By reversing its 1973 decision – referred to as Roe v. Wade – on 24 June 2022, the United States Supreme Court revoked the constitutional guarantee protecting the right to abortion throughout the country. This shocking and regressive decision was fiercely condemned by civil society and the United Nations, as it deprived millions of American people of a fundamental right and denied the existence of the universally recognised principles of physical autonomy, self-determination and equality.
It took just a few hours for some US states, such as Alabama and Missouri, to impose an outright ban on abortion, even in cases of incest, rape or threat to the life of the pregnant people. Other US States have immediately introduced important restrictions, such as Ohio where abortion is no longer permitted beyond six weeks.
The consequences have already been dramatic, particularly for people who are vulnerable and especially women living in poverty and those who suffer (or are liable to suffer) discrimination.
Denied access to a legal abortion performed by healthcare professionals, these people will inevitably turn to unsafe and illegal procedures. This will add to the World Health Organization’s (WHO) total of 25 million unsafe abortions performed annually and culminating in many avoidable deaths and injuries.
Every year, one in four pregnancies ends in abortion. Restricting or banning abortion does not remove the need to terminate pregnancies but endangers the lives of the individuals concerned. .
There is no statistical variation between those countries which criminalise abortion and those that do not: the abortion rate is 37‰ (37 per thousand) in countries with an outright ban on abortion or where it is permitted only to save the life of a pregnant woman and 34‰ in countries where abortion is broadly permitted. As the fundamental right to abortion is currently subject to regressive measures and threats, it is more necessary than ever to protect it and guarantee access to abortion for all people.
Access to abortion is a human right, protected by international law
Access to safe, affordable abortion performed by health professionals offering a good quality service is a fundamental right relating to sexuality and reproduction. Countries have a duty to respect it, notably by adopting appropriate legislation and by reforming legal frameworks that impede this right. It is a corollary of the right to privacy, to self-determination and to physical autonomy and integrity, as set out in the Universal Declaration of Human Rights and protected by the International Covenant on Civil and Political Rights and various regional conventions. Moreover, European Court of Human Rights jurisprudence safeguards access to abortion from the perspective of the right to respect for a private and family life (Article 8 of the European Convention on Human Rights).
Furthermore, abortion is undeniably a form of medical care. The denial of abortion, as with any medical procedure, must be viewed as a violation of the right to health, protected by the International Covenant on Civil and Political Rights. Unrestricted access to abortion healthcare is compatible with protecting the right to life of pregnant people. For example, in 2017 the Inter- American Commission on Human Rights considered in the Beatriz Case that criminalising abortion and banning it in all circumstances potentially encouraged women to resort to illegal and unsafe abortions and thereby endangered their lives and health. In this particular case, the Commission considered that the regulatory framework in El Salvador violated the rights of the petitioner to life, personal integrity, privacy and physical and mental health. In addition, the WHO considers that "laws and policies on abortion should protect women’s health and their human rights".
The United Nations treaty bodies have also declared on several occasions that the fact of refusing a woman access to abortion when her life or health is in danger or when the pregnancy is the result of rape or incest violates the right to health and a private life. In some cases, it might also constitute cruel, inhuman or degrading treatment.
Lastly, abortion is protected by specific international instruments, notably the Maputo Protocol (2003) to the African Charter on Human and Peoples’ Rights, which recognises abortion as a human right. However, the Protocol is limited in scope and only applies in cases of sexual assault, rape, incest, potentially fatal foetal anomaly and when continuing with a pregnancy would endanger the life or physical and mental health of the pregnant woman.
Global overview of abortion laws: From restrictions to criminalisation
The right to abortion receives unequal protection worldwide. While an outright ban remains the exception, numerous countries limit abortion to cases where the health or life of the pregnant person is endangered.
– Each year, 6.2 million unsafe abortions are performed in Sub-Saharan Africa, causing at least 15,000 avoidable deaths.
– In addition, 97% of women of childbearing age in Latin America, live in a country where access to abortion is legally restricted.
– Some European countries also have particularly restrictive laws. This is the case with Malta, the only EU Member State to impose a total ban, and also with Poland, where access to abortion has become virtually impossible since the ruling by the Constitutional Tribunal banning abortion even in the case of an unviable pregnancy. More on the situation in Poland.
