Meeting

Virtual Roundtable: The Implications of the Dobbs Ruling on Human Rights at Home and Abroad

Thursday, July 21, 2022
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Speakers
Reem Alsalem

UN Special Rapporteur on Violence Against Women, Its Causes and Consequences, United Nations

Julie Suk

Professor of Law, Fordham University School of Law

Presider

Senior Fellow, Council on Foreign Relations

Roundtable Series on Human Rights Issues and Renewing America

David Scheffer:

Welcome to our international audience joining this Council on Foreign Relations Roundtable Series on Human Rights Issues. Today’s meeting focuses on “The Implications of the Dobbs Ruling on Human Rights at Home and Abroad.” I am David Scheffer, a senior fellow on international law at the Council on Foreign Relations and a former U.S. ambassador and long-time law professor. With its six to three judgment in Dobbs v. Jackson Women’s Health Organization issued on June 24th, the U.S. Supreme Court eliminated the constitutional right to abortion. Striking down the landmark Roe v. Wade decision provides state governments with newfound power to enact and enforce laws that curtail abortion access. The consequences of the ruling will reverberate beyond access to abortion to affect women’s equality, bodily autonomy, healthcare, democracy, criminal justice, and U.S. credibility to influence the protection of international human rights globally.

Before I introduce our two distinguished speakers today, I want to quote two passages from the Dobbs decision. One is drawn from the majority opinion written by Justice Alito and joined by Justices Thomas, Gorsuch, Kavanaugh, and Barrett. Chief Justice Roberts filed a separate opinion concurring in the majority decision and hence generating the six to three judgment that overruled the enforceability of both Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. The second passage is drawn from the dissenting opinion reflecting the views of Justices Breyer, Sotomayor, and Kagan.

The majority wrote, “Guided by the history and tradition that map the essential components of the Nation’s concept of ordered liberty, the Court finds the Fourteenth Amendment clearly does not protect the right to an abortion. Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion.”  

“…. Like the infamous decision in Plessy v. Ferguson, Roe was also egregiously wrong and on a collision course with the Constitution from the day it was decided. Casey perpetuated its errors, calling both sides of the national controversy to resolve their debate, but in doing so, Casey necessarily declared a winning side. Those on the losing side—those who sought to advance the State’s interest in fetal life—could no longer seek to persuade their elected representatives to adopt policies consistent with their views. The Court short-circuited the democratic process by closing it to the large number of Americans who disagreed with Roe.”  

The dissenters wrote, “Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens. Yesterday, the Constitution guaranteed that a woman confronted with an unplanned pregnancy could (within reasonable limits) make her own decision about whether to bear a child, with all the life-transforming consequences that act involves. And in thus safeguarding each woman’s reproductive freedom, the Constitution also protected “[t]he ability of women to participate equally in [this Nation’s] economic and social life.” Casey, 505 U. S., at 856. But no longer. As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions. A State can thus transform what, when freely undertaken, is a wonder into what, when forced, may be a nightmare. Some women, especially women of means, will find ways around the State’s assertion of power. Others—those without money or childcare or the ability to take time off from work—will not be so fortunate. Maybe they will try an unsafe method of abortion, and come to physical harm, or even die. Maybe they will undergo pregnancy and have a child, but at significant personal or familial cost. At the least, they will incur the cost of losing control of their lives. The Constitution will, today’s majority holds, provide no shield, despite its guarantees of liberty and equality for all.”

We have two speakers today who know this subject extremely well, both in the United States and abroad. That is important because the United States has much to learn from how many other governments and societies have, within democratic systems of governments, undertaken modern approaches in the protection of women’s rights and the administration of abortion rights. A good number of those governments until relatively recently outlawed almost all abortions. Here in the United States we need to ask ourselves some tough questions about whether our constitutional democracy is structured properly to address such fundamental issues and to leave primarily to state governments, which maintain vastly different political persuasions, the existential issues of our times, among which are abortion, women’s rights, voter rights, and climate change. And we need to ask whether the United States stands as a beacon of human rights protection when it has so prominently eliminated what the Supreme Court for the last 50 years had enforced as a fundamental right held by women, and when so many states are using the tools of democracy to bury that fundamental right as deeply as possible.

So, given these daunting questions, I am looking forward to hearing from our two expert speakers on the meaning and impact of the Dobbs decision in the United States as well as how this decision affects U.S. standing among developed nations.

