November 13, 2023
A Global View of U.S. Backsliding on Democracy and Reproductive Rights
University Distinguished Professor at Northeastern University Law School of Law
Director of Human Rights at the Overbrook Foundation
This month, the United Nations Human Rights Committee concluded its review of the United States’ human rights record. Nine years had passed since the Committee’s last review of the U.S. With many urgent issues to address – including gun violence, excessive use of force by law enforcement, climate change, and Guantanamo – the Committee trained particular focus on the state of reproductive rights and democracy in the United States. The Committee’s alarm over the flood of restrictions on reproductive and bodily autonomy, alongside its deep concern over attacks on the right to vote, points to the deep connections between reproductive rights and democracy. Americans have a front row view of these connections in the wake of the Supreme Court majority’s decision in Dobbs to eliminate federal constitutional protections for abortion and leave the issue up to the political branches and the states. The global perspective offered by the UN review is a reminder, however, that regression on reproductive rights reinforces and supports erosion of democracy. These are mutually reinforcing trends. And the UN review underscores the urgency of safeguarding both.
The ICCPR review
In its review of U.S. compliance with the International Convention on Civil and Political Rights (ICCPR), which the United States ratified in 1992, the Committee of human rights experts noted deep concern with post-Dobbs state restrictions on abortion, the criminalization of health care providers and people seeking abortion care, and the disproportionate impact these measures have on people who are low-income, those living in rural areas, and those belonging to racial and ethnic minorities. The Human Rights Committee likewise raised concern regarding efforts to limit the right to vote, including gerrymandering and measures to restrict ballot access such as burdensome voter ID requirements, again noting the disproportionate impact these restrictions have on low-income voters, people with disabilities, and people of color. The Committee’s findings amplify the alarm sounded in 2022 by another expert committee, the UN Committee on the Elimination of Racial Discrimination, at the conclusion of its review of U.S. compliance with the Convention on the Elimination of All Forms of Racial Discrimination.
The UN Human Rights Committee’s 2023 conclusions and recommendations respond to concerns raised by members of civil society about the devastating impact of abortion bans and restrictions, and the overall chaos and confusion surrounding access to reproductive health care in the United States. Consistent with the rights to life, privacy, non-discrimination, and freedom from cruel and degrading treatment, the Committee urged the U.S. to “take all the necessary measures” at every level “to ensure that women and girls do not have to resort to unsafe abortions that may endanger their lives and health.” The Committee made specific recommendations to the U.S. to ensure “legal, effective, safe and confidential access to abortion . . . without discrimination, free of violence and coercion,” to end the criminalization of abortion, and to harmonize abortion law and policy with the World Health Organizations’ newly issued Abortion Care Guidelines. The Committee focused, too, on the need to ensure confidentiality and privacy of medical providers and patients, and urged the U.S. to remove restrictions on inter-state travel for abortion care and to guarantee and expand access to medication abortion. Alongside its focus on abortion, the Committee expressed deep concern over the rising crisis in maternal health in the United States and its impact on Black and Indigenous people, especially, and urged a redoubling of efforts to prevent maternal mortality and morbidity, including through the removal of restrictions on midwifery care in Black and Indigenous communities.
The Committee also responded to concerns raised by civil society regarding the recent flood of legislative initiatives and state practices restricting voting rights and political participation in the United States, and their particular impact on voting access for people of color. Consistent with the rights to equality and non-discrimination and the right to participate in public affairs, the Committee urged the United States to “eliminate excessive burdens on voters that could result in de facto disfranchisement,” ensure accessibility of polling places, and restore and enforce the Voting Rights Act. In addition, the Committee urged the drawing of non-partisan and non-discriminatory districts, investigation of harassment and attacks against election officials, reinstatement of voting rights for people with felony convictions, and fair regulation of campaign funding.
A global lens on democratic backsliding and reproductive rights
The Human Rights Committee’s recommendations highlight the ways in which the United States is out of step with both human rights norms and global trends. In the same year the United States ratified the ICCPR, the U.S. Supreme Court reaffirmed the federal constitutional right to abortion in Planned Parenthood v. Casey. Yet, three decades later, the United States is identified as a backsliding democracy, with an international body admonishing the U.S. to “ensure that all persons entitled to vote are able to exercise that right” and to guard against “unsafe abortions that may endanger” lives and health.
Today, the U.S. is an outlier internationally. Its retrenchment on reproductive rights occurs alongside the widely recognized global trend towards liberalization of abortion. In this, the United States stands in sharp contrast to other democracies. In recent years, nearly 60 countries have liberalized their laws on abortion. These include European countries such as Ireland, Northern Ireland, and San Marino, as well as Latin American countries such as Mexico, Argentina, Colombia, and Chile. The United States is one of only four countries to remove legal grounds for abortion in the past 30 years. The others are El Salvador, Poland, and Nicaragua.
In the voting arena, independent multinational election observers in recent years have felt compelled to reiterate the basic building blocks of democracy when offering post-election recommendations to the United States. Ensure the principle of “equality of the vote,” said observers from the Organization for Security and Co-operation in Europe. “Election administration should be able to work in an atmosphere free from threat and coercion,” they added. And recognizing the connection between women’s rights and democracy, they urged U.S. ratification of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the international women’s rights treaty.
