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Q&A: Human Rights Law and Access to AbortionWomen’s ability to access safe and legal abortions is restricted in law or in practice in most countries in the world. In fact, even where abortion is permitted by law, women often have severely limited access to safe abortion services because of lack of proper regulation, health services, or political will. At the same time, only a very small minority of countries prohibit all abortion. In most countries and jurisdictions, abortion is allowed at least to save the pregnant woman’s life, or where the pregnancy is the result of rape or incest. Women’s organizations have fought for the right to access safe and legal abortion for decades, and increasingly international human rights law supports their claims. On this page, we will answer the following essential questions related to human rights and abortion:
Why is abortion a human rights issue?The denial of a pregnant woman’s right to make an independent decision regarding abortion violates or poses a threat to a wide range of human rights. International human rights legal instruments and authoritative interpretations of those instruments by U.N. expert bodies (see box) compel the conclusion that women have a right to decide independently in all matters related to reproduction, including the issue of abortion. Where women’s access to safe and legal abortion services are restricted, a number of human rights may be at risk.
Restrictive abortion laws have a devastating impact on women’s right to life. Evidence suggests not only that restrictive abortion laws drive women to unsafe abortion, but that women die from the consequences of such abortions. Approximately 13 percent of maternal deaths worldwide are attributable to unsafe abortion—between 68,000 and 78,000 deaths annually. These deaths are largely preventable. The U.N. Human Rights Committee and the Committee on the Elimination of Discrimination against Women have repeatedly expressed concern about the relationship between restrictive abortion laws, clandestine abortions, and threats to women’s lives. The committees have recommended the review or amendment of punitive and restrictive abortion laws. Opponents of safe and legal abortions sometimes argue that the “right to life” of a fetus should take precedence over a woman’s human rights, in particular the rights to nondiscrimination and health. Some opponents cite a supposed “fetal right to life” as an argument even against the use of contraceptives that work after fertilization but before implantation of a fertilized ovum (the medically accepted threshold for when pregnancy begins). Most international human rights instruments are silent concerning the starting point for the right to life. Meanwhile, the negotiating history of many treaties and declarations, international and regional jurisprudence, and most legal analysis suggest that the right to life as spelled out in international human rights instruments is not intended to apply before the birth of a human being. See also below. Rights to health and health care Where there is a lack of legal and safe abortion services and pervasive barriers to contraceptives and other reproductive health services, there will be unwanted pregnancies and unsafe abortions. Both cause largely preventable physical and mental health problems for women. In addition, clandestine abortion clinics and providers have no incentive to be concerned with women’s health and lives when they provide their illegal services. The main United Nations expert body that supervises the implementation of the right to health—the U.N. Committee on Economic, Social, and Cultural Rights—has consistently said that respecting women’s right to health requires the decriminalization of abortion, at least in some circumstances. Some governments seek to defend their denial of access to abortion services with reference to their lack of resources. This is not justifiable. It is generally much more expensive to treat complications from unsafe abortion than to provide medically safe abortions. While abortion is generally a low-cost procedure, particularly early in the pregnancy when manual vacuum aspiration or pharmaceutical techniques can be used, the costs of treating women for complications from unsafe abortions can be substantial. Restrictive abortion laws affect women’s health not only by limiting their access to safe abortion services, but also in other ways. For example, the right to health is violated when women are arbitrarily denied treatment for incomplete abortions or when such treatment is given, but available pain medication is withheld. Rights to nondiscrimination and equality Access to legal and safe abortion services is essential to the protection of women’s rights to nondiscrimination and equality. Women are in practice more likely than men to experience personal hardship as well as social disadvantage as a result of economic, career, and other life changes when they have children. Where women are compelled to continue unwanted pregnancies, such consequences forcibly put women at further disadvantage. Abortion is a medical procedure that only women need. The U.N. Committee on the Elimination of Discrimination against Women has implied that the denial of medical procedures only women need is a form of discrimination against women. Therefore, restrictive abortion laws may amount in certain cases to discrimination against women in and of themselves. The committee has also clarified that states have an obligation not to put barriers in place that prevent women’s access to appropriate health care. As examples of such prohibited barriers, the committee has explicitly cited laws that criminalize medical procedures only needed by women and that punish women who undergo these procedures. The U.N. Human Rights Committee has also repeatedly established a clear link between women’s equality