First, we are fortunate to be joined by Professor Julie Suk. Professor Suk is an interdisciplinary and comparative legal scholar, researching equality at the intersection of law, history, sociology, and politics in the United States and globally. She has authored dozens of articles and book chapters about comparative constitutional law; the procedural implementation of equality norms in the United States and Europe; gender quotas; and women, work, and family. She is the author of We the Women: The Unstoppable Mothers of the Equal Rights Amendment. Before joining the Fordham faculty, Professor Suk spent three years at the Graduate Center of the City University of New York, where she served as dean for Master’s Programs and professor of sociology, political science, and liberal studies. Before that, Suk was a Professor of Law for 13 years at Cardozo Law School in New York. She has also taught as a visiting professor at the law schools at Yale, Harvard, Columbia, University of Chicago, and UCLA. She has also been a fellow at the European University Institute in Florence and LUISS-Guido Carli in Rome.

I am also pleased to introduce Ms. Reem Alsalem. Alsalem was appointed United Nations Special Rapporteur on violence against women, its causes and consequences in July 2021 by the UN Human Rights Council for a three-year tenure. She is an independent consultant on gender issues, the rights of refugees and migrants, transitional justice and humanitarian response. Alsalem has consulted extensively for United Nations departments, agencies and programs such as UN-Women, OHCHR, UNICEF and IOM, as well as for nongovernmental organizations, think tanks and academia. Previously, she worked as an international civil servant, serving with the UNHCR in thirteen countries. During her service, she planned, implemented, and monitored programs that served to protect persons that were survivors of gender-based violence, particularly women and girls. She has also been a visiting professional with the Prosecutor’s Office of the ICC and a visiting researcher with the Feinstein International Center of Tufts University.

I would now like to turn it over to Julie to give her opening remarks. Julie, the floor is yours.

Julie Suk:

Great. Thank you so much for having me at this forum. I'm really looking forward to the conversation.

So I want to begin by discussing Dobbs as the culmination of the overall trajectory of the Supreme Court since the death of Justice Scalia, and the long running polarization of abortion, politics and law in the United States. I think that one thing that the Dobbs majority got right was that Roe v. Wade, even though the outcome protected a very important right associated with women's equality and ability to live as equal citizens in a constitutional democracy, it was a decision in 1973 that was flawed from the very beginning, largely because of the controversial nature of the substantive due process, privacy rationale that was at the constitutional foundation of the American right to terminate a pregnancy.

And even though we've often regarded Roe as a high watermark, as a very broad based protection for the right to terminate a pregnancy, it was always is a decision that involved in reality, a compromise with regard to women's access to abortion. Specifically, the rationale of Roe was that the right to terminate a pregnancy was premised on the right to privacy, the notion that people have a right to be free from governmental intervention with regard to the most intimate decisions in their lives, including whether and how to bear or beget or raise a child. It was premised on substantive due process cases that protected the ability to decide for oneself whether to have a child and how to raise that child. And so the compromise really begins with Roe, essentially saying that the pregnancy is really none of the state's business. And it's because of this understanding of the right to terminate a pregnancy, as compared to an understanding that might be premised on a more social understanding of the role of pregnancy and the ability to control one's reproductive life in the context of overall autonomy, that what flowed naturally from Roe v. Wade was the Supreme Court's decision in Harris v. McRae in 1980, in which the Supreme Court upheld a law that banned public funding for abortions in the United States, again reasoning that pregnancy was really none of the government's business. What emerged in the United States under Roe v. Wade was a broad negative right to abortion, the right to be free from governmental interference in the absence of a positive right that would enable poor women to access abortion. And what this meant was that a broad negative right in the absence of a positive right was actually in some ways worse for abortion access on the ground than what emerged in many other constitutional democracies, particularly in Europe.

That is, it's very rare in most European countries that a right to actually terminate a pregnancy is constitutionally grounded. To the extent that abortion access is protected, it's done by statute, rather than through constitutional rights. And in many countries around the world, in Europe, in Latin America, and in Asia, there is a much narrower, negative right, to terminate a pregnancy typically, in early pregnancy, the first trimester, combined with a positive right to terminate a pregnancy with regard to those that are considered legal. So, specifically, many countries protect in a very broad way the right to terminate a pregnancy by statute to preserve the life and health of the mother. But the exception to preserve the life and health of the mother is often broadly defined to include both the social and mental wellbeing of the woman. So while many other countries around the world have a compromise that involves a moderate negative right combined with a moderate positive right, the American compromise under Roe v. Wade was a very broad negative right compared with no positive right to terminate a pregnancy, and the implications for actual abortion access were not ideal even under Roe v. Wade. Of course, it was better to have some protection for abortion access than none. But many scholars of reproductive justice were always critical of the way in which Roe v. Wade grounded the right in privacy rather than in a broader understanding of reproductive justice.

