Abortion Rights as Human Rights

Introduction

Human rights law has taken abortion rights far. ¹ Contemporary human documents call on countries to legalize abortion, at least on certain grounds (Center for Reproductive Rights, 2007: 1; Zorzi, 2015: 416). Historically, rights to reproductive decision-making and reproductive health services were marginalized in the field of human rights (Gallagher, 2011: 2–3). But reproductive rights supporters have made significant gains by drawing connections between women’s human rights and the right to abortion (Reichenbach, 2009: 24–25). Various international human rights bodies have supported the legalization of abortion as essential to the protection of women’s rights to equality, nondiscrimination, liberty, health, autonomy, and freedom from violence (Cook and Dickens, 2003: 2–3; Davis, 2010: 1674; Zampas and Gher, 2008: 256–260).

In addition to the writings of international (or regional) bodies, the judgments of national courts have advanced human rights arguments for abortion. National courts increasingly cite the interpretations of the Human Rights Committee (HRC) or the Committee for the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) when deciding questions of domestic abortion law. And over the last 10 years, several supreme (or constitutional) courts of diverse countries have referred to an international consensus on the need for safe, legal abortion. These courts’ judgments affirm that state laws should permit terminations when there is risk to the life or health of the mother, pregnancy results from rape or incest, or there is a threat of severe fetal impairment.

An emerging agreement on the importance of legal abortion, at least on some grounds or within defined timeframes, does not mean that national courts decide questions about abortion laws uniformly. Even though the content of national decisions diverges in significant respects, many of those judgments deploy the same human rights reasoning to uphold constitutional or legislative permission for abortion. As this essay argues, courts rely on human rights to strengthen the legitimacy of their decisions and to align their opinions with universal, modern norms.

Although human rights justifications have been invaluable to abortion law reform, advocates and academics long have recognized the gaps between the pronouncements of courts or treaty-monitoring bodies and the realities of delivering health-care services. On a more general level, countless scholars have theorized about the limitations of human rights protections (Marks, 2011; Merry, 2006; Moyn, 2012: 210; Orford, 2002; Otto, 2009). Among their criticisms is that human rights law can appear unresponsive to local practices. Human rights advocates have been cognizant of the realities of rights implementation and the need to translate generalizable human rights commitments into practical realities (Merry, 2006: 55). This is no less true for advocacy on behalf of abortion rights, which traditionally has depended on medical professionals to deliver reproductive health-care services. Pregnant women’s access to and the availability of abortion care is a consistent concern for reproductive rights activists; a right to abortion means very little if it is health care women cannot obtain or afford. And human rights are not value neutral or politics free – they embed their own presumptions and values. In many ways, human rights reflect the political and ideological priorities of the global North (Brown, 2004: 458; Marks, 2011: 73–74; Moyn, 2012: 5).

This essay describes a current moment in reproductive rights advocacy and maps how human rights discourses have supported abortion rights. It then considers the relationship between human rights and abortion access in jurisdictions with under-resourced health systems. The first part (The Trajectory of International Abortion Rights) outlines the incorporation of abortion rights in the text of international human rights documents and in the opinions and reports of human rights bodies. It demonstrates the evolving consensus around the legalization of safe abortion and, in this regard, notes a 2016 decision of the HRC. The second part (Human Rights Arguments for Abortion Rights) assesses the transference of human rights arguments made at the international level to the national level. It cites high-profile court decisions that use human rights reasoning to justify statutory or constitutional permission to terminate pregnancies. Citing these examples does not imply countries share common histories, political systems, or attachments to women’s rights. Rather, the diversity of examples offered in this essay suggests that human rights can absorb local or national differences. The third part (Human Rights in Practice) explores a few of the on-the-ground obstacles to implementing court judgments and national abortion laws. Far from a novel insight, this essay argues that human rights reasoning, rooted in universalism and modernity, may minimize the problems that follow legal change, particularly in places with weak health-care infrastructures. The conclusion of the essay questions the role of human rights as a transformative paradigm and highlights the public health law research that responds to differences among countries’ health services systems.

