Subverting Rights: Addressing the Increasing Barriers to Reproductive Rights
Joseph J. Amon and Nina Sun
The US State Department released its annual report on human rights on 20 April. The first report of the Trump administration garnered headlines because it stripped all references to reproductive rights, eliminating a section that had previously reviewed access to contraception and abortion, as well as maternal mortality ratios, for every country. The message is clear, but in case there was any confusion, Ambassador Michael Kozak, the top official in the Bureau of Democracy, Human Rights, and Labor, explained why the term reproductive rights was excluded: “We don’t report on it [abortion] because it’s not a human right”.
The consequences of reproductive rights denial, including lack of access to abortion, were made very clear in Paraguay exactly one month earlier, on 21 March. On that day, a 14-year-old girl died during childbirth. She had been raped and died while doctors performed an emergency Cesarean section. Abortion is illegal in almost all circumstances in Paraguay, including in cases of rape or incest, and when the pregnancy poses a serious health risk. The only exception is when a pregnancy has life-threatening complications. But it’s not always clear in advance when a pregnant woman’s life is at risk. This may sound like isolated case, but according to data from the Ministry of Health every day two girls under the age of 15 give birth in Paraguay.
Although the US State Department claimed that the elimination of references to reproductive rights was because the term “has several different meanings” and is an issue of “great policy debate”, UN experts and agencies consistently call for the full realization of sexual and reproductive rights, including access to safe, legal abortion.1 UN treaty bodies, the committees of experts that monitor the various human rights treaties, repeatedly reiterate the right to sexual and reproductive health and criticize governments which interfere with this right.2
For example, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) Committee, which monitors compliance with CEDAW, said in a 2014 statement: “Unsafe abortion is a leading cause of maternal mortality and morbidity. As such, States parties should legalize abortion at least in cases of rape, incest, threats to the life and/or health of the mother, or severe foetal impairment, as well as provide women with access to quality post-abortion care, especially in cases of complications resulting from unsafe abortions. States parties should also remove punitive measures for women who undergo abortion.”3 It has made similar recommendations to many governments when it reviews their compliance with the treaty. The recommendations made in these “concluding observations” typically call on governments to legalize abortion in the circumstances noted above, and decriminalize in all cases.4
The recent State Department report is not the only place where reproductive rights in the United States are under attack. In January, the US Secretary of Health and Human Services proposed a new rule that would allow hospitals, doctors, and other individuals and institutions to deny care to patients based on religious beliefs. While this rule would have broad consequences in terms of access to care, including for LGBT people, it would also almost certainly affect access to reproductive health care. This rule joins other similar barriers at the federal level to reproductive rights, such as the current federal ban on funding for Medicaid coverage for abortions and a range of US laws that provide grounds for religious and conscience-based objection to abortion and abortion related services, including the Church Amendment, the Coats-Snowe Amendment, the Weldon Amendment, the Medicaid or Medicare Conscience Protections, and the Affordable Care Act Conscience and Religious Exemption Laws.
But this rule goes further, for example by broadening what it means to “assist in the performance of” a healthcare service, permitting anyone with an “articulable connection” to the healthcare service they consider objectionable—instead of a “direct connection”—to decline to participate. The expanded definition would allow objectors, including administrative or technical personnel, to refuse to perform a task because they can identify some connection, no matter how attenuated, to a service they consider objectionable. For example, a hospital room scheduler could refuse to book a room for procedures they consider objectionable. At the same time, the proposed rule does not define key terms like “religious beliefs,” “moral convictions,” or “moral or religious grounds.” This gives objectors virtually unfettered discretion to couch any refusal in moral or religious terms. The breadth of this rule, combined with existing laws, clearly conflict with international human rights law that obligate States to regulate conscientious objection in such a manner so that it does not act as a barrier for women seeking safe abortion.
At the state level, restrictions on reproductive rights are considerable and in some states getting more extreme. On 25 March 25, the governor of Indiana signed a new state law that directs doctors and hospitals to compile and submit a detailed report every time a woman seeks treatment for a physical or psychological condition that may in any way be connected to a past abortion. A care provider who fails to submit an “abortion complications” report to the State Department of Health risks being charged with a Class B misdemeanour, punishable by up to six months in jail and a $1,000 fine, for each instance of noncompliance. The law employs a broad definition of abortion complication that ranges from an immediate physical injury due to a surgical abortion, to psychological or emotional pain, including anxiety and sleeplessness, that arises possibly years or decades after having an abortion. Under the statute, doctors who identify an abortion complication must then report to the state: the patient’s age, race and county of residence; the type, date, and location of the abortion; a list of each complication and treatment; the date of every visit to every doctor relating to the complication; and any abortion drugs used by the patient and how they were procured. The state health department is required to compile and publish an anonymous tally of Indiana abortion complications that will be submitted to the Centers for Disease Control and Prevention for inclusion in the Vital Statistics Report.