What Dobbs gets wrong is its complete rejection and disregard of the equality-based argument for the right to terminate a pregnancy is that a broad understanding of reproductive justice would entail not only the right to choose not to be a mother, but also the right to choose to be a mother without motherhood, or childbearing or child rearing, ruining one's life or causing a lifetime of disadvantage and dependence. And so, what that leaves U.S. with is we are missing an account of what's really misogynist about abortion bans. Abortion bans tend to force pregnancy under conditions where, especially in the United States, maternal mortality is pretty high relative to our peer democracies, and public support for motherhood is extremely low.

We remain one of the few constitutional democracies that have no legal guarantee of paid maternity leave. And public funding for childcare is at very low levels. What that essentially means when the state bans abortion is that women are conscripted into motherhood, into childbearing, and child rearing, which actually benefits society as a whole by creating citizens and workers, without being compensated. And this is something that Justice Blackmun highlighted in his concurring and dissenting opinion in Casey, where he pointed out that women were conscripted into motherhood without compensation. They're conscripted into a public service essentially without compensation. And in all other forms of conscription involving men—such as military service—men's bodies are conscripted into military service, but they are compensated for the public service that they perform.

So in conclusion, I just want to point to the importance of thinking about women's equality, which was missing from Roe and is also missing from Dobbs. This is the hook that I think has become much more foundational in other parts of the world even when the right to terminate a pregnancy is not necessarily grounded in the Constitution in many other countries. It's protected by legislatures as a way of promoting women's equality and wellbeing and as a way of valuing the work that women do to make childbearing and child rearing possible. Support for that and full valuation of child rearing and childbearing is essential to any notion of gender equality in human rights or in any constitutional democracy.

Scheffer:

Thank you so much, Julie. That was tremendous. An excellent overview. Reem, could I turn to you now? And if you could give us even more of an international perspective on the impact of the Dobbs decision?

Reem Alsalem:

Absolutely. First of all, David, thank you very much for having me here. It's really an honor to join this conversation. And in short, the answer to the question you're asking on the implications of the ruling is, of course, that they're huge. And in many ways, I think the writing was already on the wall with the Supreme Court's ruling on Texas abortion law and last year, which we as Special Rapporteurs in the special procedures also commented on back then.

And as Julie mentioned, I mean, the U.S. has struck down a nearly 50 year old legal precedent that has protected women's right to choose to have an abortion. And in a way this decision cannot be described as anything short of a serious regression of an existing fundamental right that jeopardizes women's health and lives, especially that the decision was taken without sound legal reasoning. So, as a result, women, girls, and actually all persons capable of becoming pregnant were stripped of legal protections that are necessary to ensure the ability to determine their lives and to live with dignity. And as we've heard, having access to legal abortion is essential health care and, as I think you mentioned, pivotal to women's enjoyment of a full spectrum of fundamental human rights. In a way, you know, the denial of the right to abortion actually should be seen in the U.S. and where it occurs in the context of an increasing restriction and denial of rights of women and girls, increased intersectional and structural discrimination against them, increased violence against them, particularly against certain groups that are marginalized and that suffer particularly more, for example, migrant women, women of color, and LGBTI women, as is the case in the U.S. And so it's these groups that will bear the brunt of this decision as well as women living with disabilities and victims of sexual violence and sex trafficking. And I should also say that, through this decision, the Supreme Court has disregarded that the U.S. has its own legal obligations under international human rights law that it's bound by. We know the U.S. has ratified the ICCPR, for example, which protects a woman's right to life from the harmful impact of abortion restrictions, but also, in general, it threatens rights that have been established under international human rights law more globally, such as the right to health, equality, non-discrimination, and privacy, and freedom from torture, cruel, inhumane, and degrading treatment. Not to mention that it's profoundly discriminatory and can fuel further discrimination and stigma and abuse of women in need of post-abortion care and also can lead to their incarceration. I should also say that it's not limited to affecting the human rights of the women themselves that may be seeking abortion but also health-care workers who face the threat of violence in the execution of their expertise.

And so, in addition to that, I wanted to also remind ourselves that the inadequacy of access to sexual reproductive health has been something that has been a longstanding issue in the U.S. that several human rights mechanisms have also drawn attention to—for example, the Working Group on Discrimination Against Women and Girls that visited the U.S. in 2015 had mentioned this and had called for an improvement of access to sexual reproductive health, and more recently in 2020, in the U.S.’s Universal Periodic Review (UPR) that has also come up. Now in recent years, of course, in recent decades I should say, many countries have liberalized their abortion laws for reasons of human rights, including equality, health, and safety, as was mentioned. And we see that countries where access to abortion is decriminalized or legal and contraception is widely available, they have low rates of maternal mortality.

