Excerpt of Women's Media Center op-ed authored by GJC Legal Intern Dakota Porter.

In the wake of ruling to overturn Roe v. Wade, the Supreme Court quietly limited the EPA’s power to combat climate change with their decision in West Virginia v. EPA. The decision prevents a nationwide cap on carbon emissions, allowing states with extractive industries and massive carbon outputs to go under-regulated. So, just as the court has paved the way for states to deny essential reproductive health care, it has also cemented the country’s position as one of the biggest contributors to climate change in the world.

These two cases are more connected than you may think.

Climate change, and the inevitable mass migration it has already unleashed, heightens the need for sexual and reproductive health services — the crisis is linked to higher rates of infectious diseases, gender-based violence, and disability, which all influence reproductive outcomes. Unfortunately, in the wake of natural disasters, the availability of and access to such health services is sparse or absent. When drought, floods, hurricanes, or other disasters strike, climate change strains the government’s and the humanitarian sector’s abilities to provide resources like contraception and STI testing.

As our understanding of the relationship between climate change, migration, and reproductive rights grows, it’s time we demand action that takes these intersecting harms into account.

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Dear Secretary Blinken and Administrator Power,

As organizations dedicated to protecting and expanding global reproductive health, rights, and justice, including abortion access, we are heartened to hear that you maintain an unwavering commitment to sexual and reproductive health care. The recent Dobbs v. Jackson Women’s Health Organization Supreme Court decision is a public health emergency that has and will continue to threaten the health and lives of people seeking essential health care services, not just for those in the U.S. but also for people globally. We are glad to see those in USAID and the State Department recognizing and calling out the devastation that this decision will bring worldwide and reaffirming your commitment to protect and care for those you serve.

We look forward to working alongside you in this critical endeavor towards reproductive freedom, bodily autonomy, and dignity for people worldwide. We encourage you to start meeting this commitment today by authorizing USAID reproductive health funding to the full extent of the law. Under current law, U.S. foreign assistance may not be used for abortion services as a means of family planning. This requirement, however, still allows USAID and the State Department to provide funding for abortion services in cases of rape, incest, and life endangerment. It also allows for abortion service information and counseling. However, USAID and the State Department do not and have never funded abortion services in these circumstances - even though they can do so without breaching any congressionally imposed limits on abortion funding.

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More than 100 international and domestic organizations today sent a letter to the U.S. State Department and U.S. Agency for International Development (USAID) urging them to end overly restrictive interpretations of law that block the use of foreign assistance funds for abortion services in any circumstance.

The Helms Amendment prohibits foreign assistance funding for abortion services as a “method of family planning.” This means abortion services can be funded in cases of rape, incest and life endangerment. However, USAID and the State Department have never funded abortion services in these contexts.

Elena Sarver, legal advisor at the Global Justice Center, issued the following statement:

“We’ve said it for years: the president can end a devastating human rights violation with the stroke of a pen. For too long, US presidents have failed to take action to implement exceptions that permit funding of abortion care abroad in certain cases. The Biden administration can take immediate action to change that now.

“As the world’s largest provider of humanitarian aid worldwide, the US is in a unique position to deliver healthcare to those who need it most. But as a result of its incorrect interpretation of the Helms Amendment, it is routinely denying critical abortion care to victims of rape, incest, and in cases of life endangerment. In order to live up to its stated commitment to reproductive rights, the Biden administration should clarify these exceptions and implement funding for abortion in these cases.”

Abortion Restrictions violate the right to health of women of color and perpetuate racial discrimination

Women and adolescents of color disproportionately suffer as a result of abortion restrictions. 

1. Women of color have a greater need for abortion care due in large part to the social, economic, and geographical barriers that limit access to healthcare, including contraception.

