Abortion: A National Legal Issue that Requires a Global Solution

In recent months, the right to abortion has once again taken the center stage of the American judicial system. As the conservative-leaning supreme court hears and decides Dobbs v. Jackson Women’s Health Organization, it seems likely that Roe v. Wade and Planned Parenthood v. Casey, the two cases that have been securing women’s right to access abortion without undue burden for decades, are going to be overruled. The trend of pushing back the progress that has been made by proponents of reproductive rights does not only exists in the United States, as traditionalists in other countries such as Kenya and Poland are making similar efforts.

With a right that many deem to be fundamental at risk, many activists have been calling for a “global solution”: making international law that recognizes abortion as a universal human right. While I personally support women’s right to complete bodily autonomy, I offer the argument here that abortion is not an issue that can be addressed through international laws due to ethical concerns and lack of enforcement. Nevertheless, while the issue should generally be deferred to national legislations or solved nationally as such issue shall be addressed premised upon the respect of different sovereigns and cultures, I propose that another global solution, international aid, may be used as leeway for those whose right to abortion is restricted by their countries.

For the proponents of codifying abortion into international law, there is an inevitable conflict between the right to abortion and the conflict of cultures and values. Most opponents of abortion (such as Roman Catholics in Poland and Evangelical Christians in the Southern United States) are driven by their religious belief that abortion is killing. According to international law, it is certainly not wrong for them to hold such belief as freedom of religion is a fundamental right according to the Universal Declaration of Human Rights of 1948 and the International Covenant on Civil and Political Rights of 1976. In most countries that attempt to limit women’s access to abortion, a large number of their citizens practice certain religions that indoctrinate the moral wrongness of abortion. Thus, for those who would like to legislate internationally on protecting the right to abortion, premised upon their politically progressive stance, a dilemma emerges: while they are generally welcoming towards religious and cultural diversity, to make the recognition of abortion universal, they would have to admit that the belief of “my body my choice” is somehow superior compared to “abortion is killing” and superimpose such value over the dissenting voices. Such action may pose a threat to the more recognized human right of religious liberty and even threaten the sovereignty of the countries in which religions against abortion are widely practiced. Here, for a country C in which the vast majority of its population practices religion R that prohibits abortion, and the legislative institution of C is making law L that outlaws abortion while the UN is making an international law I for the universal access of abortion, we would have the following line of reasoning:

P1: It is not wrong for people in C to believe in R;

P2: L would reflect the view of the vast majority of people in C;

C1: It is not wrong to make L.

P3: By making I that overrides the justly made L, the UN breaches the self-determination of the people in C (or breaches the sovereignty of C);

P4: It is wrong to breach a country’s sovereignty when a country has no wrongdoing;

C2: UN’s making of I is wrong.

Even if a proposed international law somehow passed despite the moral concern, more likely than not, it still would not create sufficient restraint for the targeted countries to recognize the right to abortion. Before I begin arguing for the lack of practicability, I must first concede that there has been some success in defending abortion via international law. For example, in a 2003 case of KL v. Peru, the UN human rights committee ruled that the Peruvian government must compensate KL, a minor whose pregnancy was caused by rape, for her loss due to the government preventing her from abortion. This case was later widely cited in Peruvian courts as the source of women’s right to abortion under some circumstances, which led to the progress of protecting reproductive rights in a country that was previously dominated by conservative Catholic values.

However, the case of Peru is rare and most likely unrepeatable. First, while the case is about abortion in general, the specific texts that the decision cited were about cruel, inhumane, and degrading treatment and special protection of minors. The court may have ruled differently in a case with less special circumstances. Second, very few other countries may embrace the decision of an international organization as thoroughly as Peru did. For example, the Supreme Court of the United States had repeatedly ruled that the authorities of international laws and treaties are not recognized by the U.S. courts unless they are incorporated into U.S. codes, a federal appellate court had even ruled that U.S. citizens cannot bring their cases to UN Human Rights Committee for potential breach of the International Covenant on Civil and Political Rights. Hence, the range of protection of international law is often narrower than what it is intended to be, not to mention the fact that the enforcement of international law is often no more than countries’ self-restraint. If a country disagrees with certain international laws, it can simply choose not to sign or to ratify them, and this is exactly why the Saudi Arabian government was not held accountable for killing and quartering the Turkish journalist in 2018. In a potential case on abortion, if a country is simply against the provision of abortion, they are most likely to get away without consequences.

