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VII. International Human Rights Law and Abortion

Women with unwanted pregnancies should be offered reliable information and compassionate counseling, including information on where and when a pregnancy may be terminated legally.  Where abortions are legal, they must be safe: public health systems should train and equip health service providers and take other measures to ensure that such abortions are not only safe but accessible.  … Punitive provisions against women who undergo abortions must be removed.
—U.N. Special Rapporteur on the Right to the Highest Attainable Standard of Health²³⁹

Authoritative interpretations of international law recognize that obtaining a safe and legal abortion is vitally important to women’s effective enjoyment and exercise of their human rights.  Since the mid-1990s the U.N. treaty bodies that monitor the implementation of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, and the Convention of the Rights of the Child have produced a significant body of jurisprudence regarding abortion in over 122 concluding observations concerning at least ninety-three countries.²⁴⁰  The treaty bodies’ comments on abortion address a range of issues, including specific concern about the limited access to safe abortion in Argentina.  In fact, measured against the standards promoted by these expert human rights bodies Argentina falls significantly short of its international legal obligations.

An important shift in the conception of reproductive rights in general occurred in connection with two world conferences in the 1990s: the International Conference on Population and Development (ICPD), held in Cairo in 1994 and the Fourth World Conference on Women, held in Beijing in 1995.  Signed by 179 and 189 nations, respectively, the consensus documents from these conferences demonstrate a move from demographically driven population policies to reproductive rights policies with human rights at their core.

The ICPD Programme of Action and the Platform for Action from the Beijing Conference each affirm the integral nature of reproductive health and rights to human rights.  The ICPD Programme of Action emphasizes that “reproductive rights embrace certain human rights that are already recognized in national laws, international human rights documents and other consensus documents.”²⁴¹  Moreover, the Beijing Platform for Action states: “The human rights of women include their right to have control over and decide freely and responsibly on matters related to their sexuality, including sexual and reproductive health, free of coercion, discrimination and violence.”²⁴²

The ICPD Programme of Action and the Beijing Platform for Action are relatively restrained on the topic of abortion, reflecting the difficulty governments had in reaching consensus on this complex issue.  The ICPD Program of Action states that “[i]n no case should abortion be promoted as a method of family planning” and “[i]n circumstances where abortion is not against the law, such abortion should be safe.”²⁴³  It also calls upon all governments and intergovernmental and NGOs to “deal with the health impact of unsafe abortion as a major public health concern.”²⁴⁴  Likewise, the Beijing Platform for Action calls on governments to “consider reviewing laws containing punitive measures against women who have undergone illegal abortions”²⁴⁵ and to reduce the mortality and morbidity that stem from unsafe abortion, which it considers a “grave public health problem.”²⁴⁶

As explained in more detail below, U.N. bodies and conferences have repeatedly emphasized that access to safe and legal abortion can save women’s lives and that governments have a positive duty to ensure that women have access to adequate abortion information and services.  The treaty bodies have also consistently linked a pregnant woman’s right to decide about abortion without interference with her right to nondiscrimination and to equal enjoyment of other human rights.  In doing so, the bodies recognize that firmly established human rights are jeopardized by restrictive or punitive abortion laws and practices.

Decisions about abortion belong to a pregnant woman alone, without interference by the state or others.  Any restrictions on abortion that unreasonably interfere with a woman’s exercise of her full range of human rights should be rejected.  The Argentine government should take all necessary steps, both immediate and incremental, to ensure that women have informed and uncoerced access to safe and legal abortion services as an element of women’s exercise of their reproductive and other human rights.  Abortion services should be in conformity with international human rights standards, including those on the adequacy of health services.

Rights to Nondiscrimination and Equality

The rights to nondiscrimination and equality are set forth in a number of international human rights instruments, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social, and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women, and the American Convention on Human Rights.²⁴⁷  All of these provisions are aimed at achieving substantive equality and not mere formal equality.  As explained by the CEDAW Committee: “It is not enough to guarantee women treatment that is identical to that of men.  Rather, biological as well as socially and culturally constructed differences between women and men must be taken into account.”²⁴⁸