2. Systemic racism in the US criminal legal system means that women of color face a heightened risk of criminal prosecution for abortion. Pregnant people, particularly Black, Hispanic, and Indigenous women, are already policed and criminally punished for pregnancy outcomes.
3. Being forced to carry a pregnancy to term is especially dangerous for Black women in the US, who are three times more likely than white women to die from pregnancy-related causes. 
4. The economic costs and unpaid care burden of forced parenting are more challenging for women of color than for white women - women of color are already more likely to live below the poverty line, receive low wages, experience unemployment and suffer labor discrimination than white women. 

US foreign policy (including the Helms Amendment) severely undermines access to abortion for women and damages the health and lives of Black and brown women in Global South middle- and low-income countries. 

Recommendations

• Take federal and state legislative steps to guarantee effective access to affordable, legal, and quality abortion care.
• Remove the Helms Amendment restrictions on US foreign aid to ensure that development assistance and global health funds provide safe and quality abortion care and information.

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Introduction

“Racism in America is more than the fire hoses, police dogs and Alabama sheriffs you envision when you hear the words,” writes Petula Dvorak. It is also the tyranny inflicted on racialized women when they are stripped of their reproductive autonomy, shackled while giving birth, and excluded from lifesaving health care and information on cervical cancer.

This submission under the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) discusses three sites of systemic racism and intersectional discrimination that oppress women of color, particularly Black women, in the United States (US): abortion restrictions, the shackling of pregnant prisoners, and racial inequalities in cervical cancer mortality. While many of the laws and practices described in this submission do not directly target women of color and are presented in facially neutral terms, they disproportionately impact the human rights of women of color. We urge the Committee on the Elimination of Racial Discrimination (CERD, or the “Committee”) to recognize the disproportionate effects of these policies on the lives of racial minorities and the racial inequalities that they perpetuate.

US abortion restrictions are a form of racial discrimination

1. In June 2022, the Supreme Court of the United States overturned the constitutional guarantee to access abortion. As a result, more than half of US states are poised to ban abortion; as of July 7, 2022, thirteen states have already criminalized or severely restricted abortion. Anti-abortion regulations affect all women and people who can become pregnant, but health inequities and racialized socio-economic inequalities mean that it is women and adolescents of color whose disproportionately suffer.

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Excerpt of The Nation op-ed authored by GJC President Akila Radhakrishnan.

All of us in the abortion rights movement have long prepared for the day Roe v. Wade would be reversed. But nothing could fully brace us for the pain of reading Justice Samuel Alito’s majority opinion, which categorically declared that abortion is not a constitutional right. While we took to the streets to rage and mourn the destruction of our rights, we heard from feminist allies and partners around the world—some of whom had successfully fought deeply entrenched patriarchal forces to secure historic advances for abortion rights in their country and offered lessons for our struggle. There is an immense amount to learn from them, but there is one lesson in particular to embrace: We must place human rights at the center of our demands for unfettered access to abortion.

Since the Supreme Court decided Roe in 1973, the story of abortion access in the United States has been one of steady regression. In 1976, Congress passed the Hyde Amendment to restrict the use of federal funds for abortion except in limited circumstances. This decision was upheld by the Supreme Court in Harris v. McRae, which found that that neither the federal government nor states were required to pay for abortion services—severely undercutting the realization of a constitutional right. Subsequent years saw Planned Parenthood v. Casey limit Roe through the imposition of the “undue burden” standard, Gonzales v. Carhart limit later abortions, and National Institute of Family and Life Advocates v. Becerra limit regulation of anti-abortion “crisis pregnancy centers.” And just under 50 years after Roe, the court dealt its killing blow to abortion rights in Dobbs v. Jackson Women’s Health Organization.

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Your platforms are currently enabling, and profiting from, the spread of dangerous medical misinformation about the FDA-approved drugs mifepristone and misoprostol, which are used in the FDA-approved regimen for medication abortion care. These drugs have a long track record of scientific safety and study.

