Abortion advocates spent decades trying to add abortion to their ever-growing list of human rights. Defining abortion as health care is a key part of this effort. The Supreme Court decision in Dobbs v. Jackson Women’s Health has increased their sense of urgency; if abortion is not a constitutional right in the United States, the pressure is on to claim that it is an international human right.
Exhibit A: the amicus brief that United Nations human rights “experts” submitted to the U.S. Supreme Court in the Dobbs case. In it, they purported to show that the Court must uphold abortion rights to comply with the American commitment to human rights. “[S]afe and legal abortion access constitutes a critical part of human rights,” they asserted,
and in particular, the right to the highest attainable standard of health (which includes reproductive rights) as well as other human rights including the rights to non-discrimination and equality, respect for private life, the right to life, and the right to freedom from torture and cruel, inhuman and degrading treatment.
While their claims are vehement, their arguments are flimsy. Access to abortion is not a human right—neither in fact nor as defined by international law.
Human Rights in International Law
Binding international law is made by treaties between sovereign states. Examples to which the United States is a party include the International Covenant on Civil and Political Rights (ICCPR), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT).
The U.N. General Assembly, the Human Rights Council, and other U.N. bodies issue statements, recommendations, or negotiated documents known as “agreed conclusions.” These documents contribute to a body of “soft law.” They are non-binding on countries, even if member state delegations negotiate them to reach consensus at the end of a conference. They still matter, however, because they bind the U.N. system itself. This means that controversial language from non-binding documents will still dictate policy.
An example could be a document that comes from the Commission on the Status of Women or from the Commission on Population and Development. If it refers to “safe abortion” while discussing reproductive health, the U.N. bureaucracy may—or rather, will—include the promotion of “safe abortion” in implementing its programs. Worse, it can plausibly claim that such language has broad international agreement.
This is how soft law can become customary international law. If member states believe that those laws are binding on them, they will act accordingly. That is true even if the claims are never codified in treaties. Over time, these bureaucracies and technical experts stretch the meanings of documents to include far more than the member states ever agreed to.
The U.N. Human Rights System and Its Actors
The Office of the High Commissioner for Human Rights (OHCHR) is the central command of the U.N.’s human rights bureaucracy. The U.N. General Assembly created it in 1994 to “promote and protect the effective enjoyment by all of all civil, cultural, economic, political and social rights.” Since then, the OHCHR has focused more and more on the controversial issues of sexual and reproductive rights, gender ideology, and climate change.
The U.N.’s human rights experts lack the authority to create new rights. They are supposed to function as sort of a civil service. Their job is to administer the programs within their purview, impartially apply the treaties that U.N. member states have adopted, and make recommendations to states about how to better fulfill their treaty obligations.
Each human rights treaty has a monitoring body of technical experts. Their task is to ensure that the countries that have ratified a given treaty are implementing it domestically. Such states have committed to delivering regular compliance reports and submitting them to review by the treaty body. Treaty bodies issue recommendations to states during their periodic reviews and promulgate “general comments” on recurring issues. These general comments are intended to clarify an aspect of a treaty, but in practice they often expand its meaning far beyond the text of the treaty.
The Special Procedures of the Human Rights Council are Special Rapporteurs or independent experts. They are supposed to act independently and serve a specific mandate, either pertaining to a country or a thematic issue. More than 50 such expert positions exist, covering mandates such as a right to health; a right to privacy; freedom of religion or belief, speech, and expression; and freedom of violence or discrimination based on sexual orientation and gender identity.
Fabricating a Right to Abortion Within Other Rights
Despite all these mechanisms, the word “abortion” does not appear in any of the U.N. human rights treaties, not even in the ones that the United States has not ratified. Nevertheless, abortion advocates have co-opted the human rights system to advance their agenda. They tell countries that they must expand access to abortion to comply with their human rights obligations. According to the OHCHR, “Human rights bodies have repeatedly called for the decriminalization of abortion in all circumstances.” U.N. experts have claimed to find a right to abortion within the rights to health; privacy; freedom from cruel, inhumane, and degrading treatment; and elsewhere.
