HUMAN RIGHTS DEVOLUTION:

INTEGRATING INTERNATIONAL LAW INTO

STATE ABORTION GOVERNANCE

INTRODUCTION
After Dobbs v. Jackson Women’s Health Organization,1 states and
cities passed an array of laws, constitutional amendments, and ordi-
nances regulating abortion. Recent scholarship has questioned the
Dobbs decision’s implications under treaties and customary interna-
tional law as well as analyzed the avenues for international human
rights in domestic advocacy.2 This Note argues that U.S. abortion re-
strictions violate the Convention Against Torture3 (CAT) under a devel-
oping understanding of cruel, inhuman, and degrading treatment
(CIDT). Shifting the discussion from obligations to opportunities under
human rights law, this Note proposes a two-part, international law–
based strategy for reproductive rights activists. First, activists should
capitalize on complaint mechanisms in international human rights bod-
ies. Second, activists should campaign for the incorporation of interna-
tional law principles of harm and gender discrimination into state
constitutions and legislation.
The deterioration of U.S. abortion rights has been contested domes-
tically. But domestic law exists in an international legal context: domes-
tic actors incorporate, borrow, and interpret international law, and the
international legal system, reciprocally, concerns itself with state prac-
tices and their legal obligations.4 The United States, though a signatory
to CAT, has updated numerous reservations, understandings, and dec-
larations (RUDs) to limit the treaty’s power.5 For one, the federal gov-
ernment implements CAT “to the extent that it exercises legislative and

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1 142 S. Ct. 2228 (2022).
2 See generally Kelly Keglovits, Note, A Way Forward After Dobbs: Human Rights Advocacy
and Self-Managed Abortion in the United States, 18 DUKE J. CONST. L. & PUB. POL’Y SIDEBAR
73, 88–101 (2022); Benjamin G. Davis, Sanctimonious Barbarity: The Forced Pregnancy Alito
Dobbs Opinion, 33 IND. INT’L & COMPAR. L. REV. 423, 444–53 (2023); Sydney Chong Ju Padgett,
Comment, Abortion Rights as (Inter)national Human Rights: Dobbs and the Noncompliance of
U.S. Abortion Policies Under International Human Rights Law, 27 LEWIS & CLARK L. REV. 925,
961–68 (2023).
3 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, opened for signature Dec. 10, 1984, 108 Stat. 382, 463, 1465 U.N.T.S. 85 [hereinafter
CAT] (entered into force for the United States Nov. 20, 1994).
4 See JAMES CRAWFORD, BROWNLIE’S PRINCIPLES OF PUBLIC INTERNATIONAL LAW
47 (9th ed. 2019).
5 See Eric Chung, Note, The Judicial Enforceability and Legal Effects of Treaty Reservations,
Understandings, and Declarations, 126 YALE L.J. 170, 189–90, 203, 206 (2016).

2342
2024] HUMAN RIGHTS DEVOLUTION 2343

judicial jurisdiction over the matters covered.”6 But to talk about na-
tional law, in contrast to international law, “is to generalize,”7 as state
and local governments have an important role to play in the interaction
between domestic and international legal systems.
Professor Sally Engle Merry labels this dynamic process of influ-
ence as “vernacularization” of the international human rights norms
to national jurisprudence.8 Regardless of treaty ratification, interna-
tional law affects social discourse through the vernacularization of
human rights norms, because affected rightsholders create new sociole-
gal meanings of “autonomy” and “equality” through rights language.9
Vernacularizing these norms within state and local spheres of govern-
ment can be a strong tool in advocates’ arsenal.
Part I provides background on the relevant positive law and the pro-
cess of vernacularization. Part II proffers the “top-down” approach to
instrumentalizing international human rights law, while Part III enu-
merates the “bottom-up” approach of using state and local government
as a forum for vernacularization. Together, these Parts describe existing
international human rights standards on abortion as articulated through
quasi adjudication of individual rights violations and present a compar-
ative analysis of other countries in which activists bridged the local and
international legal planes to expand abortion rights. Part IV summa-
rizes takeaways for U.S. activists from these findings.

I. BACKGROUND
A. What Is CAT?
CAT is a human rights treaty adopted by the U.N. General Assembly
in 1984.10 It codifies the right to be free from torture and CIDT, a right
already enumerated in multiple founding U.N. documents, including
the Universal Declaration of Human Rights11 and the International
Covenant on Civil and Political Rights12 (ICCPR). CAT is one of the
most widely adopted human rights treaties, with 174 States Parties,13

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6 9. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, Status of Treaties, Depository, UNITED NATIONS TREATY COLLECTION
[hereinafter UNTC], https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-
9&chapter=4&clang=_en#EndDec [https://perma.cc/EGZ3-LBXG].
7 CRAWFORD, supra note 4, at 47.
8 Sally Engle Merry, Transnational Human Rights and Local Activism: Mapping the Middle,
WORLD BANK LEGAL REV., 2006, at 185, 188.
9 Peggy Levitt & Sally Merry, Vernacularization on the Ground: Local Uses of Global Women’s
Rights in Peru, China, India and the United States, 9 GLOB. NETWORKS 441, 445–47 (2009).
10 CAT, supra note 3.
11 G.A. Res. 217 (III) A, Universal Declaration of Human Rights, art. 5 (Dec. 10, 1948).
12 International Covenant on Civil and Political Rights, art. 7, opened for signature Dec. 19,
1966, T.I.A.S. No. 92-908, 999 U.N.T.S. 171 (entered into force for the United States Sept. 8, 1992).
13 UNTC, supra note 6.
2344 HARVARD LAW REVIEW [Vol. 137:2342

and states have accepted its prohibition of torture and CIDT so widely
that it is customary international law.14
The United States is a signatory to and has ratified CAT; so under
international law, it has a legal obligation to fulfill the provisions of the
treaty.15 The United States has accepted the inquiry procedure under
CAT Article 20, authorizing the jurisdiction of the CAT Committee to
investigate complaints of grave violations of any of the rights set forth
in CAT.16 The CAT Committee is tasked with interpreting CAT’s pro-
visions and the nature of States Parties’ obligations.17 The Committee
is also empowered to carry out confidential investigations on the basis
of reliable indications that there are systematic violations of CAT in a
State Party.18 The Committee has the discretion, in exceptional circum-
stances, to find a reservation (a statement by a State Party that it will
not comply with certain provisions) impermissibly incompatible with
CAT’s purpose, and subsequently consider complaints falling within the
reservation.19
The United States has appended several RUDs to the treaty that
severely limit its scope.20 One indicates that several “provisions of
the . . . Convention are not self-executing,” requiring congressional leg-
islation to implement its provisions into domestic law.21 But in 1998,

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14 Questions Relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.), Judgment, 2012
I.C.J. 422, ¶ 99 (July 20).
15 What the Treaty Bodies Do, OFF. OF THE HIGH COMM’R FOR HUM. RTS., https://www.
ohchr.org/en/treaty-bodies/what-treaty-bodies-do [https://perma.cc/3ZW8-UXJQ]. The United States
is also a State Party to the Convention on the Elimination of All Forms of Racial Discrimination
(CERD). 2. International Convention on the Elimination of All Forms of Racial Discrimination,
Status of Treaties, Depository, UNITED NATIONS TREATY COLLECTION, https://treaties.un.org/
pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-2&chapter=4&clang=_en [https://perma.cc/
3ZFJ-MG98]. The CERD Committee commented on Dobbs and its “profound disparate impact on
the sexual and reproductive health and rights of racial and ethnic minorities, in particular those
with low incomes.” Comm. on the Elimination of Racial Discrimination, Concluding Observations
on the Combined Tenth to Twelfth Reports of the United States of America, ¶ 35, U.N. Doc.
CERD/C/USA/CO/10-12 (Sept. 21, 2022).
16 UNTC, supra note 6.
17 Oona A. Hathaway et al., Human Rights Abroad: When Do Human Rights Treaty Obligations
Apply Extraterritorially?, 43 ARIZ. ST. L.J. 389, 390 (2011). CAT and U.S. RUDs distinguish be-
tween torture and CIDT as separate, but grave, human rights violations. See UNTC, supra note
6; CAT, supra note 3. The RUDs do not comment on CIDT outside of the scope of constitutional
analysis by the Supreme Court and do not categorically preclude abortion restrictions from consid-
eration under a CIDT framework.
18 CAT, supra note 3, art. 20.
19 See Alain Pellet & Daniel Müller, Reservations to Human Rights Treaties: Not an Absolute
Evil..., in FROM BILATERALISM TO COMMUNITY INTEREST: ESSAYS IN HONOUR OF
BRUNO SIMMA 521, 526–27 (Ulrich Fastenrath et al. eds., 2011) (discussing treaty interpretation
practices).
20 UNTC, supra note 6. The jus cogens nature of the right to be free from torture and CIDT
arguably elevates the right above U.S. RUDs as a peremptory norm that binds all States regardless
of ratification. Cf. Erika de Wet, The Prohibition of Torture as an International Norm of Jus Cogens
and Its Implications for National and Customary Law, 15 EUR. J. INT’L L. 97, 112–14 (2004).
21 UNTC, supra note 6.
2024] HUMAN RIGHTS DEVOLUTION 2345