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Introduction

With this submission, the Global Justice Center (GJC) and Human Rights Watch (HRW) aim to provide guidance to the Committee on the Elimination of Racial Discrimination (“Committee”) in its preparation of the list of themes to be examined during the Committee’s upcoming review of the United States (US). The United States’ combined report to the Committee does not consider the current national crisis in reproductive health care and its disproportionate impact on women and pregnant people of color. To mitigate this omission, this submission discusses four sites of gendered racial discrimination in the US: the shackling of pregnant prisoners, inequalities in screening and treatment for cervical cancer, abortion restrictions, and the criminalization of pregnant people and pregnancy outcomes.

We strongly urge the Committee to apply an intersectional lens to its examination of racial discrimination in the US and address the overlapping racial- and gender-based discrimination faced by women of color in the context of reproductive health.

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Panelists:

• Akila Radhakrishnan, President, Global Justice Center
• Rebecca Chan, Staff Attorney, ACLU
• Melissa Upreti, Senior Director, Center for Women's Global Leadership at Rutgers University

The following is responding specifically to question 1 regarding the main ongoing manifestations of racism, and related forms of discrimination enabled by racism prevalent in the United States in the area of the right to health broadly including in underlying determinants of health, health outcomes and access to health care.

The United States (US) is experiencing a national crisis in reproductive health care and its disproportionate impact on women and pregnant people of color. This response discusses three sites of gendered racial discrimination in the US: the shackling of pregnant prisoners, abortion restrictions, and the criminalization of pregnant people and pregnancy outcomes.

Shackling of pregnant persons in prisons and detention centers

The US has the highest incarceration rate in the world (664 per 100,000 people in 2021)and incarceration is marked by extreme racial disparities. Though the US incarcerates more women than any other nation in the world, the distinct human rights abuses women suffer in prison receive relatively little attention. The barbaric practice of shackling pregnant prisoners, including during labor, delivery, and postpartum recovery, is one such abuse. Though shackling has been recognized as a human rights violation by successive UN bodies, the dehumanizing practice persists and federal efforts to end it have had limited impact. A 2018 study of perinatal nurses in the US found that among those who worked with incarcerated pregnant patients, 82.9% reported that their incarcerated patients were shackled “sometimes” to “all the time."

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Panel 2: Judicial and Constitutional Approaches

• Professor Joanna Erdman (Schulich School of Law, Dalhousie University)

• Melissa Ayala García (GIRE)

• Dr. Christine Ryan (Global Justice Center)

• Professor Mary Ziegler (Harvard Law School)

• Moderator: Professor Rachel Rebouché (Temple University Beasley School of Law)

In December 2021 the United States hosted a virtual Summit for Democracy, bringing together leaders from government, civil society, and the private sector to discuss challenges and opportunities facing democracies and to make commitments to defend democracy and human rights at home and abroad. The Summit kicked off a year of action and opportunities for engagement, which will culminate with a second, in-person Summit to showcase progress and plan a path forward.

During this year of action, the Global Justice Center and Fòs Feminista are hosting a series of events highlighting the ways in which governments' commitments to advancing the sexual and reproductive health and rights of people all around the globe is a key indicator of the strength and health of vibrant democracies that respect the human rights of all people. This panel is the second in the series and will take place during the 66th session of the Commission on the Status of Women (CSW), with the priority theme of achieving gender equality in the context of climate change.

The panel will highlight connections between current global challenges, including climate change, conflict, and the rise of authoritarianism, and the role of sexual and reproductive health and rights. It will provide an opportunity to hear from leading experts on the role of sexual and reproductive rights in democracies, the relationship between authoritarian governments and control of bodily autonomy, challenges facing the international human rights framework and multilateral spaces including the United Nations, the anti-rights Geneva Consensus Declaration, shifting the conversation on climate policies, and how states can realize their commitment to sexual and reproductive health and rights at home and abroad.

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Fundamental to meeting the Sustainable Development Goals (SDGs) on health and wellbeing (SDG3) and gender equality (SDG5) is the recognition that access to sexual and reproductive health information and services is central to both individual and community health, as well as the realisation of human rights. Comprehensive abortion care, which includes information provision, abortion management, and post-abortion care, is an integral component of sexual and reproductive health and is a safe, simple health-care intervention that saves women's lives and safeguards their dignity and bodily autonomy.