Life. The International Covenant on Civil and Political Rights (ICCPR)—one of the few human rights treaties that the United States has signed and ratified—impedes their efforts. It states: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” Moreover, the treaty prohibits the death penalty in the case of a pregnant woman, presumably to spare the innocent life of the unborn child.
Nevertheless, the Human Rights Committee, which monitors compliance with the ICCPR, issued a general comment on the right to life in 2019. It said:
States parties must provide safe, legal and effective access to abortion where the life and health of the pregnant woman or girl is at risk, or where carrying a pregnancy to term would cause the pregnant woman or girl substantial pain or suffering, most notably where the pregnancy is the result of rape or incest or where the pregnancy is not viable. In addition, States parties may not regulate pregnancy or abortion in all other cases in a manner that runs contrary to their duty to ensure that women and girls do not have to resort to unsafe abortions, and they should revise their abortion laws accordingly.
These criteria are broad and subjective. Yet the Human Rights Committee asserts that states “must provide” access to abortion in such cases to protect a woman’s right to life.
Champions of abortion try to concoct a right to abortion out of the ICCPR’s right to life. Other legal scholars, however, argue far more plausibly that the ICCPR protects the unborn. The treaty is silent on the question of when the protection of human life should begin. This omission was needed for the delegations who negotiated the treaty to reach consensus. However, the travaux préparatoires—the documentary evidence of the negotiations that took place in the drafting of a treaty—shows that many of the drafters intended the right to life to apply to unborn humans. Professor of theology and religious studies Tom Finegan argued precisely this in The Heritage Foundation’s “The First Principles in Human Rights” project.
Health. The International Covenant on Economic, Social and Cultural Rights (ICESCR)—to which the United States is not a party—requires that state parties to it “recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”
Once again, the treaty text makes no mention of abortion. Nevertheless, activists have broadened the phrase “physical and mental health” to include “sexual and reproductive health.” That term first emerged at the International Conference on Population and Development (ICPD) in Cairo in 1994. The conference produced a negotiated document that referred to a “right to attain the highest standard of sexual and reproductive health.” Sexual and reproductive health was nowhere defined explicitly, but the ICPD document framed abortion as something to be avoided. Conveniently lacking a definition, abortion proponents began using “sexual and reproductive health,” and the related term “sexual and reproductive rights,” to include abortion.
As Douglas Sylva and Susan Yoshihara recount in “Rights by Stealth,” abortion advocates within the OHCHR, UNFPA, and the U.N. Division for the Advancement of Women formulated a plan to advance a right to abortion after the ICPD failed to do so. In December 1996, in Glen Cove, New York, they convened a roundtable of treaty body experts, academics, and nongovernmental organizations. Their goal was “strengthening the legal and moral framework for recognizing reproductive and sexual rights as human rights.”
These activists have succeeded in spreading the term “sexual and reproductive health” throughout the U.N. human rights system in the years since the Glen Cove meeting. The General Assembly has still never defined it. But that has not kept U.N. bureaucrats from using the general phrase to push abortion. This is a clever strategy since many countries oppose abortion, but not what they take to be “sexual and reproductive health.”
Others speak more plainly. The World Health Organization, an agency within the United Nations, defines health as “a state of complete physical, mental and social wellbeing, and not merely the absence of disease or infirmity.” Its position on abortion is that “making health for all a reality, and moving towards the progressive realization of human rights, requires that all individuals have access to quality health care, including comprehensive abortion care services.”