Congress passed the Foreign Affairs Reform and Restructuring Act22

(FARRA), which was codified in domestic regulations implementing
CAT Article 1.23 While another RUD defined torture without the ele-
ment of discrimination found in CAT Article 1,24 the regulations explic-
itly include the impermissible purpose of torture committed “for any
reason based on discrimination of any kind.”25 Moreover, while another
RUD declares that the United States’s understanding of its obligations
“to prevent [CIDT]” is limited to the Supreme Court’s interpretation of
“the Fifth, Eighth, . . . or Fourteenth Amendments,”26 scholars have ar-
gued that abortion bans violate these Amendment rights.27 This issue
of abortion as CIDT remains undecided by the Court, leaving space for
advocates to contextualize CAT’s torture and CIDT framework to spe-
cific state laws and regulations.
CAT’s mandate recognizes a “kind of pain and suffering” that is so
severe, so offensive to dignity and physical integrity, that State actions
directly — or even indirectly — causing those circumstances inflict tor-
ture and CIDT.28 Under CAT Article 1, torture is defined as “any act
by which severe pain or suffering, whether physical or mental, is inten-
tionally inflicted on a person . . . for any reason based on discrimination
of any kind, when such pain or suffering is inflicted . . . with the consent
or acquiescence of a public official.”29 CAT Article 1 distinguishes tor-
ture from “pain or suffering arising only from, inherent in or incidental
to lawful sanctions” and critically elevates a human rights violation to
the level of torture or CIDT when the violation is perpetrated for an
impermissible purpose, such as discrimination.30 CAT Articles 2 and 16
further oblige States to “take effective legislative, administrative, judi-
cial or other measures to prevent acts of torture in any territory under

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22 Pub. L. No. 105-277, Div. G, 112 Stat. 2681-761 (1998) (codified as amended in scattered
sections of 8 and 22 U.S.C.).
23 8 C.F.R. § 208.18(a) (1999).
24 UNTC, supra note 6.
25 8 C.F.R. § 208.18(a)(1); see also David Weissbrodt & Cheryl Heilman, Defining Torture and
Cruel, Inhuman, and Degrading Treatment, 29 LAW & INEQ. 343, 363–66 (2011) (surveying domestic
statutes and regulations adopting discrimination as an impermissible purpose for ill-treatment).
26 UNTC, supra note 6.
27 See, e.g., Elizabeth E. Joh, Fourth Amendment Rights as Abortion Rights, N.Y.U. L. REV. F.
(Oct. 24, 2022), https://www.nyulawreview.org/forum/2022/10/fourth-amendment-rights-as-abortion-
rights [https://perma.cc/56VH-BTV8]; Madalyn K. Wasilczuk, Fifth Amendment Rights as Abortion
Rights, HARV. L. REV. BLOG (Apr. 11, 2023), https://harvardlawreview.org/blog/2023/04/
fifth-amendment-rights-as-abortion-rights [https://perma.cc/B6UL-7RHJ]; Lauren Kuhlik, Note,
Pregnancy Behind Bars: The Constitutional Argument for Reproductive Healthcare Access in
Prison, 52 HARV. C.R.-C.L. L. REV. 501, 533 (2017).
28 Alyson Zureick, Note, (En)gendering Suffering: Denial of Abortion as a Form of Cruel,
Inhuman, or Degrading Treatment, 38 FORDHAM INT’L L.J. 99, 101 (2015); see id. at 107–11.
29 CAT, supra note 3, art. 1.
30 Id.
2346 HARVARD LAW REVIEW [Vol. 137:2342

its jurisdiction”31 and to do the same for “acts of [CIDT] or punishment

which do not amount to torture as defined in article 1.”32
Feminist scholars have succeeded in persuading international human
rights bodies to acknowledge that torture and CIDT can occur in “every-
day settings — from public and private healthcare facilities to the
home.”33 One need only scan daily headlines describing lived experi-
ences under abortion restrictions to recognize how this pain and suffer-
ing sits within CIDT.34 Indeed, the CAT Committee has applied CAT’s
prohibitions against ill-treatment to reproductive healthcare restrictions,
analyzing three types: complete abortion bans, exception-based regimes,
and restrictions on legal abortion.35 CAT’s provisions against torture
apply because abortion restrictions inevitably and detrimentally impact
the health and wellbeing of people seeking reproductive healthcare.36
Abortion restrictions systematically discriminate against pregnant
persons.37 The UN Special Rapporteur on Torture has concluded that
gender-based violence against women “is inherently discriminatory” and
therefore CAT Article 1’s “purpose element is always fulfilled” in such
instances.38 Due to social “sex and gender bias”39 that undergirds the
expectation that women will bear the burdens of pregnancy, childbirth,
and childcare to the detriment of their wellbeing, U.S. abortion re-
strictions, and their impermissible impacts on women’s health, consti-
tute ill-treatment, discrimination, and in conjunction, a violation of the
right to be free from torture or CIDT.

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31 Id. art. 2.
32 Id. art. 16.
33 Zureick, supra note 28, at 101; see also Felice D. Gaer, Rape as a Form of Torture: The
Experience of the Committee Against Torture, 15 CUNY L. REV. 293, 295–303 (2012).
34 See, e.g., Elizabeth Cohen, One Year After Dobbs Decision, Families Describe Terror, Trauma
and Putting “Pain to Purpose,” CNN (June 22, 2023, 3:15 PM), https://www.cnn.com/2023/06/22/
health/abortion-dobbs-one-year-later-families/index.html [https://perma.cc/ED35-ZYRM]; Laura
Kusisto, What a Year in Post-Roe America Reveals About Abortion, WALL ST. J. (June 23, 2023,
5:30 AM), https://www.wsj.com/articles/abortion-dobbs-year-after-roe-support-politics-d1ef5a5
[https://perma.cc/3CKZ-T3XY]; New Abortion Laws Changed Their Lives. 8 Very Personal Stories,
NPR (June 23, 2023, 5:00 AM), https://www.npr.org/sections/health-shots/2023/06/23/1183878942/
abortion-bans-personal-stories-dobbs-anniversary [https://perma.cc/V62V-BC7A].
35 See infra section II.A, pp. 2349–2354.
36 E.g., Joanna N. Erdman & Rebecca J. Cook, Decriminalization of Abortion — A Human
Rights Imperative, 62 BEST PRAC. & RSCH. CLINICAL OBSTETRICS & GYNAECOLOGY 11, 13
(2020).
37 See Rebecca J. Cook & Susannah Howard, Accommodating Women’s Differences Under the
Women’s Anti-discrimination Convention, 56 EMORY L.J. 1039, 1048 (2007). This Note’s discus-
sion of the impact of abortion bans on women is not intended to exclude their impact on pregnant
persons of other genders but rather reflects existing international legal frameworks.
38 Manfred Nowak (Special Rapporteur), Report of the Special Rapporteur on Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 68, U.N. Doc. A/HRC/7/3 (Jan. 15, 2008).
39 Juan E. Méndez (Special Rapporteur), Report of the Special Rapporteur on Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 37, U.N. Doc. A/HRC/22/53 (Feb. 1,
2013).
2024] HUMAN RIGHTS DEVOLUTION 2347