Access to legal and safe abortion services is essential to the protection of women’s rights to nondiscrimination and substantive equality.  Abortion is a medical procedure that only women need.  The CEDAW Committee has implied in its General Recommendation on women and health that the denial of medical procedures only women need is a form of discrimination against women. The General Recommendation affirms states’ obligation to respect access for all women to reproductive health services and to “refrain from obstructing action taken by women in pursuit of their health goals.”²⁴⁹  It explains that “barriers to women’s access to appropriate health care include laws that criminalize medical procedures only needed by women and that punish women who undergo these procedures.”²⁵⁰  The committee recommended that “[w]hen possible, legislation criminalizing abortion could be amended to remove punitive provisions imposed on women who undergo abortion.”²⁵¹

In addition, in its concluding remarks on Colombia in 1999, the CEDAW Committee was quite clear that it considered restrictive abortion laws as contrary to the right to nondiscrimination in access to health care:

The Committee notes with great concern that abortion, which is the second cause of maternal deaths in Colombia, is punishable as an illegal act. … The Committee believes that legal provisions on abortion constitute a violation of the rights of women to health and life and of article 12 of the Convention [the right to health care without discrimination].²⁵²

Likewise, in 1998, the CEDAW Committee recommended to Mexico “that all states of Mexico should review their legislation so that, where necessary, women are granted access to rapid and easy abortion.”²⁵³

Women are in practice more likely than men to experience personal hardship as well social disadvantage flowing from economic, career, and other de facto life changes when they have children.  Where women are compelled to continue unwanted pregnancies, such consequences forcibly put women at a disadvantage.

The U.N. Human Rights Committee has established the clear link between women’s equality and the availability of reproductive health services and information, including abortion, in several concluding observations on country reports from the Latin American region, including Argentina, Ecuador, Colombia, and Guatemala.²⁵⁴  In the case of Argentina, the Committee noted:

The Committee is concerned that the criminalization of abortion deters medical professionals from providing this procedure without judicial order, even when they are permitted to do so by law, inter alia when there are clear health risks for the mother or when pregnancy results from rape of mentally disabled women. The Committee also expresses concern over discriminatory aspects of the laws and policies in force, which result in disproportionate resort to illegal, unsafe abortions by poor and rural women.²⁵⁵

On Colombia, it said:

The Committee expresses its concern over the situation of women who, despite some improvements, continue to be subject of de jure and de facto discrimination in all spheres of economic, social and public life. It notes in this regard that … [i]t is … concerned at the high mortality rate of women resulting from clandestine abortions.²⁵⁶

In its General Comment on the right to equal enjoyment of civil and political rights, the Human Rights Committee also requested that governments provide information in their periodic reports about access to safe abortion for women who have become pregnant as a result of rape, as relevant to its evaluation of the implementation of this right.²⁵⁷

Rights to Health and Health Care

The rights to the highest attainable standard of health and to equal enjoyment of this right are recognized in a number of international instruments that are deemed to be on par with the constitution in Argentina’s legal system.  These rights are most clearly stated in: the Universal Declaration of Human Rights (UDHR),²⁵⁸ the ICESCR,²⁵⁹ CEDAW,²⁶⁰ and the American Declaration on the Rights and Duties of Man.²⁶¹

As this report has shown, where there is a lack of legal and safe abortion services and pervasive barriers to other reproductive health services, including contraceptives, there will be unwanted pregnancies and unsafe abortions.  Both cause largely preventable physical and mental health problems for women.  Unsafe abortions, in particular, constitute a grave threat to women’s health: worldwide between 10 and 50 percent of women who undergo unsafe abortions require post-abortion medical attention for complications such as incomplete abortion, infection, uterine perforation, pelvic inflammatory disease, hemorrhage, or other injury to internal organs.²⁶²  These may result in death, permanent injury, or infertility.  In light of this, even the most conservative reading of international human rights law would require governments to decriminalize abortion.²⁶³

The CESCR provided its most comprehensive assessment of the right to health in its General Comment 14, which explains that this right contains both freedoms, such as “the right to control one’s health and body, including sexual and reproductive freedom,” and entitlements, such as “the right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health.”²⁶⁴  The CESCR further noted:

To eliminate discrimination against women, there is a need to develop and implement a comprehensive national strategy for promoting women's right to health throughout their life span. Such a strategy should include interventions aimed at the prevention and treatment of diseases affecting women, as well as policies to provide access to a full range of high quality and affordable health care, including sexual and reproductive services.  A major goal should be reducing women's health risks, particularly lowering rates of maternal mortality and protecting women from domestic violence.  The realization of women's right to health requires the removal of all barriers interfering with access to health services, education and information, including in the area of sexual and reproductive health.  It is also important to undertake preventive, promotive and remedial action to shield women from the impact of harmful traditional cultural practices and norms that deny them their full reproductive rights.²⁶⁵

