Responses of Pro-Life and Pro-Family Organizations to the questionnaire of the special rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health on “the right to sexual and reproductive health – Challenges and Possibilities during COVID-19”
The organizations submitting this response to the call for inputs do so by virtue of their specific mission to protect children in the womb from arbitrary deprivation of life and to ensure that the right to life and other legal protections intended for all members of the human family are not applied in a discriminatory way against children in the womb.
1. UN Abortion Promotion During the Pandemic
Early in March 2020, as governments looked to the World Health Organization (WHO) for guidance on how to deal with the coronavirus, officials of the international health agency promoted abortion as “essential” in a guideline on “Clinical management of severe acute respiratory infection.”i
“Women’s choices and rights to sexual and reproductive health care should be respected irrespective of COVID-19 status, including access to contraception and safe abortion,” the WHO manual reads.
Soon thereafter a WHO staffer said the WHO has been working to ensure abortion drugs are considered “essential” during a webinar hosted by a pro-abortion journal. She also promoted the WHO’s official view that where access to abortion is difficult or illegal, women should self- administer abortions.ii
The UN Secretary-General’s humanitarian plan to respond to the pandemic designated “sexual and reproductive health” an essential category in the COVID-19 response.iii It went beyond ambiguous euphemisms by calling for the global humanitarian response to the pandemic to be guided by the Inter-Agency Field Manual on ReproductiveHealth in Humanitarian Situations.
This manual not only treats abortion as a humanitarian right, citing UN treaty bodies and special procedures, but it also says that medical personnel in humanitarian situations must refer for abortions against their consciences.iv
These actions by the UN Secretary-General and UN mandate holders are ultra vires. There is no mandate from UN member states to promote abortion, and there is no international human right to abortion in international law. Experts in international law and health reject claims that abortion is a human right under any circumstance. This isdemonstrated in the expert document “The San José Articles,” which describes UN entities’ actions that present abortion as a right as unlawful and ultra vires.v Such acts are incapable of contributing to the establishment of any new obligations on States according to the legal principle ex injuria jus non oritur (unlawful acts cannot give rise to legal obligations).
2. Normative Parameters of the Work of the Special Rapporteur
The concept of “sexual and reproductive health and rights (SRHR)” is not universally accepted nor defined by the UN membership, nor is the concept of “sexual rights,” one of the core components of SRHR. The rapporteur should avoid the use of non-agreed terminology in her report.
Any analysis by the Special Rapporteur should be drafted in light of the normative parameters established by UN member states at the 1994 International Conference on Population and Development (ICPD) and the 1995 4th World Conference on Women, which has been reaffirmed in every major UN social policy agreement since its creation. Through the negotiated outcomes of those conferences, UN member states agreed to use a definite terminology to avoid misunderstandings about the policies that enjoy international consent and the policies that do not enjoy international consent. The ICPD and 1995 4th World Conference on Women referred to “sexual and reproductive health” and to “reproductive rights” as distinct concepts, though interrelated, and defined the parameters for the policies that are to be considered consensual under those terms.
The ICPD is the only time the terms “reproductive health,” “reproductive rights,” “sexual and reproductive health,” “sexual and reproductive health services,” and related terminology has been defined in the UN context. In particular, the following two paragraphs of the ICPD Programme of Action are especially relevant:vi
The Special Rapporteur’s report should use as the normative framework only those norms adopted by the United Nations General Assembly or enshrined in binding human rights agreements, especially on sensitive topics like “sexual and reproductive health.” If the very terms of the report the Special Rapporteur is preparing are controversial, it is unlikely that the report will help further the end of discrimination against women and girls. Rather, it may serve to further divide the UN membership on these issues to the detriment of women and girls worldwide.
3. “Safe” Abortion
Post-abortion care—the provision of medical help for women suffering complications following an induced or spontaneous abortion after the unborn child is already deceased—is a matter of international agreement. “Safe” abortion, on the other hand, as the Special Rapporteur should know, is not.
UN member states have repeatedly affirmed since the 1994 International Conference on Population and Development(ICPD) and Beijing conferences, specifically paragraph 8.25 of the ICPD outcome, that abortion is somethinggovernments should help women avoid.
The consensus of the ICPD was against the international system promoting abortion, inasmuch as it rejected the notion of abortion as a human right.vii That was the only time in UN negotiations that abortion was addressed in UN policy. Previous negotiations simply left it out of agreements altogether as a matter for domestic legislation.
At the 1994 Cairo conference, UN member states agreed on a range of policies related to “unsafe abortion,” but again, no consensus was ever reached on the promotion of abortion. Instead, the 1994 Cairo conference outcome document urged governments and UN agencies “to deal with the health impact of unsafe abortion as a major public health concern and to reduce the recourse to abortion through expanded and improved family-planning services.”viii It also set as an objective “to reduce greatly the number of deaths and morbidity from unsafe abortion,”ix and committedgovernments to carry out research on “unsafe abortion.”x
The ICPD conference also agreed that “In circumstances where abortion is not against the law, such abortion should be safe.”xi
These caveats, found in paragraph 8.25 of the ICPD conference outcome document, presume that abortion is illegal inmany or all circumstancesxii and that abortion carries inherent risks for mothers. Paragraph 8.25 also insists that abortion is an issue that is exclusively to be left to national legislation, and therefore not an international right or something the UN system should be involved in promoting.
