the majority not just of the Supreme If the United States wants to be taken seriously
Court but of judges in other federal and state courts as a democracy with a government that upholds
and state legislatures as well. human rights, and abortion rights is a good place
Thus, in the year since the Supreme Court to start under the circumstances, the government
majority struck down Roe v. Wade, a group of 15 at all levels needs to become an active participant
independent human rights experts said in a press in the international human rights community, to
release on June 2, 2023: acknowledge, ratify, and implement international
human rights, in this instance starting with CE-
Millions of women and girls across the United States DAW, and to ensure that all US laws and rulings on
have suffered an alarming deterioration in access
abortion at both the state and national level are in
to sexual and reproductive healthcare, following
the US Supreme Court decision overturning the line with CEDAW and other relevant human rights
constitutional right to abortion in June 2022. As treaties and conventions as well. Now that would be
of January 2023, abortion has been banned in 14 a coup and not just in the United States.

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 m. berer / perspective, general papers, 195-206

Disclaimer and Imprisonment for Abortion in Senegal,” International

Campaign for Women’s Right to Safe Abortion Newsletter
This perspective is written in the individual capac- (April 23, 2018), https://www.safeabortionwomensright.org/
ity of the author. news/senegal-the-law-trials-and-imprisonment-for-abor-
tion/.
13. E. Royston and S. Armstrong (eds), Preventing Ma-
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