By Tess Graham

On October 17-18 in Geneva, the United States government faced questions from civil society and the Human Rights Committee on the country’s compliance with the International Covenant on Civil and Political Rights (ICCPR). In addition to questions on immigrants’ rights, racial discrimination, and more, US officials were pressed repeatedly on the state of abortion access in the wake of the US Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization.

The Committee is expected to issue its concluding observations on Friday. In advance of these observations, we offer a civil society response to the government’s statements.

The Helms Amendment Evasion

On the Monday before the Committee review, the US government hosted US civil society in a consultation on a wide range of topics. The administration was asked about the language they use around abortion, and how their commitment to abortion access as a human right could be operationalized and elevated in foreign aid delivery, given the US’s influential role in global aid, including family planning and reproductive health.

Robert Gilchrist, from the State Department’s Bureau of Democracy, Human Rights, and Labor, answered: 

“The US is proud to remain the largest bilateral donor to family planning assistance globally, and this commitment has spanned for five decades, and we’re committed to investing in high quality client-centered services that improve women’s wellbeing, promote gender equality, and insure women’s control over their bodies and their futures. And while there has been a chilling effect globally, the administration reaffirms that the Supreme Court decision overturning Roe v. Wade does not change existing overseas US reproductive health programming or funding. The US will continue to support global SRHR programs, including the most comprehensive program on voluntary family planning, maternal and child healthcare, post abortion care, and prevention and response to gender-based violence.”

A few things to note in this response: first, the part of the question about language was not addressed. Second and most importantly, the answer dodges the key substantive issue: how will the Biden administration uphold the right to access all forms of reproductive healthcare, including abortion, in its foreign aid? Instead, it answers a subtly different question: what impact did Dobbs have on foreign aid? Their answer to this question seems reasonable – it might seem reassuring that Dobbs, which has had such harmful consequences domestically, is apparently not impacting vital US aid to war zones and humanitarian disasters. But the reality is that Dobbs had no impact because US foreign aid was already subject to restrictions greater than any domestic restrictions that have been enacted since Dobbs. 

Since 1973, the Helms Amendment (and administrative interpretations of it) have limited the use of US foreign aid to provide reproductive healthcare, stipulating: “no foreign assistance funds may be used to pay for the performance of abortion as a method of family planning or to motivate or to coerce any person to practice abortions.” This is a legislative problem that the Biden administration cannot entirely solve on its own, since it will require the repeal of the Helms Amendment by Congress. But the administration has significant power to interpret the amendment. Most urgently, the administration can (and should) issue administrative guidance clarifying what is permitted under Helms — namely, the use of US foreign aid funds to provide abortion care in life-threatening situations, cases of rape or incest, or severe fetal anomalies. 

Even the most restrictive US abortion bans purport to offer some exceptions to save the life of the pregnant person (though these exceptions are inadequate and unworkable in practice). But current administrative interpretations of Helms, and the chilling lack of clarification from successive administrations, have meant that  US foreign assistance cannot be used, for example, to provide abortion care for victims of wartime rape in Sudan, Ethiopia, or Ukraine. Indeed, for the last 50 years, no US foreign aid money has been spent to help a single victim of rape terminate a resulting pregnancy, or to provide life-saving abortion care for severe pregnancy complications.

US and international NGOs have advocated for years to clarify the interpretation — something that the executive branch could do unilaterally to expand access to abortion care for those who need it the most. That was the focus of the question posed to Gilchrist. To answer, in effect, “don’t worry, Dobbs changes nothing” is wildly disingenuous and insulting when the status quo of US reproductive healthcare funding abroad is worse than the worst policies enacted following Dobbs.

Acknowledging Abortion as a Right – While Abdicating Responsibility for Protecting Access

The official review of US compliance with the ICCPR took place over the following two days (October 17-18), before the Human Rights Committee. The US delegation smoothly alternated among speakers to address the huge variety of human rights issues raised by the Committee. On abortion rights, Justin Vail, Special Assistant to the President for Democracy and Civic Participation and a member of the White House Domestic Policy Council (DPC), kicked off the administration’s remarks: 

“Last year, the Supreme Court’s Dobbs decision overtook nearly 50 years of precedent and eliminated a constitutional right it had previously recognized. This has had an immediate and devastating impact on women’s health and rights. The Biden-Harris administration stands with the majority of Americans who believe that the right to choose is fundamental, and we will continue calling for Congress to pass a law restoring the protections of Roe v. Wade. President Biden has issued three executive orders directing a comprehensive slate of actions to protect access to the full spectrum of reproductive health and care services, including abortion.”