It is not hard to imagine that these provisions would result in a chilling effect for patients and health care providers, breaking bonds of trust and open communication, and potentially deterring women from seeking post-abortion care for complications. They will also likely increase abortion-related stigma for women and girls seeking such services, as well as for providers. These examples, and others, such as stricter licensing requirements for clinics providing abortions than other medical facilities or requirements for patients to visit multiple times or impose waiting periods, show how governments, unable to make access to abortion illegal because of constitutional challenges, find ways to make access to abortion difficult and to harass and intimidate health care providers in ways that are less obviously violations of human rights.
What can be done in the face of these laws, regulations, and policies, which subvert reproductive rights, and thus, human rights?
Undeniably, it is harder to wage “name and shame” campaigns against picayune bureaucratic obstacles and to have to present evidence of the cumulative impact of multiple measures limiting access than to address the harm from blanket bans. Human rights campaigning that focuses on rallying around a singular injustice will struggle in this context, unless the campaign is able to focus on the real impact of these laws and policies for women and within communities. Undoubtedly, it is important for human rights and legal experts to continue to monitor closely, to argue technical points, and reach influential decision-makers. Courts have sometimes recognized the barriers imposed by governments for what they are—based upon ideologies and not evidence. However, legal and technical challenges can be lengthy, resource-intensive and require specific skill sets. Moreover, while UN treaty bodies and Special Rapporteurs have repeated called for access to safe, legal abortion, it’s too easy for governments to ignore treaty committees and to brush aside the criticisms from human rights experts. Similar to legal challenges, advocacy through formal human rights mechanisms is necessary but not sufficient.
Increasing human rights advocacy that is deeply embedded in community organizing and political action seems to be a promising approach, as well as a complementary tactic to the legal and technical work on reproductive rights. Social media and protest have been critical factors in catalyzing social change and raising awareness among communities about human rights issues. Recently, the world saw young people mobilizing to speak out in support of gun control, following the tragedy of gun violence at Parkland High School in Florida. These students will undoubtedly take on a broader range of issues as well. Women in the United States, as well as all over the world, have spoken out strongly in support of women’s rights, through the women’s marches as well as the #MeToo and Times Up movements. In response to the push back on human rights, including reproductive rights, new groups of grassroots, political activists have formed—these groups are prepared to claim their rights, and hold leaders to account for the impact of laws and policies within their communities.
Opponents of the right to reproductive health are firmly entrenched and will not give up easily. Tactics for preventing access to reproductive health can easily migrate from one country to another. Legal and even constitutional reforms may not be enforced nor result in real change for women. Legal reforms, for example in Chile, which amended its law to legalize abortion in cases of life endangerment, fatal fetal impairment, and sexual violence, with the approval of the country’s Constitutional Court, are undoubtedly a step forward. However, Chile is also proposing restrictions, like in the United States, that exempt health care providers based upon religion or conscience.
Human rights advocates have an essential role to play in ensuring that individuals and communities are not only able to realize their right to reproductive health, but also have a seat at the table where decisions are made. In order to make effective change, it is critical to raise awareness of the impact of restrictive laws, policies, and practices at all levels. The importance of this type of grassroots and political advocacy cannot be understated—it speaks to the fundamental, underlying principle of human rights—that they are universal and belong to everyone.
Joseph J. Amon, PhD MSPH, is a visiting lecturer at the Woodrow Wilson School of Public and International Affairs at Princeton University, Princeton, USA.
Nina Sun, JD, is the global advocacy advisor at the Center for Reproductive Rights, Geneva, Switzerland.
References
1 For example, see Committee on Economic, Social and Cultural Rights, general comment 22, the right to sexual and reproductive health http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=E%2fC.12%2fGC%2f22&Lang=en
2 For an overview of these rights and State obligations, please see http://www.ohchr.org/EN/Issues/Women/WRGS/Pages/HealthRights.aspx
3 Committee on the Elimination of Discrimination against Women. Statement of the Committee on the Elimination of Discrimination against Women on sexual and reproductive health and rights: Beyond 2014 ICPD review. Fifty-seventh session. 10 – 28 February 2014 http://www.ohchr.org/Documents/HRBodies/CEDAW/Statements/SRHR26Feb2014.pdf
4 The CEDAW Committee has explicitly noted that women should not be criminalized for abortion – see CEDAW general recommendation 12 on women and health, http://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/1_Global/INT_CEDAW_GEC_4738_E.pdf; The Committee for the Rights of the Child has called for decriminalization of abortion in all circumstances. See CRC concluding observations on Kenya (2016), http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CRC%2fC%2fKEN%2fCO%2f3-5&Lang=en