In a number of concluding observations, the CEDAW Committee has expressed concern over women’s limited access to reproductive health services and information, and has criticized factors that impede women’s health care, such as religious influences, privatization of health care, and budgetary restrictions.  The CEDAW Committee has often recommended that states parties review legislation prohibiting abortion to meet their obligation to eliminate discrimination against women in the health field,²⁶⁶ as set out in detail in its General Recommendation No. 24 on women and health (including the recommendation that governments remove punitive measures imposed on women who undergo abortion).²⁶⁷

Denying access to abortion services is not justifiable from a resource perspective.  Treating complications from unsafe abortion is much more expensive than providing medically safe abortions.²⁶⁸  While abortion is generally a low-cost procedure, particularly early in the pregnancy when vacuum aspiration or pharmaceutical techniques can be used, the costs of treating women for complications from unsafe abortions can be substantial.²⁶⁹

Restrictive abortion laws affect women’s health in other ways, not only by limiting their access to safe abortion services.  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.

Government interference with women’s right to decide on abortion also interferes with the right to privacy.  The right to privacy is protected by article 17 of the International Covenant on Civil and Political Rights and is intimately related to the right to health insofar as the full realization of both rights requires the protection of patient confidentiality and noninterference with individual decision-making regarding health.²⁷⁰  Indeed, the Committee on Economic, Social and Cultural Rights has explained that the fulfillment of the right to privacy addresses an integral component of the right to health, and that the fulfillment of the latter depends on the protection of the former.²⁷¹ 

Women’s right to health is also seriously compromised when a woman is forced against her will to continue a pregnancy of a fetus with genetic deficiencies that are incompatible with an existence outside the uterus.  In fact, some courts in Argentina have begun to permit abortion in cases of anencephalic pregnancies.²⁷²  However, the arguments most commonly employed do not refer to the penal code exception on women’s health, but rather seek to classify the abortion of an anencephalic fetus as a situation sui generis.  Several judges have held that abortions in these cases are not abortions at all, but the advancement of a birth after which the infant dies.²⁷³  At the same time, most courts acknowledge the health consequences of the anencephalic pregnancy on the woman,²⁷⁴ in effect rendering the sui generis argument for the abortions unnecessary: Argentina’s penal code already allows for abortions in cases where the pregnant woman’s health is in danger.

Right to Life

The right to life is guaranteed by all major international and regional human rights treaties.  Restrictive abortion laws have a devastating impact on women’s right to life.  Approximately 30 percent of maternal deaths in Argentina²⁷⁵—and 13 percent worldwide²⁷⁶—are attributable to unsafe abortion.  Evidence in this report and elsewhere suggests not only that restrictive abortion laws drive women to unsafe abortion, but that women die from the consequences of such abortions.²⁷⁷ 

The U.N. Human Rights Committee has requested that states parties to the ICCPR report on measures taken to prevent women from having to undergo life-threatening clandestine abortions.²⁷⁸  It has noted with concern the relationship between restrictive abortion laws, clandestine abortions, and threats to women’s lives, and has recommended the review or amendment of punitive and restrictive abortion laws.²⁷⁹   In the case of Chile, where abortion has been illegal in all circumstances since 1986, the Committee noted that:

The criminalization of all abortions, without exception, raises serious issues, especially in the light of unrefuted reports that many women undergo illegal abortions that pose a threat to their lives. … The State party is under a duty to take measures to ensure the right to life of all persons, including pregnant women whose pregnancies are terminated. …. The Committee recommends that the law be amended so as to introduce exceptions to the general prohibition of all abortions.²⁸⁰

In the case of Peru, the Committee went further to note that the penal code provisions of that country—which subject women to criminal penalties even when the pregnancy is the result of rape—are incompatible with the rights to equal enjoyment of other rights protected by the ICCPR, life, and freedom from torture and other cruel, inhuman, or degrading treatment or punishment, as protected by the ICCPR:

It is a matter of concern that abortion continues to be subject to criminal penalties, even when pregnancy is the result of rape.  Clandestine abortion continues to be the main cause of maternal mortality in Peru. … The Committee once again states that these provisions are incompatible with articles 3 [equal enjoyment of rights], 6 [right to life], and 7 [right to freedom from torture and other cruel, inhuman, or degrading treatment or punishment] of the Covenant and recommends that the legislation be amended to establish exceptions to the prohibition and punishment of abortion.²⁸¹