The Trajectory of International Abortion Rights

Although still a contentious issue, safe and legal abortion is now a priority for many international human rights actors. Progress toward liberalization of abortion laws draws from the broader, and hard fought, campaign for women’s human rights (Charlesworth et al., 1991, 2005). Women’s rights to reproductive health care (including abortion) were not originally part of international conversations about population or the right to health, but today are central to both (Beltrán y Puga, 2012: 148).

Most of the academics and activists writing about international reproductive rights highlight the 1994 International Conference on Population and Development (ICPD) and the 1995 Fourth World Conference on Women (FWCW) as pivotal events in introducing the mantra, ‘reproductive rights are human rights’ (Beltrán y Puga, 2012: 148; Brems, 1997: 152; Copelon, 1995; Northup, 2012: 265; Roseman and Reichenbach, 2009: 17; Zampas and Gher, 2008: 252; Zorzi, 2015: 414). The ICPD was the first global conference on population that had a high level of involvement by nongovernmental organizations, with the result that civil society and government representatives worked closely together to draft the ICPD Programme of Action (Taub, 1994: 1). Women’s rights advocates were at the center of negotiations that helped draft the Programme’s guiding principles on gender equality, such as the principle of ‘advancing [] gender equality and equity and the empowerment of women, and the elimination of all kinds of violence against women’ (ICPD, 1994: principle 4). A year after the ICPD, the FWCW brought further attention to women’s rights and to reproductive rights. The ICPD Programme of Action and FWCW Platform for Action were the first human rights documents that referred to abortion explicitly and have been engines for activism around rights to reproductive health and decision-making (Chrisler, 2013: 2; Cook and Dickens, 2003: 4).

The documents resulting from the ICPD and FWCW represented the political commitments of states to improve women’s reproductive health and to protect women’s reproductive choices. Since the ICPD and the FWCW, 30 countries have legalized or expanded access to abortion, whereas 11 countries have restricted abortion permission (Zorzi, 2015: 414). But as instruments negotiated by government representatives and civil society, they also reflected the compromises and bargaining among a range of religious and pronatalist interests, which yielded a measured approach to abortion rights (Berer, 2009:156–157; Germain and Kim, 1998: 3–4). The FWCW Platform for Action stopped short of calling for abortion liberalization. The Platform for Action, for instance, asked states to ‘consider reviewing laws containing punitive measures against women who have undergone illegal abortions’ (FWCW, 1995: ¶ 106(k)). The ICPD Programme of Action stressed the need for safe, effective, and affordable health services in jurisdictions where abortion is legal, but it did not press states to legalize abortion (ICPD, 1994: ¶ 8.25). ²

Following the ICPD and FWCW, international human right documents have downplayed state discretion to permit abortion and emphasized legal, safe abortion as a pressing human rights concern for all countries. The 2013 Montevideo Consensus on Population and Development, which was the product of a regional conference in Latin America and the Caribbean, ‘urge[d] States to consider amending their laws, regulations, strategies and public policies relating to the voluntary termination of pregnancy in order to protect the lives and health of women and adolescent girls, to improve their quality of life’ (2013: Priority Action 42). Although the document refers ‘to reduc[ing] the number of abortions’, Montevideo does not restate the language of the ICPD Programme of Action (rights to services when legal). Instead, the Montevideo Consensus calls on states to amend restrictive abortion laws as a means to protect women’s rights to life and health.

Likewise, a background paper prepared for the ICPD Beyond 2014 Global Report stressed the international consensus on decriminalized abortion (Shaha et al., 2014: 1). Although the report noted that the ‘reproductive right to safe abortion continues to be hotly disputed globally, regionally and nationally’, the ‘rationale for providing access to safe abortion is universally accepted’ (Shaha et al., 2014: 19). The report cites the work of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health (2011). Paragraph 21 of the Rapporteur’s report states ‘Criminal laws penalizing and restricting induced abortion are the paradigmatic examples of impermissible barriers to the realization of women’s right to health and must be eliminated’ (2011: §29). The Rapporteur urged that ‘legal and safe abortion services [be] available, accessible, and of good quality’ (2011: §65 h).