It was heartening at least that the Biden administration tasked one of its most senior delegation members with this opening statement. It was also refreshing to hear the administration actually use the word ‘abortion’. Biden himself has largely avoided the term, contributing to stigma. Perhaps most significantly, this intervention twice characterized abortion access as a right (albeit in the second reference, in the context of the “right to choose” rather than in the language of international human rights law). 

This marks a welcome change from the administration’s last public engagement with the UN on the topic. In May, nearly a dozen UN Special Procedures mandate-holders wrote to the US expressing “serious concern” about the status of human rights related to abortion access. The US government response largely avoided characterizing abortion access as a human right and listed a number of executive orders and directives that the Biden administration has issued while failing to engage with any of the specific concerns, cases, and recommendations communicated by the mandate holders. 

Jessica Marcellis, at the Department of Health and Human Services, continued the US government answer to the HRC: 

“As noted by the White House, our efforts and commitment are focused, whether we’re talking about access to sexual health information and care, contraception, abortion, other reproductive health care, or maternal health. I will focus my remarks on meaningful action specifically with respect to protecting privacy for patients and providers seeking essential reproductive health care. This is on top of other priorities to ensure access to accurate information, birth control, and stabilizing abortion care. In terms of protecting privacy rights, we put out a new rule to prevent the weaponization of data and strengthen privacy protections for individuals, health care providers, and others who seek, obtain, provide, or facilitate lawful reproductive health care, including abortion. Notably, this rule would prohibit most doctors and other health care providers, as well as health plans, from disclosing individuals’ protected health information, including information related to reproductive health care under certain circumstances. Additionally, as we think about how to support people, we have issued a how-to guide for consumers on steps they can take to better protect their data on personal cell phones or tablets and when using mobile health apps, like period trackers, which are generally not protected under our existing privacy protections through HIPAA.” [emphasis added] 

This answer sounds promising, and includes some useful ideas. But the response dodges key points that are crucial for protecting reproductive autonomy. 

First, the answer focuses on privacy and information access, rather than defending and protecting rights directly. But issuing a guide to warn consumers that much of their private data is subject to government surveillance without HIPAA or warrant protections is an abdication of government responsibility, especially in the context of the evolving relationship between individuals, their data, private companies, and the government. In contrast, a human rights-respecting way to protect individuals from excessive surveillance and misuse of private data would be to implement protections in line with the right to privacy (Article 17 of the ICCPR). This could specifically include enacting laws and policies that limit the government’s power to engage in such uses. Instead, the delegation’s answer places the onus on individuals to safeguard themselves against their own government. 

Most significantly, the answer subtly but utterly fails to protect the most vulnerable abortion seekers – and ignores the human rights obligations purportedly under discussion. The answer pledges to “prevent weaponization of data and strengthen privacy protections…[in relation to] lawful reproductive healthcare, including abortion.” This renders the pledge hollow in the context of the obliteration of federal legal protection for abortion. The reason Dobbs was so devastating is that it removed any federal legal barrier to state imposition of legal restrictions on abortion. Promising to protect “lawful” abortion access – rather than to fight for the expansion of lawful access and to ensure that reproductive decision-making is left to pregnant people themselves under all circumstances – commits the federal government only to ensuring that states follow their own, increasingly draconian laws. 

Moreover, this pledge fails to grapple with the growing gap between state laws restricting abortion and the human rights that the US has committed to uphold through its ratification of the ICCPR. The Human Rights Committee has held directly that, for example, restrictions on abortion in cases of fetal anomalies, threat to life or health of the pregnant person (including mental health), and in cases of rape or incest constitute violations of the ICCPR. The US government was purportedly in Geneva to answer for its record with regard to these specific human rights obligations (among many others) at a time when state laws increasingly violate the ICCPR by imposing just such limitations on abortion access. A serious answer to this question would have acknowledged these rights and the status of international treaty law under US constitutional law. Treaties hold the same status as constitutional law or federal statutes – that of “supreme law of the land.” Among other commitments, the government could have pledged to challenge the violative state laws on supremacy grounds. 

