I believe that women’s rights are human rights. I believe that people have the right to health care. I believe that women have unique rights, like the right to decide what will happen with their bodies during pregnancy.
I believe that abortion is health care and is a human right.
I also understand that many people believe that the right to life, the third enumerated right in the Universal Declaration of Human Rights (UDHR), includes the life of a fetus. To be clear, Article 1 specifies that human rights begin when a person is born: “free and equal in dignity and rights.”
Yet for many, a fetus’s right to life is more important than a woman’s right to choose. In this hierarchy of rights, the unborn has a greater claim than a pregnant woman. Some pro-life proponents go further, arguing that even if a fetus will die before or soon after birth, they are to be protected over the woman’s life.
Who is correct here? Who gets to decide which right prevails?
The short answer is it depends.
Scary, huh? I could say the same for any right named in the UDHR. Rights only exist when people believe they should and fight to protect them.
But I totally understand. Feel free to skip to the end of the newsletter for a bit of good news about that.
When I teach “Introduction to Human Rights,” I emphasize that rights are not handed down to us from some otherworldly entity (like the origin story of the Ten Commandments). What we now accept as human rights are ideas that have been debated and fought over and championed for longer than the term “human rights” has even been around.
Eventually, we as a human community decide what rights are, who gets them, and how to implement them. We envision, persuade, then write and pass rights into law—and then we still have to defend them.
For instance, the right not to be tortured (Article 5) is now broadly accepted and codified into treaties and laws throughout the world. That right is so strong that the George W. Bush administration had to generate special legal language to get around the Convention against Torture that President Ronald Reagan signed in 1984. In a post-9/11 frenzy to fight the “war on terror,” the White House went to “the dark side” (in the words of vice president Dick Cheney) and chose to use torture.
But they knew international law forbids torture as a violation of human rights. To get around that ban, administration lawyers made specious legal arguments that what prisoners were being subjected to was instead “enhanced interrogation.”
To be clear, what happened after 9/11 on US military bases and CIA-run black sites was clearly torture: beatings, sleep deprivation, exposure to temperature extremes, rape, and waterboarding, among other abuses. The American government’s decision to violate the law and use torture is now broadly recognized as a serious mistake that not only did not help catch terrorists but resulted in international condemnation.
Now back to abortion…
Unlike torture, which has been debated for centuries, abortion as a human right is a relatively new idea. That’s not because there’s anything new about abortion or a long history of criminalization. Rather, in most of the world and for most of history, the decision to seek an abortion was private and outside of any system of law or rights. Women would go to an abortionist (and sometimes lose their lives) or drink certain teas or tinctures to prompt an abortion, some widely advertised.
While the Roman Catholic church frowned on abortion, it was permitted (for male fetuses in the first 40 days of pregnancy and for female fetuses in the first 80-90 days) until the 1800s. Other faiths, including Reform Judaism, Hinduism, and Buddhism, allow abortion under many circumstances.
As Katha Pollitt pointed out in The Atlantic, the US campaign to criminalize abortion only started in the 19th century. The unlikely pro-lifers (from our modern perspective) were not religious conservatives, but physicians. “The American Medical Association’s crusade against abortion was partly a professional move, to establish the supremacy of “regular” physicians over midwives and homeopaths. More broadly, anti-abortion sentiment was connected to nativism, anti-Catholicism, and, as it is today, anti-feminism.”
Other countries took different paths. In 1920, the Soviet Union became the first modern country to legalize abortion. Currently, abortion is available either on demand or with some restrictions in most of the developed world. Abortion is severely restricted or banned in most of Africa (excluding South Africa), the Middle East, and Latin America (excluding Argentina and Colombia).
The idea of access to abortion as a human right parallels women’s entry into the workforce and the political sphere. Once Roe v. Wade was decided in 1970, abortion became a legal “right” Americans believed they could count on.
So how did this right get taken away? There have been many analyses of how the Supreme Court of the United States (SCOTUS) came to overturn this landmark decision. I won’t repeat them here. Speaking for myself, I severely underestimated the conservative campaign to use cultural issues to erase this right. Deploying fantasies about “traditional families,” sex-shaming, and restrictive gender roles, Republicans used the courts to argue that a fetus’s right to life preempts the right of women to control their own bodies. Once they thought they had a SCOTUS majority to overturn Roe, they pounced.
Polls consistently show that most Americans support access to abortion.
So how do we reclaim this right and defend it? In my view, we need to relentlessly demonstrate the very real cost to human lives of banning abortion.
Ireland provides a compelling model. Ireland formally criminalized abortion in 1861. The ban didn’t stop Irish women from having abortions. It is estimated that about 170,000 people traveled from Ireland to seek legal abortions between 1980 and 2018.
Most harmed, as always, were poor women who couldn’t afford to travel.
In 1992, the country’s Supreme Court ruled that a thirteen-year-old who had been raped could obtain an abortion because of the risk of her suicide. Otherwise, abortion remained illegal except (supposedly) when the life of the woman was at stake.
A case in 2012 put the lie to that exception. Savita Halappanavar, a 31-year-old dentist who was seventeen weeks pregnant, had a miscarriage. At a Galway hospital, doctors detected a heartbeat. They told her they could not intervene. Over the course of three days, as Halappanavar agonized and developed a serious infection, the hospital refused to terminate the pregnancy
By the time the fetus died, Halappanavar had developed sepsis. After four days in intensive care, she died.
The case and several others caused massive outrage. Irish advocates, including the Together For Yes organization, used the stories of real women like Halappanavar to galvanize the nation. In 2018, Irish voters voted overwhelmingly to legalize abortion.