B. What Is Vernacularization?
The breadth of abortion restrictions in the United States likely vio-
lates legal obligations under CAT. This raises a further question about
the role of international legal obligations in the context of domestic law,
a role that has historically been contested in the federal courts.40 The
Court has narrowed the role of international legal obligations, holding
that treaties are simultaneously international commitments giving rise
to State obligations and yet, in some instances, nonbinding upon U.S.
courts unless specifically enacted into law by Congress.41 However, end-
ing the conversation there ignores the multivalent realities of how a va-
riety of U.S. actors instrumentalize international human rights law
through the process of vernacularization. In describing this local adop-
tion of global ideas, Professor Sally Engle Merry highlights “[t]he people
in the middle . . . — those who translate the discourses and practices
from the arena of international law and legal institutions to specific sit-
uations of suffering and violation.”42 Here, the relevant “middle chil-
dren” between reproductive justice in America and international law are
state and local actors.
In fact, the normative underpinnings of federalism spotlight states
as sites of integration of human rights standards on abortion into the
U.S. legal system.43 The oft-used justification for decentralized govern-
ance is the comparative advantage that states have over the federal gov-
ernment in regulating areas of life like social welfare and health
systems44: the exact concerns and resources that abortion regulations
implicate.45 State governments are in an apt position to integrate inter-
national standards into their own constitutional and statutory articula-
tions of the rights to which their citizens are entitled.
State and local institutions are insulated from the pressures on their
federal counterparts. The federal courts are often limited, if not barred,
from directly incorporating international human rights jurisprudence
due to separation of powers and foreign affairs concerns.46 In favorable
political contexts, states can directly incorporate human rights language
into legislation or support use of human rights law in state jurispru-
dence. In less favorable contexts, advocates can push state agencies to
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
40 See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 731–38 (2004).
41 See Medellín v. Texas, 552 U.S. 491, 534 (2008).
42 Merry, supra note 8, at 188.
43 See Kathryn Kisska-Schulze et al., Brute Force (Anti) Federalism, 60 AM. BUS. L.J. 481, 483
(2023) (discussing how federalism’s dynamics particularly apply to antiabortion advocacy).
44 Cf. Martha F. Davis, The Spirit of Our Times: State Constitutions and International Human
Rights, 30 N.Y.U. REV. L. & SOC. CHANGE 359, 362, 371–72 (2006) (highlighting these areas of
regulation as within the purview of states to argue state institutions should engage with interna-
tional law on these topics).
45 See, e.g., Elizabeth Weeks Leonard, State Constitutionalism and the Right to Health Care, U.
PA. J. CONST. L. 1325, 1328 (2010).
46 See, e.g., David Kaye, State Execution of the International Covenant on Civil and Political
Rights, 3 U.C. IRVINE L. REV. 95, 96–97 (2013).
2348 HARVARD LAW REVIEW [Vol. 137:2342

take human rights into account in policymaking, such as in promulgat-

ing right-to-health-focused interpretations of abortions under legal ex-
ceptions.47 Pro-choice municipalities in conservative states can further
instrumentalize “‘local option’ laws” and home rule to promulgate reg-
ulatory and policy protections for reproductive healthcare.48
Thus, the avenues available for abortion rights activists to address
state abortion restrictions through the international legal system form a
sort of horseshoe: First, activists should continue to put top-down pres-
sure on U.S. political institutions to comply with CAT’s complaint and
inquiry procedures.49 Second, advocates should perform “human rights
devolution,” taking advantage of states as sites for progressive experi-
mentation, able to reflect citizens’ increasingly positive social attitudes
on abortion.50
In practice, human rights devolution requires shifting resources and
priorities away from fighting for constitutional or statutory abortion
rights. Instead, advocates should focus on the opportunities presented
by state and municipal elections and adjudication to reshape state leg-
islation, constitutional frameworks, and jurisprudence with human
rights law.51 In so doing, activists can vernacularize the standards
promulgated by international bodies to more closely match the norms
and priorities of their local communities, conducting human rights ad-
vocacy from the bottom-up.52

II. “TOP-DOWN” APPROACH

The CAT Committee hears complaints and conducts inquiries into
potentially systematic CAT violations, brought on behalf of individuals
or groups claiming that their government violated their rights. Third
parties may also submit materials in response to the Committee’s

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47 E.g., Johanna B. Fine et al., The Role of International Human Rights Norms in the
Liberalization of Abortion Laws Globally, 19 HEALTH & HUM. RTS. J. 69, 71 (2017).
48 Kaitlin Ainsworth Caruso, Abortion Localism and Preemption in a Post-Roe Era, 27 LEWIS
& CLARK L. REV. 585, 623 (2023).
49 Cf. Risa E. Kaufman & Katy Mayall, One Year Later: Dobbs v. Jackson Women’s Health
Organization in Global Context, AM. BAR ASS’N (July 26, 2023), https://www.americanbar.org/
groups/crsj/publications/human_rights_magazine_home/the-end-of-the-rule-of-law/one-year-later-
dobbs-in-global-context [https://perma.cc/2TQN-VRVR] (“The Dobbs decision and the resulting
proliferation of abortion bans in the United States are counter to . . . [various] treaties ratified by
the United States.”).
50 Where Do Americans Stand on Abortion?, GALLUP (July 7, 2023), https://news.gallup.com/
poll/321143/americans-stand-abortion.aspx [https://perma.cc/3TBN-2DEM].
51 Cf. Aaron Tang, Lessons from Lawrence: How “History” Gave Us Dobbs -— And How
History Can Help Overrule It, 133 YALE L.J.F. 65, 69 (2023) (prodding advocates to examine a
broad array of constitutional arguments in support of abortion that incorporate evolving societal
views).
52 Cf. Rebecca J. Cook, International Protection of Women’s Reproductive Rights, 24 N.Y.U. J.
INT’L L. & POL. 645, 661–62 (1992) (surveying practice of international legal mechanisms to permit
and encourage pluralistic and dynamic interpretation of human rights treaties by domestic actors).
2024] HUMAN RIGHTS DEVOLUTION 2349

request to highlight issues relevant to the rights claims.53 While the

CAT Committee has yet to directly address an individual complaint re-
garding U.S. state abortion restrictions, its findings with regard to other
countries’ laws can inform potential claims U.S. advocates might bring
before the Committee.
A. Abortion Restrictions as Torture and CIDT
1. Complete Abortion Bans. — This subsection outlines the CAT
Committee’s findings with respect to abortion bans in El Salvador,
Paraguay, and Nicaragua. Parallels with abortion bans in various U.S.
states show that these state bans constitute CIDT against pregnant
persons.
In its universal periodic review (UPR) of El Salvador, the CAT
Committee addressed the State’s ban on “all forms of recourse to volun-
tary interruption of pregnancy, including in cases of rape or incest,” find-
ing that it “resulted in serious harm to women, including death,” and
this harm implicated State obligations under CAT Articles 2 and 16 to
prevent CIDT.54 In other words, El Salvador’s abortion ban rose to the
level of CIDT under CAT. The ban “resulted in serious harm to women,
including death,” and this harm implicated State obligations under CAT
Articles 2 and 16 to prevent CIDT.55
The CAT Committee analyzed a similar case involving Paraguay’s
abortion ban, which “applie[d] even to cases of sexual violence, incest or
when the foetus is not viable, with the sole exception of cases where the
foetus dies as an indirect result of an intervention that is necessary to
avert a serious threat to the life of the mother.”56 Under a section enti-
tled “Violence against women,”57 the CAT Committee concluded that
such a ban, which contains just one nominal exception for the life of the
pregnant person, causes women to be “constantly reminded of the vio-
lation committed against them,” resulting in “serious traumatic stress
and . . . a risk of long-lasting psychological problems.”58 The jeopardi-
zation of pregnant persons’ physical and mental health “could constitute
cruel and inhuman treatment.”59
The CAT Committee made nearly identical findings in Nicaragua’s
UPR, under a section labeled “Violence against women.”60 Prohibiting
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
53 See Comm. Against Torture, Guidelines on Third-Party Submissions Under Article 22 of the
Convention, ¶ 2, U.N. Doc. CAT/C/86 (July 21, 2023).
54 See Comm. Against Torture, Concluding Observations of the Committee Against Torture: El
Salvador, ¶ 23, U.N. Doc. CAT/C/SLV/CO/2 (Dec. 9, 2009) [hereinafter CAT El Salvador Report].
55 Id.
56 See Comm. Against Torture, Concluding Observations of the Committee Against Torture:
Paraguay, ¶ 22, U.N. Doc. CAT/C/PRY/CO/4-6 (Dec. 14, 2011) [hereinafter CAT Paraguay Report].
57 Id. at 8.
58 Id. ¶ 22.
59 Id.
60 Comm. Against Torture, Concluding Observations of the Committee Against Torture: Nicaragua,
at 4, U.N. Doc. CAT/C/NIC/CO/1 (June 10, 2009) [hereinafter CAT Nicaragua Report].
2350 HARVARD LAW REVIEW [Vol. 137:2342

