Protecting Abortion, Respecting Disability: Moving Beyond “Fetal Impairment” Grounds in the Treaty Bodies

by | Jul 29, 2020

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About Nathalie Greenfield

Nathalie Greenfield is a J.D. student and Charles Evans Hughes Scholar at Cornell Law School in Ithaca, New York (USA).

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Nathalie Greenfield, ‘Protecting Abortion, Respecting Disability: Moving Beyond “Fetal Impairment” Grounds in the Treaty Bodies’ (OxHRH Blog, July 2020) <https://ohrh.law.ox.ac.uk/protecting-abortion-respecting-disability-moving-beyond-fetal-impairment-grounds-in-the-treaty-bodies/>

In June 2020, the Supreme Court of the United States narrowly maintained that states could not unduly burden women’s access to abortion. The case in question, June Medical Services v. Russo, re-kindled the United States’ ever-fraught debate on whether the Constitution protects a woman’s right to choose. The renewed debate re-launched discussions on another human rights issue that is the subject of growing legal analysis, including among the UN Treaty Bodies: “fetal impairment grounds” for abortion.

“Fetal impairment grounds” refer to laws that determine a woman’s access to abortion if her fetus has a disability. With the increased use of prenatal genetic testing, women in many countries can now find out if the fetus they are carrying has a genetic difference such as Down syndrome. In 2016, the U.S. state of Indiana sought to prohibit women from obtaining an abortion if the fetus had Down syndrome. Ohio followed suit in 2018, and Texas in 2019. Prohibiting abortion on the grounds of fetal disability is not unique to the United States: neither India nor Egypt allow abortion based on fetal disability, and nor did Northern Ireland until January 2019, for example.

Abortion on fetal impairment grounds is an international human rights issue. The rights of disabled persons to be free from discrimination and stigma are protected under the Convention on the Rights of Persons with Disabilities (CRPD). Women’s rights—including women with disabilities’ rights—to reproductive healthcare are enshrined in the Convention on the Elimination of Discrimination Against Women (CEDAW). Both of these human rights instruments are implicated in legislation seeking to prohibit abortion on fetal impairment grounds.

The Treaty Bodies are split on the issue of fetal impairment grounds. The CRPD Committee has repeatedly recommended that States Parties abolish fetal impairment grounds for abortion. In its 2017 Concluding Observations for the UK, the CRPD Committee noted its “concern about perceptions in society that stigmatise persons with disabilities as living a life of less value than that of others and about the termination of pregnancy at any stage on the basis of fetal impairment.” The CEDAW Committee, on the other hand, has held that gender equality in reproductive healthcare provision means that women must always be able to access the services that only they need and that states should resist restricting access to abortion. The Human Rights Committee has similarly expressed concern about laws limiting access to abortion, including laws based on genetic information about the fetus.

The Committees’ positions need not be mutually exclusive. The human rights frameworks underpinning both reproductive and disability rights have much overlap as they are grounded in the principles of equality and non-discrimination. At its core, the Treaty Bodies’ jurisprudence challenges rights violations suffered by oppressed groups, and seeks to transform the structural conditions that limit these groups’ respective personal autonomy. Indeed, pitting reproductive rights and disability rights against each other neglects the group caught in the intersection: women with disabilities in need of an abortion and post-abortion care.

Rather, the CRPD and CEDAW Committees, and human rights proponents, could exploit their common ground and together recommend that states frame abortion access differently. Instead of focusing on narrow grounds under which abortion is prohibited, the Treaty Bodies could recommend that states adopt models that are grounded in broad, liberalized access to abortion, free of any restrictions. Broad access models eliminate the need for exceptions focused on specific groups of people, such as restrictions based on the fetus’s genes or the mother’s health, thus upholding all women’s access to reproductive healthcare without contravening the CRPD. Around 30% of countries in the world have adopted such broad “on-demand” models, usually with a gestational limitation period, after which women can no longer access unrestricted abortion.

In the renewed furor after June Medical Services, reproductive rights and disability rights bodies can find common ground. Through working with states to recommend broad access models, the Treaty Bodies can protect women’s rights to reproductive healthcare under CEDAW and respect the rights of persons with disabilities under the CRPD.

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