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By: María Paz Daza Carniglia
Recently, images from the TV show “The Handmaid’s Tale” have been circulating online, accompanied by the phrase “and so it begins…”. Although in the latest years several countries have liberalised their abortion laws, recent political parties, candidates, and people elected to public office have hardened their positions and discourses towards discriminatory policies, threatening or restricting sexual and reproductive rights that women have fought so hard for.
The Final Act of the International Conference on Human Rights in Tehran in 1968 and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) acknowledges that sexual and reproductive health relates to women’s right to decide freely and responsibly on the number and spacing of their children. Particularly, CEDAW’s Article 16(e) specifies that men and women have the same rights to decide freely and responsibly how many children they want.
International courts and treaty bodies have developed jurisprudence and standards regarding sexual and reproductive rights, including abortion. In light of the global rollback on women’s rights, recent rulings provide some consistency on these rights standards, which could be used as a tool to hold States accountable when violating their human rights obligations and, eventually, to be an incentive to refrain from (further) regressions on the matter.
1. Sexual and Reproductive Rights Protection in International Human Rights Law
CEDAW’s Article 16(e) specifically guarantees the right to make decisions regarding reproduction, but sexual and reproductive rights are strongly interconnected with several human rights, including the right to life, health, privacy, education, prohibition of torture and prohibition of discrimination. Hence, its protection is also contained in the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the International Covenant on Civil and Political Rights (ICCPR), along with regional treaties through related rights, such as privacy in Article 8 of the European Convention of Human Rights (ECHR), or health under Article 1.1 and 2 of the American Convention of Human Rights (ACHR).
Treaty bodies have also addressed sexual and reproductive health and have developed standards and obligations for States to ensure women’s enjoyment and fulfilment of these rights. The Committee on the Elimination of Discrimination against Women highlighted in General Recommendation No. 24 the State’s obligation to prioritise prevention of unwanted pregnancies, and to amend legislation criminalising abortion. Additionally, the Committee on Economic, Social and Cultural Rights (CESCR) also recommended in General Comment No. 22 the elimination of laws, policies and practices that undermine access to sexual and reproductive health.
International human rights courts have established standards concerning this right. Particularly, regarding access to lawful abortion, the European Court of Human Rights (ECtHR) has developed extensive jurisprudence regarding reproductive rights, affirming that a State’s obligation to respect the right to private and family life includes the implementation of legislation and regulatory regimes to provide accessible and effective procedures for lawful abortion. In the case M.L. v. Poland, the ECtHR assessed that within the protection of private life in Article 8 of the Convention, women have the right to personal autonomy and to make decisions to have or not have a child. This right, considering the Court’s reasoning, should be weighed against other competing rights, recognising the importance of women’s health and well-being.
Furthermore, recent case law of the Inter-American Court of Human Rights (IACtHR) analysed the impact of regulatory omissions, highlighting how legal uncertainty can violate the right to health and constitute a form of violence against women when abortion is criminalised. Moreover, the Inter-American Commission of Human Rights (IACHR) has pointed out that an absolute criminalisation of abortion endangers women’s health and lives, with disproportionate effects on women in vulnerable situations. In the case Beatriz v. El Salvador, Beatriz died because she was unable to access an abortion in time, in a country that has a complete ban on this type of procedure. In its reasoning, the Court found that the State violated the victim’s right to private life, but also her right to life, health, and personal integrity, identifying a broader range of fundamental rights that were affected.
However, access to abortion and other interconnected fundamental rights remain under threat. As will be presented, the world is witnessing the adoption of regressive measures on this issue. This reality has severe consequences for women, and its impact on human rights makes it an urgent concern.
2. The Global Scenario: Taking steps backwards
In the Americas, the IACHR has already expressed concern over States adopting regressive measures for the realisation and enjoyment of sexual and reproductive rights, creating barriers to sexual education and abortion.