The caveats in Paragraph 8.25 also include that “every attempt should be made to eliminate the need for abortion”and that “women should have access to quality services for the management of complications arising from abortion. Post-abortion counselling, education and family-planning services should be offered promptly, which will also help to avoid repeat abortions.”
A footnote in the conference outcome linked to the definition of “unsafe abortion” for public health purposes by theWorld Health Organization.
Unsafe abortion is defined as a procedure for terminating an unwanted pregnancy either by persons lacking the necessary skills or in an environment lacking the minimal medical standards or both (based on World Health Organization, The Prevention and Management of Unsafe Abortion, Report of a Technical Working Group, Geneva, April 1992 (WHO/MSM/92.5))xiii
Were it not for these caveats, it is unlikely that “sexual and reproductive health,” “reproductive rights,” and abortion in particular would have been included in the ICPD agreement in the first place.
The Special Rapporteur should track this agreed norm closely, and err on the side of caution, in order to avoid politicizing this sensitive topic and be perceived as promoting the breaking of the law.
4. Conscience Right
The conscience rights of health providers and professionals are guaranteed in international human rights lawunder Article 18 of the International Covenant on Civil and Political Rights.
It is sad to note the now ever more frequent assertion of UN treaty bodies and UN special procedures, that conscience rights cannot be invoked by medical health providers and personnel to deny abortions and abortion referrals, as most recently in the report of the special rapporteur on freedom of religion or belief with a focus on gender-based violence and discrimination in the name of religion or belief (UN Document No. A/HRC/43/48, paras. 29 and 44 especially). Thisartificially creates a conflict in human rights law that does not need to exist.
There is an ongoing clash between abortion advocates and medical providers and health professionals. The abortion industry is a global industry, subsidized heavily by governments, but it faces frequent shortages of health workers willing to carry out procedures that take human lives rather than saving them. Quite understandably, many doctors,nurses, midwives, and other health workers are unwilling to be complicit in depriving a child in the womb of their lifethrough abortion. For this reason, abortion advocates frequently cite the conscience rights of health care providers as a barrier to accessing “safe” abortion.
As a result, there are ongoing efforts by the global abortion lobby to force health care providers to become complicit in abortion. We urge the Special Rapporteur not to take the side of the global abortion lobby in this debate. Sadly, the same governments and powerful global entities that subsidize the abortion industry are attempting to force doctors and medical providers into performing and referring for abortions against their conscience, and they have been successful in convincing parts of the United Nations system to exceed their mandates by supporting this effort.
Since the WHO issued its 2012 technical guidance on “Safe Abortion,” the international health agency has also promoted the notion of “abortion to the full extent of the law.”xiv Far from respecting the caveats in the ICPD agreement by carving out space for national laws, the notion of safe abortion “to the full extent of the law” is designed to limit the ability of governments to regulate abortion and to force medical providers to refer for abortions againsttheir conscience.
The WHO technical guidance challenges basic legal restrictions on abortion, such as limitations on abortion based on the gestational age of an unborn baby,xv medical authorization requirements,xvi and requirements for consent from a parents or spouses.xvii They are challenged as “legal, regulatory, and access barriers” that should be “eliminated” as a human rights matter.xviii
The WHO technical guidance explicitly states that health care providers who exercise their conscience rights and refuse to perform or participate in an abortion, still “must refer the woman to a willing and trained provider in the same, or another easily accessible health-care
facility.” Where such referral is not possible, the guidance states that “the health-care professional who objects, must provide safe abortion to save the woman’s life and to prevent serious injury to her health.”xix
This same notion of “safe abortion to the full extent of the law” is repeated in the UN’s Inter- Agency Field Manualon Reproductive Health in Humanitarian Settings, where conscience rights are also undermined.xx It was likewise promoted by the UN population fund at the 2019 Nairobi Summit:xxi
Policy-makers and health-care managers working to provide reproductive health services should always ensure that safe abortion care is readily accessible and available to the full extent of the law.xxii
5. Maternal Health
It is often asserted that governments should provide “safe abortion” as a way to improve maternal health outcomes, a notion that is highly deceptive. Abortion always involves the death of at least one human being. As such, it should never be labeled “safe.” Moreover, any surgical or chemical procedure may result in complications, including bleeding and infections.