termination of “pregnancies that in many cases are the direct result of

crimes of gender violence”61 violates CAT Article 2. Nicaragua’s factual
circumstances are especially applicable to the U.S. context: Nicaragua
repealed a “law authorizing therapeutic abortions” and subsequently im-
plemented an abortion ban, which coincided with “several documented
cases in which the death of a pregnant woman has been associated with
the lack of timely medical intervention to save her life.”62
The CAT Committee’s findings in these three cases apply to the
“near-total” abortion bans in twelve different U.S. states, “with very lim-
ited exceptions.”63 While Congress has not enacted legislation to enforce
Articles 2 and 16, the Committee should review the United States’s RUD
requiring adoption for incompatibility with CAT. Twelve statewide
abortion bans impacting millions of persons likely constitute the requi-
site “exceptional circumstances”64 given the risk of widespread CIDT.
Critically, Article 16 includes “acts . . . committed by or at the instiga-
tion of or with the consent or acquiescence of a public official or other
person acting in an official capacity.”65 The U.S. government has failed
to pass federal legislation safeguarding the right to abortion, effectively
acquiescing to the proliferation of state abortion bans and implicating
Article 16’s imperative to take affirmative action.66
These bans likely violate U.S. obligations under CAT to refrain from
perpetrating and also to prevent torture and CIDT of individuals be-
cause they prevent pregnant persons from accessing healthcare critical
for their physical and mental health, incentivize them to self-manage
their abortions clandestinely under threat of prosecution, or travel long
distances to states where legal abortions are available.67 Data shows
direct correlation between maternal mortality from unsafe abortions and

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61 Id. ¶ 16.
62 Id. Compare id., with Oriana González, Report: Mothers in States with Abortion Bans Nearly
3 Times More Likely to Die, AXIOS (Jan. 19, 2023), https://www.axios.com/2023/01/19/mothers-anti-
abortion-bans-states-die [https://perma.cc/M46L-8NLL].
63 Elizabeth Nash & Isabel Guarnieri, Six Months Post-Roe, 24 US States Have Banned Abortion
or Are Likely to Do So: A Roundup, GUTTMACHER INST. (Jan. 10, 2023), https://www.
guttmacher.org/2023/01/six-months-post-roe-24-us-states-have-banned-abortion-or-are-likely-do-so-
roundup [https://perma.cc/D5AD-C4GY].
64 Individual Communications, OFF. OF THE HIGH COMM’R FOR HUM. RTS., https://www.
ohchr.org/en/treaty-bodies/individual-communications [https://perma.cc/Q4JV-NHJM].
65 CAT, supra note 3, art. 16 (emphasis added).
66 The lack of CIDT jurisprudence from the Court and the lack of congressional legislation
explicitly criminalizing CIDT could substantiate such claims of State acquiescence. Cf. Penny M.
Venetis, Making Human Rights Treaty Law Actionable in the United States: The Case for Universal
Implementing Legislation, 63 ALA. L. REV. 97, 126–29 (2011) (making an analogous argument for
Bush-era torture). Other international bodies have recently addressed the issue of finding state
acquiescence when there is a lack of legislation incorporating treaties or complying with treaty
obligations. See generally Comm. on Enforced Disappearances, Statement on Non-state Actors in
the Context of the International Convention for the Protection of All Persons from Enforced
Disappearances, U.N. Doc. CED/C/10 (May 2, 2023).
67 See CAT El Salvador Report, supra note 54, ¶ 23.
2024] HUMAN RIGHTS DEVOLUTION 2351

clandestinity borne from laws prohibiting abortion.68 CAT obligates

States Parties to prevent the imposition of severe physical and mental
suffering on women.69 The CAT Committee has interpreted this obli-
gation to require that, if States decline to legalize all abortion, States at
least ensure there are legal exceptions to abortion restrictions where
one’s health or life is implicated, where the pregnancy is a result of sex-
ual violence, or where the fetus is nonviable.70 States should also pre-
vent “acts that put the health of women and girls at grave risk, by
providing the required medical treatment, by strengthening family plan-
ning programmes and by offering better access to information and re-
productive health services, including for adolescents.”71
While the CAT Committee has not yet heard a complaint specifically
establishing acquiescence of a federal government to subnational legis-
lation constituting torture or CIDT,72 the Ninth Circuit has acknowl-
edged the role of government acquiescence in torture, in a case
concluding that the Jamaican government’s prohibition of homosexual
activity served as direct endorsement for ill-treatment by non-state ac-
tors.73 Further, the CAT Committee has clarified that Article 2 requires
heightened “[p]rotection for individuals and groups made vulnerable by
discrimination or marginalization.”74 Women and girls are one such
group “subject to or at risk of torture or ill-treatment” in contexts such
as “medical treatment, particularly involving reproductive decisions.”75
Thus, human rights devolution can mitigate this legal uncertainty76 by
addressing the rights violations at the local level.
2. Exception-Based Regimes. — The Special Rapporteur has also
found that certain regulatory schemes can contravene States’ obligations
under CAT.77 This section analyzes cases from Ireland and Poland to
argue that exception-based regimes create so much ambiguity about
what types of abortion are criminalized that providers systematically

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
68 Su Mon Latt et al., Abortion Laws Reform May Reduce Maternal Mortality: An Ecological
Study in 162 Countries, BMC WOMEN’S HEALTH, Jan. 5, 2019, at 1, 1.
69 CAT, supra note 3, art. 1.
70 See CAT Paraguay Report, supra note 56, ¶ 22; CAT Nicaragua Report, supra note 60, ¶ 16.
Fetal anomalies often contribute to maternal morbidity. See Tetsuya Kawakita et al., Adverse
Maternal Outcomes Associated with Major Fetal Malformations After Singleton Live Birth, AM. J.
OBSTETRICS & GYNECOLOGY, Oct. 2023, at 1, 8.
71 CAT El Salvador Report, supra note 54, ¶ 23.
72 For an analogous argument that the lack of gun control laws violates the United States’s
positive obligation to prevent the suffering of victims of school shootings, see Leila Nadya Sadat,
Torture in Our Schools?, 135 HARV. L. REV. F. 512, 513–14 (2022).
73 Bromfield v. Mukasey, 543 F.3d 1071, 1079 (9th Cir. 2008).
74 Comm. Against Torture, General Comment No. 2 on the Implementation of Article 2 by States
Parties, at 6, U.N. Doc. CAT/C/GC/2 (Jan. 24, 2008).
75 Id. ¶ 22.
76 See Alice Edwards, The “Feminizing” of Torture Under International Human Rights Law, 19
LEIDEN J. INT’L L. 349, 374–75 (2006).
77 See Fine et al., supra note 47, at 72.
2352 HARVARD LAW REVIEW [Vol. 137:2342

deny healthcare except in extreme circumstances, a de facto complete

abortion ban.
In Ireland, before the 2018 Health Act78 legalized abortion,79 na-
tional legislation nominally established health and life exceptions to the
State’s abortion ban, but contained no guidance for physicians on what
circumstances met those exceptions.80 Further, the CAT Committee
highlighted the European Court of Human Rights’s (ECtHR) concern
regarding “the absence of an effective and accessible domestic procedure
in [Ireland] for establishing whether some pregnancies pose a real and
substantial medical risk to the life of the mother.”81 This led to “uncer-
tainty for women and their medical doctors, who are also at risk of crim-
inal investigation or punishment if their advice or treatment is deemed
illegal.”82 The CAT Committee found that multiple factors jeopardized
Ireland’s CAT obligations: “the absence of a legal framework through
which differences of opinion could be resolved,” the uncertainty for doc-
tors regarding their criminal liability, and the inadequate service provi-
sion of legal abortions.83 Ireland had “existing case law allowing for
abortion” but lacked legislation to standardize rights guaranteed under
CAT, and this absence “le[d] to serious consequences in individual cases,
especially affecting minors, migrant women, and women living in
poverty.”84
Similarly, in Poland, the CAT Committee noted the lack of legal
guidelines for regulating physicians’ conscientious objection to abortion
provision.85 This enabled a de facto abortion ban where physicians
could deny access to legal abortion services by simply asserting that the
procedure violated their beliefs.86 Such an oversight systematically in-
centivized women to seek “clandestine” and “often unsafe abortions with
all the health risks they entail,” because of the widespread lack of
access.87
Given these examples, states that provide health exceptions to their
abortion bans may violate the United States’s obligation to prevent
CIDT through a lack of clarity. Several states use the language (or very
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
78 Health (Regulation of Termination of Pregnancy) Act 2018 (Act No. 31).
79 Id. §§ 9–12.
80 See Protection of Life During Pregnancy Act 2013 (Act No. 35) §§ 7–9.
81 Comm. Against Torture, Concluding Observations of the Committee Against Torture: Ireland,
¶ 26, U.N. Doc. CAT/C/IRL/CO/1 (June 17, 2011) [hereinafter CAT Ireland Report] (summarizing
A, B, & C v. Ireland, App. No. 25579/05, (Dec. 16, 2010), https://hudoc.echr.coe.int/eng?i=001-
102332 [https://perma.cc/9ZG4-V45S]).
82 Id.
83 Id.
84 Id.
85 Comm. Against Torture, Concluding Observations on the Combined Fifth and Sixth Periodic
Reports of Poland, ¶ 23, U.N. Doc. CAT/C/POL/CO/5-6 (Dec. 23, 2013) [hereinafter CAT Poland
Report].
86 See also Resolution on the First Anniversary of the De Facto Abortion Ban in Poland, EUR.
PARL. DOC. PV 6.13 § R (2021).
87 Id.
2024] HUMAN RIGHTS DEVOLUTION 2353

