The Role of International Human Rights Norms in the Liberalization of Abortion Laws Globally.

International and regional human rights norms have evolved significantly to recognize that the denial of abortion care in a range of circumstances violates women's and girls' fundamental human rights. These increasingly progressive standards have played a critical role in transforming national-level abortion laws by both influencing domestic high court decisions on abortion and serving as a critical resource in advancing law and policy reform. Courts in countries such as Argentina, Bolivia, Brazil, Colombia, and Nepal have directly incorporated these standards into groundbreaking cases liberalizing abortion laws and increasing women's access to safe abortion services, demonstrating the influence of these human rights standards in advancing women's reproductive freedom. These norms have also underpinned national-level abortion law and policy reform, including in countries such as Spain, Rwanda, Uruguay, and Peru. As these human rights norms further evolve and increasingly recognize abortion as a human rights imperative, these standards have the potential to bolster transformative jurisprudence and law and policy reform advancing women's and girls' full reproductive autonomy.

Introduction

The evolution of international and regional human rights norms to recognize safe abortion as a human rights imperative has significantly influenced judicial and legislative developments on this issue across the globe. These increasingly progressive standards have played a critical role in liberalizing national-level abortion laws by both influencing domestic high court decisions to recognize access to abortion as a constitutional guarantee and by serving as an important resource in advancing law and policy reform. As these standards continue to evolve to create stronger protections for abortion as a fundamental human right, they can further influence the development of transformative national-level jurisprudence and law and policy reform in recognition of women’s reproductive autonomy.

This article examines key developments in United Nations (UN) and regional human rights bodies toward the recognition of abortion as a human right and the significant influence of these norms in high court decisions and legislative measures affirming and advancing women’s right to access abortion services at the national level. The authority of such normative developments at the national level is often overlooked in critiques of international and regional human rights bodies, despite the profound impact of these developments on women’s ability to exercise reproductive autonomy. Instead of providing an exhaustive list of these developments, this article explores particularly notable examples and concludes by discussing critical recent normative developments that may further advance reproductive autonomy.

Importantly, these normative advancements and their integration at the national level do not occur in a vacuum—they result from sustained efforts by lawyers, advocates, and activists to hold states to account for their human rights obligations, demonstrate the harmful impact of restrictive abortion laws, and destigmatize abortion. Furthermore, formal legal recognition of these rights is only a first step toward enabling women to access abortion care; the complex task of fully implementing such laws is essential for guaranteeing women’s and girls’ ability to exercise their reproductive rights. While this article focuses on concrete legal gains that have been made through the translation of these norms from the supra-national to the national level, the role of civil society in catalyzing these developments and the importance of the full implementation of these legal guarantees must not be overlooked.

Development of international human rights norms on abortion

Over the past two decades, international human rights norms have evolved significantly to recognize the denial of safe abortion services as a human rights violation. The 1994 International Conference on Population and Development’s (ICPD) Programme of Action largely underpinned these developments as the first international consensus document wherein states recognized reproductive rights as human rights that are already enshrined in domestic and international law. Its call to governments to strengthen their commitment to women’s health by addressing unsafe abortion, to ensure access to abortion when legal, and to guarantee all women quality post-abortion care established an important entry point to address unsafe abortion and promote abortion access as a human rights imperative. Yet the ICPD Programme of Action’s directives on abortion are relatively narrow and contradictory, as they do not recognize the need for states to reform their laws and policies to permit abortion—despite clear evidence that this is essential for reducing unsafe abortion and resulting maternal mortality and morbidity—or recognize the linkages between lack of access to abortion and gender discrimination.

One year after the ICPD Programme of Action, the Beijing Platform for Action further called on governments to “[review] laws containing punitive measures against women who have undergone illegal abortions,” and at ICPD’s five-year review, governments recognized that “in circumstances where abortion is not against the law, health systems should train and equip health-service providers and should take other measures to ensure that such abortion is safe and accessible.”

