Sexual and reproductive rights are foundational to gender equality. Access to abortion care is essential to the full realization of a person’s human rights. Indeed, international human rights mechanisms have had an impact on liberalizing national abortion laws by requiring that governments take affirmative action to ensure that women can access safe abortion care as part of fulfilling their obligations under human rights law. For instance, treaty monitoring bodies (TMBs) have consistently interpreted that safe abortion care is the application of several fundamental human rights guaranteed by international human rights law such as: the right to life; freedom from cruel, inhuman, and degrading treatment; liberty and security of the person; privacy; human dignity; health; and equality and non-discrimination.
Although abortion is legal in the United States, anti-choice groups and conservative lawmakers have been successful in restricting the right to an abortion. For example, the Hyde Amendment is legislation that for forty-two years has banned federal funds from covering abortion care for low-income women insured by Medicaid. The effects of the Hyde Amendment have been detrimental to American women. Despite the news that unintended pregnancy and abortion rates have fallen in the general population, abortions are becoming increasingly concentrated among poor women. U.S. constitutional law has upheld restrictions on abortion care, including the Hyde Amendment, leaving a large portion of reproductive age women without the ability to exercise their constitutional right to an abortion. In sum, poor pregnant people have been stripped of their right to choose because of their reliance on a government that will force them to give birth.
Unlike the U.S. Constitution, The Hyde Amendment could not withstand a human rights framework, which would require the government respect, protect and fulfill the right to an abortion. To name one notable example of this, the Special Rapporteur on Extreme Poverty recently visited the U.S. and recognized the harms of the Hyde Amendment in his report, stating that: “Low-income women who would like to exercise their constitutional, privacy-derived right to access abortion services face legal and practical obstacles… This lack of access to abortion services traps many women in cycles of poverty.” The Special Rapporteur recommended that the U.S. recognize health as a human right. Contradictory to the U.S. constitutional framework that merely requires government non-interference upon rights, there is international consensus among human rights bodies that abortion rights are human rights that require affirmative government fulfillment.
At the federal level, the U.S. takes an inconsistent stance on human rights, often promoting human rights ideas elsewhere but failing to comply with human rights standards at home.. However, there is a movement of U.S. cities that are adopting the human rights framework of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the international women’s rights treaty that the U.S. has yet to ratify. The Cities for CEDAW (C4C) movement has been instrumental in bringing awareness of human rights to the local level, with thirty-nine cities and counties putting forth a CEDAW resolution or ordinance committing to the principles of CEDAW. In contrast to the U.S. Constitution, CEDAW imposes an equality standard that requires all laws that disparately impact women be scrutinized to secure de jure and de facto equality for women. The CEDAW Committee, the monitoring body for the treaty, has repeatedly made clear that it considers restrictive abortion laws incompatible with the human rights of women. Therefore, the Hyde Amendment would violate a human rights framework, which would require that the state ensure that every woman, regardless of her income or race, could access the same rights
The C4C movement can have an impact on abortion access in the U.S. by building advocacy around abortion as a fundamental human right that is inherently linked to women’s rights outlined in the UN CEDAW treaty. Framing reproductive health as a human right is a paradigm shift toward destigmatizing abortion. Additionally, local CEDAW activists can instigate a political shift by embracing and utilizing the jurisprudence, General Comments, and Concluding Observations identified by the UN CEDAW Committee regarding abortion as a human right. Furthermore, the local U.S. CEDAW ordinances and resolutions can be used to support other pro-choice policies at the municipal, county or state level. The negative human rights impact of the Hyde Amendment, although law of the land, can be challenged by activists through utilizing a human rights lens on abortion access through local CEDAW ordinances and resolutions.
If the localities adopting CEDAW prioritize abortion access as a serious issue affecting women in their communities, it could be groundbreaking for sexual and reproductive rights around the country. The U.S. is almost 80% urban by population and therefore the C4C campaign could have a ripple effect in improving abortion access around the country. In the era of Trump and a majority conservative Supreme Court, women’s rights activists cannot afford to play it safe and concede to the fear and stigma perpetuated by conservatives and extreme religious groups. Utilizing the power of a human rights mechanism like a local CEDAW ordinance to challenge restrictions on abortion access like the Hyde Amendment could be instrumental in restoring the right to choose for our most vulnerable citizens.
By Jessica Pierson
Jessica holds an M.A. in Human Rights Studies from Columbia University’s Institute for the Study of Human Rights. Her graduate thesis research explored abortion as a human right in the United States and the role of CEDAW cities in challenging the Hyde Amendment.