similar variations of) “serious risk of substantial and irreversible impair-

ment of a major bodily function”88 or “life-threatening physical condi-
tion aggravated by, caused by, or arising from a pregnancy
that . . . [poses] a serious risk of substantial impairment of a major bod-
ily function”89 to draw bounds for legal abortions. But these provisions
fail to use specific medical definitions of the conditions that would meet
those requirements, leaving it up to physicians to use their best judg-
ment as to what legally constitutes a “major bodily function” or a “sub-
stantial impairment.”90 In reality, this chills access to reproductive
healthcare, as physicians are incentivized to deny treatment until a per-
son’s condition deteriorates to such an extreme degree that the provision
is clearly met.91 Such inaction compromises the health of the pregnant
person, thus jeopardizing compliance with CAT.
Importantly, the CAT Committee interrogates actual abortion access
and provision, recommending States “clarify the scope of legal abortion
through statutory law and provide for adequate procedures to challenge
differing medical opinions as well as adequate services for carrying
out abortions.”92 Citing WHO guidance on safe abortion, the CAT
Committee has underscored that “the exercise of conscientious objection
[should] not prevent individuals from accessing services to which they
are legally entitled” and that States should retain “a legal and/or policy
framework that enables women to access abortion where . . . permitted
under the law.”93
3. Third-Party Authorization of Legal Abortion. — Third-party au-
thorization laws require that another actor besides the pregnant person
and their physician approve a petition or grant consent for a legal abor-
tion.94 The CAT Committee’s commentary on these types of laws has
highlighted how the personal objections of judicial actors can obstruct
abortion access, leading pregnant people to seek unsafe abortions,95 cre-
ating effects similar to those resulting from exception-based restrictions.
For example, Bolivia criminalized abortion with exceptions that re-
quired rape survivors seeking abortions to “obtain authorization from a
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
88 ARIZ. REV. STAT. ANN. § 36-2301.01(C)(2) (2024); see also FLA. STAT. § 390.0111(1)(a) (West
2023); OHIO REV. CODE ANN. § 2919.20(H) (West 2023); IND. CODE § 16-18-2-327.9 (West 2023).
89 TEX. HEALTH & SAFETY CODE ANN. § 171.002(3) (West 2023).
90 See Mabel Felix et al., A Review of Exceptions in State Abortion Bans: Implications for the
Provision of Abortion Services, KFF (May 18, 2023), https://www.kff.org/womens-health-policy/
issue-brief/a-review-of-exceptions-in-state-abortions-bans-implications-for-the-provision-of-abortion-
services [https://perma.cc/Q4Y7-Z8HN].
91 See, e.g., Plaintiffs-Appellees’ Response Brief at 1, Texas v. Zurawski, No. 23-0629 (Tex. Oct.
16, 2023) (describing case of patient whose condition deteriorated to point of septic shock).
92 CAT Ireland Report, supra note 81, ¶ 26.
93 CAT Poland Report, supra note 85, ¶ 23.
94 See WORLD HEALTH ORG., SAFE ABORTION: TECHNICAL AND POLICY GUIDANCE
FOR HEALTH SYSTEMS 68 (2d ed. 2012).
95 E.g., Comm. Against Torture, Concluding Observations on the Second Periodic Report of the
Plurinational State of Bolivia as Approved by the Committee at Its Fiftieth Session, ¶ 23, U.N.
Doc. CAT/C/BOL/CO/2 (June 14, 2013).
2354 HARVARD LAW REVIEW [Vol. 137:2342

judge,” and the CAT Committee found that, in denying many of these
abortions, judges often used their “right to conscientious objection” to
justify withholding authorization.96 This widespread use of conscien-
tious objection, enabled by the law, “constitute[d] an insurmountable
obstacle” to legal abortion in many cases, therefore forcing women “to
undergo illegal abortions.”97 The Committee affirmed states “should do
away with any unnecessary obstacle” to access to safe abortions.98
In the United States, four states impose additional requirements, in-
cluding mandatory waiting periods and counseling, pre-abortion ultra-
sounds, restrictions on remote abortion care, and requiring parental or
judicial consent to minors’ abortions.99 The United States’s acquies-
cence in the promulgation of these highly restrictive laws likely violates
its treaty obligations.
B. Abortion Restrictions as Gender Discrimination
The Convention on the Elimination of All Forms of Discrimination
Against Women100 (CEDAW), signed but not ratified by the United
States,101 has promulgated legal standards on issues like abortion that
neither explicitly bind nor provide legal avenues for individuals.102
However, CEDAW’s Articles 1 and 12 provide useful insights to embed
affirmative nondiscrimination standards in state or local abortion rights
legislation. Jurisprudence from the CEDAW Committee underscores
the centrality of gender-based discrimination and inequality to abortion
restrictions, harmonizing with the CAT Committee.
CEDAW Article 1 defines “discrimination against women” by its ef-
fects on the “enjoyment or exercise by women” of human rights, and
Article 12 imposes an obligation to “eliminate discrimination against
women in the field of health care in order to ensure, on a basis of equal-
ity of men and women, access to health care services, including those

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
96 Id.
97 Id.
98 Id.
99 See NEB. REV. STAT. §§ 28-327(1)–327(4), 28-335, 71-6902 (2024); 28 PA. CODE § 29.37(b)
(2024); 18 PA. CONS. STAT. §§ 3205(a)(1)–(2), 3206(a), (c) (2024); N.C. GEN. STAT. ANN. § 90-21.7
(West 2023); GA. CODE ANN. §§ 31-9A-3, 15-11-682, 15-11-684(c) (2024).
100 Convention on the Elimination of All Forms of Discrimination Against Women, opened for
signature Dec. 18, 1979, 1249 U.N.T.S. 13.
101 8. Convention on the Elimination of All Forms of Discrimination Against Women, Status of
Treaties, Depository, UNITED NATIONS TREATY COLLECTION, https://treaties.un.org/pages/
ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&clang=_en [https://perma.cc/2D2R-
T8X7].
102 See Janet Benshoof, U.S. Ratification of CEDAW: An Opportunity to Radically Reframe the
Right to Equality Accorded Women Under the U.S. Constitution, 35 N.Y.U. REV. L. & SOC.
CHANGE 103, 105 (2011) (using lack of U.S. CEDAW ratification as an example of United States’s
nonenforcement of treaty rights).
2024] HUMAN RIGHTS DEVOLUTION 2355

related to family planning.”103 In L.C. v. Peru,104 where a girl was de-

nied a legal abortion due to the unclear parameters of the Peruvian ban’s
exceptions, the CEDAW Committee found that “exclusions and re-
strictions in access to health services [were] based on a gender stereotype
that understands the exercise of a woman’s reproductive capacity as a
duty rather than a right,” thereby perpetuating legal and social discrim-
ination on the basis of the patient’s identity as a woman.105 Therefore,
these exceptions still violated Articles 1 and 12.
In Alyne da Silva Pimentel Teixeira v. Brazil,106 where a woman died
from lack of adequate pregnancy care, the Committee found that “[t]he
lack of appropriate maternal health services . . . clearly fail[ed] to meet
the specific, distinctive health needs and interests of women.”107 The
Committee also noted that inadequate service provision of legal abor-
tion, specifically to protect the pregnant person’s life and wellbeing, vi-
olates CEDAW’s provisions on equality and nondiscrimination because
of its differential impact on the rights of women.108 The Committee
continued on to highlight that women also face intersectional discrimi-
nation under laws and policies that restrict access to reproductive
healthcare, including along the axes of race and socioeconomic stat-
us, and that “economic and social disparities”109 can exacerbate such
discrimination.
Thus, abortion restrictions compound inequalities within State pro-
vision of resources and public health governance, and such restrictions
violate the nondiscrimination obligations of States by erecting barriers
to a sui generis, gender-specific form of healthcare.110 While not impos-
ing treaty obligations on the United States,111 CEDAW standards are
ripe for vernacularization by advocates into state and local legal frame-
works regulating social welfare and public health through reproductive
healthcare.