Absent intervening factors, induced abortions inevitably expose women to risks to which they would not otherwise be exposed if they were to carry a pregnancy to term. Women in developing countries are exposed to exponentially higher risk from both medical and surgical abortions because of lack of access to health care, antibiotics, transfusions, transportation, skilled medical workers, and other key factors. xxiii
One study in Finland found that one out of twenty women who underwent so-called “safe” surgical abortion and 25% of women undergoing “safe” medical abortion had complications including hemorrhage, incomplete abortion and need for repeat surgery.xxiv In the United States, the Food and Drug Administration (FDA) documented 605 reports of complications from medical abortions in the first 3 years of the use of mifepristone in medical abortions, one third ofwhich involved severe bleeding and emergency surgery.xxv
Medical studies increasingly document how induced abortion exposes women and their children to higher risksfrom pre-term birth, which is the leading cause of perinatal death.xxvi Numerous studies demonstrate that women undergoing “safe” abortion have a significantly increased risk of subsequent suicide, major depression and substance abuse.xxvii
In the context of public health, it is also not accurate to tie the notion of “unsafe abortion” to the status abortion in the law. Since the Millennium Development Goals began to focus the attention of the international health community on maternal health, abortion groups have diligently made abortion laws a component of maternal health policy, arguing that 13% of all maternal deaths are related to abortion. A more recent study published inThe Lancet put the figure closer to 8%.xxviii Nevertheless, estimates of abortion incidence, and of abortion-related maternal mortality, remain contentious subjects. One reason is the difficulty in distinguishing between induced and spontaneous abortions (miscarriages) in settings where women may be reluctant to accurately report the circumstances due to cultural stigma or fear of legal repercussions.
Another issue is the fact that, among the leading causes of maternal mortality such as infection or hemorrhage, “unsafe abortion” is unlike the others inasmuch as an induced abortion is not a naturally-occurring complication of pregnancy or childbirth. While the consensus at ICPD urged countries to provide women with alternatives to abortion, the discourse around reducing deaths due to “unsafe abortion” often omit the role of discouraging women from seeking abortions in the first place as a potential life-saving measure. Rather, they adopt a fatalistic view that a woman seeking abortion will inevitably obtain one, and the only remaining question is whether she will have the option to do so legally and “safely.” In other cases, the existing risks of maternal mortality are used to make the argument that abortion is “safer” than childbirth.
As we have already established, “there is no clear association between making abortion legal or more widely accessible and a reduction in the proportion of maternal mortality due to abortion.”xxix There simply is no evidencethat making abortion legal and more widely accessible is a significant measure to improving maternal health. There is not a lower relative percentage of maternal mortality attributable to abortion in countries with more liberal abortionlaws.xxx
6. Emergencies and Humanitarian Settings
The Special Rapporteur should help the UN system guard against abortion becoming a default response to rape.
Ultimately, the issue of abortion in international aid is not just about sovereign prerogatives, but it is about what women need in humanitarian settings. Women who conceive under tragic circumstances, including in humanitarian settings, do not make recourse to abortion. Studies show that these women opt to keep their children at the same or similar rates as women who become pregnant under other circumstances.xxxi They and their children need health care, not abortion. Abortion cannot become the default response to rape inhumanitarian settings.
If the UN accepts the premise that abortion is a humanitarian necessity or that abortion should be a default response to rape, women will be under pressure to abort their children for a host of factors. This would create perverse incentive structures within international aid work, including the higher expense of humanitarian efforts to care for a mother and child throughout pregnancy and afterwards. Humanitarian operators and governments will also feel under pressure to offer abortion because of these economic considerations.
Moreover, any abortion in humanitarian settings is highly dangerous for women since they would not have access to basic health infrastructure for adequate follow-ups or the treatment of inevitable complications from abortion.
Global health, like humanitarian policy, is a delicate area of international cooperation. Abortion should never be a part of it. Women deserve better than abortion. Consistent with international human rights law and commitments, the Special Rapporteur should consider the following:
- Abortion is not a human right but a subject to be addressed exclusively in national
- There is no obligation to permit abortion during a pandemic, including COVID-19.
- When UN mandate holders promote abortion, as they have done during the COVID- 19pandemic they are acting ultra vires. There is no international obligation for donor states to fund abortion as part of international aid or humanitarian
- Humanitarian responders must respect the abortion laws of the countries in which theyare
- Humanitarian response efforts of the UN system must help women avoid abortion, byproviding them the best possible maternal health care, psychosocial support, and other essential support services, especially in cases of pregnancies resulting from
- Every effort must be made to provide comprehensive support services to women andchildren who are victims of sexual violence in conflict settings, to ensure they are fullyintegrated in society and are not victimized by the stigma attached to rape as a weapon ofwar, and that children are not recruited as child
- UN agencies and international humanitarian efforts must not discriminate againsthumanitarian groups on the basis of their religious or moral opposition to
The above response is undersigned by the following organizations:
Center for Family and Human Rights
Campaign Life Coalition
Family Watch International
Henk Jan van Schothorst
Transatlantic Christian Council
E. Douglas Clark
International Organization for the Family
International Right to Life Federation
Main Representative to United Nations Priests for Life
Teresa S. Collett
Director, Prolife Center at the University of St. Thomas (MN)
Jeffrey Barrows, DO, MA, (Ethics)
Senior VP, Bioethics and Public Policy Christian Medical Association
President, United Families International
International Solidarity and Human Rights Institute (ISHRI)
See PDF for full citations.