“States across the world should act now to decriminalise abortion,” says a group of U.N. human rights experts.
A statement released last Friday by U.N. human rights experts to commemorate something called “International Safe Abortion Day” urged the international community to “guarante[e] access to safe and legal abortion.” The group further exhorted governments to take an active role in securing the availability of abortion by ensuring that women are “given more support and autonomy to undergo the procedure.”
For the past three years, U.N. human rights experts, who serve the U.N. Human Rights Council as special rapporteurs and independent experts on various human rights issues, have used “International Safe Abortion Day” as a pretext for admonishing the international community to depenalize and legalize abortion. A similar statement in 2016 had even called on all countries worldwide to legalize abortion “on request,” representing the first time a U.N. human rights body had explicitly called for the universal legalization of abortion on demand.
The statement released by U.N. human rights experts on Friday made a number of controversial claims, including an accusation that laws defending the right to life of the unborn are rooted in “discriminatory legacies supported by religious and cultural norms” and that such pro-life religious and cultural values “embody harmful stereotypes of women’s roles in the family and society.”
Similar to statements made by other U.N. human rights bodies, the group of experts asserted that the right of health care workers to conscientious objection to abortion cannot be permitted to interfere with the availability of abortion, stating that conscientious objection “cannot be a basis for denying women access to abortion.”
U.N. experts also took direct aim at pro-lifers, claiming that the ‘pro-life’ label is “misleading” and an inaccurate description of people who oppose the termination of the life of an unborn child.
The statement also wrongly suggests that the Universal Declaration of Human Rights (UDHR) should be interpreted to exclude the unborn. The group claims that Article 1 of the UDHR, which states that “All human beings are born free and equal in dignity and rights,” implies that human rights are only conferred on persons who are already born.
However, the records of the draft proceedings of the UDHR make it clear that this was not the drafters’ understanding of the term “born” when it was included in the Declaration. Rather, drafters of the UDHR choose to use the term “born” to recall French-Enlightenment era political theory on the rights of man and to indicate the normative and inherent character of human rights.
The human rights experts that joined in on Friday’s statement serve under a mechanism of the U.N. Human Rights Council known as Special Procedures. Experts appointed by the Human Rights Council to Special Procedures are responsible for advising and reporting to the Council and the U.N. General Assembly on specific human rights topics or on countries of particular concern. Special Procedures consist of special rapporteurs, independent experts, or working groups that serve as human rights experts at the United Nations. Special Procedures also contribute to developing human rights standards and issue recommendations to states on human rights issues.
The Human Rights Council made headlines earlier this year when the United States withdrew its membership due to systemic corruption and politicization in the Council. “For too long the Human Rights Council has been a protector of human rights abusers and a cesspool of political bias,” U.S. Ambassador to the United Nations Nikki Haley said at the time.
In recent years, the Human Rights Council refused to address serious human rights abuses in Venezuela and Iran. Last October, the Democratic Republic of the Congo—a nation with an egregious human rights record—was offered membership on the Council.
Urging States to Legalize Abortion “on Request”
The statement issued on Friday by U.N. human rights experts is just the latest in a string of statements that Special Procedures have released on “International Safe Abortion Day.” The statement issued in 2016 was perhaps the most sweeping endorsement of abortion ever to come from a U.N. human rights body. The 2016 statement was derived in large part from a groundbreaking 2016 report from the Working Group on the Issue of Discrimination Against Women in Law and in Practice, which called on all states to legalize abortion “on request” within the first trimester. It is believed that this document was the first instance that an independent human rights expert appointed by a United Nations human rights body has issued an official U.N. report explicitly recommending that all nations legalize abortion “on request.”
While it is not uncommon for U.N. human rights bodies and independent experts to call upon states to loosen restrictions on abortion, to “decriminalize” abortion, to “ensure access to safe abortion,” or to legalize abortion under specifically tailored circumstances such as rape or health of the mother, prior to the Working Group’s 2016 report U.N. experts had not previously called upon all states to legalize abortion “on request.”
The use of the term “on request” is significant. It is the terminology the United Nations system uses when referring to the legal status of abortion in countries where abortion is available on demand. And while other statements, such as those urging states to “ensure access to safe abortion,” are to open to interpretation, the phrase “on-request” is not. The term “on request” directly translates to “elective abortion on demand.”
The 2016 report of the Working Group also called for states to “repeal restrictive laws and policies” on abortion, including legalizing abortion after the first trimester in cases of rape, incest, physical and mental health of the mother and fetal disability. The report further urged that all legal penalties on women seeking abortion be removed and that even common-sense regulations on abortion such as waiting periods should be repealed.