Globally, abortion remains common, with 30% (three out of ten) of all pregnancies ending in induced abortion. However, estimates suggest that just over half (55%) of all abortions worldwide (and less than a quarter of all abortions in African and Latin America) can be considered as safe. Barriers—such as the scarcity of accurate information or providers and facilities that can safely provide services, restriction of available methods of abortion, abortion-related stigma, high costs, third party consent and other legal restrictions—have made it difficult or impossible for many women to access abortion care, which can lead them to use unsafe methods and negatively affect their sexual and reproductive wellbeing and health.

Fulfilling one of its core functions as a norms-setting agency, WHO has been providing recommendations related to abortion since 2003. With the release of the WHO Abortion Care guideline in March, 2022, WHO has consolidated and updated its recommendations, drawing on the evidence and data on the clinical, service delivery, legal, and human rights aspects of providing abortion care that have arisen over the past 10 years. In line with the WHO guideline process, formulation of recommendations by expert panels was based on available evidence and consideration of other criteria using the WHO-INTEGRATE framework. As a result, 54 evidence-based recommendations and two best practice statements focusing on the above-mentioned aspects of abortion care are presented in this updated guideline.

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The World Health Organization (WHO) is releasing new guidelines on abortion care today, in a bid to protect the health of women and girls and help prevent over 25 million unsafe abortions that currently occur each year.

“Being able to obtain safe abortion is a crucial part of health care,” said Craig Lissner, acting Director for Sexual and Reproductive Health and Research at WHO. “Nearly every death and injury that results from unsafe abortion is entirely preventable. That’s why we recommend women and girls can access abortion and family planning services when they need them.”

Based on the latest scientific evidence, these consolidated guidelines bring together over 50 recommendations spanning clinical practice, health service delivery, and legal and policy interventions to support quality abortion care.

New recommendations to improve access to high quality, person-centred services

When abortion is carried out using a method recommended by WHO, appropriate to the duration of the pregnancy and assisted by someone with the necessary information or skills, it is a simple and extremely safe procedure.

Tragically, however, only around half of all abortions take place under such conditions, with unsafe abortions causing around 39 000 deaths every year and resulting in millions more women hospitalized with complications. Most of these deaths are concentrated in lower-income countries – with over 60% in Africa and 30% in Asia – and among those living in the most vulnerable situations. 

The guideline includes recommendations on many simple primary care level interventions that improve the quality of abortion care provided to women and girls. These include task sharing by a wider range of health workers; ensuring access to medical abortion pills, which mean more women can obtain safe abortion services, and making sure that accurate information on care is available to all those who need it. 

For the first time, the guidelines also include recommendations for use where appropriate of telemedicine, which helped support access to abortion and family planning services during the COVID-19 pandemic.

Removing unnecessary policy barriers facilitates safe abortion access

Alongside the clinical and service delivery recommendations, the guidelines recommend removing medically unnecessary policy barriers to safe abortion, such as criminalization, mandatory waiting times, the requirement that approval must be given by other people (e.g., partners or family members) or institutions, and limits on when during pregnancy an abortion can take place. Such barriers can lead to critical delays in accessing treatment and put women and girls at greater risk of unsafe abortion, stigmatization, and health complications, while increasing disruptions to education and their ability to work.

While most countries permit abortion under specified circumstances, about 20 countries provide no legal grounds for abortion. More than 3 in 4 countries have legal penalties for abortion, which can include lengthy prison sentences or heavy fines for people having or assisting with the procedure. 

“It’s vital that an abortion is safe in medical terms,” said Dr Bela Ganatra, Head of WHO’s Prevention of Unsafe Abortion Unit. “But that’s not enough on its own. As with any other health services, abortion care needs to respect the decisions and needs of women and girls, ensuring that they are treated with dignity and without stigma or judgement. No one should be exposed to abuse or harms like being reported to the police or put in jail because they have sought or provided abortion care." 

