March 19, 2021
The U.S. Recommits to Sexual and Reproductive Health and Rights
Director of Human Rights at the Overbrook Foundation
Part of a special series recognizing Women’s History Month
Following four years of national policy designed to undermine gender equity and equality in the United States and globally, the Biden-Harris administration is taking steps to reverse course. As part of this effort, this week at the UN Human Rights Council, the new administration committed to promoting sexual and reproductive health and rights in the United States and around the world. This commitment sets the stage for real change. But action must follow intention.
Opportune timing of U.S. Universal Periodic Review
The administration’s commitment to upholding sexual and reproductive health and rights (SRHR) was made in the context of the United States’ third Universal Periodic Review (UPR), a comprehensive human rights review of each country that takes place before the UN Human Rights Council, approximately every four years. During the UPR, every UN member country can ask questions and make recommendations of the country under review. A unique feature of the UPR requires the country being reviewed to formally respond to each recommendation at the conclusion of the process. Between each four-year review cycle, the country is expected to demonstrate progress towards implementing the recommendations it received.
While the UPR may sound like a bureaucratic process with little potential for real-world impact, it is in fact an important opportunity for a government to establish its human rights commitments and mark progress in meeting them. Importantly, it’s also a mechanism for civil society to hold governments accountable for the commitments they make. Because of the timing of the latest U.S. review, for the Biden-Harris administration, it offers the added opportunity to turn the page on the Trump administration’s failings, including with respect to sexual and reproductive health and rights.
The United States’ third UPR took place in November 2020, just six days after the U.S. presidential election. During the review, the United States received hundreds of recommendations from UN member states on a range of important issues, including racial injustice, police accountability, capital punishment, climate change, immigration and asylum policy, and education. A significant number of recommendations focused on improving equitable access to comprehensive sexual and reproductive health care and services, advancing universal access to maternal health care, ending restrictions on international aid for sexual and reproductive health services, and improving access to basic health services for migrants and refugees in detention.
While the Trump administration represented the U.S. at the review in November, it was the Biden-Harris administration that was responsible for representing the U.S. when it returned to the UN Human Rights Council on March 17 to formally respond to the recommendations. The new administration noted support for most of the recommendations that the U.S. received, including those related to sexual and reproductive health and rights. In remarks at the Human Rights Council during adoption of the U.S. report, the U.S. representative noted the administration’s belief in “the advancement of gender equality and women’s and girls’ empowerment, including promoting their sexual and reproductive health and rights, both in the United States and globally.” Likewise, in its written submission to the Council, the administration stated that “it is the policy of the U.S. to support women’s and girls’ sexual and reproductive health and rights in the U.S. as well as globally.”
Repudiation of Trump-era approach
The Biden-Harris administration’s support for recommendations on sexual and reproductive health and rights at the adoption of the U.S. UPR last week is a 180 degree turn from the Trump administration’s routine disavowal of such international human rights protections. In fact, in the U.S. national report for the UPR, submitted to the Human Rights Council prior to the review in November, the Trump administration rejected any human rights protections for sexual and reproductive health, including access to abortion services. At the interactive portion of the November review, it likewise rejected the notion that international human rights protect sexual and reproductive health, specifically abortion access.
More broadly, the Biden-Harris administration’s response signals a rebuke of the Trump administration’s policies which systematically undermined access to the full range of reproductive health care -- from quality prenatal and pregnancy care to abortion care. These policies have exacerbated systemic inequalities and imposed harsh burdens on marginalized communities, including Black, Indigenous, and people of color, people with disabilities, LGBTQ+ people, immigrants, people with low-income or living in poverty, and people who are incarcerated.
These harmful policies were implemented against the backdrop of the Trump administration’s commitment to appointing judicial nominees, including three U.S. Supreme Court justices, hostile to constitutional protections for reproductive rights. The legacy of these appointments poses a real threat, as states propose and enact increasingly extreme and unconstitutional abortion bans and restrictions in an effort to have the Court overturn or substantially weaken longstanding constitutional protections for reproductive rights.
Reclaiming SRHR globally and in the U.S.
