The decision in Dobbs v. Jackson Women’s Health Organization, the case currently before the Supreme Court which focuses on the question of Mississippi’s 15-week abortion ban, is unlikely to hinge on global data or the finer points of international law. And yet a growing cadre of briefing papers, political accords and court filings are co-opting the language of international human rights groups to argue against the basic rights and freedoms that most Americans have enjoyed for decades.
These arguments are worth addressing. They tell us worrisome things both about the health of American democracy and about what could happen if the court reverses Roe v. Wade next year.
The anti-abortion advocacy group Susan B. Anthony List recently erroneously argued that Mississippi’s law fits what it refers to as “international norms” on abortion. The Center for Family and Human Rights stated in a recent amicus brief for the Supreme Court, again erroneously, that there are no rights to abortion under international law. Many anti-abortion groups claim that restricting abortions will protect the so-called “rights of the unborn” because fewer abortions will take place. Global research suggests that this is not true.
If Roe falls, the United States will instead join of a small cadre of increasingly authoritarian countries that have become more restrictive on abortion in recent years. Poland’s constitutional tribunal ruled on a retrograde abortion ban last year which effectively banned abortion in all cases apart from rape, incest or threat of life or health to the mother, after the ruling Law and Justice party packed the court. Hungary’s Viktor Orban is ramping up its talk on “family values,” and a 2016 United Nations report criticized the country for obstructing abortion access. Vladimir Putin’s Russia has just joined the misleadingly titled Geneva Consensus Declaration: a document co-sponsored by the United States under the Trump administration with repressive governments including Jair Bolsonaro’s Brazil, Mr. Orban’s Hungary, Abdel Fattah el-Sisi’s Egypt, and signed by dozens more of the world’s most repressive regimes from Saudi Arabia to Uganda. (President Biden announced in January that the United States would withdraw.) The declaration’s authors also claim that there is no international right to abortion.
Anti-abortion activists in this country argue that the United States is one of only a handful of countries, including what Marjorie Dannenfelser, president of the Susan B. Anthony List, called “notorious human rights violators” like China and North Korea, that have such liberal abortion laws. This is highly misleading. While states like Texas and Mississippi are retrogressing on abortion, the rest of the world is moving the other way. According to the Center for Reproductive Rights, over 50 countries have liberalized their abortion laws in the past 25 years, including 20 countries that have removed complete abortion bans. The Supreme Court in heavily Catholic Mexico recently ruled that criminalizing abortion is unconstitutional. Argentina legalized the procedure last year. Across Latin America, a number of legislatures are moving in similar directions (with notable exceptions, such as El Salvador, Nicaragua and the Dominican Republic, which still render abortion a crime punishable with imprisonment).
In fact, United Nations mandate holders told the court that overturning Roe v. Wade and allowing states to ban abortions would be “irreconcilable” with international human rights law. As the British human rights expert Helena Kennedy recently told me, forcing a woman to endure nine months of pregnancy and labor against her will is textbook “cruel and inhumane treatment” under international law.
And yet this is already a grim reality for women across large swaths of this country. By 2019, six states (Kentucky, Mississippi, Missouri, North Dakota, South Dakota and West Virginia) had only one abortion clinic left. The nation has more so-called “crisis pregnancy centers” (organizations run by anti-abortion activists that serve to dissuade women from the procedure) than actual abortion clinics. While abortion pills are increasingly available online, and patchy support networks do exist for women seeking terminations across state lines, if Roe falls, those lifelines could be put in further jeopardy, as more states follow Texas’ suit in targeting those who aid or abet abortions. According to Nancy Northup, president and chief executive of the Center for Reproductive Rights, half of the states in the country are poised to ban abortions. Twelve states have post-Roe “trigger laws” ready to ban abortions when Roe falls.
Poland offers a worrisome example of the extent of such laws and restrictive environments. A year after the country’s abortion ban, the health ministry is planning to create a pregnancy register, in other words, a record of all pregnancies (the health minister said the government is merely making a routine shift from paper to digital files). And a new Family and Demographic Institute has been proposed in the Polish legislature. If created, it would have the power to intervene in divorce and custody matters, as well as to surveil pregnant people. As extreme as that sounds, consider the fact that the Texas abortion law enlists vigilante citizens in enforcing an abortion ban. Copycat bills have already been proposed in Florida and Ohio. In other states, criminal charges have been levied against women who have miscarried.
Later this month President Biden will host the Summit for Democracy, with a key focus on promoting human rights around the world. But as U.S. courts continue to dismantle basic rights enjoyed in countless other modern democracies, the most pressing question must be: How can democracy do its job at home if only half the population is granted full human rights?
Mary Fitzgerald (@Maryftz) is director of expression at the Open Society Foundations and former editor in chief of the global news site openDemocracy.