A draft General Comment currently under consideration by the U.N. Human Rights Committee similarly recommends that states legalize abortion under the same circumstances outlined in the Working Group’s 2016 report. But even it does not specifically recommend that states should legalize abortion “on request,” making the Working Group’s 2016 report unique in that respect. In fact, in October of last year the Working Group even criticized the Human Rights Committee’s draft General Comment as “too restrictive,” urging the Committee not limit abortion to enumerated cases.
Similarly, a 2014 statement issued by the Committee on the Elimination of Discrimination against Women on the occasion of the 20th anniversary review of the International Conference on Population and Development called on states to legalize abortion in cases of rape, incest, health of the mother, and fetal disability but it never specifically recommended that states legalize abortion on demand. A similar 2015 statement issued by U.N. human rights experts also stopped short of calling for the legalization of abortion “on request.”
The Working Group’s 2016 report recommending that states legalize abortion on demand is a clear departure from the Programme of Action from the 1994 International Conference on Population and Development (ICPD), an international agreement agreed to by 179 nations. The ICPD Programme of Action stated that “In no case should abortion be promoted as a method of family planning.”
Promoting abortion on demand, for all practical purposes, is indistinguishable from promoting abortion “as a method of family planning.” Legalizing abortion “on request” has no other purpose other than to permit the use of abortion as a family planning method.
Long History of Abortion Advocacy from Special Procedures
Mandate-holders of Special Procedures to the Human Rights Council have long used their platform as human rights experts to promote abortion. A 2016 report from the Special Rapporteur on the Right to Health declared that “States are strongly encouraged to decriminalize abortion,” and urged states to guarantee that all adolescents are provided access to “confidential” abortion services. A significant report from 2011 issued under the same mandate recommended that states “Decriminalize abortion” and that they consider “imposing a moratorium on the application of criminal laws concerning abortion,” effectively asking states to consider stop enforcing their abortion laws.
A 2016 report from the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment made the case (as many U.N. treaty monitoring bodies have done for many years) that denial of abortions in certain contexts “amount to torture or ill-treatment.” Special Procedures have also for many years issued communications to countries, asking them to legalize abortion or to remove restrictions on abortion.
Unfortunately for pro-lifers, human rights experts appointed to Special Procedures of the Human Rights Council are largely unaccountable to U.N. member states once elected to their posts. Mandate-holders are not U.N. staff and once appointed to their position serve in their personal capacity for the duration of their term.
The group of U.N. human rights experts that issued the statement on the occasion of “International Safe Abortion Day” included Ivana Radačić (Chair of the Working Group on the Issue of Discrimination against Women in Law and in Practice), Dainius Pūras (Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health), Dubravka Šimonovic (Special Rapporteur on Violence against Women), and Agnes Callamard (Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions).
 See General Comment No. 15 (2013) on the Right of the Child to the Enjoyment of the Highest Attainable Standard of Health (Art. 24), ¶69, Comm. on the Rights of the Child, U.N. Doc. CRC/C/GC/15 (Apr. 17, 2013). See also Practices in Adopting a Human Rights-Based Approach to Eliminate Preventable Maternal Mortality and Human Rights, Rep. of the Office of the U.N. High Commissioner for Human Rights, Human Rights Council, 18th Sess., ¶30, U.N. Doc. A/HRC/18/27 (Jul. 8, 2011).
 Several delegations supported an amendment to strike the term “born” from the document precisely because they were afraid that it could be interpreted in such a way to exclude the unborn. As the proceedings progressed, however, the Mexican delegation, which had previously supported striking the term from the document as “a human being’s right to freedom and equality began from the moment of his conception,” urged states to drop support for the amendment as the term was a “point … of minor importance.” (See Statement of Mr. de Alba (Mexico), Draft International Declaration of Human Rights (E/800), 99th Mtg., U.N. Doc. A/C.3/SR.99). The Chilean delegation similarly considered that whether or not the term “born” is included in the document was “not a question of any great importance” as “the purpose in both cases was to proclaim that freedom and equality were essential attributes of human personality, regardless of whether or not those rights were always recognized.” (See Statement of Mr. Santa Cruz (Chile), Draft International Declaration of Human Rights (E/800), 99th Mtg., U.N. Doc. A/C.3/SR.99). The Working Group on the Issue of Discrimination against Women in Law and in Practice also makes an unsubstantiated that the International Covenant on Civil and Political Rights (ICCPR) affirms that “human rights accorded under IHRL are accorded to those who have been born” but offers no evidence supporting its claim (See Women’s Autonomy, Equality and Reproductive Health in International Human Rights: Between Recognition, Backlash and Regressive Trends, Working Group on the Issue of Discrimination against Women in Law and in Practice, Human Rights Council, Position Paper (Oct. 2017)). The Working Group places a footnote on this sentence, however, their “proof” is simply the record of the roll-call vote approving article 6 of the ICCPR which includes a paragraph stipulating that “Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women” (See International Covenant on Civil and Political Rights, art. 6(5)). In fact, the word “born” never appears in the ICCPR nor can it be concluded from the travaux préparatoires of the ICCPR that the unborn are excluded from the rights enumerated in the treaty. Many delegations specifically expressed that the right to life applies not only to the born but also to the unborn. E.g., the delegation from India stated that it “fully endorsed paragraph 4 of the article, in the belief that the right to life extended not only to persons who were already alive, but also to those not yet born” (See U.N. GAOR, U.N. G.A., Third Comm., 12th Sess., 813th mtg. at 256, ¶36, U.N. Doc. A/C.3/SR.813).