Treaty-monitoring bodies have made clearer and stronger statements in support of abortion rights (Zorzi, 2015: nn.416). For example, the CEDAW Committee interpreted CEDAW’s rights to equality and health as supporting women’s right to safe abortion. The Committee’s General Recommendation 24 pressed states to amend, ‘when possible, legislation criminalizing abortion…and [to] remove punitive provisions imposed on women who undergo abortion’ (1999: 31(c)). In 2000, the HRC interpreted the International Covenant on Civil and Political Rights (ICCPR), to which almost all states are signatories, as supportive of abortion law liberalization. General Comment 28 of the HRC stated that the death and ill health effects resulting from illegal abortion jeopardize women’s ability to enjoy their rights to life under the ICCPR. ³ Beyond decriminalization, the opinions of international human rights bodies, taken together, have called on states to permit women to seek terminations when their life or health is at risk, in instances of rape or incest, and when there is a threat of serious fetal medical condition (Zampas and Gher, 2008: 251). ⁴ These grounds for terminations follow from human rights principles: the right to life and the right to health underpin an abortion to save a woman’s life or protect her health; a right to bodily integrity or freedom from inhumane treatment undergirds terminations on the grounds of rape, incest, and severe fetal malformation (Dixon and Nussbaum, 2012: 7; Gable, 2010: 968; Zampas and Gher, 2008: 249; Zorzi, 2015: 418).

Comments, declarations, and reports tell only a partial story; human rights have had a powerful influence on the litigation of abortion laws (Ely Yamin, 2014: 1). On the international level, decisions and country opinions of treaty-monitoring bodies help define states’ human rights duties to protect and to promote women’s reproductive health (Cook and Dickens, 2003: 12). ⁵ The President of the US-based Center for Reproductive Rights, Nancy Northrup, emphasized both the broad interpretative value of human rights and civil society’s ability to vindicate individual claims. Northup wrote:

Strategic litigation can…shap[e] and defin[e] international standards and hold[] governments accountable when they fail to comply with these norms. On the one hand, civil society can use this norm-building tool to transform broad human rights principles into concrete protections for sexual and reproductive health. On the other hand, by presenting individual complaints before national, regional, and international adjudicatory bodies, advocates can enforce international standards by seeking redress for individual rights violations. (2012: 265)

The HRC issued the view that Mellet’s travel abroad and treatment in Ireland violated her right to equal protection of the law under Article 26, amounted to cruel and unusual treatment under Article 7 and deprived her of a right to privacy under Article 17 of the ICCPR. Under Article 26, ‘the differential treatment to which the author was subjected in relation to other similarly situated women failed to adequately take into account her medical needs and socio-economic circumstances’ (p. 7.11). The differential treatment was that a woman pregnant with a similarly nonviable fetus who miscarried would have been entitled to medical and psychological care. Under Article 7, the toll of Mellet’s travel and lack of aftercare ‘subjected her to conditions of intense physical and mental suffering’ (p. 7.4). Moreover, the HRC stated that the costs Mellet incurred by traveling, because of the application of Irish law, were an arbitrary interference with her right to privacy under Article 17 (p. 7.8). ⁶ The HRC’s proposed remedy was for the state to pay compensation to Mellet and provide her psychological treatment, as well as to consider what revisions of national legislation and the Constitution would comply with the ICCPR (p. 9).

Departing from the HRC’s opinion, an individual opinion authored by Committee member Sarah Cleveland elaborated on the rights to gender equality and the prohibition of gender-based stereotypes. The refusal to provide reproductive health services that only women need resulted in, according to Cleveland, both direct and indirect gender discrimination (pp. 11 and 13). Cleveland wrote:

The right to sex and gender equality and non-discrimination obligates States to ensure that State regulations, including with respect to access to health services, accommodate the fundamental biological differences between men and women in reproduction and do not directly or indirectly discriminate on the basis of sex. They thus require States to protect on an equal basis, in law and in practice, the unique needs of each sex. In particular, as this Committee has recognized, nondiscrimination on the basis of sex and gender obligates States to adopt measures to achieve the ‘effective and equal empowerment of women’. (p. 7, emphasis in the original)

In making these arguments, Cleveland cited the work of several international treaty-based bodies – the CEDAW Committee, Committee on Economic, Social and Cultural Rights (CESCR), and Inter-American Commission on Human Rights (IACHR), for instance. Those bodies have recognized that ‘differential treatment of women based on gender stereotypes can give rise to gender discrimination’ and that ‘tradition, history and culture’ cannot justify gender discrimination or gender stereotypes (p. 15).