In 2004, it noted with regard to Colombia:

The Committee notes with concern that the existence of legislation criminalizing all abortions under the law can lead to situations in which women are obliged to undergo high-risk clandestine abortions. It is especially concerned that women who have been victims of rape or incest or whose lives are in danger as a result of their pregnancy may be prosecuted for resorting to such measures (art. 6) [the right to life].  The State party should ensure that the legislation applicable to abortion is revised so that no criminal offences are involved in the cases described above.²⁸²

Finally, in its 2001 concluding observations on Guatemala—a country with stricter restrictions on abortion than those in Argentina—the Human Rights Committee noted that “the State has the duty to adopt the necessary measures to guarantee the right to life (art. 6) of pregnant women who decide to interrupt their pregnancy by providing the necessary information and resources to guarantee their rights and amending the legislation to provide for exceptions for the general prohibition of all abortions except where the mother’s life is in danger.”²⁸³

The CEDAW Committee has expressed concern in many concluding observations about high rates of maternal mortality, including due to the unavailability of safe abortion services.²⁸⁴  In its comments on some countries in Latin America, the committee has explicitly stated that maternal deaths due to unsafe abortions indicate that governments are not respecting women’s right to life.²⁸⁵  The CEDAW Committee has also noted that “states parties should ensure that measures are taken to prevent coercion in regard to fertility and reproduction, and to ensure that women are not forced to seek unsafe medical procedures such as illegal abortion because of lack of appropriate services in regard to fertility control.”²⁸⁶

The Committee on the Rights of the Child has, in its concluding observations, asked governments to review legislation prohibiting abortions where unsafe abortion contributes to high rates of maternal mortality, and in some cases to undertake studies to understand the negative impact of illegal abortion.²⁸⁷  The Argentine government made a declarative statement upon signing the Convention on the Rights of the Child, noting: “Concerning article 1 of the Convention, the Argentine Republic declares that the article must be interpreted to the effect that a child means every human being from the moment of conception up to the age of eighteen.”²⁸⁸  Notably, this declarative statement was not reiterated upon ratification of the convention, and no other human rights treaty signed or ratified by Argentina has been subject to similar declarations.

Despite the authoritative interpretations of the treaty monitoring bodies, opponents of safe and legal abortions in Argentina and elsewhere 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.  Indeed, some opponents cite the supposed fetal “right to life” as an argument against even the use of contraceptives that work after fertilization but before implantation.  

Most international human rights instruments are silent concerning the starting point for the right to life, whereas the negotiating history of the treaties, jurisprudence, and most legal analysis suggest that the right to life, as contemplated in those documents, does not apply before the birth of a human being.²⁸⁹ 

The American Convention on Human Rights (ACHR) is the only international human rights instrument that contemplates the application of the right to life from the moment of conception, though, as discussed below, not in an unqualified manner.²⁹⁰  The American Declaration on the Rights and Duties of Man, the predecessor instrument to the ACHR, does not include this mention of the conceived, guaranteeing instead that “every human being has the right to life, liberty, and the security of his person.”²⁹¹ 

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 these documents are compatible with a woman’s right to access safe and legal abortions.  The commission concluded that they are. 

The question reached the commission through a petition brought against the United States government by individuals related to a group called Catholics for Christian Political Action when a medical doctor was acquitted of manslaughter after performing an abortion in 1973—the Baby Boy case.  The petitioners asked the commission to declare the United States in violation of the right to life under the American Declaration on the Rights and Duties of Man, using the American Convention on Human Rights as an interpretative tool.²⁹²  In the deliberation on the Baby Boy case the Commission went to great pains to examine the provisions on the right to life in both the declaration and the convention, looking to the preparatory work for both documents to clarify the intended object and purpose of the wording of the provisions.²⁹³

In the case of the declaration, the commission explained:

[I]t is important to note that the conferees in Bogotá in 1948 rejected language which would have extended that right to the unborn … [and] … adopted a simple statement on the right to life, without reference to the unborn, and linked it to the liberty and security of the person.  Thus it would appear incorrect to read the Declaration as incorporating the notion that the right to life exists from the moment of conception.  The conferees faced this question and chose not to adopt language which would clearly have stated that principle.²⁹⁴