International and regional human rights bodies have gone beyond these consensus documents in recognizing abortion as a human rights imperative and acknowledging the range of human rights violations that stem from restrictive abortion laws and lack of access to safe abortion services. Through a series of individual communications, UN treaty monitoring bodies, which oversee and provide authoritative interpretations of states’ obligations under UN human rights treaties, have clearly established that when abortion is legal under domestic law, it must be accessible in practice, and that denials of access to legal abortion services can amount to violations of the rights to health, privacy, non-discrimination, and freedom from cruel, inhuman, and degrading treatment.

Furthermore, through their general comments, general recommendations, and concluding observations, treaty bodies have affirmed that states must ensure that legal abortion services are available, accessible (including affordable), acceptable, and of good quality. They have urged states to abolish procedural barriers to abortion services, such as third-party authorization requirements, mandatory waiting periods, and biased counseling. To ensure access to abortion, states should adopt relevant legal and policy measures, including enacting clear guidelines outlining the conditions under which abortion is legal, and should provide financial support for those who cannot afford abortion services. States should also guarantee the availability of skilled health care providers who can offer safe abortion services and ensure that provider refusals on the grounds of religion or conscience do not interfere with women’s access to services. States must also ensure that women receive confidential and adequate post-abortion care, which must not be conditioned upon admissions by women that will be used to prosecute them for undergoing abortions illegally, as this may amount to cruel, inhuman, and degrading treatment.

Moreover, treaty bodies have regularly and explicitly called on states to decriminalize and ensure access to safe abortion services and have repeatedly recognized the connection between restrictive abortion laws, high rates of unsafe abortion, and maternal mortality. They have condemned absolute bans on abortion as being incompatible with international human rights norms and have urged states to eliminate punitive measures for women and girls who undergo abortions and for health care providers who deliver abortion services. Moreover, they have called on states to decriminalize abortion, at a minimum, when the pregnancy poses a risk to the woman’s life or health, when the pregnancy results from rape or incest, and in cases of severe fetal abnormality. Furthermore, in the landmark case of L.C. v. Peru, the Committee on the Elimination of Discrimination against Women (CEDAW Committee) explicitly instructed a state party to decriminalize abortion in cases of rape, marking the first instance in which a human rights body has explicitly directed a state to liberalize its abortion law as a result of an individual communication. Additionally, treaty monitoring bodies have urged states to interpret exceptions to restrictive abortion laws broadly to incorporate, for example, mental health conditions as a threat to women’s health.

Recently, these bodies have moved beyond articulating the specific grounds under which abortion should be legal and have urged states to generally ensure women’s access to safe abortion services in connection with states’ obligation to guarantee comprehensive reproductive health services. This shift demonstrates a growing recognition that narrow exceptions to abortion bans do not adequately protect women’s reproductive rights or enable women to exercise reproductive autonomy. Notably, the Committee on the Rights of the Child has urged states to “decriminalize abortion to ensure that girls have access to safe abortion and post-abortion services” and “ensure access to safe abortion and post-abortion care services, irrespective of whether abortion itself is legal.” Additionally, the CEDAW Committee has directed states to “ensure that sexual and reproductive health care includes access to … safe abortion services,” without qualification as to the legality of abortion. It has also framed abortion as an aspect of women’s autonomy. Finally, as further analyzed below, the Human Rights Committee recently issued a groundbreaking decision in the case of Mellet v. Ireland, recognizing that the prohibition and criminalization of abortion contravene international human rights law.

In addition to the treaty monitoring bodies, the Special Procedures of the United Nations Human Rights Council have also recognized abortion as a human rights concern. For example, Anand Grover, when he was Special Rapporteur on the right to health, noted that laws criminalizing abortion lead to higher numbers of maternal deaths, and poor mental and physical health outcomes while “infring[ing upon] women’s dignity and autonomy by severely restricting decision-making by women in respect of their sexual and reproductive health.” Also, the current Special Rapporteur on the right to health has called on states to decriminalize abortion and adopt measures to ensure access to legal and safe abortion services. Similarly, the Special Rapporteur on torture has recognized that “states have an affirmative obligation to reform restrictive abortion legislation that perpetuates torture and ill-treatment by denying women safe access and care.”