The Mellet opinion and the international human rights texts cited in this part help define a human rights approach to abortion permission. That is, countries demonstrate their commitment to women’s equality, health, and well-being by decriminalizing abortion, at least for women whose pregnancies pose special or significant burdens. And the Cleveland opinion highlights the capacity of human rights arguments to evolve and to cover more ground than the current consensus – for example, abortion restrictions perpetuate gender stereotypes that are impermissible under international human rights law. One hope of litigation, sometimes realized, is that courts will reach beyond the principles in international human rights texts and will recognize rights not explicitly affirmed by such documents.

The next part considers three aspects of international human rights that have proved useful to national courts interpreting their countries’ abortion laws. It demonstrates how human rights norms can justify domestic, legal permission for terminations and shape the political disputes over those laws.

Human Rights Arguments for Abortion Rights

The first part argued that the increasing acceptance of abortion as a human right has been achieved in part through international declarations and the opinions of treaty-monitoring bodies. How documents and opinions translate into national laws and legal practices is the subject of this part. When states pass laws (or constitutional amendments) that expand permission for abortion, as human rights bodies have urged them to do, many courts have upheld those laws, looking to human rights principles (Beltrán y Puga, 2012: 150). This part discusses three characteristics of human rights on which courts appear to rely: the expression of universal, interdependent values; communication of modern agreement among countries; and state protection of women’s rights in the face of antiabortion opposition.

First, human rights provide a platform and give courts a language to describe abortion rights as universal, interdependent, and part of a state’s human rights duties. Indeed, the universality and interdependence of human rights are defining features of the field. At the FWCW, the Executive Director of the United Nations Population Fund explained reproductive rights in the following way:

The concept of reproductive rights did not spring from one group or one country. It is neither neo-colonialist nor unethical. It is a universal concept, which reflects the experience of thousands of women and men in countries all over the world. Reproductive rights are human rights. (Address to the World Conference of Women, 1995)

Second, human rights arguments build on shared values that derive legitimacy from consensus among a subset of countries (Kennedy, 2002: 119–120; Merry, 2006: 56). Sally Engle Merry has argued that the human rights system, and CEDAW specifically, confers its own culture and political commitments – it is ‘a culture of transnational modernity’ (Merry, 2003a: 71). In turn, the reproductive rights movement supports the diffusion of human rights as the representation and communication of issues of modern, global social justice (Kennedy, 2008: 828). To uphold or to pass a permissive abortion law not only signals a state’s commitment to women’s rights, at least on paper, but also its affiliation with other liberal abortion regimes (Siegel, 2012: 355–379; UN Dep’t of Econ. and Social Affairs, 2014: 1, 6).

A recent case decided by the Constitutional Court of Portugal provides an example of justifications that are rooted in an appeal to consensus and modernity. In 2007, the Parliament of Portugal passed legislation that amended the criminal code to permit abortion up to the 10th week of pregnancy (and, when due to a fetal medical condition, up to 24 weeks) (Lei No. 16/2007). The 2007 Act requires a 3-day waiting period and nondirective counseling that must help women make a ‘free decision’, which is ‘conscious and responsible’ (2007 Act Article 1(4)(b)). In 2010, a group of politicians challenged the constitutionality of the 2007 Act. These petitioners claimed that because Article 24 of the Portuguese Constitution provides that ‘[h]uman life is inviolable’, any counseling offered to pregnant women must try to dissuade them from abortion.

The Constitutional Court of Portugal dismissed all of the petitioners’ claims, rejecting petitioners’ assertions that Portugal’s law insufficiently protected fetal rights (Acórdão no. 75/2012, 2012: §7). The Court reasoned that nations requiring dissuasive counseling were exceptions and not the rule and that Portuguese law did not grant constitutional rights to fetuses (Rubio-Marín, 2014: 49–50). In comparing Portugal’s revised law to the laws of neighboring countries, the Court characterized abortion liberalization as ‘widely prevalent’ in Europe and aligned with the human rights standards that most European countries recognize (Acórdão no. 75/2012, 2012: §11.4.13). Ruth Rubio-Marín explains the decision as one in which Portugal joined a European consensus: ‘the Court situated Portuguese law squarely within a European context,…in an overwhelming majority of Europe, abortion is allowed during the early stages of pregnancy’ (2014: 44). Supporting this view, a circular issued by Portugal’s Ministry of Health argued that ‘the government’s recent decriminalization of abortion represents a move toward joining the most modern, developed and open European societies’ (Direcção-Geral da Saúde, Circular Normativa No. 11/SR, 2007).