Beyond its supportive responses to the UPR recommendations, the Biden-Harris administration, which announced its intention to reengage with the UN Human Rights Council and seek election to a seat on the Council for the 2022-24 term, has taken critical steps to undo some of the Trump-era wrongs related to sexual and reproductive health and rights. Importantly, on January 28, it issued a Presidential Memorandum repealing the “Global Gag Rule”, which prohibited foreign organizations receiving U.S. global assistance funds from providing abortion information, referrals, or services, even if they used a separate funding source to do so. The memo also directed the Department of Health and Human Services to consider rescinding regulations prohibiting clinics receiving Title X family planning funds from referring patients for abortion services; withdrew United States’ sponsorship from the anti-abortion and anti-LGBTQ Geneva Consensus Declaration; and restored funding to the UN Population Fund (UNFPA) to support sexual and reproductive health needs globally.
Immediately after taking office, President Biden reversed the Trump administration’s effort to withdraw from the World Health Organization, signaling resolve to re-engage with the international community to support global health, including sexual and reproductive health.
And, on International Women’s Day, March 8th, the Biden-Harris administration released an Executive Order establishing a new Gender Policy Council within the Executive Office of the President, with a key role in advancing domestic and foreign policy development.
Acting on the commitment
These are important first steps. As my organization, the Center for Reproductive Rights, and other organizations noted at the adoption of the U.S. UPR report, next must come meaningful action, including robust implementation of the UPR recommendations that the administration is now on record as supporting.
The Biden-Harris administration should rescind additional Trump-era regulations, including those that allow health care workers to deny reproductive health services and information to patients, and those that enable employers and universities to deny contraceptive coverage to their employees and students. The administration must promote reproductive health policies guided by science, not ideology, including by allowing access to medication abortion by telemedicine. Moreover, the new administration should submit a budget proposal that does not include the discriminatory Hyde Amendment or related abortion funding restrictions.
In addition, it should restore reporting on sexual and reproductive health and rights in the State Department’s annual Country Reports on Human Rights Practices and support the Reproductive Rights are Human Rights Act; disavow the report by the Trump-era State Department’s Commission on Unalienable Rights; and stop over-broad implementation of the Helms Amendment and push for its Congressional repeal through the Abortion is Healthcare Everywhere Act. The Biden-Harris administration should adhere to core human rights treaties and support the inclusion and recognition of sexual and reproductive health and rights as fundamental human rights in UN processes.
And the administration should champion legislation that ensures access to abortion care for all, globally and in the United States. This includes the Women’s Health Protection Act, which would provide safeguards against abortion bans and medically unnecessary restrictions; the EACH Act, which would reverse the Hyde Amendment and related abortion funding restrictions; and the Global HER Act, which would permanently repeal the Global Gag Rule.
The administration must also act to end racial disparities in maternal health care and advance progressive maternal health policy with a focus on racial equity, including by championing the Black Maternal Health Momnibus Act, a set of bills that address maternal health issues faced by Black, Indigenous, and people of color, veterans, women who are incarcerated, and others impacted by failings of the maternal health system.
Of course, the human rights and constitutional principles underpinning these policies can only be fully realized if they are enforced and people can vindicate their rights in the courts. It is critical that the Biden-Harris administration put forth judicial nominees with positive records on reproductive health, rights and justice or who make clear their understanding that the Constitution protects individual liberty and the right of all people to make personal decisions about their bodies and personal relationships.
Realizing reproductive rights as human rights
Reproductive rights are human rights, grounded in the Universal Declaration of Human Rights and the core human rights treaties. They are integral to the realization of the rights to health, life, equality, information, education, privacy, freedom from discrimination and violence, and freedom from torture and cruel, inhuman, and degrading treatment, among others.
In supporting UPR recommendations based in the recognition of these core protections, the Biden-Harris administration has leveraged an important opportunity, on the global stage, to distinguish itself from the previous administration and reaffirm these rights. For its commitments to have real impact, however, it must now implement the recommendations and make stronger protections a reality for all - within the United States and around the world.