It is frustrating but true that people are more reliably moved by a story than by any statistic. Many of us have either had abortions or know friends and family who have. We also know people who have had difficult pregnancies and would be outraged to have the government intervene in their medical decisions.
Already, those real stories are emerging (and kudos to the women brave enough to come forward):
Louisianan Nancy Davis was denied an abortion despite the fact that the fetus was diagnosed with acrania, a rare congenital disorder in which a fetus’ skull does not form inside of the womb. “I want you to imagine what it’s been like to continue this pregnancy for another six weeks after this diagnosis,” Davis said at a news conference on the steps of the Louisiana State Capitol in Baton Rouge. “This is not fair to me and it should not happen to any other woman.”
Missouri woman Mylissa Farmer was almost 18 weeks pregnant when her water broke. A doctor advised her that she would lose the pregnancy but refused to perform an abortion for fear of legal action.
A pharmacy denied a 14-year-old girl in Tucson, Arizona, a refill of methotrexate (MTX) for fear she would use it to have an abortion. MTX is also used to treat leukemia and different cancers.
There are signs that this is already working. In Kansas, which Donald Trump won in 2020 by about 15 points, voters overwhelmingly chose to retain a state constitutional abortion right. Abortion may be the issue that saves the Democrats from a rout in the upcoming midterm elections (plug: VOTE).
Tom Bonier, a Democratic political consultant, recently wrote:
In my 28 years analyzing elections, I’ve never seen anything like what’s happened in the past two months in American politics: Women are registering to vote in numbers I’ve never witnessed. I’ve run out of superlatives to describe how different this moment is, especially in light of the cycles of tragedy and eventual resignation of recent years. This is a moment to throw old political assumptions out the window and to consider that Democrats could buck historic trends this cycle.
Increased access to abortion pills like MTX means that even women in states where abortion is illegal can obtain an abortion. As the New York Times recently reported, Aid Access, a telemedicine service, “openly provides pills in states with abortion bans…Across the 30 states, requests to Aid Access for pills has risen to about 218 a day since the court released its decision at the end of June through September. The largest increases in queries came from states that enacted total abortion bans.”
I’ll end with the story of the Janes, a Chicago-based group that began helping women obtain abortions in the 1960s then learned how to perform these abortions themselves, eliminating the need for expensive and unreliable doctors. In her fascinating book, The Story of Jane : The Legendary Underground Feminist Abortion Service, Kaplan connects this work to both the civil rights and women's rights movements.
Kaplan makes it clear that she and the other Janes never thought of themselves as exceptional. “My fear was that an outsider would paint us as superheroes or Amazon warriors, as extraordinary. This is the opposite of the truth and certainly the wrong message to send to a younger generation. We were ordinary women, housewives, students and young radicals. I hoped, and I continued to hope, that everyone who reads this history will see herself in us and think: that could be me.”
Here’s Laura Kaplan on what’s next (from the new preface):
The resistance is going to be fierce. I mean, I’m old. It won’t be me. First of all, women aren’t going to go back. That’s just not going to happen. It’s not going to be 1950s barefoot and pregnant in the kitchen. That is just not going to happen.
I believe that the anti-forces aren’t going to stop at abortion. Because according to this draft decision [before the final SCOTUS ruling], it puts everything that women have counted on — birth control, everything, not to mention same-sex marriage, the rights of the LGBTQ community. Everything’s on the chopping block here. But people are not going to go backwards.
We live in a country supposedly guided by the rule of law. What happens when a significant segment of the population says, “I’m not obeying this law?” You can’t govern like that. I think that’s one of the reasons that Roe was originally decided back in the day.
There was mass disobedience, and there will be again.
“The Janes” is also a spectacular documentary available via HBO.
Here’s the good news I promised at the beginning of the newsletter. If you believe, as I do, that access to abortion is a right, then defending it is within our power. Take Kaplan’s advice to heart. Vote. Practice civil disobedience. Defend this right within your friend and family circle and outside it where possible. Work for it, write about it, march to promote it. Crucially, elect people to office who will help to defend that right.
Never assume that the right is guaranteed. Fight for it.
To those who disagree, I will say that women will protect themselves and their families in the best way they know how. I believe—and so do most Americans—that this is their right. Despite recent wins, the anti-choice position has always been on the wrong side of history. More importantly, it’s on the wrong side of the future.
RESOURCES
Ely, Gretchen E. “Abortion: The Story of Suffering and Death behind Ireland’s Ban and Subsequent Legalization,” The Conversation, June 24, 2022.
Kaplan, Laura. The Story of Jane : The Legendary Underground Feminist Abortion Service. Chicago : The University of Chicago Press, 2019.
Pollitt, Katha. “Abortion in American History,” The Atlantic, May 1, 1997. .
Reagan, Leslie J. When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867-1973. Oakland: University of California Press, 2022.
A quick poll
This is anonymous, so if you have a moment, please express your opinion.
What I’m working on now
I’m loving the new science fiction project I’ve spent the summer and fall developing. Like my other fiction, the work-in-progress deals with human rights themes through the lens of science fiction.
As inspiration, I love looking through scifi art. This is one of the images that I’m using to inspire (I love it when future space looks like our current world, where utility vehicles like this one are scraped and dirty and a little busted).
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Thank you for reading!
Great article. Re your poll, I’m firmly pro choice, but feel it’s reasonable to have some broad restrictions in place in an effort to compromise. For example, no third term abortions UNLESS the mother’s life is at risk or other medical issues arise. The life and choice of the woman should always come first.