– In Hungary, since 15 September 2022, women wishing to terminate their pregnancy have been forced to listen to the beating of the foetal heart before being able to exercise their right to an abortion following a new decree adopted by Viktor Orbán’s conservative government. This latest measure, which is not founded on any medical principle, has the sole aim of humiliating women and increasing the social stigma they suffer. It is the result of numerous attempts by Fidesz to restrict women’s sexual and reproductive rights, including by banning the sale of abortion pills in 2012.
Some countries have gone as far as to criminalise abortion. The Criminal Code in Sénégal, for example, imposes the risk of two years imprisonment on women who proceed with an illegal abortion. The ban also means that women who have an abortion can be prosecuted for infanticide. . These two offences account for 38% of the female prison population in Senegal. Medical staff who perform abortions also risk imprisonment. According to Aboubacry Mbodji, former secretary general of RADDHO (Rencontre africaine pour la défense des droits de l’homme), FIDH member organisation in Senegal, this legislation is among the most restrictive in the world.
Access to abortion: A right under attack
The recent decision of the United States Supreme Court is symptomatic of a trend to challenge and reformulate fundamental rights spearheaded by anti-rights movements – also called anti-gender and anti-feminist movements– across the world. This decision is likely to have repercussions beyond the borders of the United States, as it could encourage anti-rights movements globally. These movements, comprising individuals and institutions with close ties to religious fundamentalist, nationalist or ultra-nationalist, white supremacist and ultra-conservative movements, enjoy influence and success that are dangerously on the rise and work to undermine the universality of human rights by reinterpreting them.
A ban on abortion is generally their first demand and, according to their doctrine, is "justified" by a reinterpretation of the "right to life", in which it is claimed "the child" is accorded protection before birth. This reinterpretation of "the right to life", contrary to international law, is supported the Geneva Consensus Declaration on Promoting Women’s Health and Strengthening the Family, an alternative declaration of rights nitiated by the United States under the Trump administration and bringing together numerous states with conservative regimes such as Brazil, Egypt, Uganda, Hungary and Poland.
It is important to note that this document is purely a declaration and has no legal status. Indeed, no international organisation has adopted it. It goes against existing international treaties and conventions on human rights and is supported by several religious associations and organisations, many of which are linked to the World Congress of Families (WCF), an ultra-conservative network which defends the idea of the "natural family".
– In Poland, the ultra-conservative association Ordo Iuris, with links to the WCF, has pursued a lengthy campaign against abortion rights, which culminated in the decision of the Polish Constitutional Tribunal in 2020 to ban abortions in cases where the pregnancy was unviable.
– In most countries, these anti-rights movements represent only a vocal minority, which attempts to roll back human rights despite public disapproval. The Pew Research Center has observed that 62% of the population in the United States disapproved of the decision to overturn the Roe v. Wade ruling.
– At a global level, an IPSOS report from 2021 shows that a majority of the population supports abortion. It is interesting to note that support for this right remains strong in countries where it has been significantly challenged, such as in Poland.
The anti-rights movements have clear strategies to roll back abortion rights. For example, it is increasingly common for these movements to formulate their demands using human rights language, notably by referring to the so-called "right of fathers to prevent the abortion of their children", enshrining conscience clauses as a "minimal human rights standard" or asserting the "right to life" of the unborn child as mentioned above.
The fight for abortion rights
Universal legalising of abortion
It is important to note that significant progress has been achieved in recent years due to the unstinting efforts of feminist and LGBTI+ movements and human rights organisations.
– In the Republic of Ireland, the introduction of more liberal abortion laws following a referendum in 2018 represents a historic victory, even if there are still obstacles to their full application.
– Similarly, the Mexican state of Oaxaca legalised abortions during the first 12 weeks of pregnancy in a bill adopted in 2019. Oaxaca is one of Mexico’s poorest states and was only the second to legalise abortion. Today, abortion is permitted in just nine of the 32 Mexican states.
– In addition, in December 2020, abortion was completely legalised in Argentina, where previously it was only permitted in cases of rape or for health reasons. To find out more about the case of Argentina, read the interview with Julieta Molina.
– In Benin, a 2021 law considerably extended the grounds on which an individual can seek an abortion.
– The same year, San Marin decriminalised abortion in all instances up to 12 weeks of pregnancy.
– More recently, the government of Sierra Leone approved a bill decriminalising abortion.
Legalisation is not enough
Legalising abortion is not enough if measures are not implemented to make the right to abortion effective in practice. In Western Europe, although abortion is legal in most countries, numerous technical or procedural barriers persist.