The Committee on Economic, Social and Cultural Rights (CESCR) is the treaty body that monitors compliance with the ICESCR. In 2016, it issued a general comment on the right to sexual and reproductive health. In it, the CESCR asserts that the treaty includes the right to abortion, albeit not mentioned in the text of the covenant. In addition, it calls on countries to eliminate conscientious objection provisions for doctors and health care providers that object to abortion. It says:
Preventing unintended pregnancies and unsafe abortions requires States to adopt legal and policy measures to guarantee all individuals access to affordable, safe and effective contraceptives and comprehensive sexuality education, including for adolescents, liberalize restrictive abortion laws, guarantee women and girls access to safe abortion services and quality post-abortion care including by training health care providers, and respect women’s right to make autonomous decisions about their sexual and reproductive health. (Emphasis added.)
The treaty bodies are not the only avenue where abortion proponents are working to embed abortion within the right to health. The current Special Rapporteur on the right to health, Tlaleng Mofokeng, is a South African medical doctor, abortionist, and author of the book Dr. T: A Guide to Sexual Health and Pleasure. She sits on the board of the Safe Abortion Action Fund and has close ties with Open Society, the International Planned Parenthood Federation, and the Gates Foundation.
Is it any surprise that she promotes abortion as a human right? In Mofokeng’s first thematic report, which she delivered to the General Assembly in 2021, she focused on the “challenges and opportunities” during the COVID-19 pandemic of promoting “sexual and reproductive health rights.” Likewise, in her report on racism and the right to health she condemned laws that restrict abortion in former colonized countries as legacies of European colonialism. She specifically called for “the removal of all laws and policies criminalizing or otherwise punishing abortion, contraception, adolescent sexuality, same-sex conduct and sex work.”
Privacy. U.N. experts play the same trick with the right to privacy. This right is articulated in Article 12 of the Universal Declaration of Human Rights and protected in Article 17 of the ICCPR. It says: “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.” In his 2020 report on health data and protecting gender-based privacy, the Special Rapporteur on the right to privacy, Joseph Cannataci, called on governments to “ensure…access, including for minors, to safe, affordable and effective contraceptives and to information and education on family planning, sexual and reproductive health and privacy,” as well as to ensure the “decriminalization of abortion.”
Again, “privacy” has not been officially defined to include abortion. But pro-abortion activists have not hesitated to pretend otherwise.
The Human Rights Committee used the same tactic when it referred to the right to privacy in its decisions in Whelan v. Ireland and Mellet v. Ireland. It determined that Irish women denied abortions under Irish law had been subjected to cruel, inhumane, and degrading treatment. These two cases were argued by the pro-abortion Center for Reproductive Rights and subsequently formed the basis for Ireland’s legalization of abortion.
Freedom from Torture. The Universal Declaration of Human Rights (in Article 5) and the ICCPR (in Article 7) guarantee the freedom of individuals to be free from torture. The CAT, to which the U.S. is a state party, defines “torture” to mean
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person…. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
Again, this convention does not refer to pregnancy or abortion. Nevertheless, U.N. functionaries now refer to the denial of abortion in the case of an unwanted pregnancy as a form of torture or cruelty. Take, for example, the Committee Against Torture, which monitors compliance with the CAT. In 2013, the committee called on Peru to decriminalize abortion and to provide free access to abortion for rape victims to comply with its treaty obligations.
Similarly, in 2016, the Special Rapporteur on torture wrote a report on “gender perspectives.” He wrote, “[h]ighly restrictive abortion laws that prohibit abortions even in cases of incest, rape or fetal impairment or to safeguard the life or health of the woman violate women’s right to be free from torture and ill-treatment.”
The U.N. is now considering a new treaty on crimes against humanity. One such crime, “forced pregnancy,” is currently defined as impregnating a woman and holding her captive until the birth of her baby, for the purpose of changing a country’s ethnic composition. In ongoing negotiations, however, abortion advocates are pushing to expand “forced pregnancy” to include state policies that restrict abortion. If they succeed, any limits on abortion could be deemed, by U.N. standards, a crime against humanity.
