Reproductive Justice, Public Policy, and Abortion on the Basis of Fetal Impairment: Lessons from International Human Rights Law and the Potential Impact of the Convention on the Rights of Persons with Disabilities

This article argues that we should consider not only American constitutional law but also comparative law and emerging international human rights norms, in order to navigate the difficult issue of abortion on the basis of fetal impairment. The United States is a State Party to the International Covenant on Civil and Political Rights (ICCPR)13 and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). It is also a signatory (but not a full State Party) to several other relevant treaties, including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention on the Rights of the Child (CRC), and the Convention on the Rights of Persons with Disabilities (CRPD). The CRPD is particularly relevant because it rejects the medical model of disability and embraces the social model, defining disability as a form of social oppression.

The CRPD also has numerous provisions that are relevant to reproductive justice and the right to life. The U.S. Senate came close to ratifying the CRPD in December 2012, falling just a few votes short of the two-thirds majority that is required to ratify a treaty under the U.S. Constitution. In August 2014, the U.S. Senate Foreign Relations Committee approved the CRPD again, and the disability rights movement is hopeful that the full Senate will eventually ratify the treaty. In any event, as a signatory to the treaty, the United States is already obligated to “refrain from acts that would defeat the object and "purpose” of the treaty while preparing for ratification.

This is a principle of customary international law, codified in the Vienna Convention on the Law of Treaties.