and the availability of reproductive health services, including abortion. Right to security of person The right to security of person, including the right to physical integrity, is central to the issue of abortion and human rights. When a pregnancy is unwanted, a legal requirement to continue the pregnancy may constitute a government intrusion on a women’s body in violation of this right. When women are sentenced to prison for having procured an abortion, this constitutes an assault on women’s right to liberty, because women essentially are jailed for seeking to fulfill their health needs. The right to liberty is also threatened when women are deterred from seeking medical care if they fear being reported to police authorities by doctors or other medical professionals who suspect unlawful behavior. The U.N. Committee on the Elimination of Discrimination against Women has repeatedly urged governments to review their laws to suspend penalties and imprisonment for those who voluntarily procure or induce abortions. Decisions about parenthood are deeply personal, and are precisely the type of interest that privacy rights should protect. A pregnant woman’s right to privacy entitles her to decide whether or not to undergo an abortion. No women should have to make this decision under threat of legal prosecution. The right to privacy is also threatened when health care providers release confidential patient information about women who seek abortions or post-abortion care. The U.N. Committee on the Elimination of Discrimination against Women has clarified that the release of confidential patient information affects women differently than men because it may discourage women from seeking and getting treatment for incomplete abortions. Such treatment is essential, and may in some cases be lifesaving. Likewise, not getting this treatment can be fatal. Under international human rights law, states have an obligation to provide complete and accurate information that is needed to protect and promote the right to health, including reproductive health. Where abortion is not punishable by law, such complete and accurate information includes information about safe abortion options. Women are disproportionately affected when information about safe abortion services is withheld or restricted. Therefore, restricting or withholding abortion-related information may in some cases also constitute discrimination. Right to be free from cruel, inhuman, or degrading treatment The U.N. Human Rights Committee has indicated that restrictions on access to safe and legal abortion may give rise to situations that constitute cruel, inhuman, or degrading treatment. These situations include forcing a pregnant woman to carry an unwanted or health-threatening pregnancy to term. Evidence suggests that restrictions on abortion often lead to restrictions on post-abortion care. These restrictions can also be incompatible with the right to be free from cruel, inhuman, or degrading treatment. This could, for example, be the case where post-abortion care is systematically denied, or where available pain medication is withheld. It could also be the case when women only have access to necessary post-abortion care if they testify in criminal proceedings. Right to decide the number and spacing of children The right of women to decide on the number and spacing of their children without discrimination can only be fully implemented where women have the right to make decisions about when or if to carry a pregnancy to term without interference from the state. For this right to be fulfilled, women must also have access to all safe, effective means of controlling their family size, including abortion as part of a full range of reproductive health care services. In country-specific concluding comments, the U.N. Committee on the Elimination of Discrimination against Women has recognized that, in some circumstances, abortion will be the only way for a woman to exercise the right to decide the number and spacing of children. This is particularly the case if the woman became pregnant through rape or contraceptive failure or if family planning services are unavailable where she lives. Right to enjoy the benefits of scientific progress The right to enjoy the benefits of scientific progress applies to reproductive health and rights. This right may be threatened where women are denied access to new medical technology and drugs that are effective for safe abortions or humanized post-abortion care. This right also be at risk when women are subjected to painful post-abortion care—such as curretage, the scraping of a woman’s uterus with a sharp instrument—without the use of available pain-medication. Right to freedom of conscience and religion Like abortion itself, religious faith is a highly personal issue. The human right to freedom of thought, conscience and religion cannot be limited under any circumstances, and applies to established and non-established religions, as well as to the right not to have a religion. Freedom of religion includes freedom from being compelled to comply with laws designed solely or principally to uphold doctrines of religious faith. It includes the freedom to follow one’s own conscience regarding doctrines of faiths one does not hold. With regard to abortion, women cannot be compelled to comply with laws based solely or principally on religious doctrines, which many abortion restrictions are. Likewise, where abortion is legalized, women who do not wish to have an abortion for religious or other reasons should not be forced to have one. Freedom of religion and conscience is often invoked by health practitioners opposed to abortion, claiming a “conscientious objection” to providing certain services, notably abortions. While the human rights framework allows for conscientious objection in some cases, there are limits. For example, conscience cannot justify the refusal to perform a lifesaving