Abortion Required for Gender Equality. Feminists at the U.N. see abortion access as a prerequisite for gender equality. Many insist that any restriction on abortion is, ipso facto, gender discrimination, as only women get abortions. For example, in one of its general recommendations on how to interpret the Convention on the Elimination of all Forms of Discrimination against Women, the CEDAW Committee has opined that “it is discriminatory for a State party to refuse to provide legally for the performance of certain reproductive health services for women.”
Another body within the OHCHR is the U.N. Working Group on Discrimination Against Women and Girls. In a 2016 report, it stated: “Criminalization of termination of pregnancy is one of the most damaging ways of instrumentalizing and politicizing women’s bodies and lives, subjecting them to risks to their lives or health in order to preserve their function as reproductive agents.” That same working group chastised the United States government in a letter in 2020—during the COVID-19 pandemic—for violating women’s reproductive rights. The vice chair of the working group argued that “sexual and reproductive health services, including access to safe and legal abortion, are essential and must remain a key component of the UN’s priorities.”
Bureaucratic Pressure on Countries to Liberalize Abortion Laws
The pressure that U.N. entities exert on countries to liberalize their abortion laws is unrelenting. It often works, too. At last count, the CEDAW Committee has pressured more than 65 countries to decriminalize, legalize, or increase access to abortion. The CEDAW text is silent on abortion. Nevertheless, in its recent 2023 session, the CEDAW Committee recommended that Germany end its mandated counseling and three-day waiting period for women seeking abortions. It called on Germany to: “Ensure that women have access to safe abortion in compliance with the World Health Organization guidelines on abortion care, which recommends the full decriminalization of abortion.”
Earlier this year, the Committee on the Rights of the Child, charged with monitoring compliance with the Convention on the Rights of the Child, wrote that it “remains seriously concerned” about the number of “forced child pregnancies and forced maternity” in Bolivia. It recommended that Bolivia “decriminalize abortion in all circumstances and ensure access to safe abortion…and post-abortion care services for adolescent girls.” The same committee told Mauritius to “decriminalize abortion in all circumstances” and “facilitate access to safe abortion and post-abortion care services for adolescent girls.”
Recommendations like these may not be technically binding on the countries that receive them. But they still contribute to the body of soft law that abortion promoters employ to advance the cause of abortion. Over the past decade, courts in Argentina, Bolivia, Brazil, Colombia, Mexico, and Nepal have cited these changing human rights norms in cases, resulting in liberalized abortion laws. A 2017 article in the Health and Human Rights Journal titled, “The Role of International Human Rights Norms in the Liberalization of Abortion Laws Globally,” notes that “the evolution of international and regional human rights norms to recognize safe abortion as a human rights imperative has significantly influenced judicial and legislative developments on this issue across the globe.”
Most countries cannot resist such diplomatic and economic pressures from the U.N. apparatus. Prior to President Joe Biden entering the White House, and before the Dobbs v. Jackson Women’s Health case, the United States was an exception. The U.S. government would ignore or reject recommendations from treaty bodies urging the U.S. to loosen abortion restrictions in states, or objecting to the Helms Amendment, which restricts federal funding of abortion through foreign aid programs. But as the world’s superpower, and a key funder of the U.N., the U.S. can afford to do what much smaller, poorer developing nations cannot. As a result, those countries feel compelled to accept the advice of U.N. experts.
Nevertheless, last year, a small group of countries boldly resisted the U.N.’s abortion agenda. These countries opposed the first reference to “safe abortion” that has ever been included in a U.N. General Assembly resolution. While their effort failed to remove “safe abortion” from the resolution, their objections show that abortion remains a hotly contested topic.
U.S. Under Biden Promotes Abortion Under a Human Rights Framework
Under President Biden, the United States has become a major abortion promoter under the human rights framework. When asked, representatives of the U.S. government still concede that abortion is not a human right. However, the Biden Administration embraces the redefinition of sexual and reproductive rights that includes abortion.