Regional human rights bodies have also recognized abortion as a human rights concern. For example, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) explicitly recognizes that states must ensure women’s right to abortion, at a minimum, in instances of “sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus.” In a recent general comment, the African Commission on Human and Peoples’ Rights further recognized that inadequate access to safe abortion and post-abortion care can result in violations of the rights to privacy, confidentiality, and freedom from discrimination and cruel, inhuman, or degrading treatment.

Furthermore, through a series of cases, the European Court of Human Rights has affirmed that states must ensure that where abortion is legal, it is accessible in practice, finding that the denial of legal abortion services can amount to violations of the rights to private life and to be free from inhuman and degrading treatment. Additionally, the Parliamentary Assembly of the Council of Europe has recognized women’s right to physical integrity and to control their own bodies, indicating that the decision of whether to carry a pregnancy to term must be decided by the woman herself, and has called on states to ensure women’s access to abortion and to eliminate barriers to safe abortion.

Finally, the Inter-American Commission on Human Rights issued precautionary measures where a woman was denied cancer treatment on the basis that it could harm her pregnancy, calling on the state to guarantee the woman’s access to medical treatment for her cancer and to ensure that such measures are adopted in agreement with the woman. It also brokered a friendly settlement with the government of Mexico in connection with the case of a 13-year-old girl who became pregnant as a result of rape and was denied access to legal abortion services. Additionally, the Inter-American Court of Human Rights issued provisional measures ordering a state to take all necessary steps to preserve the life of a woman whose pregnancy placed her life in grave danger, which under those circumstances required termination of the pregnancy.

Influence of human rights norms on national-level abortion jurisprudence and law reform

The evolution of strong international and regional human rights standards recognizing abortion as a human rights imperative has significantly influenced jurisprudence and law reform at the national level. High courts have increasingly relied on international human rights standards in determining whether their countries’ laws and practices adequately secure women’s reproductive autonomy. These normative developments laid the groundwork for numerous national landmark decisions that have affirmed women’s right to abortion in a range of circumstances and have solidified the state’s obligation to ensure access to legal abortion services in practice.

Notably, since 1994, more than 35 countries have liberalized their abortion laws, expanding the grounds under which women can legally access abortion services. While the development of progressive jurisprudence, laws, and policies is just one aspect of states’ compliance with their human rights obligations, enshrining these rights within law is a critical step toward the full realization of such rights and can increase accountability when laws are violated or not implemented.

Jurisprudence

Colombia. In 2006, the Colombian Constitutional Court issued a groundbreaking decision overturning the criminalization of abortion under all circumstances and finding that, in order to protect women’s human rights, abortion must be permitted—at a minimum—when pregnancy poses a risk to the woman’s life or physical or mental health; when it results from rape, incest, or unwanted impregnation; or when the fetus has an impairment incompatible with life.

In reaching its decision, the court carefully examined the meaning and exercise of women’s human rights as enshrined in the Colombian Constitution and international and regional human rights instruments, emphasizing the prominence that women’s rights had attained in international conferences, such as ICPD and Beijing, and their outcome documents. It further looked extensively at the right to health under international human rights law, recognizing that states must “offer a wide range of high quality and accessible health services, which must include sexual and reproductive health services” and that “the right to freely decide the number of children is directly linked to women’s right to life when there are highly restrictive or prohibitive abortion laws that result in high maternal mortality rates.”

