A Right to Mifepristone and Misoprostol? A Consideration of Recent Interpretations of the ICCPR

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On June 20, 2017, the UN Working Group on Discrimination Against Women, the Special Rapporteur on the Right to Health, and the Special Rapporteur on Violence against Women jointly issued a letter recommending that the New York State Senate pass a proposed bill that would liberalize the existing status of abortion law in New York State. The letter primarily focuses on the importance of moving abortion regulation from the penal code in terms of human rights treaties like the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), but its analysis regarding why a criminal ban on self-induced abortions contravenes human rights law is particularly novel. The letter offers a nuanced, and rather radical, description of what is required comply with international human rights standards because it suggests that a State’s laws must not promote unequal access to abortions based on socioeconomic inequities.

 

Abortion Law in New York State

While New York has one of the most liberal abortion laws in the world, it continues to regulate abortion in the criminal code, rather than the public health code. In New York, abortions are available upon a woman’s request until 24 weeks, after which they may only be performed in cases to preserve the pregnant woman’s life (N.Y. Penal Law § 125.05 (McKinney 1965)). New York also requires an abortion to be performed by a licensed physician in a hospital, and treats abortions performed by non-physicians as a felony. Additionally, “self-abortions” are misdemeanors under the present law, and women run the risk of prosecution and conviction (N.Y. Penal Law §§ 125.40, 125.45, 125.55, 125.60 (McKinney)).  The proposed Reproductive Health Act would amend existing law in a few distinct ways: first, it would move abortion regulation from its present location in the penal code to the public health code; second, it would expand access to abortion after 24 weeks in cases necessary to preserve a woman’s health, as well as in cases of fetal non-viability.  Finally, it would expand both the category of abortion providers beyond physicians to licensed medical practitioners like nurse practitioners and physician’s assistants. Moving the law out of the criminal code and removing the requirement that an abortion be performed by a license physician would decriminalize self-induced abortion in New York State.

 

Self-Induced Abortion

            While self-induced abortions bring to mind dangerous coat-hanger abortions driven out of a sense of urgent necessity, and high maternal morbidity and mortality rates attributable to self-induced abortions are partially responsible for the original criminal ban of self-abortion, there are now safe and inexpensive ways for a woman to terminate her pregnancy without undergoing a medical procedure. In 2000, the United States legalized medication that induces abortion. These pills had been widely available in France, China, Great Britain and Sweden since the late 1980s, but failed to be adopted in the United States because of staunch resistance efforts on the part of anti-abortion activists. The abortion pill is comprised of at least two pills: one dose of mifepristone and a subsequent dose of misoprostol at a later date. Under the Federal Food and Drug Administration’s regulations, medical abortions are subject to a gestational limit of ten weeks, and women must obtain the medication from a clinic, medical office, or under the supervision of a certified healthcare provider. The mifespristone/misoprostol combination is incredibly safe and effective, with an effectiveness rate above 95%. Moreover, the pills are  cheap–they can be purchased online for less than $5 and sellers are willing to ship them anywhere around the world.

The relative safety and inexpensiveness of the pills have led to studies that recommend that the pills be approved for over-the-counter sale. In fact, a bill has been proposed in the California State Senate that would mandate state universities provide access to abortion pills. In 2005, the World Health Organization added mifepristone and misoprostol to its essential medications list in 2005. Despite the safety and effectiveness of abortion pills, it is illegal to purchase and use the pills without medical supervision under federal law, and under New York State law. The law’s ban has not prevented women from purchasing abortion-pills and using them without supervision; women who are otherwise unable access to safe, legal abortions through a medical provider are resorting to the internet to obtain mifepristone, or misoprostol so that they can terminate their unwanted pregnancies. Feminist groups are facilitating safe medical termination by setting up safe abortion information hotlines and provide information and access to abortion pills for women.

 

Novel and Radical Application of the ICCPR

In the past few years, the United Nations Human Rights Committee has been strengthening its pro-abortion activism through critiques of independent states for maintaining laws that seriously constrain a women’s ability to terminate her pregnancy. In 2016, the Committee found that Ireland’s criminal ban on abortion violated the human rights of Amanda Mellet, who was forced to travel to the United Kingdom to terminate her pregnancy because of a fatal fetal diagnosis. In particular, the committee found that Ireland’s laws subjected Mellet to discrimination and cruel, inhuman and degrading treatment, in violation of Articles 7 and 26 of the International Covenant on Civil and Political Rights (ICCPR).

In 2017, the Committee affirmed its stance in the Mellet case and drafted General Comment 36. The comment interprets the ICCPR and would require all member states to provide access to abortion such that any legal restrictions must not “jeopardize [women’s] lives or subject them to physical or mental pain or suffering which violates Article 7.” Moreover, the comment requires that state parties do not regulate abortion in a manner that ensures women will have to undertake unsafe abortions, for example, by criminalizing them.

While the ICCPR itself does not explicitly state that there is a right to abortion, the Human Rights Committee’s recent interpretations and holdings strengthen the notion that there is such a right to abortion guaranteed by international human rights treaties. As an aside, there is support in other international legal instruments that safe and legal abortion is a woman’s human right. The Committee’s letter regarding New York’s laws, however, further expands the requirements for compliance with the ICCPR. The letter’s emphasis on the harm of criminalizing self-induced abortions and the disparate effects of its criminalization on economically disadvantaged women suggests that laws must not only afford women access to abortion, but that they may not discriminate along socio-economic lines by failing to provide reasonable access to low-income women. As the letter states, “[c]oncerns have been raised regarding the impact that criminalization of ‘self- abortion’ is likely to have on low-income women, who due to limited means and reduced access to health care are most likely to seek to terminate their own pregnancies and consequently most likely to be harmed by the current legislation.” Furthermore, following the letter’s reasoning, it appears that bans preventing women from obtaining misoprostol and mifepristone through the inexpensive providers on the internet may violate the ICCPR, as it is currently the cheapest and safest method to induce an abortion and promotes equal access to safe abortion regardless of a woman’s financial status.

In conclusion, the letter recommending the proposed Reproductive Health Act offers a robust view of the ICCPR’s protection of abortion access, which may have ramifications for member states whose abortion laws may be unintentionally inequitable along socio-economic lines.

Swara Saraiya is a second-year J.D. student at Columbia Law School and a Staff Editor of the Columbia Journal of Transnational Law. She holds a B.A. from the University of Chicago, where she studied International Studies and East Asian Languages and Civilizations.