III. “BOTTOM UP” APPROACH

Advocates internationalizing the U.S. abortion movement should
take part in human rights devolution, “refashion[ing] global rights agen-
das for local contexts and refram[ing] local grievances in terms of global
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
103 Convention on the Elimination of All Forms of Discrimination Against Women, supra note
100, arts. 1, 12.
104 Comm. on the Elimination of Discrimination Against Women, Commc’n No. 22/2009, U.N.
Doc. CEDAW/C/50/D/22/2009 (Nov. 4, 2011).
105 See id. ¶¶ 2.5, 7.7.
106 Comm. on the Elimination of Discrimination Against Women, Commc’n No. 17/2008, U.N.
Doc. CEDAW/C/49/D/17/2008 (Aug. 10, 2011).
107 Id. ¶¶ 3.4, 7.6.
108 Id. ¶ 7.6.
109 Id. ¶ 7.7.
110 See, e.g., Simone Cusack & Rebecca J. Cook, Stereotyping Women in the Health Sector:
Lessons from CEDAW, 16 WASH. & LEE J. C.R. & SOC. JUST. 47, 49 (2009).
111 See Benshoof, supra note 102, at 105.
2356 HARVARD LAW REVIEW [Vol. 137:2342

human-rights principles and activities.”112 Thankfully, incorporation of

international law through the states has a longstanding history and prac-
tice. State and territorial constitutional drafting and interpretation has
been influenced by international legal instruments like the Universal
Declaration of Human Rights.113 Several state supreme courts have re-
lied upon human rights treaties as persuasive authorities for their own
state constitutional analysis.114 More recently, “human rights cities”
have coalesced as local initiatives to implement treaties on a municipal
level.115
Imbuing state and local governance with human rights language is
not without cost or risk of co-optation by those countermobilizing
against abortion.116 Indeed, vernacularization is “both powerful and
vulnerable,” in pulling from international human rights institutions with
morally and legally persuasive authority while risking hostile State ac-
tors deforming human rights standards or local resistance to human
rights as a political project.117
However, several abortion rights movements have navigated these
vagaries and succeeded in advancing rights through international law
and vernacularization in similarly situated countries and legal contexts.
This Part examines these movements to draw out lessons for interna-
tionalizing advocacy and capitalizing on the intersections of local and
international law. While progress in expanding reproductive rights was
not always linear, these case studies showcase the recursive process by
which domestic contexts can come to reflect the international legal con-
sensus on abortion’s direct relation to gender equality and the wellbeing
of pregnant persons.
A. Mexico
In 2021, the Supreme Court of Justice of the Nation of Mexico
(SCJN) ruled that the criminalization of abortion by the state of
Coahuila was unconstitutional.118 SCJN’s reasoning primarily centered

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
112 Merry, supra note 8, at 188.
113 Martha F. Davis, Upstairs, Downstairs: Subnational Incorporation of International Human
Rights Law at the End of an Era, 77 FORDHAM L. REV. 411, 418–19 (2008).
114 Johanna Kalb, Human Rights Treaties in State Courts: The International Prospects of State
Constitutionalism After Medellín, 115 PENN ST. L. REV. 1051, 1051 n.3 (2011) (reviewing California
and Missouri Supreme Court cases).
115 Christine Hulsizer, Note, A Proposed Future for the Progressive Realization of Economic,
Social, and Cultural Rights in California, 110 CALIF. L. REV. 567, 581 (2022).
116 See Lynn M. Morgan & Elizabeth F.S. Roberts, Reproductive Governance in Latin America,
19 ANTHROPOLOGY & MED. 241, 243 (2012).
117 Daniel M. Goldstein, Whose Vernacular? Translating Human Rights in Local Contexts, in
HUMAN RIGHTS AT THE CROSSROADS 111, 112 (Mark Goodale ed., 2013) (quoting Merry, supra
note 8, at 189); Merry, supra note 8, at 208.
118 Acción de Inconstitucionalidad 148/2017, Pleno de la Suprema Corte de Justicia de la Nación
[SCJN], Gaceta del Semanario Judicial de la Federación, Undécima Época, Tomo II, Junio de 2022,
148/2017, página 873, 972–73 [hereinafter SCJN 2021 Decision].
2024] HUMAN RIGHTS DEVOLUTION 2357

on the specific national constitutional rights state abortion laws impli-

cated, but abortion rights jurisprudence from supranational human
rights bodies like the CEDAW Committee contributed significantly to
its reasoning.119 Further, the SCJN built on a 2019 decision invoking
Mexico’s obligations under treaty law to establish that precluding
women from accessing abortion violates their right to health; relying on
international law enabled the SCJN to legitimate both decisions outside
of ideology.120 Moreover, SCJN held that Mexican state legislatures
were empowered to weigh different human rights.121
This national judicial development capped years of conversation be-
tween international human rights bodies and social organizers at the
state level.122 The states of Oaxaca, Hidalgo, and Veracruz, along with
Mexico City, had passed legislation legalizing and protecting the right
to abortion.123 Over the year before the decision was issued, national
polls measuring social attitudes on “support for access to abortion”
marked a rapid increase of twenty-nine percent to forty-eight percent in
favor of legalizing abortion.124
This expansion of rights was not without reactionary anti-abortion
policies adopted in other Mexican states.125 Dueling initiatives to de-
criminalize and restrict abortion took place in “sub-national legisla-
tures . . . the principal site of abortion lawfare” in Mexico.126 Abortion
rights coalitions negotiated between different legal and political arenas
within the federalist structure, integrating the legal issues of jurisdiction
and state policymaking into their human rights agenda to mirror their
opponents’.127
SCJN’s decision represents the potential gains borne from decentral-
ized organizing to implement a human rights agenda. SCJN’s treatment
of progressive state developments was deferential, underscoring the crit-
ical role of state legislatures as sites of normative development and social

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
119 See, e.g., id. at 916–17; id. at 913–16.
120 See Patricia del Arenal Urueta, Amparo en Revisión 1388/2015 and the “Rights” Discourse in
Mexico, HARVARD L. PETRIE-FLOM CTR.: BILL OF HEALTH (Oct. 2, 2019), https://blog.
petrieflom.law.harvard.edu/2019/10/02/amparo-en-revision-1388-2015-and-the-rights-discourse-in-
mexico/ [https://perma.cc/C3QE-CU6U].
121 See SCJN 2021 Decision, supra note 118, at 948, 962, 972–73.
122 See Caroline Beer, Making Abortion Laws in Mexico: Salience and Autonomy in the
Policymaking Process, 50 COMPAR. POL. 41, 52–55 (2017).
123 Mexico, IPAS, https://www.ipas.org/where-we-work/the-americas/latin-america-and-the-
caribbean/mexico/ [https://perma.cc/Q2AT-UYTT].
124 Uki Goñi, Argentina Legalizing Abortion Will Spur Reform in Latin America, Minister Says,
THE GUARDIAN (Jan. 14, 2021, 3:39 PM), https://www.theguardian.com/global-development/
2021/jan/14/argentina-abortion-legalized-latin-america-reform [https://perma.cc/VC29-8GX8].
125 See Beer, supra note 122, at 41.
126 Rachel Sieder & Yacotzin Bravo Espinosa, Abortion Lawfare in Mexico’s Supreme Court:
Between the Right to Health and Subnational Autonomy, 17 DIREITO GV L. REV., Sept.–Dec.
2021, at 1, 1.
127 See id. at 4–5.
2358 HARVARD LAW REVIEW [Vol. 137:2342