Furthermore, the court evaluated Colombia’s absolute prohibition on abortion alongside the Human Rights Committee’s decision in K.L. v. Peru, which established that the denial of abortion services in cases of fatal fetal impairments could amount to cruel, inhuman, and degrading treatment. The court recognized that numerous UN treaty monitoring bodies had called on states to repeal absolute bans on abortion. Notably, at the time, K.L. v. Peru was the only authoritative precedent from a regional or UN human rights body specifically addressing protections for women’s right to abortion services, yet the court went far beyond this precedent in expanding the legality of abortion in Colombia. While the court’s ultimate decision also relied largely on limitations on legislative discretion in applying the criminal law, examining the proportionality and reasonability of the relevant Penal Code provisions, the court’s extensive consideration of and reliance on international human rights norms provides an important backdrop and context for its judgment.

Argentina. In 2012, Argentina’s Supreme Court of Justice issued a decision providing an authoritative interpretation of the Penal Code’s rape exception, which was unclear as written into law. Argentina’s Penal Code explicitly authorizes abortion under certain circumstances, namely where the woman’s life or health is at risk and where “the pregnancy results from rape or indecent assault of a woman [with an intellectual or psychosocial disability].” A growing body of jurisprudence from the provinces, protocols, and national health regulations had interpreted the latter provision to permit abortion in all cases of rape, given the lack of clarity in the provision’s statutory construction.

Importantly, ensuring Argentina’s compliance with its international obligations was a key factor in the court’s decision to hear this case. In rejecting arguments that the case was moot since the petitioner had already accessed abortion care, the court reasoned, in part, that the failure to issue a decision “may compromise Argentina’s state responsibility before the supranational legal system.”

In ruling that the clause on rape and indecent assault should be read broadly, the court noted that UN human rights bodies had condemned restrictive interpretations of countries’ abortion laws. It remarked that the Human Rights Committee had established that abortion should be permitted in instances of rape and, in particular, had expressed concern about restrictive interpretations of Argentina’s abortion law. Therefore, the court determined that all women and girls who become pregnant as a result of rape can access legal abortion services. Furthermore, the court clarified that these women and girls are not required to provide evidence of the rape or to receive judicial authorization before procuring an abortion. To this end, the court invoked UN treaty body standards reprimanding Argentina for failing to guarantee timely access to legal abortion services and for the judiciary’s “interference” with such access.

Brazil. In 2012, Brazil’s Supreme Court authorized abortion in cases of anencephaly—a fatal condition wherein parts of the fetus’s brain and skull do not develop during pregnancy. At the time, Brazil’s Penal Code permitted abortion only in instances of rape and where the pregnancy posed a risk to the woman’s life. In adding an exception for anencephaly, the court recalled the World Health Organization’s definition of health as “a state of complete physical, mental and social wellbeing, and not only the absence of disease or infirmity,” and recognized that anencephalic pregnancies can pose enhanced risks to the pregnant woman’s life and health. The court further noted the ICPD Programme of Action’s recognition of reproductive rights as human rights and examined the precedent set by the Human Rights Committee in K.L. v. Peru, which recognized that compelling an individual to carry to term an anencephalic pregnancy can amount to cruel, inhuman, and degrading treatment and violate the right to privacy. Ultimately, the court determined that it would be unconstitutional to interpret the Penal Code as criminalizing abortion in cases of anencephaly.

Nepal. International and regional standards have also had a profound effect on high court decisions concerning the accessibility of abortion services. In 2009, the Supreme Court of Nepal issued a decision in Lakshmi Dhikta v. Nepal establishing inadequate access to safe and legal abortion as a human rights violation. Although Nepal had liberalized its highly restrictive abortion law seven years earlier, permitting abortion without restriction as to reason during the first 12 weeks of pregnancy, access to safe abortion services remained limited, especially for poor and non-urban women. The petitioner in this case was a pregnant woman with five children who was denied abortion services because she could not afford the fee.

In interpreting the Interim Constitution’s protection of the right to reproductive health, the court recognized the linkages between reproductive health, as defined in the ICPD Programme of Action, and reproductive rights. Furthermore, it looked to the International Covenant on Economic, Social and Cultural Rights in interpreting the right to health, recognizing the importance of affordability, accessibility, and availability, including the need to guarantee equitability in payment schemes and in the distribution of health care providers.