 The universal declaration of human rights: a common standard of achievement, 59 (Guðmundur S. Alfreðsson & Asbjørn Eide, eds. 1999).
 Office of the United Nations High Commissioner for Human Rights, Special Procedures of the Human Rights Council (last visited Oct. 1, 2018), https://www.ohchr.org/EN/HRBodies/SP/Pages/Introduction.aspx.
 “Noting that many countries where women have the right to abortion on request supported by affordable and effective family planning measures have the lowest abortion rates in the world, States should allow women to terminate a pregnancy on request during the first trimester…” See Rep. of the Working Group on the Issue of Discrimination Against Women in Law and in Practice, Human Rights Council, Rep. on its 32nd Sess., Jun. 13–Jul. 1, 2016, ¶107(c), U.N. Doc. A/HRC/32/44 (Apr. 8, 2016).
 E.g. General Comment No. 15 (2013) on the Right of the Child to the Enjoyment of the Highest Attainable Standard of Health (Art. 24), ¶70, Comm. on the Rights of the Child, U.N. Doc. CRC/C/GC/15 (Apr. 17, 2013).
 When U.N. human rights bodies recommend that states should “ensure access to safe abortion,” it is usually interpreted by member states as a recommendation to ensure access to “safe” abortion according to their national laws on abortion or as ensuring access in cases to protect the health of women. This is a legitimate interpretation as there is no customary norm in international law that abortion be legalized on demand. The international consensus agreed to through the Programme of Action of the 1994 International Conference on Population and Development and the Beijing Declaration and Platform of Action from the Fourth World Conference on Women recognized that “Any measures or changes related to abortion within the health system can only be determined at the national or local level according to the national legislative process,” that the provision of “safe” abortion falls within “circumstances where abortion is not against the law,” and that referred to “unsafe abortion” only in the context of “women’s health.” See International Conference on Population and Development, Cairo, Egypt, September 5–13, 1994, Rep. of the International Conference on Population and Development, Programme of Action of the International Conference on Population and Development, Conference Res. 1, ¶8.25, U.N. Doc. A/CONF.171/13/Rev.1, U.N. Sales No. 95.XIII.18 (1995).
 Additionally, statements calling on nations to “decriminalize” abortion stipulate that penalties on abortion should be removed but do not take a position on whether abortion should be explicitly permitted, even as such laws become all but impossible to enforce. Asking states to “decriminalize” abortion is thus only an indirect way to call for the legalization of abortion and the term does not have the specificity that the term “on request” has.
 Rep. of the Working Group on the Issue of Discrimination Against Women in Law and in Practice, Human Rights Council, Rep. on its 32nd Sess., Jun. 13–Jul. 1, 2016, ¶107(b), U.N. Doc. A/HRC/32/44 (Apr. 8, 2016).
 Ibid., at ¶107(e).
 Statement of the Comm. on the Elimination of Discrimination against Women on sexual and reproductive health and rights: Beyond 2014 ICPD Review in Rep. on the Comm. On the Elimination of Discrimination against Women, Comm. On the Elimination of Discrimination against Women, 57th Sess., Feb. 10–28, 2014, Annex 2, U.N. Doc. CEDAW/C/2014/I/CRP.
 International Conference on Population and Development, Cairo, Egypt, September 5–13, 1994, Rep. of the International Conference on Population and Development, Programme of Action of the International Conference on Population and Development, Conference Res. 1, ¶8.25, U.N. Doc. A/CONF.171/13/Rev.1, U.N. Sales No. 95.XIII.18 (1995).
 Rep. of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Human Rights Council, Rep. on its 32nd Sess., Jun. 13–Jul. 1, 2016, ¶92, U.N. Doc. A/HRC/32/32 (Apr. 4, 2016).
 Ibid, at ¶113(b).
 Interim Rep. of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, U.N. G.A., 66th Sess., ¶65(h), U.N. Doc. A/66/254 (Aug. 3, 2011).
 Ibid, at ¶65(i).
 Rep. of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Human Rights Council, 31st Sess., ¶44, U.N. Doc. A/HRC/31/57 (Jan. 5, 2016).