abortion when there is no other suitable alternative treatment for the pregnant woman. The U.N. Committee on the Elimination of Discrimination against Women has explicitly stated that women’s human rights are infringed where hospitals refuse to provide abortions due to the conscientious objection of doctors. The Committee has also expressed concern about the limited access women have to abortion due to conscientious objections of practitioners. The Committee has expressly, in the context of legal abortion, recommended that public hospitals provide abortion services. What are the health consequences of illegal and unsafe abortion?Every year, as many as 78,000 women worldwide die as a direct result of illegal and unsafe abortions. An unknown number of others suffer serious and sometimes permanent health complications from the some 20 million illegal abortions performed worldwide each year. Common complications of unsafe abortions include infertility, serious infections that may lead to the need for a hysterectomy, hemorrhaging and severe blood-loss, uterine perforation, pelvic inflammatory disease, and difficulties in retaining later pregnancies. Illegal and unsafe abortions do not always involve complications, and are not always life threatening. Nonetheless, complications are potentially life threatening when women do not have access to fast, effective, and adequate medical attention. Why are illegal abortions generally unsafe?The criminalization of abortion contributes to it being unsafe for women for three main reasons: 1) unsafe abortion methods; 2) lack of medical accountability; and 3) discouraging post-abortion care. First, where abortion is illegal, women who are unable to carry an unwanted pregnancy to term are driven to desperate measures. Some women attempt to abort by inserting knitting needles or other sharp objects into their uterus, with a high possibility of severe infections of hemorrhaging as a result. Other women resort to abortive medicines that can seriously compromise their health if taken without proper medical supervision. Second, where abortion is illegal, clandestine abortion clinics escape government regulation and oversight. As a consequence, these clinics can operate with little regard for women’s health and lives. Third, where abortion is illegal, women who fear criminal proceedings may not seek necessary and lifesaving post-abortion care. Does the right to life under international human rights law apply to a fetus?While one regional treaty protects the right to life, in general, from the moment of conception, the negotiation history of core international human rights treaties and authoritative interpretations of these treaties suggest that the right to life as spelled out in international human rights instruments is not intended to apply from the moment of conception. All but one of the international human rights treaties are silent on the issue of whether the right to life applies to a fetus. International legal experts who have followed and documented the development of the international bill of rights have indicated that certain interpretations of the right to life could apply to the fetus from the moment of viability—and not conception—but that in any case such right would have to be balanced against the rights of the pregnant women. The pregnant woman’s rights are clearly established in international law, and include those indicated above. Other international legal experts have asserted that the historical understanding is that the right to life, as protected by the international bill of rights, begins when a human being is born. This interpretation is supported by the negotiation history of international human rights treaties. During the negotiation processes leading up to the adoption of several international and regional human rights documents, a small number of governments proposed adding language to the provisions on the right to life, that would have protected the right to life from the moment of conception. In the vast majority of cases, these proposals have been rejected. The American Convention on Human Rights is the only international human rights instrument that contemplates the application of the right to life from the moment of conception, though not in an unqualified manner. In 1981, the body that monitors the implementation of the human rights provisions in the American regional system—the Inter-American Commission on Human Rights—was asked to establish whether or not the right-to-life provisions in this convention and in the American Declaration on the Rights and Duties of Man are compatible with a woman’s right to access safe and legal abortions. The commission concluded that they are. What is Human Rights Watch’s position on abortion?Human Rights Watch believes that decisions about abortion belong to a pregnant woman without interference by the state or others. The denial of a pregnant woman’s right to make an independent decision regarding abortion violates or poses a threat to a wide range of human rights. Any restriction on abortion that unreasonably interferes with a woman's exercise of her full range of human rights is unacceptable. Governments should take all necessary steps, both immediate and incremental, to ensure that women have informed and free access to safe and legal abortion services as an element of women’s exercise of their reproductive and other human rights. Government responsibilities relating to women’s access to abortion that are founded on economic, social, and cultural rights must be implemented according to the principle of progressive realization to the maximum of available resources. Abortion services should be in conformity with international human rights standards, including those on the adequacy of health services. Governments have an obligation to protect the full range of human rights for all women.
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