In 2022, the United States (US) Supreme Court ruling in Dobbs v. Jackson Women’s Health Organisation, which overturned Roe v. Wade, led to abortion bans in 14 states of the United States. Now, with the recent election of Donald Trump, the new President of the United States, restored the United States’ participation in two international anti-abortion pacts, and defunded health and family planning organisations, impacting the funding of abortion services all around the world.
El Salvador’s President Nayib Bukele has consistently expressed his opposition to abortion, considering it an act comparable to murder and even genocide. Also, in recent years, countries like Nicaragua and Honduras have implemented a complete ban on abortion, joining countries like Suriname, Haiti and the Dominican Republic. On the other hand, in Argentina, one of the leading countries in the region regarding abortion access, President Javier Milei presented a Bill to abolish the voluntary interruption of pregnancy law, which was passed by the Argentinian Congress at the end of 2020 to recriminalise abortion.
European organisations are also concerned about this topic. While many European countries ensure legal abortion, it has been noted a recent rise in the prosecution of women and girls which decide to end their pregnancies in England and Wales. In 2021, the Constitutional Tribunal of Poland adopted a regressive decision restricting abortion in cases of rape, incest, or women’s life or health risk. Another case is Malta, where abortion was banned completely by law in 2023.
3. International Courts: Maintaining Human Rights Standards
Despite all these setbacks and threats, it can be noted that international courts of human rights have protected women’s sexual and reproductive rights in different cases. In December 2023, the ECtHR ruled in the case M.L. v. Poland, concerning restrictions on abortion on the grounds of fetal abnormalities, that the prohibition to have access to abortion was not justified, since it was not in accordance with the law. One year later, December 2024, the IACtHR issued a milestone ruling in the case Beatriz et al. v. El Salvador, establishing that El Salvador failed in its obligations of protecting the victim’s rights, since it did not provide diligent, adequate and timely healthcare and access to abortion, for exercising obstetric violence, and for violating the victim’s right to health, integrity and privacy.
Furthermore, on 17 January 2025, the Human Rights Committee (HRC) issued three milestone rulings in the cases Norma v. Ecuador, Susana v. Nicaragua and Lucía v. Nicaragua, that involved three pregnant girls and rape survivors who were forced to continue with their pregnancies. The HRC found, in all three cases, that States committed violations of the ICCPR, particularly Articles 6.1, 7, 17, and 19, and affirmed that State Parties have an obligation to ensure access to healthcare services, including abortion, and eliminate all barriers in their access, ensuring legal, accessible and safe abortion services. Moreover, the HRC considered that when the State fails to provide reproductive health services, it reinforces gender stereotypes regarding women’s reproductive role and constitutes an act of discrimination based on gender. More specifically, in the two cases against Nicaragua, the HRC found that the absolute prohibition of abortion is disproportionate, representing an unjustified interference in the autonomy and privacy of the victims.
As can be noted, while some initiatives might attempt to add barriers or outright bans to women’s access to abortion, rulings from courts and international bodies remain firm in their protection, affirming the State’s duties to ensure the fulfilment of women’s rights in this area. Luckily, the consistency in the interpretation and application of international law will not only provide guidance in the public debate but also ensure that state violations in these matters are eventually judged according to international human rights standards that protect women’s health and freedom.
4. Conclusion
During recent years, some countries have shown a backsliding of their regulations regarding women’s access to abortion. Now, the public debate shows abortion as a contested issue and new political forces have hardened their positions with the intention of criminalising pregnancy interruptions. This situation should alarm the international community. Women represent nearly half of the population; thus, a violation of their rights means a widespread interference with human rights.
As previously stated, international courts and treaty bodies have reinforced international standards on this issue. While this sign is a positive one, it must still be complemented by efforts from different actors, with the aim of not only protecting but also advancing gender equality and putting an end to the imposition of gender roles and women’s reproductive functions in society.
Bio:
María Paz is a Chilean Lawyer, Master in Public Law and Constitutional Litigation from Universidad Diego Portales, and LLM in Public International Law, Human Rights, from Utrecht University. She also has a Diploma in Administrative Law and Gender, Global and Public Policy. Her main interest is in human rights, women’s rights and gender equality.