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Overturning of Roe v Wade: Time to Rethink US Engagement With International Human Rights Law?

Frédéric Mégret, Professor and Dawson Scholar, Faculty of Law, McGill University

The aftermath of Dobbs v. Jackson Women’s Health Organization is leading lawyers throughout the US to fathom its implications, state by state. This drilling down is as it should be, given US constitutional and federal dynamics. Much less attention, however, has been devoted to the international fallout of the case, despite the notable place of international human rights law in various amicus curiae submitted to the Supreme Court. I suggest that, beyond the particulars of that law on the question of abortion, this is an opportunity to think anew the US engagement with international human rights law, an engagement that has long been marked by ambivalence and a sense of exceptionalism.

To be clear, there is a risk of overplaying the support that international human rights law provides for abortion as a right. There is no “pure” human rights position compared to what might be understood as polarized and politicized domestic debates. This is because international human rights law is itself a site of contestation over abortion. It is even more so that many specifically US debates and strategies, ironically,  have long seeped to the international level. Indeed, it is not as if international human rights law has not had its own blind spots when it comes to sexual and reproductive health, violations in the “private sphere” and women’s rights. The Inter-American system, notably, remains deeply divided on the question of abortion, and the European Court on Human Rights has not recognized a general right to abortion on demand.

But international human rights law does provide a sophisticated framework to understand what might be wrong with outright bans and thus a clear opening for some access to abortion. It has produced a relatively consistent approach that emphasizes key rights that are at least implicated by the absence of abortion options in certain circumstances. This includes the right to life, the right to health, as well as the right to privacy and even the right to be free from cruel, inhumane, and degrading treatment. Perhaps more importantly, the international debate has steered the conversation towards an understanding of abortion as a form of discrimination against women and girls. An intersectional analysis has further focused on the fact that impoverished or racialized women suffer the brunt of lack of abortion. Some decisions such as L. C. v. Peru by CEDAW point to a definite trend towards an obligation to guarantee access to abortion in certain cases.

Obviously, the argument that the non-availability of safe abortion is a human rights violation still needs to be made internationally rather than simply taken for granted. Choices of human rights pathways also have broader implications that need to be addressed: for example, both the dominant “public health” framing of abortion or the “cruel, inhuman and degrading treatment” approach envisage some allowance of abortion only at the cost of foreclosing other possibly desirable options. They are certainly not the resounding endorsement of abortion as a right that a foundation in women’s autonomy or equality might lead to.

The further, specific argument that the roll back of Roe v. Wade violates the US’s own international human rights commitment will also need to be made. Broad international views must be vernacularized into constitutional debates. Moreover, the international system is a pluralistic one marked by national and regional differences of appreciation about the scope of certain rights that does not mandate a single, one-size fits all approach, all the more so on an internationally divided issue such as abortion. International human rights law does put the US as a State under pressure to protect abortion notwithstanding what its highest court has said on the issue, but it is unclear how the executive or the legislature should do this within the rule of law.

But perhaps the question is ultimately not so much whether international human rights law provides a definitive answer on the question of abortion that can be straightforwardly opposed to countries. Nor is it necessarily helpful to simply wave the binding character of international human rights law, when we know very well that that character is somewhat illusory in practice. The more interesting question is why one would want to contextualize US debates about abortion in the US’s broader international normative environment despite this lack of absolute international clarity or effectivity.

A first idea is that international human rights law provides a particularly pared down version of the argument about abortion, unencumbered by domestic idiosyncrasies. Precisely because it is universal and not implicated in the local constitution of the political, it acts as a kind of abstract dramatization of the human stakes. In that context, the realization that the recognition of abortion is a gradual and fragile construct within international human rights law itself does not weaken its claim to being useful. On the contrary, it elevates the debate beyond some narrow and provincial originalist constitutional reading to a difficult conversation about how we should collectively understand what rights entail, as part of human rights treaties that are themselves “living instruments.”

Second, internationalizing the debate is sometimes simply the only option when a system has become stubbornly rigged against the rights of some. A fragile democracy facing major backsliding of key rights and whose judiciary shows significant problems of bias, the US is in some ways an excellent test case of the supra-constitutional utility of international human rights. Its situation highlights the importance of anchoring human rights commitments to international obligations as a guarantee against rollback. Visions long concocted by, notably, US scholars to understand the “periphery’s” (Eastern Europe, Latin America) backsliding, provide a corpus of expertise that should now be resolutely redirected at the “center.” International human rights law, furthermore, provides a yardstick by which to judge US evolutions beyond the country’s own internal divisions, a way of “seeing itself from outside itself” in a context where for example many Latin American countries have recently moved towards guaranteeing the legality of abortion.

Finally, international human rights law expresses the global dimensions of the abortion issue. If nothing else, US dynamics stand to have an outsize impact on other countries’ abortion debates, as they have had quite perniciously for example through the global “gag rule.” The legitimacy of an international human rights framework, in that context, has long been magnified by the evident cross-border dimensions of abortion in a globalized world, just as concern has shifted in the US to the risk that women will have to travel to other states to obtain abortions. International human rights law, then, expresses a form of valuable international solidarity with the plight of women in the US who will now have to undergo the stigma, intimidation and cost of seeking abortion elsewhere. It highlights the ultimately extra-constitutional dimensions of all human rights, as well as their broader entanglement in the politics of humanity’s constitution.

Suggested citation: Frédéric Mégret, Overturning of Roe v Wade: Time to Rethink US Engagement With International Human Rights Law?, Int’l J. Const. L. Blog, July 8, 2022, at: http://www.iconnectblog.com/2022/07/strongoverturning-of-roe-v-wade-time-to-rethink-us-engagement-with-international-human-rights-law-strong/

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Published on July 8, 2022
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