Sadly, we have also seen a pushback against access to abortion rights in some other countries. But I know we will go into details on that later. And here again, the evidence shows that the restrictive laws do not reduce the individual's need to abortion but will just increase the seeking of the service in a clandestine way. It will increase unsafe abortions, leading to loss of life and other human rights violations. And here, I just want to mention that it's not just governments that seek to restrict abortion laws that are at the helm of this pushback against gender equality. They're joined, obviously, by interest groups with strong lobbies that have a very powerful constituency in very high places that are well resourced and very well organized. And, in the case of the U.S., I would say that, of course, the U.S. was not the first to restrict this right in such a way. There are other countries that have done so, including, for example, Poland in Europe. This is the most striking example. And yes, of course, those who want to push back against gender equality may feel more emboldened by this decision. And we know from history that U.S. Supreme Court rulings—such as, for example, Brown v. the Board of Education, which deemed segregation illegal—have been influential abroad.

However, I want to say that we should not be discouraged. Because, if we look at the trend of the last 22 years, it's actually going more in the direction of ensuring access to abortion. And if we look at the last two decades, 30-plus countries have allowed abortion or eased access to it. Of course, this didn't come easy. It was after a very hard and intense work by feminist organizations and human rights groups and civil society. So it didn't come served on a plate of gold. But still, you know, if this becomes also a foreign policy in the future, perhaps after elections, it may impact the access to sexual and reproductive health of vulnerable groups around the globe. We know the U.S. is a big funder of humanitarian programs, and we got a taste of that under the Trump administration when it actually restricted or eliminated support for programs of the UN Population Fund, UN Women, and UNHCR that provided sexual reproductive health in humanitarian situations, so we might face this situation again. So I'll stop here and happy to take any questions.

Scheffer:

Thank you so much. That was excellent. I'm going to ask a few questions until we get to the half hour point when we open up the dialogue to our guests, and I do encourage our participants to consider questions and line them up.

I do want to ask two related questions, and I would ask Julie to answer first and then Reem to come in on the backend. Can forced pregnancy or birth be considered involuntary servitude and thus in violation of the Thirteenth Amendment of our Constitution? And is this an argument that would be relevant elsewhere in the world where perhaps the law and constitution of the country outlaws involuntary servitude? I asked that as a factual question and also your views. Julie, would you like to go first?

Suk:

Well, I do think that some commentators, most notably Andrew Koppelman at Northwestern Law School, have published on this question suggesting that forced pregnancy is involuntary servitude. And it's very much in line with the theory that I was putting out there in my opening remarks that the real problem is not that it violates privacy but that forced pregnancy is actually very related to the history of slavery in the United States, in particular, which led to the adoption of the Thirteenth Amendment.

Slavery was an economic system, by which enslavers raped their female enslaved population for the purposes of creating more enslaved people from which they benefited financially. And obviously we abolished slavery as that kind of economic system, but I do think that now banning abortion in the context of the state not providing any support for motherhood under conditions of high maternal mortality, and under conditions in which there is no support for child rearing, is a way in which government extracts a service from women without compensation. So I think that it's easy logically to see how forced pregnancy is related to the kinds of harms related to involuntary servitude that the Thirteenth Amendment of the U.S. Constitution banned. That said, it's not necessarily something that you'll find in the U.S. reports and Supreme Court decisions, or even the decisions of other constitutional courts around the world. And one point that I want to highlight related to my opening remarks and related to what Reem said is that the direction that the rest of the world outside the United States has taken toward abortion liberalization and decriminalization is something that was achieved incrementally. It was not achieved by a court pronouncing in the way that Roe v. Wade did in 1973 that abortion was a constitutional right. And indeed, many, even the European Court of Human Rights in the 2010 decision involving Ireland, many international human rights bodies have been very cautious about pronouncing an actual right to an abortion. But legislatures and organizations have worked incrementally to expand access to abortion without being absolutist about it, because this is an issue on which people have different religious beliefs, and moral understandings of human life have some disagreements. So I think this incremental approach of focusing on the reasons women seek abortions because of threats to life and health and because of socioeconomic circumstances, and ensuring abortion access in those circumstances, has given way over time to broader access even to elective abortions. And I think that is a road that the United States can learn from given the situation we're now in.

Scheffer:

Reem, would you like to add anything to that?

Alsalem:

Actually, I think Julie summarized it perfectly. And, yeah, I don't have anything to add, except, of course, that states according to international human rights treaties have to take positive measures to achieve substantive equality and address inequality by dismantling discriminatory structures. So in this case it is profoundly discriminatory. And it affects, as I said, among the many groups that would be very vulnerable, also black women, in many circumstances who would not be able to actually exercise the right to abortion and would have, you know, feel the compounded effect of having a pregnancy that is undesired.