With regard to the convention, the commission found that the wording of the right to life in article 4 was very deliberate and that the convention’s founders intended the “in general” clause to allow for non-restrictive domestic abortion legislation.  As the commission phrased it: “it was recognized in the drafting session in San José that this phrase left open the possibility that states parties to a future Convention could include in their domestic legislation ‘the most diverse cases of abortion’,”²⁹⁵ allowing for legal abortion under this article.  The commission went on to correct the petitioners in their selective reading of the American Convention on Human Rights:

[I]t is clear that the petitioners’ interpretation of the definition given by the American Convention on the right of life is incorrect.  The addition of the phrase “in general, from the moment of conception” does not mean that the drafters of the Convention intended to modify the concept of the right to life that prevailed in Bogotá, when they approved the American Declaration.  The legal implications of the clause “in general, from the moment of conception” are substantially different from the shorter clause “from the moment of conception” as appears repeatedly in the petitioners’ briefs.²⁹⁶

Opponents of abortion rights in Argentina often engage in the same sort of selective reading of article 4 of the ACHR when they argue that the constitution protects the right to life of a fetus, because the ACHR is incorporated into the constitution.  This argument ignores the convention’s drafters’ intention to allow domestic legislation permitting abortions.²⁹⁷  It also ignores the host of other internationally recognized human rights incorporated in the constitution that have been interpreted by authoritative bodies to protect women’s right to decide in matters regarding abortion.

Right to Liberty

In Argentina, women can face imprisonment for obtaining abortion, a situation which jeopardizes women’s right to liberty.  The right to liberty is protected by article 9(1) of the ICCPR which provides that “[n]o one shall be subjected to arbitrary arrest or detention” and that “[n]o one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”²⁹⁸

The prohibition of abortion constitutes an obstacle to women’s full exercise of their human rights to nondiscrimination, health, and life.  The enforcement of the law’s criminal sanctions constitutes an additional assault on women’s rights, by arbitrarily imprisoning women 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 when they suspect the women of unlawful behavior.  The CEDAW Committee has expressed concern in several concluding observations about women being imprisoned for undergoing illegal abortions, and have urged governments to review their laws to suspend penalties and imprisonment for abortion.²⁹⁹ 

Rights to Privacy and to Decide on the Number and Spacing of Children

International human rights law protects the right to noninterference with one’s privacy and family,³⁰⁰ as well as the right of women to decide on the number and spacing of their children without discrimination.³⁰¹  These rights 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.  It is also essential for the fulfillment of these rights that women 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, and that governments make abortion services legal, safe, and accessible to all women.  In some circumstances, abortion will be the only way for a woman to exercise this right, particularly if she became pregnant through rape or contraceptive failure or if family planning services are unavailable where she lives.

The CEDAW Committee’s General Recommendation No. 21 on equality noted that the right to decide on the number and spacing of one’s children is integrally related to women’s exercise of other human rights:

The responsibilities that women have to bear and raise children affect their right of access to education, employment and other activities related to their personal development.  They also impose inequitable burdens of work on women.  The number and spacing of their children have a similar impact on women’s lives and also affect their physical and mental health, as well as that of their children.  For these reasons, women are entitled to decide on the number and spacing of their children.³⁰²

The U.N. Human Rights Committee has declared that women’s right to equal enjoyment of their privacy, as well as other basic human rights, may be compromised where states impose a legal duty on doctors and other health personnel to report cases of women who may have undergone abortions:

…States may fail to respect women's privacy … where States impose a legal duty upon doctors and other health personnel to report cases of women who have undergone abortion. In these instances, other rights in the Covenant, such as those of articles 6 and 7 [rights to life and to freedom from torture], might also be at stake.³⁰³ 

The U.N. Committee against Torture, which monitors the implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, has also recently expressed concern with situations where post-abortion care is conditioned upon women testifying against themselves in criminal proceedings, implying that the criminalization of abortion may lead to situations incompatible with that convention.³⁰⁴

Right to Freedom of Conscience and Religion

The right to freedom of thought, conscience, and religion is protected in the ICCPR and the ACHR.³⁰⁵  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 conscience regarding doctrines of faith one does not hold.  In this sense, women cannot be compelled to comply with laws based solely or principally on religious doctrines, which many abortion restrictions are. 

The CEDAW Committee has explicitly stated in concluding observations that women’s human rights are infringed where hospitals refuse to provide abortions due to the conscientious objection of doctors and has expressed concern about the limited access women have to abortion due to conscientious objections of practitioners.  The committee has also expressly recommended that public hospitals provide abortion services.³⁰⁶