Examples of how the Biden Administration uses human rights language to promote abortion are legion. Following are a few examples:
Sexual and Reproductive Health Rights (SRHR) Included in Country Reports on Human Rights Practices. In a reversal of previous practice, the Biden State Department now includes a section on SRHR in its annual report on human rights in every country of the world. At the release of the 2021 report, Secretary of State Antony Blinken told reporters that “the United States is concerned not only with civil and political rights, but also economic, social, cultural rights.” He went on to explain that this meant that “promoting access to education and health services, including for reproductive health, is just as critical to advancing human rights as defending freedom of expression and assembly.” In plain speak, access to abortion is on par with freedom of speech—and healthy democracies require it.
Domestic Definitions of Reproductive Rights Now Include Abortion. The U.S. government now includes abortion in its definition of reproductive health. On a new website devoted to “reproductive rights” following the Dobbs decision, the Biden Administration asserts: “Reproductive health care, including access to birth control and safe and legal abortion care, is an essential part of your health and well-being.” In a 2022 executive order, President Biden defined the term “reproductive healthcare services” to include “medical, surgical, counseling, or referral services relating to the human reproductive system, including services relating to pregnancy or the termination of a pregnancy.”
U.S. Continues to Push for Broader SRHR Language at U.N. During the current session of the General Assembly, U.S. Ambassador Lisa Carty delivered a statement after the High-Level Meetings on health-related issues. She said that “advancing and respecting Sexual and Reproductive Health and Rights for all remains foundational to promoting gender equality and global health, and also protects the human rights of all persons in all their diversity.” She then expressed regret that the General Assembly “could not reach agreement to go beyond previously agreed language” on sexual and reproductive health and rights.
How Defenders of Life Must Respond
The dangerous idea that sexual and reproductive health must include a right to abortion has spread far and wide. Still, defenders of unborn life can prevent the establishment of abortion as an international human right. They should remember that the spread of the notion that abortion is a right happened almost entirely by subterfuge and equivocation. The text and history of international treaties, in contrast, as well as the rich tradition of natural law, both provide a robust defense of human life. More than a hundred international legal scholars argued this point in another amicus brief to the U.S. Supreme Court in the Dobbs case.
Under American leadership, a coalition of more than thirty countries adopted the Geneva Consensus Declaration (GCD) in 2020. This coalition continues to work together—although the United States has withdrawn from it under the Biden Administration. Its purpose is to protect life—including unborn life—family, women’s health, and national sovereignty. Its pillars refer to existing human rights law and consensus language that the U.N. General Assembly has adopted. If this coalition can grow in number, and then advance the pillars in negotiations at the U.N., the GCD could counter and even reverse the advances of the abortion activists.
The most important action that pro-life governments can take at the U.N. is to contest—loudly and frequently—any and every claim that abortion is a human right. Objecting to new definitions and expanding language is the impediment to establishing consensus and developing new customary international law.
In the U.S., Congress must curtail the Biden Administration’s attempts to circumvent restrictions on abortion funding in foreign assistance, such as the Helms Amendment. Most Americans oppose using tax dollars to promote or perform abortions abroad. Congress should enact legislation to reinstate and expand the Protecting Life in Global Health Assistance policy to prohibit funds for abortion providers in global health and humanitarian funding streams.
Abortion advocates seek to promote abortion anywhere and everywhere. This promotion follows from the premise of treating abortion as a human right. But that premise is false. Abortion is not a human right. It has no basis in natural law, international treaty law, or the moral teachings of the world’s major religions. Debates about conflicting rights and abortion should start by describing what induced abortion is: the termination of a pregnancy that results in the death of an unborn human being. The human rights system exists to protect the rights of humans, especially the weakest. The right to life is the first right. Enshrining abortion as a human right does not expand the scope of rights. It subverts the very concept of rights.
Grace S. Melton is Senior Associate in the Richard and Helen DeVos Center for Life, Religion, and Family at The Heritage Foundation.