– In Northern Ireland, for example, abortion was legalised in 2019, but the regional, power-sharing executive in Stormont has failed to put in place services which effectively provide access to abortion services. People seeking an abortion as well as doctors face similar obstacles in the Republic of Ireland, including being stigmatised, forced to travel or even criminalised if the time limit is exceeded. To find out more about the case in the Republic of Ireland, read the first-hand account of Sarah O’Malley (ICCL).
– Similarly, although it has been legalised in specific cases, 97% of women in Chile, still do not have access to abortion. This is partly due to the application of "a conscientious clause for institutions", which allows public institutions to refuse to perform abortions. [1]
The European Court of Human Rights has concluded that States Parties are obliged under the terms of the Convention to guarantee a patient access to an abortion in legally permitted instances. The European Committee of Social Rights of the Council of Europe has gone further by specifying that States are obliged to adopt effective measures to ensure that any objection on the grounds of conscience must not impede the effective exercising of the right to abortion. [2]
Lastly, when examining the statistics, specific national and territorial characteristics should be borne in mind.
– For example, the number of abortions carried out each year in French overseas territories is twice as high as in Metropolitan France, although abortion is sometimes more difficult to access in these territories.
– In Guyana in particular, the 14 gynaecologists in Cayenne Public Hospital have all invoked their right to conscientious objection to avoid having to perform abortions. Most people now consult city doctors or nurses who are able to offer only medical abortions. [3]
– Fresh progress has been made in Iceland, where prior to 2019 abortion beyond 16 weeks of pregnancy had to be approved by a committee. The decision now rests with the pregnant individual and pregnancies can be terminated during the first 22 weeks whatever the circumstances.
– In France, where abortion has been legal since 1975, further progress was made in 2022 with the abortion time limit being extended to 14 weeks and access to medical abortion, which is less invasive than surgical abortion, being made easier.
Abortion rights cannot be fully implemented overnight. It is crucial, therefore, to continue to advocate for better access to sexual and reproductive rights, even in countries where abortion has been legalised.
Going further: Should abortion be made a constitutional right?
Different legal tools, established either by law or by judicial ruling, protect the right to abortion. Nevertheless, as the recent overturing of the Roe v. Wade ruling in the United States has demonstrated, judicial rulings are sometimes too fragile to offer robust protection over the long term. Incorporating the right to abortion into a country’sconstitution could mark a significant step forward in protecting human rights, as it would establish both its importance and its autonomy. [4]
– In France, where abortion is permitted by law, the French parliamentary majority has proposed including the right to abortion in the French Constitution. This measure was put forward as a means to "safeguard" the right to abortion in the face of the rise of the extreme right in the French National Assembly. It should be noted, however, that this would not prevent specific restrictions being imposed on the right to abortion in France. The French Parliament would have to adapt the conditions for exercising the rights set out in the country’s Constitution. Consequently, if the French Parliament were to vote in future in favour of a stricter time limit on abortion (for example, 12 weeks instead of 14 weeks pregnancy), the constitutional safeguard would not prevent this. Any such proposals to enshrine the right to abortion at constitutional level must be carefully handled, especially as they risk provoking a backlash without substantially improving access to abortion care. Instead, countries should concentrate on regulating conscientious objection and on implementing policies that guarantee easy and universal access to abortion care for all people..
– At European Union (EU) level, the European Parliament recently voted to incorporate the fundamental right to abortion into the EU Charter of Fundamental Rights, which protects human rights within the EU. However, this vote is merely symbolic and is not legally binding. Such an amendment to the Charter requires the unanimity of the States Parties, which will be difficult to secure given the current position of Member States such as Hungary, Malta and Poland.
– The idea is not entirely new: in the United States, several states including California and New Jersey have proposed including the right to abortion in their constitution in response to the overturning of the Roe v. Wade ruling.
– Lastly, some countries, like Kenya, have amended their constitution to permit abortion in certain cases, but these remain the exception and extremely limited. Abortion is thus only referred to in negative terms in that it is banned except in certain specific instances.
FIDH reaffirms its commitment to defending the exercising in full of sexual and reproductive rights and its solidarity with all movements and organisations fighting for abortion rights. The sexual and reproductive rights of all, and a woman’s right to dispose of her own body are at the heart of campaigns by FIDH and its member organisations. FIDH thus calls on all countries to respect universal sexual and reproductive rights and to resist pressures from anti-rights movements aimed at restricting or violating them.