Obscuring the Link Between Abortion and Maternal Healthcare

Next, a representative of the Department of Health and Human Services (HHS) provided input on efforts to combat maternal mortality and morbidity. But the answer failed to link the poor outcomes for pregnant people (the US has one of the worst maternal mortality rates among high-income countries) with the restrictive landscape of abortion access:

“It’s also important to acknowledge that as our nation faces a clawback of reproductive rights, women in our nation, especially those that look like me, are dying from pregnancy-related causes before, during, and after childbirth at a higher rate than any other developed nation. The Biden-Harris administration is committed to cutting the rates of maternal mortality and morbidity, reducing the disparities in maternal health outcomes, and improving the overall experience of pregnancy, birth, and postpartum for people across the country. In June of last year, on the same day as the Dobbs decision, the Biden-Harris administration released the White House Blueprint for Addressing the Maternal Health Crisis, a whole-of-government strategy to combat maternal mortality and improve maternal and infant health, particularly in underserved communities. We’ve taken meaningful steps across five goals, which include increasing access to and coverage of comprehensive, high-quality maternal health services, including behavioral health services, ensuring those giving birth are heard as decision-makers and accountable systems of care, advancing data collection, standardization, harmonization, transparency, and research, expanding and diversifying the perinatal workforce, and strengthening the economic and social support for people before, during, and after pregnancy.”

This answer does not adequately account for the deep connection between maternal mortality/morbidity and abortion access. Maternal mortality is up to three times higher in states where abortion is severely restricted, due to the inherent risks of pregnancy, overall underinvestment in reproductive and perinatal healthcare, and practical and legal barriers to accessing even life-saving abortions. Indeed, women denied abortion care are more likely to experience serious pregnancy complications, including death. Of the five listed goals, only the first, on maternal health services, could plausibly be interpreted to include abortion. But failing to explicitly articulate the direct link between abortion restrictions and mortality obfuscates this crucial connection. If the administration is truly committed to reducing maternal mortality and morbidity, it needs to commit to increasing access to abortion at the discretion of the pregnant person, who can best judge their own risk tolerance with regards to their own health and life. 

The Empty Promise of Protection for “Federal Reproductive Rights”

Finally, the Department of Justice (DOJ) representative offered answers to Committee members’ questions about the criminalization of abortion: 

“In the wake of the Dobbs decision, the Department of Justice took a number of steps, including the creation of the Reproductive Rights Task Force in order to formalize and fortify our ongoing work to protect reproductive freedom under federal law. We continue to monitor state laws and enforce actions that threaten and infringe the federal protections of reproductive rights. We will not hesitate to take legal action where appropriate, including by filing litigation, to defend and protect federal reproductive rights.” [emphasis added] 

This is perhaps the cruelest response from the government on abortion. Thanks to Dobbs, there are essentially no federal protections of reproductive rights — no “federal reproductive rights” at all. The Dobbs decision eviscerated the (always insufficient) federal constitutional protections of Roe v. Wade and Casey v. Planned Parenthood. Thus, committing the DOJ to monitor and take action against infringements on “federal reproductive rights” is a pledge without substance. What Dobbs represents is the failure of the constitutional framework for protecting abortion rights in the US — and the need to seek a stronger legal foundation for reproductive autonomy. 

Looking Beyond Roe and Dobbs to Human Rights Law

A better legal framework can be found in international human rights law, including the text of the ICCPR and other treaties, the findings issued by committees (like the HRC) on individual communications, and general comments that provide guidance on interpreting treaty text. This body of law protects the right to life, beginning at birth, as well as rights to privacy, to be free from torture or other cruel, inhumane, or degrading treatment, and the right to non-discrimination in law and practice. Each of these rights is infringed by the abortion restrictions that have been enacted since Dobbs (and even before it). 

The US could have made a meaningful commitment to protecting reproductive rights by engaging with, citing to, and pledging to uphold this body of law in its dialogue with the Human Rights Committee. Rather than a hollow promise to “defend and protect federal reproductive rights,” the delegation could have pledged to defend and protect reproductive rights under international human rights law. Instead, the delegation stuck to a familiar line from the US government: that its human rights obligations are co-extensive with federal law, creating no additional rights or duties and requiring no engagement with the substance of the specific human rights obligations on which the Human Rights Committee sought clarity. 

The Committee will issue its Concluding Observations on the US on November 3. These are expected to include recommendations for the US to better uphold its obligations with regard to abortion access. In addition, on November 9, the Inter-American Commission on Human Rights will hold a hearing to review the US record on human rights and abortion access, providing yet another opportunity for the US to commit explicitly to its human rights obligations. It is time to move beyond reliance on the constitutional framework to protect reproductive autonomy in the US — the full protection of which Roe never fully achieved. International human rights law offers stronger tools to defend reproductive freedom, if we can seize them.