Evidence shows that restricting access to abortions does not reduce the number of abortions that take place. In fact, restrictions are more likely to drive women and girls towards unsafe procedures. In countries where abortion is most restricted, only 1 in 4 abortions are safe, compared to nearly 9 in 10 in countries where the procedure is broadly legal. 

“The evidence is clear – if you want to prevent unintended pregnancies and unsafe abortions, you need to provide women and girls with a comprehensive package of sexuality education, accurate family planning information and services, and access to quality abortion care,” Dr Ganatra added.

Following the launch of the guidelines, WHO will support interested countries to implement these new guidelines and strengthen national policies and programmes related to contraception, family planning and abortion services, helping them provide the highest standard of care for women and girls.

Our 2021-2026 Strategic Plan, launched in November of 2021, outlines three central goals for the organization. One of these centers on our work to ensure abortion access is respected, protected, and fulfilled as a fundamental human right.

To learn more about our vision for a gender-equal future that protects abortion and other rights, check out our Strategic Plan.

The following is responding specifically to question 2 regarding how the legal framework defines, punishes, and provides redress for the relevant types of violence.

Denial of abortion is deeply entwined with violence as everything from risk factor to lack of redress. Indeed, the denial of abortion is itself a form of structural violence. Additionally, access to abortion bears a cyclical relationship with direct violence. Lack of access places people at greater risk for violence. Meanwhile, experiencing direct violence often increases the need and demand for abortion services. This is especially true in situations of conflict and mass violence.

This section outlines the international standards to which anyState must adhere in the context of mass or systemic sexual and gender-based violence (“SGBV”). They establish a minimum framework to actively ensure the right to health.

Access to abortion is necessary to meaningfully redress and prevent SGBV

The denial of abortion is an act of structural violence. It strips pregnant people of their rights, can cause severe physical and psychological harm, and prevents them from meeting their basic needs for healthcare. It is also inextricably linked to direct forms of SGBV, as both an outcome and a driver. There is an implicit logic that an increase in forced sex would yield an increase in unwanted pregnancies and demand for abortion access. Individually, denial of abortion reduces economic stability and independence, leaving people vulnerable to exploitation. Denial of abortion is also a form of discrimination and inequality, which are both root causes of societal instability, mass violence, and violence against women.

A primary goal of international law is to avoid irreparable harm and to “restore the victim to the original situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred.” Forcing a person to carry an unwanted pregnancy to term resulting from SGBV denies them restitution for that harm. The Secretary-General’s Guidance Note on Reparations for Conflict-Related Sexual Violence recommends access to safe abortion services as an administrative reparation program to respond to the immediate needs of survivors, particularly in the context of conflict and widespread violence. Repairing harm is a baseline, but reparations “cannot simply be about returning them to where they were before the individual instance of violence, but instead should strive to have a transformative potential.” Justice and accountability also bear a role in prevention, including through guarantees of non-repetition. Among other necessary measures, legislation is required to provide people who become pregnant as a result of rape, with the choice of safe and legal abortion.

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Introduction

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On December 9-10, 2021 the United States will host a virtual Summit for Democracy, bringing together leaders from government, civil society, and the private sector to discuss challenges and opportunities facing democracies and to make commitments to defend democracy and human rights at home and abroad.

Fòs Feminista and the Global Justice Center in partnership with the Embassy of Canada, are hosting a side event on the margins of the 2021 Democracy Summit. Leading experts will discuss the role of reproductive rights in democracies, the relationship between authoritarian governments and control of bodily autonomy, the impact of US abortion restrictions around the world, and how the US can realize its commitment to sexual and reproductive health and rights at home and abroad.

Moderator:
Seema Jalan, Executive Director of the Universal Access Project and Policy at the United Nations Foundation

Opening Remarks:
Katherine Baird, Deputy Head of Mission, Embassy of Canada

Panelists:

• Helena Chiquele, Oxfam, Mozambique
• Amanda Nunes, Youth Leader, Anis, Brazil
• Akila Radhakrishnan, President, Global Justice Center
• Serra Sippel, Chief Global Advocacy Officer, Fòs Feminista

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Excerpt of Courthouse News article mentioning a legal brief by the Global Justice Center.