Scheffer:

I have one other question and then we'll turn it over to our participants because we're almost at the half-hour mark. Julie, does any United States state require the impregnator to provide financial support for a forced pregnancy or birth? Reem, do any foreign countries require financial support from the impregnator for a forced pregnancy or birth? Julie, could you tackle that one first?

Suk:

Well, I think the short answer would be no, in that the extent to which fathers, whether biological or legal fathers, are required to pay child support in the context of a child that's born would really depend on either a voluntary acknowledgement of paternity or any other legal proceeding that would establish the paternity of the impregnator. And so, of course, in that instance, single mothers, depending on the state's laws, have mechanisms by which, once paternity is established, they can get child support. Then there is, if you sort of think about it in terms of the violence against women framework, we've struggled in the United States, I mean, there's possibilities under state law to bring civil—there's obviously criminal prosecution for sexual assault—but, one can imagine, you could also bring civil lawsuits in the context of sexual assault or battery. We've had a constitutional struggle in the United States where, about two decades ago, there was an effort to create a civil federal cause of action for violence against women by which victims of violence could sue their perpetrators. And one might imagine that if there was a pregnancy involved, one's damages might be higher. In such circumstances, of course, the Supreme Court in 2000 struck down the possibility of federal civil cause of action for violence against women in the Morrison case. So I think that, to the extent that you're envisioning an impregnator being liable for a forced pregnancy, it would really just be through child support proceedings or through civil liability actions for violence against women. But I don't think beyond that. I can't think of any other way in which you might have a legal mechanism by which a forced pregnancy, someone undergoing a forced pregnancy, would have any legal recourse by way of the impregnator.

Scheffer:

Reem, is there anything internationally that comes to your mind on this point?

Alsalem:

Yes there is in a bizarre sort of twist from the backdoor, because, for example, in countries like Russia, Thailand, and Venezuela the national legislation allows men to have their rape convictions overturned if they marry the women or girls they have assaulted, and you know, that are impregnated, and by doing that, they are also bound to provide child support.

Scheffer:

Very interesting. Well, Megan, do we have some hands raised?

Studer:

We do.

Scheffer:

Great. I leave it to you then to designate the speakers.

Studer:

As a reminder, to ask a question, please click on the raise hand icon on your zoom window. When you are called on please accept the unmute now prompt then proceed with your name and affiliation followed by your question. If you would like to view the roster of registered participants for this meeting, please click the link in the Zoom chat. We will take our first question from Robert Kushen.

Robert Kushen:

I was interested, I was struck by Professor Suk’s discussion about incremental approaches to addressing this issue legislatively, because, in my mind, the Dobbs case is not just a failure of Supreme Court jurisprudence. It is a failure of democracy on a pretty fundamental level that a right which is, with various nuances, of course, supported by a fairly substantial majority of the U.S. population is nonetheless not enshrined in law in a consistent way. And I wonder if either of you could speak to beyond, of course, incremental approaches, can you speak to sort of what's the formula for success and ensuring that this issue and other issues that are relevant to gender equity are taken up properly, at least in democratic systems, and rights protected in legislation? Thanks.

Scheffer:

Julie, do you want to try that?

Suk:

Sure. So it's really interesting to see, and I think the most interesting example now is Ireland. Until 2018, Ireland had a constitutional provision protecting the right to life of the unborn as well as the equal right to life of the mother. And I think that eventually, through litigation and legislation, the idea of the equal right to life of the mother was expanded to include the right to life in the context of suicide and mental health risks posed by an unwanted pregnancy. And that's an example of an incremental approach.

Whereas I think, I think that a privacy-based right really reasons from the premise that the reason for getting an abortion is nobody's business but that of the woman. But if you actually live in a society in which many people with whom you share a polity actually believe that the fetus has some moral status, possibly equal moral status to the pregnant person, but at least has some moral status, then it seems unsatisfactory to say that the reasons for aborting never matter. And so I think that in the countries that have really now tended towards pretty broad-based access to publicly funded abortions in most of the circumstances where you could imagine women wanting to get an abortion it really has been legislatures working on expanding, let's say, an abortion ban or an abortion restriction. But expanding the exceptions so that we have a broad and humane understanding of what it means for there to be a risk to the woman's life or health. And I think that's where the work really needs to be. Because I think that protecting a very broad privacy-based right really led to a backlash by people who wanted at least some recognition for the moral status of the fetus. And I think that backlash has led to a place where now only an absolute solution makes sense to anyone, and it's one that's going to, in the post-Dobbs world, be extremely dangerous for women seeking abortions for reasons that even people who are pro-life could perhaps be sympathetic to.

