Executive Summary

Following the United States (US) Supreme Court decision in Dobbs v. Jackson Women’s Health Organization in June 2022, people in the US who can become pregnant are facing an unprecedented human rights crisis. In Dobbs, the Supreme Court overturned the constitutionally protected right to access abortion, leaving the question of whether and how to regulate abortion to individual states. Approximately 22 million women and girls of reproductive age in the US now live in states where abortion access is heavily restricted, and often totally inaccessible. This briefing paper details the intensifying human rights emergency caused by the decision, and discusses the ways that Dobbs contravenes the US’ international human rights obligations.

The consequences of the Dobbs decision are wide ranging. Restrictions on access to healthcare places women’s lives and health at risk, leading to increased maternal mortality and morbidity, a climate of fear among healthcare providers, and reduced access to all forms of care. Dobbs also enables penalization and criminalization of healthcare, with providers, patients, and third parties at risk of prosecution or civil suit for their involvement in private healthcare decisions. Relatedly, the decision opens the door to widespread infringement of privacy rights as digital surveillance is expanded to detect violations of new regulations. New bans also infringe on freedom of thought, conscience and religion or belief, restricting the ability of physicians to counsel patients and clergy to provide pastoral care to their congregants. Finally, the harms of Dobbs violate principles of equality and non-discrimination; they fall disproportionately on marginalized populations including Black, indigenous, and people of color; people with disabilities; immigrants; and those living in poverty.

By overturning the established constitutional protection for access to abortion and through the passage of restrictive state laws, the US is in violation of its obligations under international law, codified in a number of human rights treaties to which it is a party or a signatory. These human rights obligations include, but are not limited to, the rights to: life; health; privacy; liberty and security of person; to be free from torture and other cruel, inhuman, or degrading treatment or punishment; freedom of thought, conscience, and religion or belief; equality and non-discrimination; and to seek, receive, and impart information.

A version of this briefing paper was submitted to UN special procedures mandate holders in March 2023. The submission, cosigned by nearly 200 human rights, reproductive justice, and other concerned groups and individuals, requested urgent action from the UN mandate holders to examine the situation, engage with civil society, and call on the US to uphold its international human rights obligations.

Less than a year on from this catastrophic legal decision, it is now apparent that the consequences are even worse than feared. Women and girls in need of reproductive healthcare are being met with systematic refusals, onerous financial burdens, stigma, fear of violence, and criminalization. Thousands are being forced to remain pregnant against their will.

Part II of this briefing paper outlines the consequences of Dobbs on the fundamental human rights of women and girls, as well as the disproportionate impact it has on certain demographics made vulnerable by systemic oppressions. This factual summary includes input from physicians in various states as part of fact-gathering efforts conducted by a number of organizations involved in this submission. Part III discusses the ways in which Dobbs contravenes the US’ international obligations. Part IV sets forth our Conclusion and Calls to Action.

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• Alejandra Cardenas – Senior Director of Legal Strategies, Innovation, and Research, Center for Reproductive Rights
• Negina Khalili – Visiting Professor, Loyola University New Orleans College of Law; former Chief Prosecutor of Elimination of Violence and Harassment Against Women, Attorney General's Office, Republic of Afghanistan; former Professor of Law, Rana University, Kabul, Afghanistan
• Christine Ryan – Legal Director, Global Justice Center
• Yifat Susskind – Executive Director, MADRE
• Moderator: Meg Satterthwaite ‘99 – Professor of Clinical Law; Faculty Director, Robert L. Bernstein Institute for Human Rights, NYU Law; UN Special Rapporteur on the Independence of Judges and Lawyers

 

In April 2023, the United Nations Sixth Committee will discuss the draft treaty on crimes against humanity. The draft treaty, advanced by a historic resolution in November 2022 after years of delay, would be the first standalone international treaty that codifies crimes against humanity and establishes duties to prevent and punish them.

To get some more background on the treaty, we spoke to Leila Sadat. Leila is a professor of international criminal law at Washington University and a special adviser on crimes against humanity to the prosecutor of the International Criminal Court.

Crimes against humanity have been committed and prosecuted all over the world, including in Cambodia, Rwanda, Colombia, Yugoslavia, and in the context of World War II. Yet to this day, there is no standalone international treaty that codifies crimes against humanity and establishes duties to prevent and punish them. In stark contrast, treaties have existed to prevent and punish genocide and war crimes since the 1940s. This legal gap fosters impunity for serious crimes and creates a false hierarchy between equally egregious atrocities. 

A new treaty, based on the International Law Commission’s Draft Articles on the Prevention and Punishment of Crimes against Humanity offers an opportunity to fill this gap. 

The treaty would deliver tangible benefits for victims and survivors. It would combat the perception that victims of some crimes are more deserving of justice than others. The treaty would also place obligations on states to prevent crimes against humanity in the first place, and allow for states to be held accountable at the International Court of Justice (ICJ) if they failed to uphold their prevention responsibilities.

1. What are crimes against humanity? How are they different from war crimes and genocide?

Crimes against humanity (CAH) are amongst the most serious violations of human rights. They are defined in existing international law as one or more specific acts committed under certain conditions. Crimes against humanity include: 

murder; extermination; enslavement; deportation or forcible transfer of population; illegal imprisonment or other severe deprivation of physical liberty; torture; rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; persecution; enforced disappearance; the crime of apartheid; and other inhumane acts.

In order for any of the above acts to constitute crimes against humanity, they must be committed against a civilian population (as opposed to soldiers or other non-civilian populations), and they must be part of a widespread or systematic attack (not singular violations). 

In other words, crimes against humanity are distinguished from “ordinary” crimes by how widespread or systematic the violations are, and by who is targeted (civilians). Crimes against humanity are related to war crimes and genocide — each category of crime is considered a “core” international crime, but there are important differences among them. 

War crimes, by definition, can only be committed in the context of an armed conflict. They involve grave breaches of the laws of war, committed against people or entities who are protected under those laws (such as civilians and their property) and/or the use of prohibited methods or means of warfare. The acts that can constitute war crimes range from willful killing to pillaging, sexual violence, and declaring that there will be “no mercy” in a military operation. It is possible for the same act to constitute both a crime against humanity and a war crime, or to be only one or the other.

Genocide differs from both of these categories of crimes because it is motivated by a specific intent to destroy, in whole or in part, a national, racial, ethnical, or religious group. Some of the acts involved in genocide (such as killing or sexual violence) can also constitute war crimes and crimes against humanity, but for these acts to constitute genocide, they must be committed with the intent to destroy. 

Although these three categories of crimes are different, there is no hierarchy among them. The distinctions between these crimes reflect legal categories designed to accurately describe the nature of the crimes and to capture the distinct motives and methods of perpetrators. 

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