In terms similar to the reports noted in the first part, the conclusion of the Court’s judgment described legal permission for safe abortion as the dominant, consensus-based model of progressive law reform. This is not to argue that Portugal is an exemplar of liberal abortion laws – the counseling regime is onerous and the waiting period is long (Rubio-Marín, 2014: 37). But what is striking about the decision, in upholding a law that is a significant departure from the country’s prior, restrictive abortion code, is how the counseling and waiting provisions seek to placate national antiabortion politics while at the same time describing Portugal as a modern European state. ⁷

Third, courts depend on states’ duties to implement their human rights obligations as a shield against antiabortion forces and as a scale to balance conflicting rights. As a shield, human rights obligations can insulate courts (and states) from the potential fallout of fights over abortion; there is a duty to implement limited abortion rights and decriminalize terminations even in the face of national opposition (Chrisler, 2013: 4). As a scale, human rights mediate conflicts over competing rights-based arguments (Davis, 2010: 1660). That is, courts rely on human rights discourses when they balance constitutional or other legal protections for fetal rights against the rights of women.

In the latter category, women’s human rights have undermined recognition of a fetus’s right to life. In a 2007 judgment, the Constitutional Court of Slovakia held that there is no right to life for a fetus under national or international law (PL.ÚS12/01-297, 2007: 15). The Constitutional Court of Slovakia affirmed the constitutionality of a 1986 law permitting abortion on request during the first 12 weeks of pregnancy. Applying the Slovakian constitutional provision that ‘human life is worthy of protection even prior to birth’, the Court held that the law struck a balance between women’s constitutional right to privacy and the value of potential life (PL.ÚS12/01-297, 2007: 15).

The Court mined international human rights texts to conclude that although the constitution conferred value on potential life, it did not establish a right to life for a fetus because no such right was recognized in international human rights law. The Constitutional Court of Slovakia also relied on human rights arguments to announce explicit constitutional rights for pregnant women that trump fetal interests. In focusing on the country’s international human rights obligations, which the Constitution of Slovakia requires the Court to consider, the Court cited the ICCPR, the ECHR, and CEDAW in supporting women’s rights to self-determination and equality (PL.ÚS12/01-297, 2007: 15). Adriana Lamačková writes, ‘The reference to CEDAW and other United Nations international human rights treaties in support of women’s rights is a distinctive aspect of the Slovak decision, which none of the other courts in Central Europe [] can claim’ (Lamačková, 2014: 69). The Court further differentiated itself from other countries in Central Europe by describing its position as consistent with ‘the majority of European and American states’ (Lamačková, 2014: 65).

The Slovakian Constitutional Court upheld a law that permitted abortion on demand and its invocation of human rights set its decision apart from those of its neighbors (e.g. Germany, Poland, and Hungary) (Lamačková, 2014: 63). Comparing the judgments of Portugal and Slovakia, human rights commitments helped legitimize Slovakia’s regional insularity, and those commitments justified the ways in which Portuguese law reflected regional consensus. Courts in Portugal and Slovakia appeared to speak to countries in their regions while at the same time keeping in mind national antiabortion politics. Indeed, in both countries, legal reform had limits. The Portuguese legislation does not grant a right to abortion on request but applies periodic constraints and limits abortion services based on indications (Rubio-Marin, 2014: 36). And because the Constitution of Slovakia bestows some value on potential life, the Court upheld the law’s procedural and timing restrictions on abortion (Lamačková, 2014: 70).