Scheffer:

Julie, can I follow up on that and just ask would you recommend that, particularly in the United States, it would require federal law to accomplish the direction that you want to take this in as opposed to trying to derive this from the U.S. Constitution?

Suk:

Yeah, so I think probably most of the countries that have liberalized abortion have involved legislatures, but legislatures not necessarily acting alone. So if you take, for example, in 2006, the Colombian Constitutional Court had a much more modest ruling. It didn't absolutely protect the right to abort, but it decriminalized it incrementally by saying an absolute ban on abortion without an exception for the life and health of the mother was unconstitutional. And similarly, in 2019, the South Korean Constitutional Court held that the South Korean abortion law actually had an exemption for abortions to preserve the life or the health of the mother, but it didn't have any exceptions for socioeconomic circumstances that made the pregnancy extremely difficult for the mother, and the South Korean Constitutional Court said the absence of that socioeconomic indication was what made the abortion ban unconstitutional. So then it was up to the legislature to react. In both of these instances, the legislature didn't change the law. But many years later, the constitutional court came back and went a step further. But, in many instances and in Ireland as well, you have courts going incremental and then legislatures taking the next step. And I think this way of doing it leads to more of a compromise between both sides that I think has been really difficult in the United States.

And I will say there was a road that was presented to the Supreme Court, which the Supreme Court majority rejected, for protecting abortion rights not by legislation but by grounding the abortion right in equal protection of the laws under the Fourteenth Amendment rather than a substantive due process privacy right. This was an argument that was presented. There are many excellent amicus briefs making this argument. And I think to the extent that any international human rights instruments, whether ICCPR or CEDAW, protect a right to abortion, it's not really directly a human right to abortion as it is a right to equality. And the basic fact that it's really hard to imagine women living as equals in any society without some access to abortion in the circumstances where a pregnancy and unwanted pregnancy can seriously affect not just their physical and mental health but their prospects for living in autonomous life.

Scheffer:

Reem, do you want to add anything before we go to the next question?

Alsalem:

Yeah, actually, I wanted to also ask Julie about the ratification of CEDAW, and where that stands is also sort of a policy and a legal action that should be taken right now, especially following this decision. I mean, is anyone talking about that at all in the U.S.?

Suk:

Well, I think the last questioner mentioned that the Dobbs decision and the current problem is part of a larger crisis of democracy in the United States. So, to the extent that you could think of solutions, right, one solution is to continue to litigate and find a different constitutional grounding for abortion. But many of the solutions, including the one that Alito proposes, are to let the state legislatures decide how much they want to protect abortion. But of course, one obvious solution is for Congress to act. Now the House has passed the women's reproductive health act (Women's Health Protection Act) twice, but it's been filibustered in the Senate, and that brings us to debates about CEDAW as well. If you have a legislative process, by which the Senate, I mean, it's not just the Women's Health Protection Act that the Senate has filibustered. The existence of the filibuster in the Senate has blocked legislation on the Pregnant Workers Fairness Act. If we had pregnant worker fairness in the United States, I'm sure that far fewer women would actually want to have an abortion. It's just that the lack of accommodation for pregnancy in the workplace makes it an economic disaster for women even to pursue wanted pregnancies. So generally, I think that with CEDAW, as with many other pieces of legislation that could help and protect women, the Senate has failed to act, and it is unlikely to act on many of these initiatives. That said, we have local governments that have been active in—I guess they don't necessarily have the power to ratify CEDAW—but we have local governments that have embraced CEDAW and have tried to bring their policies in line with CEDAW.

Alsalem:

Yeah, except that, as you know, I mean, by not ratifying CEDAW, you're also denying a range of additional tools in the toolbox to civil society groups in order also to monitor and to know the performance of states through the CEDAW committee, but also, you know, just through strategic litigation in various shapes and forms. But coming back to your question, I also want to mention the example of Argentina, which I think has not just adopted the most radical change at the time in Latin America but has also imposed or really spurred what they call the green wave. It has also led to changes in other countries in the region, like Colombia, Ecuador, and Mexico, and it was very radical. So before December 2020, women who intentionally caused their abortion were facing one to four years of prison. And then since 2021, abortion is legal on demand in the first 14 weeks of gestation. And again, I think it also comes down to the ability of civil society groups and human rights organizations to really exercise the right to, you know, to act and to mobilize and to reach courts and also for the support that marginalized and vulnerable groups of women get through, you know, through non-legal ways. And when it comes to this decision, one of the recommendations we made in the special procedures, is codifying the right to access safe abortion in law. We also feel that, at this stage, there needs to be funds allocated. And I think that's being done to cover the expenses of women who will have to travel to other states to access abortion: legal aid for relocation expenses to offset this impact that will be felt very much by specifically certain groups of women.

