How international law should guide post-Roe America

The abortion restriction free-for-all, set in motion by the U.S. Supreme Court’s June 2022 decision in Dobbs vs Jackson Women’s Health Organization, is now coming into focus. While some state laws protect abortion in ways compliant with, or beyond, Roe and Casey, over a dozen states now criminalize abortion with few, if any, exceptions. Some of these laws might force people to remain pregnant whether those pregnancies are the result of rape or incest, or in cases where their own health or that of the fetus is endangered.  

The majority opinion in Dobbs dubiously claimed that most countries in the world restricted abortion access after 12 weeks, making the U.S., under Roe and Casey, an outlier among nations. Dobbs, it would follow, restores the U.S. to its proper place in the world. 

The Supreme Court’s assumption could not be farther from the truth. Nations that restrict abortion after 12 weeks provide broad grounds for post-12-week terminations. And unlike several states in our country, in over 70 percent of countries, abortions are legal when a pregnant person’s health is at risk; over 60 percent when pregnancy is due to rape or incest, or in cases of fetal impairment.  

State laws that run afoul of this international trend include Texas and Idaho, which only permit abortion when necessary to save a person’s life. Physicians have delayed necessary, life-preserving, care to patients experiencing miscarriages and ectopic pregnancies out of uncertainty about the laws and fear of criminal prosecutions or loss of their medical licenses. New abortion bans also place states at odds with their ethical obligations to “do no harm” and follow the established standard of care.  

The Biden administration has intervened to clarify the meaning and application of the Emergency Medical Treatment and Active Labor Act (EMTALA), which arguably should supersede state abortion bans governing emergency situations. Two appellate courts have disagreed: a federal judge held that Texas law, not EMTALA, governed physician conduct (leaving them vulnerable to criminal prosecution) whereas a different federal court ruled that Idaho’s physicians could not be prosecuted for performing emergency abortions. Both decisions will surely be appealed to their respective federal circuit courts and then to the U.S. Supreme Court, which might find state law applies. 

What are the limits to what states can do when it comes to abortion?  

We should turn to international law to provide a national standard in the absence of our Constitution. The international human rights legal system consistently has brought countries to task for using criminal law to regulate abortion, as well as for passing laws that threaten the health and life of pregnant people. It has also induced countries such as Ireland to liberalize abortion access. While the U.S. often has seen itself as an outsider to international law, it is nonetheless part of this international system of nation-states.  

The U.S. has signed and ratified three international human rights treaties: the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention Against Torture. By signing and ratifying these treaties, the U.S. has assumed international duties in two ways. First, it has obligated its agencies, branches, national and sub-national jurisdictions (e.g. its 50 states) and territories to ensure its laws and policies do not violate the provisions articulated in those treaties. Second, treaties to which the U.S. is a party are considered “the supreme Law of the Land” under the U.S. Constitution. 

In other words, the provisions of these international human rights treaties are part of U.S. federal law. All three of these treaties have been interpreted by international bodies to limit state regulation of abortion.  

Rights to life and health are articulated in the foundational treaties comprising the “International Bill of Rights”— documents the United States played an influential role in drafting. In the context of abortion — these human rights treaties could not be clearer, as emphasized by the United Nations Human Rights Committee, interpreting the International Covenant on Civil and Political Rights: “[R]estrictions on the ability of women or girls to seek abortion must not, inter alia, jeopardize their lives, subject them to physical or mental pain or suffering.”

Despite what the Supreme Court’s majority Dobbs opinion claims about the U.S.’s position with respect to comparative abortion law, the laws of some states place our country on the periphery of what is internationally acceptable. If the U.S. does not change course, it will be the subject of international critique and sanction, as evidenced by the U.N. Committee on the Elimination of Racial Discrimination’s most recent comments regarding the effects of Dobbs.  

Being out of compliance with human rights laws may not persuade those with anti-abortion beliefs who support policies to temper their legislative excesses that put lives at risk. But the rights to life and liberty guaranteed to people in our country must not be conditioned upon a zip code. Up until this point, the starkness of the post-Dobbs U.S. in the global community has been underexplored and barely mentioned. But our federal government could position the United States as a human rights leader, using the leverage that international law provides.  

Dropping formal obstacles to the domestic application of international human rights will take political will and a dramatic change in course. The U.S. has maintained that treaty provisions are only legally enforceable after Congress passes implementing legislation — a step it has seldom taken, and its failure to do so has met international criticism. Congress, under pressure from the administration, could, of course, remove the reservations, understandings and declarations to U.N. human rights treaties that hamstring treaties’ application and could make it a priority to pass implementing legislation so that it would make real its human rights obligations.  

Even without such additional legislation, there is a normative force to the obligations the U.S. assumed as a member of the international community. Beyond those long-term measures, as a blueprint for advocacy, the language of human rights provides legitimacy and solidarity for the kind of social movement action that fosters political change. Post–Dobbs advocacy needs to reflect new strategies and build new alliances; the international human rights system could provide some direction to those efforts.  

Rachel Rebouché is the dean of Temple University’s Beasley School of Law and James E. Beasley professor of Law. Mindy Roseman is the director of International Law Programs and director of the Gruber Program for Global Justice and Women’s Rights at Yale Law School.