These examples illustrate how human rights arguments can accommodate diverse national considerations and disparate legal standards (Cook and Dickens, 2003: 2–3; Davis, 2010: 1674). However, rights discourse has not paved a one-way street toward abortion liberalization: human rights arguments have been made on behalf of the rights of fetuses in several countries (Wilkins and Reynolds, 2006: 165–169). Although women’s rights to terminate pregnancies, albeit often limited, have proved persuasive in many jurisdictions, courts have struck down new abortion laws based on a ‘right to life’ at conception, often expressed in national constitutions. And, as noted in a recent UN report, governments in the global South are more than four times as likely to have restrictive abortion policies as those in ‘developed regions’ (UN Dep’t of Econ. and Social Affairs, 2014: 6). Human rights arguments are powerful, but their persuasiveness varies substantially by region and often depends on the cultural, religious, or political attachments the place.

The next part considers some predictable consequences of applying the principles of universality, consensus, and state duty. Many scholars have written about the unintended costs of human rights in other fields (see Brown and Halley, 2002: 25–33; Kennedy, 2002: 119–120; Marks, 2012: 1). Yet, there has not been the same level of critique of ‘reproductive rights are human rights’ as there has been for other women’s rights causes (see Brems, 1997: 137–141; Merry, 2006: 65; Orford, 2002). The third part notes the difficulties for reproductive rights advocacy in addressing the gaps or blind spots generated by the decontextualizing impulses of human rights. It concludes by drawing lessons from the field of public health law, which might shift the focus from rights to services and from courts to communities.

Human Rights in Practice

Cases like those discussed in the second part and the documents referenced in the first part have inspired faith in human rights discourses. In the United States, for example, constitutional rights to abortion have not kept pace with the positive duties that human rights impose on states or with substantive concepts of equality, such as those described by Cleveland in the Mellet opinion. Reproductive rights groups in the United States have grappled with the limitations of domestic constitutional rights and have watched as courts and state legislatures have restricted access to abortion. They have faced the reality that a right to choose is valuable only to those who are able to buy termination services or have their rights to privacy respected by the state (Nedelsky, 2011; Petchesky, 1984; West, 2009: 1411). A human rights approach thus offers a progressive narrative for reimagining constitutional rights for advocates who have lost ground to antiabortion campaigns (Soohoo and Stolz, 2008: 479).

At the same time, the origins of international human rights reflect the rights-based thinking of the global North (Moyn, 2012: 5). Reproductive rights discourse is, in part, a product of larger trends in constitutionalism and gender equality (Ernst, Katzive, and Smock, 2004: 785). For instance, courts’ opinions and advocates’ briefs across the world cite US abortion rights as emblematic of liberal law reform – legal permission for previability terminations without restriction as to reason (Rebouché, 2012: 85–87). But a reference to a US case like Roe v. Wade is dated and may not depict the contested state of US abortion rights (Rebouché, 2012: 124–130).

Reproductive rights also reflect the long-standing work of North American and Western European advocates’ in international organizations and agencies. In a recent, multicountry study of abortion law implementation, international donors and advocacy groups, based in the United States and in the United Kingdom, played the key if not primary roles in organizing educational campaigns, litigating cases, seeking funding, and conducting research (Guttmacher Institute, 2012: 4). The purpose of this part is not to minimize the important work of advocates of the global North; it is only to suggest that the human rights norms can be a force of ‘cultural homogenization’, to borrow a phrase from Merry (Merry, 2006: 58). Reproductive rights campaigns want to reach diverse populations with diverse needs, but difference, whether marked by location, ethnicity, class, or culture, can disappear in human rights reform strategies.

A well-known critique, human rights litigation is often unable to produce changes in the local delivery of services, leaving unanswered the thorny but crucial questions that inadequate infrastructure and resources raise (O’Connell, 2014: 118). Human rights advocates understand the limitations of court-based and rights-based strategies in addressing the systemic obstacles to securing effective health care (see Ely Yamin, 2005: 1157). In the abortion context, permission to terminate pregnancies does not necessarily result in accessible services. The literature focusing on abortion as a human right, however, seldom assesses the results of expanding the legal permission for abortion or inconsistently revisits questions of implementation after success in revising previously restrictive laws. One consequence of focusing on law’s treatment of abortion is the assumption that when law changes, abortion services become more widely available. And, conversely, it presumes that illegal abortion (or abortion performed outside the parameters of law) is always unsafe (Erdman, 2011: 413–414).