Attacks on democracy fuel attacks on reproductive rights
It is a distressing fact that restrictions on gender equality and reproductive rights accelerate in backsliding democracies. Indeed, the rise in right wing populism and authoritarianism has fueled regression on women’s rights in countries such as Poland and Hungary. Recent democratic backsliding in the U.S. follows in this path, building on the U.S. history of systemic discrimination against Black voters, historic denial of women’s citizenship rights, and long-standing voter suppression efforts to drive regression on reproductive rights, including abortion rights.
Indeed, as Laleh Ispahani recently noted, anti-democracy and anti-abortion efforts very often go “hand in hand.” State gerrymandering results in state legislatures that are not representative of their constituencies, leading to enactment of strict abortion laws despite popular support for abortion access. Texas — home to some of the most restrictive abortion laws in the country as well as the most restrictive voting laws — is exemplary as a laboratory for efforts to curtail both democratic participation and reproductive rights through interlocking policies that further regression of both. Reproductive justice advocates have long made this connection through their advocacy for voting rights and political participation.
Attacks on the First Amendment, a core right in American democracy, can also limit reproductive freedom. Proposed legislation last year in South Carolina, based on a model law devised by the National Right to Life Committee, would criminalize a wide swath of abortion-related speech, including providing individuals with information about abortion or referral to an abortion provider. The University of Idaho’s general counsel warned university health center employees against promoting, referring, or offering abortion care, and cautioned classroom teachers to remain neutral on the topic of abortion, lest they be in violation of the state’s ban on public funding for abortion. These curtailments on speech and information likewise undermine reproductive rights.
Attacks on democracy come in the form of restrictions on state courts, as well. These include restrictions on judicial authority and efforts to undermine state court judges’ independence. For example, the baseless threats to impeach a duly elected Supreme Court justice in Wisconsin sent a message to state court jurists around the country as their courts address reproductive rights issues.
Attacks on reproductive rights reinforce democratic backsliding
It is no coincidence that restrictions on reproductive rights, including abortion rights, are high on the agenda of authoritarian regimes, since these restrictions reinforce democratic backsliding. Abortion restrictions undermine women’s autonomy, citizenship, and rights to equality and non-discrimination, along with the right to full political participation. Reproductive and bodily autonomy is a necessary component of full citizenship and a fully functioning democracy; all people, including those with the capacity for pregnancy, must be able to exercise control over their bodies in order to participate fully. Scholars such as Peggy Davis have made clear the ways in which the full personhood promised by the 14th Amendment, especially for Black women, requires the right to reproductive and bodily autonomy.
Within the United States, this sets up the potential for a vicious downward spiral: anti-democratic efforts lead to further erosion of reproductive rights, and regression on abortion rights results in further democratic backsliding. Yet in many states, voters are fighting back, and using direct democracy as a powerful defense against further erosion of reproductive rights.
Ohio Ballot Initiative 1, the successful statewide effort to protect abortion access through constitutional amendment, is the most recent example of this dynamic, illustrating the power of democracy in the fight for reproductive rights. Across the country, state ballot initiatives have been remarkably successful in protecting abortion access post-Dobbs. In November 2023, Ohio voters decisively endorsed the addition of abortion protections to their state constitution to override the state’s strict six-week abortion ban. This was despite attempts by some state legislators to thwart the will of the people by first proposing to change the rules midstream to require a supermajority for passage, and then misleading voters on the content of the amendment. An increasing number of states have similarly sought to make it harder to change laws or amend state constitutions through direct democracy efforts, threatened by the post-Dobbs success of ballot initiatives – and these efforts are ongoing in Ohio. The results in Ohio show that democracy is a powerful tool in the fight for reproductive freedom. Yet, despite the resounding message that the state’s voters support abortion access, legislators in Ohio are scheming to prevent the amendment from taking effect. As policymakers proceed down this path, their blindered effort to restrict reproductive rights drags democracy down with it.
The world is watching what is unfolding in the United States with respect to democracy and reproductive rights. And the UN Human Rights Committee’s recommendations make clear what is necessary to reverse these interlocking trends. Protecting abortion requires protecting democracy, and protecting democracy requires protecting reproductive rights, including abortion. Advocates are smartly developing integrated strategies that recognize these interrelationships. Funders have been called to recognize this need and to support integrated approaches. International human rights bodies regularly reiterate the indivisibility of human rights. The current, virulent attacks on democratic values and abortion in the U.S. are a clear call to defend both, together.
Martha F. Davis is University Distinguished Professor at Northeastern University School of Law, where she serves as faculty co-director of the Program on Human Rights and the Global Economy and faculty director of the NuLawLab. She is also a fellow at the Carr Center for Human Rights at the Harvard Kennedy School.
Risa E. Kaufman is the director of human rights at the Overbrook Foundation, where she leads a portfolio of grantmaking focused on democracy, reproductive rights, and support for human rights defenders in Latin America. She is also an adjunct professor of law at NYU School of Law, where she teaches a seminar on U.S. human rights advocacy.