Studer:

Next question is from Valentina Barbacci.

Scheffer:

Do we need to unmute Valentina?

Studer:

Valentina, you should be unmuted if you want to go forward with your question.

Valentina Barbacci:

Oh, can you hear me? Okay?

Scheffer:

Yes.

Barbacci:

Okay, great. Sorry about that. For some reason, my microphone wasn't working. Right. My question is more around a bit of a technicality here. So I'll preface it. I work in human rights. I am pro-abortion. So my question might seem probing, but it's not. It's merely to understand some of the details. So in speaking with people, in my experience, I find that, you know, obviously, we have a spectrum of people who might be willing to accept abortion under certain circumstances, for example, in the incidences of rape or incest, or in businesses where the health or life of the woman is in jeopardy, but not in other instances. And so, in looking at the data, you know, I don't know what the most reliable source is, and I even questioned sometimes the data itself, because, of course, we don't have the ability to really necessarily ask every woman that comes to the door what the reason for their abortion is. But it seems that fewer of them, according to some sources, fewer than 1% of all abortions actually take place because there has been rape or incest. And, in fact, according to some sources, 85% of women who have become pregnant as a result of that choose to keep their children. So just if you could, since you are both clearly very knowledgeable, and I've been really appreciating your remarks, could you help me just understand how what happens in the U.S. will be different from what happens in, you know, Burma, Myanmar, for example, where I do some work.

But in terms of the data, what are we what are we looking at when it comes to women who have been become pregnant as a result of rape, incest, or whose lives may be at risk because of health, either of the baby and or the mother? What percentage of abortions take place? And in those instances, I would be really grateful for your insights about to what extent the data nationally and internationally is reliable, and where we need to make improvements to help on those fronts that might sort of help incrementally convince people to make abortions at least acceptable for women in those instances? Thank you.

Scheffer:

Reem, do you want to start on that one?

Alsalem:

Let's see if I understood the question. I think, who has data? I'm trying to find it here. Just one second.

Yea, that a fair amount of abortions happen for all kinds of reasons that happen also illegally and especially in places where it's criminalized or which where it's frowned upon? So I think, if I understand correctly, I mean, there is also a lack of data to get the full picture precisely because women then don't do it. You have to do it in hiding and often in very unsafe circumstances. I don't know if that answers your question.

Scheffer:

Julie?

Suk:

Yeah. So I think there's a lot of contestation in the United States right now, because many of the new abortion laws that are being written in the states provide no exception to the ban in the case of rape or incest. And the reason they don't is related to another huge set of questions involving misogyny and the rights of women having to do with sexual assault. As many abortion opponents see it, the problem with allowing abortions in the case of rape or incest is that we don't have good data. And so sometimes they don't want to allow that exception because they don't want people to claim falsely that they have been raped. And of course, this notion that women claim falsely that they have been raped ties into a whole variety of issues with regard to sexual assault and whether women are believed when they claim that they are sexually assaulted.

So if you live in a context in which you think there's no reliable data about sexual assault, because the only reliable data is the one where there are police reports and investigations and prosecutions, then, of course, you're not going to be accounting for many sexual assaults that occur in the absence of there actually being prosecutions and investigations and convictions for rape. So I think this area in which there is an exception for rape is one that's really difficult, because the only way to really enforce it, I think, in a way that's fair, is to allow women to decide for themselves when an abortion is appropriate. Because if you try to link it to official data on rape, you might end up really undercounting which pregnancies are the result of rape or sexual assault.

Alsalem:

If I may just say something? I think one context where this issue becomes very stark, or clear, is, for example, in Poland, which, of course, is one of the countries that has received the highest number of Ukrainian refugees and definitely also Ukrainian women. And within that context, you know, there are allegations and reports about rape being used as a tool of war. And of course, in a country that does not allow abortion except in very, very limited circumstances. So when there is a risk to life or health of a pregnant woman, or if a pregnancy results from rape or incest, and if these women do not want to come forward to say that they've been raped for all sorts of reasons, then of course, it makes access to abortion incredibly difficult. And, there, for example, you don't have really statistics on that, and on the scale of the situation.

Studer:

We'll take our next question from Kay Boulware.

Kay Boulware:

Hello, do you hear me?

Scheffer:

Yes.

