Toward an International Standard of Abortion Rights: Two Obstacles

I. INTRODUCTION On July 11, 2003, the African Union1 ("AU") adopted a "Protocol on the Rights of Women in Africa" ("Protocol"), which established a woman's right to have an abortion in cases of rape or incest or to preserve the health of the mother.2 Perhaps surprisingly, this Protocol is the first explicit mention of abortion rights in international law.3 For a variety of reasons, many international organizations have carefully avoided taking positions on positive abortion rights.4 Complicating the issue are the laws of some nations that affect, at least indirectly, the ability of other nations to create their own policies and develop them independently. The purpose of this Development is to briefly identify current issues in abortion rights in the international context and to suggest a framework for the future. II. THE LACK OF INTERNATIONAL STANDARDS The United Nations "does not promote abortion as a method of family planning" and takes the position that "[fjhe legal status of abortion is the sovereign right of each nation."5 The European Union ("EU") similarly leaves to each member nation the right to formulate its own abortion policies.6 The EU's silence is somewhat surprising, considering that the EU is composed entirely of developed nations; among the forty-eight nations identified by the UN as developed, thirty-one allow abortions on request and forty-two allow them when the health of the mother is at stake.7 The refusal of some member nations to allow abortions, mostly on moral (usually religious) grounds, is widely regarded as the foremost obstacle in developing international standards of abortion rights.8 Because the issue is hotly contested within and between nations, and involves not only questions of women's self-determination but of sexuality and family dynamics, it is difficult even for nations with similar histories and cultures to agree on an abortion rights framework. A. THE UNCERTAIN LANGUAGE OF RIGHTS A key legal question affecting international standards for abortion rights is whether abortion can be accommodated under current notions of human rights. The Universal Declaration of Human Rights ("UDHR") states that "[ejveryone has the right to life. . . ."9 Article 2 of the European Convention on Human closely resembles the UDHR in stating that "[ejveryone's right to life shall be protected by law."10 It is far from clear what is meant by "everyone" and "life" and whether either might include unborn children; thus, member nations have tended to supply definitions that implicate their own policies.11 Neither the EU nor the UN has attempted to clarify the meaning of these terms, which has sometimes led to conflict between organizations and their member states.12 B. RELATION TO OTHER IDENTIFIED RIGHTS The UN's refusal to regard abortion as a fundamental human right has created a difficult conflict with its other policies. For example, article 25 of the UDHR states that "[mjotherhood and childhood are entitled to special care and assistance"13 and that "[ejveryone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services."14 Additionally, the UN recognizes that worldwide, seventy thousand women die each year from unsafe abortions (representing 13 percent of all maternal deaths) and that women who are already vulnerable due to poverty, poor family planning services, or refugee status are the most likely to receive unsafe abortions.15 They are also least likely to be able to care for their children adequately during the most fragile time of their development. It seems logical that UN aid workers should be prepared and willing to provide abortions to these women to prevent circumstances where children, once born, live in conditions that do not meet these articles of the UDHR. Despite these facts, the UN Population Fund ("UNFPA"); the UN High Commissioner for Refugees; and the International Committee of the Red Cross, operating together during the 1996 crises in Rwanda, Burundi, and Zaire (now the Democratic Republic of the Congo), declined to provide abortion services to women in these countries, even though they provided contraception and other reproductive services. …