As a consequence, termination services can fall off the political agenda and policymakers’ radars, obscuring how many women gain access to abortion care. For example, misoprostol, a drug that treats ulcers, is an unsupervised, self-use method of abortion (Wilson et al., 2010: 191). Transnational studies conclude that ‘misoprostol is widely available’ and that ‘there is an informal network of medical providers and pharmacists’ who dispense the drug for pregnancy termination (Sherris et al., 2005: 80). Misoprostol is not always an appropriate method of abortion or necessarily the preferable means to terminate a pregnancy, but, with proper use, it can be effective in completing an abortion (Billings, 2004: 61). When taken according to proper instructions, over 90% of women complete abortions early in pregnancy without complications (Lafuarie et al., 2005: 79–80). Although hard to measure, the prevalence of self-induced abortion is evident in the work of Women on the Web (WoW) (Bazelon, 2014). WoW ships drugs to women that induce medical abortion and provides a ‘telemedicine support service’ across the world. Rebecca Gromperts, the leader of WoW and a physician, estimates that the organization receives 2000 queries each month from pregnant women. WoW only serves women in countries with laws that prohibit or extremely limit abortion (Bazelon, 2014).

Even in countries without onerous restrictions, there might be consequences of law reform worth studying. Laws setting out the timing or grounds of abortion may offer no clear guidance or reliable information about the law’s requirements. Moreover, new legal standards can impose costs and bureaucratic hurdles that make services hard to obtain after law reform. Cumbersome processes can in turn deter women from seeking legal terminations (Rebouche, 2014: 177). Inadequate funding for reproductive health (or most health) services, too, limits women’s ability to seek abortions, and resource struggles can take time and the input of multiple stakeholders to resolve (Ely Yamin, 2014: 4).

Public health law writings appear less concerned that restrictions on abortion have been eased and seem more concerned with effective service delivery (Guttmacher Institute, 2012: 39). ⁸ Public health research evaluates evidence of each country’s health-care infrastructure and the resources pregnant women have at their disposal – to assess what policies and rules assist with abortion care (Rebouché, 2014: 98). Specifically, recommendations concentrate on concrete health system interventions, such as guidelines and trainings for all levels of health-care professionals (Guttmacher Institute, 2012: 39–40). These are interventions that focus on the differences between health-care systems, and they are, of course, strategies that take time, expertise, and funding. Attention to those details is not at odds with the human rights approaches described in the second part. Indeed, advocates that incorporate reproductive rights in campaigns for economic justice or poverty reduction largely focus on the empowerment of communities and local groups (Orfeneo, 2010: 33; Petchesky, 2000: 12, 15). This activism, as well as public health work, is often missing in the lawyerly business of announcing broad and decontextualized human rights principles (Merry, 2003b: 70; see also West, 2009: 1418–1419).

Conclusion

In key ways but not in all ways, abortion rights have moved from the margins to the mainstream (Zampas and Gher, 2008: 255). The belief that ‘reproductive rights are human rights’ now leaves a mark on a diverse set of conversations, from development to questions of political economy. This progress has given advocates opportunities to shape national laws and international texts – a significant achievement given the controversy that can surround abortion.

This essay has argued that there is increasing support for women’s rights to abortion as part of their rights guaranteed under international human rights law. And as noted, this inclusion is typically qualified: states are urged to decriminalize and not to punish terminations on grounds like rape or incest, threat to health, or fatal fetal anomaly. The HRC’s opinion in Mellet v. Ireland is an example. These are limited grounds, however, that do not capture the experiences of the majority of women or the reasons most women elect to end pregnancies.

Despite the limitation, there are advantages to aligning with human rights reasoning – demonstrating that one’s country is modern, progressive, and responsive to women’s rights. At the same time, human rights narratives may undercut problems of service delivery in the global South and may underestimate the resistance to abortion law reform. Litigation and advocacy strategies have made progress in lifting abortion restrictions in various countries, but there is still significant hostility to reproductive rights.

Deeper and consistent engagement with the costs of transporting human rights norms across countries can help advance local abortion provision (Luna, 2011: 240–241). This essay suggests that public health strategies can aid with that engagement by providing information about what is happening on the ground – how women access reproductive health services – and producing the type of guidance that best meets women’s needs. Human rights rhetoric can play a part by highlighting the importance of resource redistribution and the effects of income inequality, even though rights may not be designed to do the complicated work of service delivery.