Notably, in recognizing the state’s duty to provide appropriate remedies, including compensation and the enactment of laws as a measure of non-repetition, the court looked to several cases from regional human rights bodies. For example, it referenced the European Court of Human Rights’ decision in Tysiąc v. Poland ordering policy reforms to ensure women’s access to timely abortion services, as well as monetary compensation to the petitioner. Further, the court examined the friendly settlement in Paulina Ramirez v. Mexico from the Inter-American Commission on Human Rights, wherein the Mexican government agreed to provide financial reparations, cover particular educational expenses, and issue guidelines on access to abortion services.

Bolivia. In 2014, Bolivia’s Constitutional Tribunal issued a decision in a challenge to several articles of the Penal Code, including the restrictive abortion law. Bolivia’s Penal Code authorized abortion only where the pregnancy poses a risk to the woman’s health and in cases of rape or incest, and required judicial authorization for abortion in the latter instances. The petition alleged that the Constitution’s protection of reproductive rights must allow women to voluntarily terminate a pregnancy and that abortion should be regulated in the sphere of public health, as opposed to the Penal Code.

Although the Constitutional Tribunal failed to overturn the restrictive abortion law, it recognized that requiring women to obtain judicial authorization for abortion services violated their rights and impeded their access to these services. In reaching this conclusion, the court explicitly looked to the International Covenant on Civil and Political Rights’ recognition of states’ positive obligations to guarantee that women, particularly girls, who are victims of rape or incest have access to sexual and reproductive health services. It further grounded its decision in the CEDAW Committee’s and Committee Against Torture’s concluding observations on Bolivia, which recognized judicial authorization as a barrier to abortion services and urged the state to eliminate this requirement and guarantee abortion access for women and girls who become pregnant as a result of rape or incest. Although the court fell short in recognizing women’s right to decide whether to carry a pregnancy to term as a fundamental aspect of reproductive autonomy, the removal of the judicial authorization requirement was a significant step forward.

Law and policy reform

International and regional human rights norms have also been a key tool in lobbying and influencing legislatures to liberalize abortion laws and establish policies to ensure access to safe and legal abortion services. For example, in 2010, Spain enacted a sexual and reproductive health law authorizing abortion without restriction as to reason. The law itself indicates that it seeks to bring Spain in line with the “international consensus” on reproductive rights. It explicitly looks to CEDAW’s recognition of the unique impact of pregnancy and childbearing on women and considers the Convention on the Rights of Persons with Disabilities’ reproductive rights protections. It further recognizes that the European Court of Human Rights has criticized the lack of legal certainty stemming from restrictive abortion laws and that the Parliamentary Assembly of the Council of Europe has urged states to decriminalize abortion and guarantee women freedom to control their bodies.

Additionally, in 2012, Rwanda amended its Penal Code, including the relevant provisions on abortion, and brought its abortion law in line with the grounds for abortion set forth in the Maputo Protocol. It simultaneously lifted a reservation to the Maputo Protocol that it had entered on the provision addressing abortion. Thus, Rwanda now permits abortion when a woman becomes pregnant as a result of rape, incest, or forced marriage, or if the continuation of the pregnancy jeopardizes the health of the woman or the fetus. Previously, abortion was permitted only to preserve the woman’s health.

Furthermore, in 2014, Peru adopted national guidelines providing clarity for physicians and patients on the provision of legal abortion services. The CEDAW Committee recommended the adoption of these guidelines in its decision in L.C. v. Peru, in which it held Peru accountable for denying the petitioner access to legal abortion services. In addition to recognizing CEDAW as one of the legal bases for their promulgation, the guidelines were adopted on the eve of Peru’s periodic review of its compliance with CEDAW, suggesting that the pressure mounted by the committee’s decision and the impending review influenced the government to take steps to ensure women’s access to legal abortion services.