Proponents of the abortion right say bans like that of Mississippi will not prevent the practice but instead just make it less safe. An amicus brief from Human Rights Watch, the Global Justice Center and Amnesty International says unsafe abortions are one of the leading causes of maternal mortality and morbidity. 

“The lesson for this case is clear: If an abortion ban like H.B. 1510 is upheld, more women in Mississippi are likely to die,” the brief states. 

If the court were to overturn Roe, abortion providers say low-income and minority women would be impacted the most. 

“You just shouldn't be able to have access to an abortion only based off on where you live or how much money you make and what access you have, but right now in the United States, that's what's going on,” Brewer said. 

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Introduction

In response to the Appeals Chamber’s order, we respectfully seek leave to file amicus curiae observations on the Rome Statute’s definition of ‘forced pregnancy’, noting that this is the Appeals Chamber’s first opportunity to interpret this crime.

Expertise

Dr Rosemary Grey (lecturer, Sydney University Law School) is an expert in gender issues in international criminal law. Her publications include 13 peer-reviewed journal articles and her monograph Prosecuting Sexual and Gender-based Crimes at the International Criminal Court (Cambridge University Press, 2019). From 8 June to 8 September 2015, she worked with the ICC Office of the Prosecutor through the Internship and Visiting Professional Programme, where she assisted with legal research on topics including forced pregnancy. Women’s Initiatives for Gender Justice (WICJ) is an international women’s human rights NGO advocating for accountability for sexual and gender-based crimes through the ICC’s work, including with conflict affected communities in Uganda, since 2004. It is the successor of the Women’s Caucus for Gender Justice (1997-2003) that brought together over 300 women’s human rights advocates and organizations in the Rome Statute negotiations. Global Justice Center (GJC) is an international NGO advocating for justice and accountability for sexual and gender-based violence and violations of reproductive autonomy in situations including Syria, Myanmar, and others. Its 2018 report, Beyond Killing: Gender, Genocide, & Obligations Under International Law, was the first of its kind to offer a comprehensive gender analysis of the crime of, and international legal obligations surrounding, genocide. Amnesty International (AI) is a worldwide movement of people who campaign for internationally recognized human rights to be respected and protected, with over 50 years’ experience documenting and campaigning against human rights violations around the world.

First proposed argument: Irrelevance of national law

Art. 7(2)(f) of the Rome Statute states: ‘“Forced pregnancy” means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy.’ The Trial Chamber stated that the final sentence of Art. 7(2)(f) ‘does not add a new element to the offence – and is thus not reproduced in the Elements of Crimes – but allays the concern that criminalising forced pregnancy may be seen as legalising abortion. Mr Ongwen appears to argue that the Trial Chamber erred by interpreting the crime of ‘forced pregnancy’ without analysis of abortion laws in the state where the crimes occurred (Uganda). That argument is incorrect. National laws on abortion have no bearing on the Rome Statute’s definition of ‘forced pregnancy’. The second sentence of Art. 7(2)(f) does not make the ICC’s jurisdiction over ‘forced pregnancy’ dependent on national legislation, nor create an element of the crime. It simply affirms that the legality of the relevant conduct under national law is distinct from its legality under international law. This is true of all crimes in the Rome Statute, but was made explicit for forced pregnancy in order to satisfy states who were concerned that defining forced pregnancy as a crime in the Rome Statute would affect their legal ability to regulate abortion under national law. Thus, regardless of whether conduct amounting to ‘forced pregnancy’ is consistent with national law, an individual who commits such conduct could be prosecuted for ‘forced pregnancy’ as a war crime and/or crime against humanity under the Rome Statute (if the contextual elements for were met, and subject to the ICC’s jurisdiction and admissibility rules). Victims in states with strict abortion laws do not enjoy lesser protections under the Rome Statute than those in states with more liberal abortion laws.

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