The Failure of the International Reproductive Rights Norm, Part Two
The term “reproductive health” seeped without fanfare into UN language in 1972 when it was adopted by Jose Barzelatto, the inaugural head of WHO’s program on human reproduction.
Its first appearance in a UN document was a World Health Organization (WHO) report 20 years later by Barzelatto’s successor, Mahmoud Fathalla. His sprawling description of the term contained “fertility regulation,” which for WHO included “pregnancy interruption,” that is, abortion.
WHO staff walked a fine line, promoting a rights-based approach while training abortionists all over the world but not officially declaring abortion a human right. This was apparently due to opposing pressure from liberal, high donor, Western states and traditional, recipient states. The ambiguity is emblematic of the broader conundrum the movement faced in promoting the norm without emphasizing its core tenet of legal, accessible abortion.
It was the WHO definition of reproductive health that informed the 1994 UN Cairo conference on population. After that meeting, USAID, UNFPA, the Population Council, Ford and MacArthur Foundations established reproductive health programs. The World Bank and other institutions followed.
But Cairo signaled trouble, and so did the UN women’s conference the next year in Beijing. Not only did the movement fail to get a new human right to abortion, but nations adopted the conference documents with caveats rejecting “reproductive health” and similar terms, along with WHO’s definition of “fertility regulation.” Even though the term “cascaded” into national laws and policies, many nations adopted it while continuing to proscribe abortion.
The movement regrouped in 1996 with what some of them called a “stealth” approach: simply get the UN human rights treaty bodies to reinterpret existing rights as including a right to abortion. Several of the committees complied. Within a decade treaty bodies had pressured more than 90 countries to liberalize their laws.
But there were risks. Nations could simply reject the UN committees’ recommendations and thereby undercut the movement’s claims about their authority. In 2011, Peru dismissed the Human Rights Committee’s 2005 condemnation that their abortion restrictions were “cruel and inhuman,” saying the committee overstepped its mandate and had no authority to even comment on their law.
The movement took the fight to the courts, challenging national laws protecting the unborn as inconsistent with human rights treaties with heartrending “hard cases” such as injured adolescent mothers. In 2006, the movement scored a victory when Colombia’s high court liberalized the country’s abortion laws citing the treaty bodies.
Yet the number of high courts willing to make economic, social, and cultural rights justiciable was few and cases took years to prepare. They began using national budget allocations as evidence of discrimination and therefore rights violations against women. Led by Mary Robinson, they parted ways with human rights experts like Kenneth Roth who insisted that such an approach might undermine the human rights campaign’s reputation that had been built on providing hard evidence.
They made progress in 2012 when the UN’s highest human rights office issued technical guidance asserting abortion as a human right under the right to health. This, too, proved problematic. Along with a chronic lack of evidence and the need to “adjust” abortion figures, they had already met resistance to the idea in 2011 from the UN General Assembly.
The movement was never successful in swaying that body to legitimize the norm. To the contrary, world leaders rejected reproductive health twice, in 2000 and 2005, as a component of the Millennium Development Goals precisely because of its abortion connotations.
The movement had to abandon grand plans for a separate reproductive health goal, and settled for slipping the term in secretively to the appendix of a 2007 Secretary General’s report that was adopted without debate or even discussion. The term began appearing as a target under Millennium Development Goal 5 on maternal health. The US repeatedly rejected the target, dubbed “MDG5B,” under the Bush administration, dropping the objection in 2009 under the Obama administration.