Indisputably, extensive advocacy on behalf of civil society has been essential for translating these gains from the international arena to the national level. Notably, in the case of Peru, several years lapsed between the issuance of the CEDAW Committee’s decision in L.C.—and even more from the Human Rights Committee’s 2008 decision in K.L.—and the promulgation of the national guidelines on abortion provision. During this time, civil society actors were essential to persuading the government to take concrete measures to increase access to abortion care. Indeed, strong advocacy coalitions are critical for holding governments to account for their human rights obligations and ensuring compliance with and adoption of these normative frameworks.

Catalyzing reproductive autonomy for women: Importance of future normative developments

As demonstrated above, international and regional human rights norms have underpinned national-level jurisprudence, laws, and policies liberalizing restrictive abortion laws and securing access to legal abortion services in practice. While these norms firmly and importantly recognize states’ obligations to ensure access to legal abortion services and to decriminalize abortion—at a minimum—on certain grounds, they still fail to fully recognize women’s right to decide whether to carry a pregnancy to term as a fundamental aspect of women’s equality, autonomy, and self-determination. Notably, authorizing access to safe and legal abortion services only on certain grounds undermines women’s autonomy and decision making by forcing them to carry to term pregnancies against their will, stigmatizes women who seek abortions for other reasons, perpetuates entrenched discriminatory norms about women’s roles in society, and fails to prevent women from seeking unsafe abortions.

However, recent normative developments that call on states to decriminalize abortion and guarantee access to safe abortion care are increasingly recognizing that laws denying women the ability to determine whether to carry a pregnancy to term undermine their reproductive autonomy and agency, limit their opportunities, and deny them the ability to participate as equal members of society. In the recent case of Mellet v. Ireland, the Human Rights Committee held that Ireland’s prohibition and criminalization of abortion in nearly all circumstances subjected the petitioner to severe emotional and mental pain and suffering, amounting to violations of her rights to privacy, equality before the law, and freedom from cruel, inhuman, and degrading treatment under the International Covenant on Civil and Political Rights. The petitioner was pregnant with a fetus that had a fatal impairment, and, as a result of Ireland’s highly restrictive abortion law, which criminalizes abortion unless a woman’s life is at risk, she was forced to travel abroad to terminate her pregnancy. The Human Rights Committee called on the state to amend its law on voluntary termination of pregnancy, including the Constitution if needed, to comply with the covenant, including by ensuring effective, timely, and accessible abortion procedures in Ireland and ensuring that health care providers can deliver full information on safe abortion services without fear of criminal sanctions. This is the first decision from an international human rights body that explicitly recognizes that the prohibition and criminalization of abortion is a human rights violation in and of itself.

While the Mellet decision is the first of its kind, it is supplemented by the progress within other treaty bodies, such as the Committee on the Rights of the Child, to move beyond enumerating certain grounds for abortion and recognize abortion in and of itself as a human right. An important shift is underway as human rights norms progress beyond the recognition of procedural guarantees in connection with abortion to the establishment of access to abortion services as a substantive human rights obligation. This development signals the human rights imperative of law and policy reform and establishes that states with restrictive abortion laws have an obligation to make abortion legal.

This increasingly progressive jurisprudence demonstrates the significant progress toward recognizing abortion as a human right and signals the transformative potential of such norms. Undoubtedly, translating these normative gains into concrete change in countries across the globe will continue to require sustained and concerted efforts by reproductive rights advocates and civil society actors more broadly, especially in light of the extensive stigma and discrimination—as well as lack of political will—surrounding abortion in many contexts. But by continuing to establish women’s and girls’ right to decide whether to carry a pregnancy to term as a fundamental aspect of the realization of their human rights, human rights bodies can further support the promise of gender equality. These normative developments can have a catalytic and transformative impact on national-level jurisprudence, laws, and policies, resulting in greater recognition globally of abortion as a fundamental aspect of women’s reproductive autonomy and self-determination and ensuring women greater access to this essential reproductive health service.