Boulware:

This is very interesting, and I just wanted to ask the question, if we could consider the role of government in limiting abortion or putting restrictions on what many perceive to be a fundamental right, specifically state governments? Because, under the U.S. Constitution, Article Four, the states are responsible for many regulations within the state: certifying physicians, inspecting hospitals, etc. So in that regard, should the approach be towards the democratic process within each individual state and making abortion accessible? And understanding a little more about the recent decision in not accepting Roe v. Wade? So it's a question of we have a fundamental right or right that is for women, but there is a component in that right of a medical procedure that may not obviate a state's obligation to ensure safety and medical procedures. And I'm leaving out the viability issue. Any comments that you can make?

Scheffer:

Julie, you might want to take a crack at that first, and it does give rise in my mind to the debate that we see in commentary and media now after Dobbs about the whole medical dilemma over how to distinguish between and deal with, at certain stages, miscarriages versus abortions. Do you want to take that on?

Suk:

Sure. So I want to make sure I'm understanding. Dobbs is basically saying it should be left to the states the extent to which abortion is permitted. And I guess you might think that makes sense, because many other things that are related to reproductive health care are state-level matters, including the licensing of physicians and some regulations that would affect the possibility of an abortion. So it is really interesting. If you think about the way in which the law evolved in other countries, and particularly in Ireland, because part of what really moved the needle, what really forced Ireland to write a detailed statute that set out the procedure that doctors should follow to determine whether or not an abortion would be legal, under the exception for the threat to the woman's life. And I think the adoption of that statute in 2013 in Ireland really led the way to the constitutional amendment and the referendum. The Citizens’ Assembly in the referendum just removed the protection for fetal life from the Irish constitution 2018. And I think what happened in Ireland was that a woman actually died in the context of she had a wanted pregnancy, but she was having a miscarriage, and the miscarriage led to sepsis, which is an infection, that could be okay in minute one and deadly in minute two. And in that situation, the doctors did not have a legal framework by which they could be sure that if they basically allowed the completion of or assisted the completion of the miscarriage, they were not sure whether they would be prosecuted for an illegal abortion or not, even though they believed that they were saving her life. They would be saving her life, but because they were scared, no abortion was performed, and the woman died.

And so I think it is important for states to write laws that are clear, so that medical professionals know that if they act in their best judgment, under the circumstances, they could have been wrong, right? There could be a risk to life, or what they think is a risk to life, that turns out not to be a risk to life. But they're acting in the moment. And so I think that it will be important for states to write laws that are clear. And that was essentially the holding of the European Court of Human Rights in 2010. That even if you have a law that says that abortions are illegal, when the life of the mother is at risk, lacking a legal framework that gives some assurance to doctors with regard to keeping their licenses and not being prosecuted, they need some assurance that if they act in their best judgment in the moment, they're not going to be prosecuted. And I think there is some work that will probably have to happen at the state level. Since, as far as I know, almost all the abortion bans we're seeing at least have an exception to save the life of the mother, even though the Texas law and many have the six week bans that are coming into effect.

Scheffer:

Reem, did you want to add anything?

Alsalem:

No, except one point about Mexico, because I think the decision by the Supreme Court of Mexico is also in a way interesting. The one that came out in September 2021, because it recognized the access to safe, legal, and free abortion services as a constitutional right. So in that sense, it did say it's constitutional. But then because Mexico is the federal state, the legislation is left still to the states and will vary from state to state. And so then, of course, the national legislation should be in conformity with that constitutional right. But of course, just like in the U.S., there are states that are more conservative and others that are sort of more open to that. And so we'll see how these legislations will pan out. And in practice, how that will play out when it comes to the access to abortion rights.

Scheffer:

I think we have come to the end of our session, Megan, I don't see any other hands up. Am I correct?

Studer:

Yes, you're correct.

Scheffer:

Okay, very good. I want to thank our two speakers. Reem Alsalem and Professor Julie Suk for providing us with an enormous amount of insight, information, perspective, and opinion that I think is worth a lot of serious consideration as we try to navigate our way through this very complicated social situation not only in the United States. But it's important how we navigate it here, because we do still have our presence in the world. And we need to know how we're interacting with other countries on this issue and to do so from a basis of knowledge and not of ignorance. So I will bring this Council on Foreign Relations roundtable to a close and thank both of our guests for taking the time to join us, by the way, Reem from Turkey, and Julie from Philadelphia, the National Constitutional Center in Philadelphia. I appreciate your time and I appreciate all of the participants in this discussion. I believe it will be available on the website of CFR.org in a few days probably, if you would like to share it with your friends and colleagues.

 

 

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