Thus, with the reasons I offer above, I object to the “global approach” of propelling the recognition of the right to abortion through international law and argue for the deference to national legislation in order the resolve the issue. Since the discussion on the topic unavoidably creates a dichotomy between the national and international legislative process, I would have to favor the approach of addressing the issue of abortion nationally when it comes to legislation. For the activists who would like to promote reproductive rights, a much more practical way of achieving such a goal than calling for the recognition of international organizations is to demonstrate what they perceive to be the evolving standard of decency in front of the legislative body of the country. For most democracies with legislative systems that possess clear rules of recognition, such a solution would generate the outcome that is recognized by the majority of the population as the legislative officials are democratically selected. Under such circumstances, if they fail to convince the legislative body, the activists would need to concede that their belief is not the one that most people in the country believe in. Therefore, if legislative or judicial institutions in countries like the United States and Poland do limit women’s access to abortion, their decisions must be obeyed to emphasize the sovereignty of the countries.

Now, here comes the question: if such circumstance does occur, does it shut the door in front of the women who have the compelling need to access abortion? What if the country that restricts women’s reproductive rights does not have a clear legislative process that can have the issue debated? Here, a proposed leeway for those women who fall under either of the two categories is international aid, and there is already precedent to accessing abortion in such way. For instance, in 1999, Dutch Physician Rebecca Gomperts founded the non-profit organization Women on Waves. For a woman living in a country with restrictive access to abortion, she can make an appointment and get picked up by a tailored mobile clinic that is a boat, and then travel to high seas to perform a non-surgical abortion. This model has demonstrated success as it has performed such tasks in countries that are notoriously restrictive towards abortion, such as Ireland and Guatemala. If activists believe that the national approach alone is unable or insufficient to resolve the issue, founding similar non-governmental organizations or even providing aid through official embassies of countries that recognize reproductive rights may be the best “global” solution. Compared to the more popular global approach of international law, there is a clear upside to the international aid approach as it dismisses the potential of infringing countries’ sovereignty and is premised upon the concrete universal human right of women’s freedom of movement. For any international organization O that aids women in country A where access to abortion is limited by performing an abortion in any given territory T where abortion is legal, the action can be justified with the following line of reasoning:

P1: Abortion is legal in T;

P2: It is not wrong for women to travel from A to T to access abortion;

P3: The anti-abortion law of A can only be enforced within its boundary, and cannot be enforced upon those who are not physically in A;

C: It is not wrong for O to offer aid in T, nor is it wrong for women to pursue the aid.

Admittedly, there are some significant limitations to the exemplified women on waves organizations, like its inability to access landlocked countries or perform surgical abortions for those with more complex conditions. And of course, there can be a relatively strong objection towards the international aid approach as it can be impractical under some circumstances. Who is going to fund the international aid? How do we know who needs help and how can we secure them safe access to abortion in a place outside their home countries? These seem to be vital questions without concrete answers.

To answer the first question, I would suggest funding coming from two primary sources: activist non-governmental organizations and governments of the countries that are willing to make abortion a universal human right. For the non-governmental organizations, since many of them have already been receiving enormous endowments for simply lobbying for more liberal policies on abortion, it is reasonable to expect a larger endowment if attempts to offer more substantive protections on women’s reproductive rights are being made. For national governments, there may be an argument that by sponsoring international aid, the national governments are infringing the sovereignty of countries that limit abortion, yet as I have reasoned above, it would not be the case if the aid is occurring outside of the country that limits abortion. As for the second question, the only proposal I would make is for the non-governmental organizations to hire additional staff and survey the areas in countries that restrict abortion, which would maximally protect those who cannot reach out through the internet. Nevertheless, while I do not have a definite answer to the question, if the approach of protecting women’s reproductive rights through such organizations becomes more established, then I am hopeful that a solution can be worked out someday.

To conclude, abortion is one of the more complex human rights issues the world is facing today as it involves debates on a variety of issues, namely ethical, medical, and political issues. Under the circumstances in which it is hard to balance conflicting ethical judgments, the sovereignty of nations, and individual rights, I have established the argument that from a legal perspective, it would be better to defer the issue to the individual countries. Nevertheless, international aid, as an alternative global approach to the issue, can be used as the last resort is national legislation fails to protect women’s reproductive rights.