change.128 In light of the post-Dobbs reality of state abortion govern-

ance, the need to simultaneously instrumentalize the advantages of fed-
eralism in parallel to abortion opponents is clear.
B. Ireland
In 2018, a national referendum, by a vote of 66.4% in favor, repealed
the eighth amendment banning abortion129 and allowed the Irish gov-
ernment to affirmatively legalize abortion.130
Ahead of the referendum, UN treaty bodies made more salient the
health impacts of Ireland’s abortion restrictions on pregnant persons
and their human rights implications.131 These findings made their way
into social discourse, compelling more activists and members of the Irish
government to join the abortion rights movement to avoid “cultural em-
barrassment.”132 Upon its universal periodic review, the Committee on
Economic, Social, and Cultural Rights (CESCR) highlighted the absence
of applicable treaty-based obligations and encouraged Ireland to include
these rights in its national constitution.133 The right to health, often
directly implicated by abortion regulations, falls under the CESCR’s
scope.134 Thus, the Committee strongly recommended a national refer-
endum for the population of Ireland to democratically decide the appro-
priate scope of abortion restrictions in its constitution and laws.135
Then, in Mellet v. Ireland,136 the Human Rights Committee (HRC)
analyzed a case in which an Irish woman was denied an abortion of
a potentially nonviable fetus and was forced to travel to the United
Kingdom for the procedure.137 The HRC found Ireland had violated
the woman’s right to freedom from CIDT and her right to nondiscrim-
ination.138 The abortion restrictions also violated her right to privacy

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
128 Cf. Kisska-Schulze et al., supra note 43, at 483, 493 (arguing that states promote legislative
change as laboratories of democracy, case baiters, and policy diffusers).
129 Henry McDonald et al., Ireland Votes by Landslide to Legalise Abortion, THE GUARDIAN
(Dec. 18, 2019, 10:18 AM), https://www.theguardian.com/world/2018/may/26/ireland-votes-by-
landslide-to-legalise-abortion [https://perma.cc/U2LW-EEQP].
130 See Maeve Taylor et al., The Irish Journey: Removing the Shackles of Abortion Restrictions
in Ireland, 62 BEST PRAC. & RSCH. CLINICAL OBSTETRICS & GYNAECOLOGY 36, 36 (2020).
131 See, e.g., Comm. on Econ., Soc. & Cultural Rts., Concluding Observations on the Third
Periodic Report of Ireland, ¶ 30, U.N. Doc. E/C.12/IRL/CO/3 (July 8, 2015) [hereinafter CESCR
Ireland Report]; Hum. Rts. Comm., Views Adopted by the Committee Under Article 5 (4) of
the Optional Protocol, Concerning Communication No. 2324/2013, ¶ 5.12, U.N. Doc.
CCPR/C/116/D/2324/2013 (Nov. 17, 2016).
132 Elaine McKimmons & Louise Caffrey, Discourse and Power in Ireland’s Repeal the 8th
Movement, INTERFACE, July 2021, at 193, 218.
133 CESCR Ireland Report, supra note 131, ¶¶ 30, 37.
134 International Covenant on Economic, Social and Cultural Rights, art. 12(1), opened for sig-
nature Dec. 16, 1966, 993 U.N.T.S. 3.
135 CESCR Ireland Report, supra note 131, ¶ 30.
136 Hum. Rts. Comm., supra note 131.
137 Id. ¶¶ 2.1, 2.4.
138 Id. ¶¶ 3.1, 3.15, 7.11.
2024] HUMAN RIGHTS DEVOLUTION 2359

under ICCPR Article 17,139 which protects against “arbitrary or unlaw-

ful interference with [one’s] privacy.”140 The interference must be rea-
sonable given the particular circumstances; the potentially nonviable
pregnancy, her “intense suffering” at being forced to carry to term, and
that she had to travel abroad with “significant negative consequences”
to terminate her pregnancy, resulted in a violation of ICCPR Article
17.141
Post-Dobbs, the constitutional right to privacy in the United States
is heavily reliant on the disposition of the Court. But the HRC’s rea-
soning in Mellet — and its effects on Irish social discourse — usefully
illustrates how human rights actors can vernacularize principles of au-
tonomy and nondiscrimination to justify protecting reproductive deci-
sionmaking analogously to privacy.142 Both Mellet and the CESCR
recommendation brought “external pressure from international human
rights bodies to bear in Ireland.”143 Advocates “refram[ed] abortion in
a manner that demanded response from the state,” justifying a national
referendum.144
Thus, direct democratic participation in the creation of norms, laws,
and policies can effectively implement human rights objectives from the
bottom up when international legal mechanisms are otherwise blocked
from engaging directly with domestic law.
C. Argentina
In late 2020, Argentina passed a series of reforms legalizing abor-
tion and expanding obstetric healthcare.145 This legislative reform was
a direct result of decades-long activism culminating in the “Green
Wave” — an originally Argentinian and now transnational movement
of feminists characterized by their green bandanas worn at protests.146
These cohesive social campaigns built coalitions with movements
that had similar autonomy-based agendas, like the antifemicide
movement.147

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
139 Id. ¶ 3.20.
140 International Covenant on Civil and Political Rights, art. 17, opened for signature Dec. 19,
1966, T.I.A.S. No. 92-908, 999 U.N.T.S. 171.
141 Hum. Rts. Comm., supra note 131, ¶ 7.8.
142 See Juliet S. Sorensen & Xiao Wang, Opinion, Dobbs, Glass Houses and International Law,
AL JAZEERA (July 12, 2022), https://www.aljazeera.com/opinions/2022/7/12/dobbs-glass-houses-
and-international-law [https://perma.cc/M2L9-GLBR].
143 Taylor et al., supra note 130, at 39.
144 Id. at 45.
145 Law No. 27611, Jan. 15, 2021, [34562] B.O. 8; Law No. 27610, Jan. 15, 2021, [34562] B.O. 3.
146 The Green Wave: Marching Towards Legal Abortion in Argentina, AMNESTY INT’L (Aug. 8,
2019), https://www.amnesty.org/en/latest/impact/2019/08/the-green-wave [https://perma.cc/S9DH-
JVW5].
147 See, e.g., Mariela Daby & Mason W. Moseley, Feminist Mobilization and the Abortion Debate
in Latin America: Lessons from Argentina, 18 POL. & GENDER 359, 360 (2022).
2360 HARVARD LAW REVIEW [Vol. 137:2342

This feminist mobilization grew amidst a backdrop of progress in the

international human rights system to conceptualize a distinct set of sex-
ual and reproductive health rights (SRHR).148 Making legal claims
through rights language, local activists were also able to reframe social
discourse on abortion around principles of gender equality, dignity, and
freedom.149 Thus, the Green Wave and its feminist antecedents drew
from the emerging international consensus on abortion to create respon-
sive frames as SRHR were debated in Argentine society.
The role of the Green Wave in Argentina’s liberalization of abortion
is not unidimensional: feminist mobilization spurred, and state govern-
ance further enabled, expansions of SRHR like the 2002 national repro-
ductive health law.150 This interplay illustrates the iterative process of
expanding abortion rights, where social organizing galvanizes national
sociopolitical and judicial abortion discourse, which makes it to inter-
national forums that provide legal developments to expand SRHR. The
standards enumerated in these decisions then produce both symbolic
and material effects on social movements in individual countries, and
those movements can adapt the standards to their specific context, pur-
suing constitutional and legislative reform of SRHR once more.151
Finally, in 2012, the Argentine Supreme Court recognized the right
to abortion under several conditions, incorporating many human rights
arguments amici curiae presented.152 By reframing the issue around
safe abortion and health, the Green Wave infused political and legal
debates with rights language from the bottom up.153 This practice of
human rights devolution paved the way for the 2020 abortion law.
As a transnational movement, the Green Wave continues to organize
for the expansion of reproductive rights outside of Argentina.154 The
focus on social organizing — working outside of domestic legal sys-
tems — is a necessary element of conducting human rights devolution
that abortion rights activists in the United States should not overlook.

