The United Nations special rapporteur on the right to health, one of the international body’s most important human rights advocates, has urged the US supreme court not to end federal protections for abortion rights in America.
The comments from the special rapporteur, Dr Tlaleng Mofokeng, come after a leaked supreme court draft opinion showed a majority of the court’s conservative justices support overturning the nearly 50-year-old precedent in Roe v Wade.
The 1973 decision provided federal protections for abortion rights, and invalidated dozens of state abortion bans. It also became a beacon for the global feminist movement, which over the next five decades helped liberalize abortion laws across dozens of countries, including most recently in Latin America, and enshrine the right to abortion in international human rights law.
The right to abortion, “speaks directly to women and girls, who are often in many societies not seen as people”, Mofokeng said in an interview with the Guardian. The right to abortion speaks to who owns women’s bodies in society and, “who fully can decide – and benefit from that bodily autonomy”.
If the court were to end protections for abortion, at least 26 US states would be certain or likely to outlaw abortion, forcing women to travel hundreds of miles to the nearest clinic, self-manage abortions with medication and heighten the risk of prosecution, abuse and violence for both women and doctors.
“It sends chills down my spine to think that the court is being brought on to play – as a very powerful player – to decide on an issue of human rights that has jurisprudence, and has a basis in legal findings, that will actually lead to restriction of rights,” said Mofokeng.
Mofokeng was the lead expert in an amicus brief to the supreme court, sometimes called a “friend of the court” brief, in which she urged justices not to reverse US abortion rights on human rights grounds.
In both her brief and interview with the Guardian, she said a reversal of Roe v Wade would, “legitimize the use of morality and theological reasoning” to take away human rights, empower anti-rights activists globally, criminalize the practice of medicine, undermine the doctor-patient relationship and expose healthcare providers and patients to heightened abuse and violence.
“Whether you are in the United States, whether you are in Europe, whether you are in Latin America – it matters not where you are,” Mofokeng said. The rights at issue in the case, “are human rights, important human rights issues”.
“They deal with human rights principles of dignity, they deal with human rights principles of equality,” and “important issues of human rights of nondiscrimination”. Considering access to abortion as a human right helps people see, “why then the overturning would be catastrophic to those very principles of human rights”.
“They are part of the bigger global issue, where you have anti-abortion movements growing but also anti-abortion legislation being implemented more widely across the world,” Mofokeng said.
“The court will give legitimacy to an ever-growing anti-women’s rights [movement] in totality,” said Mofokeng. “People who are anti-women’s rights and anti-equality see abortion as a low hanging fruit.”
Her comments have been echoed by other international human rights groups such as the International Bar Association (Iba), the foremost association of international attorneys, and by Ipas, a US-based civil society organization that seeks to strengthen abortion rights.
The Iba said overturning Roe v Wade would, “reverse one of the most important precedents in US history”, and represent a “backward step” when countries such as Argentina, Colombia and Mexico are protecting reproductive rights.
The president and CEO of Ipas, Anu Kumar, said “the US already has a tainted reputation on reproductive justice,” and that any reversal of Roe v Wade would energize, “anti-choice white supremacist organizations” globally.
Should Roe v Wade be overturned, the fact that Americans of color, low-income women, sexual minorities and the young will be disproportionately likely to be forced to carry unwanted pregnancies to term, Mofokeng said underscores her concerns.
“Where will people stop? Will the next thing be about putting in jail or criminalizing people who treat drug users with dignity? Where will we draw the line? People who are already in a vulnerable situation should not be further marginalized by a law or political context, in fact it’s precisely those people who the law must ensure protection of rights,” she said.
Although outlawing abortion across more than half of states may violate UN treaties to which the US is party, including the convention against torture, it is unlikely the UN could hold the US accountable. That is because the US holds a powerful position within the UN, as a founding member.
However, even if the UN cannot hold the US accountable directly, it will probably have other impacts on US standing, especially the ability of the US to advocate for the rights of women and girls globally.
“When you then have the US supreme court making judgment that threatens the very human rights of people who are pregnant, when that court legitimizes attacks on healthcare workers, when that court legitimizes austerity and cuts to abortion clinics – you can see then how this is a global problem,” said Mofokeng.
