Abortion Laws: Violating Women's Fundamental Rights And Freedoms

Abortion laws restricting access to safe abortions violate the human rights of women and people who can get pregnant. These include the right to bodily autonomy, the right to privacy, the right to liberty and security, the right to equality and non-discrimination, and the right to health, life, and freedom from torture and other ill-treatment. While abortion is permitted by law in most countries, women often have severely limited access to safe abortion services due to a lack of proper regulation, health services, or political will. This results in unsafe abortions, which can lead to preventable deaths, injuries, and an increase in maternal mortality and morbidity. Additionally, the criminalization of abortion disproportionately affects marginalized communities, including people on fixed or lower incomes, refugees, adolescents, and minority or Indigenous women.

The right to bodily autonomy

Abortion laws have a significant impact on the right to bodily autonomy, which is a fundamental human right. Bodily autonomy refers to the ability to make decisions about one's body without coercion or interference from others. In the context of abortion, bodily autonomy means recognising that individuals, particularly women and girls, have the right to decide what happens to their bodies during pregnancy and reproduction.

International human rights law and instruments, such as the International Covenant on Civil and Political Rights, affirm the right to bodily autonomy and reproductive autonomy. According to the World Health Organization (WHO), reproductive rights include the right of individuals to make free and responsible decisions about their reproduction without discrimination, coercion, or violence. This includes the right to access safe abortion services.

The denial of access to safe and legal abortion procedures can lead to serious health consequences and even death. In places where abortion is illegal and unsafe, women are forced to carry unwanted pregnancies to term or resort to unsafe abortion methods. This results in preventable maternal deaths and disabilities, with approximately 13% of maternal deaths worldwide attributed to unsafe abortions.

In India, the Supreme Court's judgement in X vs Principal Health Secretary, NCT of Delhi broadened the scope of abortion laws by recognising the right to individual liberty, bodily autonomy, and safe and legal abortion under Article 21 of the Constitution. The judgement affirmed that the woman herself is the "ultimate decision-maker" regarding the termination of her pregnancy, upholding the principle of bodily autonomy.

The right to privacy

In the landmark case of Roe v. Wade (1973) in the US, the Supreme Court recognised that the right to liberty, protected by the Fourteenth Amendment, encompasses individual privacy and includes the right to abortion before fetal viability. The Court placed reproductive decision-making on par with other fundamental rights, such as freedom of speech and religion, and required the state to justify any interference with the right to abortion. This decision set a precedent for abortion laws in the US, making state abortion bans unconstitutional and ensuring legal, accessible, and safer abortions for many.

However, despite this recognition, abortion remains a highly emotive and controversial issue, with varying levels of access worldwide. Even in countries where abortion is permitted by law, women often face limited access due to a lack of proper regulation, health services, or political will. As a result, women are forced to carry unwanted pregnancies to term or resort to unsafe abortions, leading to serious health consequences and even death.

The right to be free from violence

Abortion laws violate a woman's right to be free from violence. This is because the criminalisation of abortion and the barriers to accessing safe abortion services expose women to violence, including anti-abortion violence.

Abortion is a highly emotive and controversial issue, with deeply-held opinions on both sides of the debate. However, equitable access to safe abortion services is a human right. In places where abortion is safe and legal, no one is forced to have one. Conversely, where abortion is illegal and unsafe, women are forced to carry unwanted pregnancies to term or risk serious health consequences and even death.

Unsafe abortions are the third leading cause of preventable maternal deaths worldwide, causing approximately 13% of maternal deaths globally. In addition, those who are already marginalised, such as people on low incomes, refugees, migrants, LGBTIQA+ people, and racialised and Indigenous people, face greater barriers to accessing safe abortion services.

Anti-abortion violence is committed against individuals and organisations that perform abortions or provide abortion counselling. This includes vandalism, arson, bombings, stalking, assault, kidnapping, and murder. Since the 1970s in the United States, there have been at least 11 murders, 42 bombings, 196 arsons, and 491 assaults against abortion providers.

Abortion bans and restrictions not only violate a woman's right to be free from violence but also her right to privacy, family, health, and life.

The right to health

Abortion laws violate a woman's right to health in several ways. Firstly, they restrict women's access to safe and legal abortions, which can lead to unsafe abortion practices that put their health and lives at risk. According to the World Health Organization, unsafe abortions are the third leading cause of preventable maternal deaths worldwide, resulting in approximately 68,000 to 78,000 deaths annually. In addition, unsafe abortions can cause physical and mental health complications, as well as social and financial burdens for women and their communities.

Abortion laws also violate the right to health by creating barriers to accessing abortion services. These barriers include the criminalization of abortion, restrictive laws, social stigma, and a lack of proper regulation, health services, or political will. For example, in some countries, people who seek abortions or assist others in obtaining abortions can face criminal charges and harsh punishments, such as life imprisonment. The stigma associated with abortion further discourages women from seeking safe and legal abortions, as they may face judgment and discrimination from their communities and even medical professionals.

Furthermore, abortion laws disproportionately affect marginalized communities, including people of color, young people, and marginalized communities who already have trouble accessing healthcare services. These communities often face additional barriers to accessing health services, making it more difficult for them to obtain safe abortions or necessary post-abortion care.

Finally, abortion laws can have wider effects on the healthcare system beyond reproductive care. For example, medications used for abortion, such as methotrexate, misoprostol, and mifepristone, are also used to treat various chronic conditions. Restrictive abortion laws can impact the availability and accessibility of these medications for patients who rely on them for their overall health and well-being.

The right to non-discrimination

Denying abortion is a form of gender discrimination against women, girls, and anyone else who can get pregnant. This has been recognised by multiple UN treaty bodies, including the Committee of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

Abortion restrictions disproportionately affect marginalised groups, including people of colour, young people, and low-income people. The UN Human Rights Committee has held that the lack of availability of reproductive health information and services, including abortion, undermines women's right to non-discrimination.

The UN Committee on the Rights of the Child has also stated that punitive abortion laws violate children's right to freedom from discrimination. Even where abortion is technically legal, heavy restrictions can make it inaccessible to marginalised people, forcing them to seek unsafe and clandestine abortion opportunities and risking criminal or civil penalties.

The Committee on Economic, Social and Cultural Rights has said that a wide range of laws, policies, and practices, including the criminalisation of abortion or restrictive abortion laws, undermine the autonomy and right to equality and non-discrimination in the full enjoyment of the right to sexual and reproductive health.

Abortion restrictions are a tool of gender oppression, as they target health care services that are used primarily by women. These paternalistic restrictions rely on and reinforce harmful stereotypes about gender roles, women's decision-making, and women's need for protection instead of support, undermining their ability to control their own lives and well-being.

International Human Rights Law and Abortion

International human rights law establishes that denying women, girls, and other pregnant people access to abortion is a form of discrimination and jeopardises a range of human rights. United Nations human rights treaty bodies regularly call for governments to decriminalise abortion in all cases and to ensure access to safe, legal abortion in certain circumstances at a minimum.

International human rights legal instruments and authoritative interpretations of those instruments compel the conclusion that women have a right to decide independently in all matters related to reproduction, including abortion.

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