IV. RECOMMENDATIONS
This comparative analysis raises several insights into addressing
state abortion restrictions across the United States. First, legal actors
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
148 See Alicia Ely Yamin & Agustina Ramón Michel, Using Rights to Deepen Democracy: Making
Sense of the Road to Legal Abortion in Argentina, 46 FORDHAM INT’L L.J. 375, 393–94 (2023).
149 See id. at 395.
150 Law No. 25673, Nov. 22, 2002, [30032] B.O. 1; Yamin & Michel, supra note 148, at 397.
151 See Benjamin Mason Meier et al., Advancing Human Rights Through Global Health
Governance, in FOUNDATIONS OF GLOBAL HEALTH & HUMAN RIGHTS 197, 197 (Lawrence O.
Gostin & Benjamin Mason Meier eds., 2020).
152 Yamin & Michel, supra note 148, at 406–07.
153 Id. at 422–23.
154 See, e.g., Verónica Gago, Opinion, What Latin American Feminists Can Teach American
Women About the Abortion Fight, THE GUARDIAN (June 8, 2022, 4:14 PM), https://www.
theguardian.com/commentisfree/2022/may/10/abortion-roe-v-wade-latin-america [https://perma.cc/
55BA-QJKN].
2024] HUMAN RIGHTS DEVOLUTION 2361

involved in the U.S. abortion rights movement should pursue both sym-
bolic and material remedies through international human rights for the
violations that state abortion restrictions impose on pregnant persons.155
Under the CAT Committee’s clear analysis of CIDT, twelve states’ abor-
tion bans are ripe for challenge.156 CAT’s complaint and inquiry proce-
dures can provide authoritative international legal analysis on abortion
rights. As in Ireland, securing a favorable judgment can place valuable
supranational pressure on policymakers. And, as in Argentina, social
organizers can adapt the principles from such a judgment to guide local
initiatives to expand abortion protections.
In internationalizing the abortion fight in the United States, the
movement can bring an oft-overlooked frame to bear on domestic dis-
course.157 Further, inviting relevant U.N. mandates — such as the
Working Group on Discrimination Against Women and Girls and the
Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment — to conduct official visits158 can further in-
ternationalize national debate. Such engagement would “vernacularize”
human rights norms by putting these officials in direct contact with local
stakeholders who can both inform the findings of the subsequent U.N.
reports and develop a grassroots human rights agenda in their own
states.159
Second, abortion rights activists should experiment with embedding
international human rights standards in state constitutions, implement-
ing the standards through legislation, and using them persuasively in
state court jurisprudence. Justice Alito clinched his majority opinion in
Dobbs with the imperative to “return the issue of abortion to the people’s
elected representatives.”160 In light of thirteen trigger bans on the deci-
sion, this solution was politically determinative for thousands.161 But
while such “judicial decision-making takes place in dialogue with other
stakeholders, from state courts and lawmakers to voters, social

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
155 See Barbara Stark, The Women’s Convention, Reproductive Rights, and the Reproduction of
Gender, 18 DUKE J. GENDER L. & POL’Y 261, 291–94 (2011).
156 See Nash & Guarnieri, supra note 63 (“As of January 9, 2023, 12 states are enforcing a near-
total ban . . . .”).
157 Cf. CTR. FOR REPROD. RTS., STATE CONSTITUTIONS AND ABORTION RIGHTS 2 (2022)
(acknowledging favorable human rights law on abortion and advocating for state-centered strate-
gies for expanding abortion rights).
158 See, e.g., Glob. Just. Ctr. et al., Letter to the UN Special Procedures on Abortion Rights in
the US 1 (Mar. 2, 2023), https://www.hrw.org/sites/default/files/media_2023/03/20230301_
UNSpecialProceduresLetter.docx.pdf [https://perma.cc/WQF3-NDPK].
159 See, e.g., id.
160 Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2243 (2022).
161 See Meredith Sullivan, Does Dobbs Put the United States in Violation of Its International
Human Rights Obligations?, BERKELEY J. INT’L L. (Mar. 9, 2023), https://www.
berkeleyjournalofinternationallaw.com/post/does-dobbs-put-the-united-states-in-violation-of-its-
international-human-rights-obligations [https://perma.cc/CW2H-4SX8].
2362 HARVARD LAW REVIEW [Vol. 137:2342

movements, and political parties,”162 the cases of Mexico and Argentina

exemplify how judicial decisionmaking also takes place in the context
of international human rights developments.163 International law can
and should play a larger part to both push the patchwork abortion gov-
ernance toward international compliance and to reflect the will of
Dobbs’s aforementioned “people.”
In favorable political contexts, advocates should use state constitu-
tional amendment processes to constitutionally incorporate human
rights language.164 An amendment could reaffirm principles of gender
nondiscrimination by replicating language in CEDAW Committee juris-
prudence that “requires [s]tates . . . to refrain from obstructing action
taken by women in pursuit of their health goals,” and prohibits “laws
that criminalize medical procedures only needed by women.”165 Citing
to the CIDT standards of CAT through state legislation can explicitly
recognize the right to health implications of abortion denial. Article 10,
for example, requires that “education and information regarding the pro-
hibition against torture are fully included in the training of . . . medical
personnel,” informing state regulations on the provision of legal abor-
tion, even under an exceptions scheme.166 Advocates should also organ-
ize referenda to adapt bans or exception-based regimes and promulgate
initiatives to protect abortion at the municipal level.167
Human rights devolution remains useful even under hostile state pol-
icy; in Texas, for example, post-Dobbs polling showed overwhelming
support for an exceptions-based regime in lieu of the current ban, spe-
cifically for pregnancy resulting from rape and incest.168 (An exceptions-
based regime could also include pregnancy endangering health and
pregnancy that would result in serious birth defects.) Informed by the
norms underlying these voters’ priorities, activists can take language on
abortion from CEDAW’s Alyne case and vernacularize these human
rights standards to local concerns about the physical and mental health
of pregnant persons and fetuses. Ballot initiatives can work indirectly
to diffuse these norms into social, political, and legal discourse in Texas,
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
162 Mary Ziegler, The History of Neutrality: Dobbs and the Social-Movement Politics of History
and Tradition, 133 YALE L.J.F. 161, 188–89 (2023).
163 Cf. Yvette Aguilar, Comment, Gagging on a Bad Rule: The Mexico City Policy and Its Effects
on Women in Developing Countries, 5 SCHOLAR: ST. MARY’S L. REV. ON MINORITY ISSUES
37, 67–74 (2002) (analyzing state court reasoning in several cases challenging U.S. transnational
foreign aid policy for reproductive healthcare).
164 Cf. Jessica Bulman-Pozen & Miriam Seifter, The Right to Amend State Constitutions, 133
YALE L.J.F. 191, 191–92 (2023).
165 Comm. on the Elimination of Discrimination Against Women, Rep. on Its Twentieth &
Twenty-First Sessions, ¶ 4, U.N. Doc. A/54/38/Rev.1 (May 4, 1999).
166 CAT, supra note 3, art. 10(1).
167 See Daniel A. Cotter, State and Electorate Mobilization: The Most Promising Path to Justice
in Modern America, 56 UIC L. REV. 579, 620 (2023).
168 Eric Lau, Abortion Should Be Permitted in Cases of Rape and Incest, Around 80% of Texas
Voters Say in UT Poll, TEX. TRIB. (Aug. 10, 2022, 4:00 PM), https://www.texastribune.org/
2022/08/10/texas-politics-project-abortion-polling/ [https://perma.cc/B7GX-HEGD].
2024] HUMAN RIGHTS DEVOLUTION 2363

cultivating a burgeoning human rights agenda for abortion in an other-

wise antagonistic environment.
By continuing to integrate a human rights agenda from the bottom
up in states that legislate or adjudicate against SRHR from the top
down, activists can perpetuate the recursive processes between grass-
roots organizing and international human rights law that makes increas-
ingly positive social attitudes on abortion more salient to policymakers.
By tailoring international human rights advocacy to local contexts, ad-
vocates can use the decentralizing forces of federalist governance to
serve the ends of reproductive justice.

* * *
The abortion restrictions across the United States form just one part
of the global backlash against gender equality that ultimately threatens
to undermine the normative authority of the entire international human
rights system.169 But by adopting the same decentralized strategies of
abortion opponents, abortion rights activists can incorporate progressive
principles on gender discrimination and harm into state and local gov-
ernance. The abortion rights movement can sustainably safeguard abor-
tion rights through a democratic and community-based, rather than a
federal or Constitution-based, frame within the United States. In doing
so, these local movements can contribute to the global normative con-
sensus that reproductive justice is an essential element of realizing gen-
der equality for all.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
169 See, e.g., Başak Çali & Laurence Helfer, The Gender of Treaty Withdrawal: Lessons from the
Istanbul Convention, EJIL: TALK! (Nov. 28, 2022), https://www.ejiltalk.org/the-gender-of-treaty-
withdrawal-lessons-from-the-istanbul-convention/ [https://perma.cc/35CN-RA4A].