International Human Rights Law and Women’s Access to Abortion

Abstract

Can international law protect abortion rights? Drawing from past work on domestic mechanisms that give international law teeth, we argue that a strong civil society composed of women's groups and groups concerned with women's rights leads the government to comply with its international human rights commitments to women, specifically their right to abortion. Unlike that past work, though, we draw attention to the ways in which civil society can leverage the depth of their government's international legal commitment. Highly legalized commitments—those characterized by higher obligation, precision, and delegation—should help groups mobilize and give them access to international legal forums that can credibly threaten the government. Based on this argument, we expect countries that have ratified the Convention on the Elimination of Discrimination against Women's Optional Protocol, a highly legalized treaty, to protect women's rights to abortion when women's civil society participation is high. Estimating several statistical models to test our expectations, the results lend credence to the argument. Highly legalized commitments allow civil society actors to hold governments accountable to those commitments leading to more liberalized abortion rights protections.

¿Puede el derecho internacional proteger el derecho al aborto? Partimos de la base de trabajos anteriores sobre los mecanismos nacionales que dan fuerza al derecho internacional, lo que nos permite argumentar que una sociedad civil fuerte compuesta por grupos de mujeres y por grupos preocupados por los derechos de las mujeres lleva al Gobierno a cumplir con sus compromisos internacionales en materia de derechos humanos con las mujeres, y más específicamente su derecho al aborto. Sin embargo, a diferencia de esos trabajos anteriores, llamamos la atención sobre las formas en que la sociedad civil puede aprovechar la profundidad del compromiso legal internacional de su Gobierno. Los compromisos altamente legalizados, es decir aquellos que se caracterizan por un mayor nivel de obligación, precisión y delegación, deberían resultar de ayuda para que los grupos se movilicen y tengan acceso a foros legales internacionales que pueden amenazar de manera creíble al Gobierno. Sobre la base de este argumento, teorizamos que aquellos países que han ratificado el Protocolo Facultativo de la Convención para la Eliminación de Todas las Formas de Discriminación contra la Mujer (un tratado altamente legalizado) protegen los derechos de las mujeres al aborto cuando la participación de las mujeres en la sociedad civil es alta. Utilizamos varios modelos estadísticos de estimación con el fin de probar nuestras expectativas y los resultados otorgan credibilidad a nuestra teoría. Los compromisos altamente legalizados permiten a los agentes de la sociedad civil hacer que los Gobiernos rindan cuentas de esos compromisos, lo que provoca una mayor liberalización de la protección del derecho al aborto.

Le droit international peut-il protéger le droit à l'avortement ? Nous fondant sur des travaux antérieurs relatifs aux mécanismes nationaux qui donnent de l'autorité au droit international, nous affirmons qu'une société civile forte, composée de groupes de femmes et de groupes qui se préoccupent des droits de la femme, pousse le gouvernement à respecter les engagements des droits humains internationaux envers les femmes, notamment leur droit à l'avortement. À la différence de ces travaux antérieurs, néanmoins, nous attirons l'attention sur les façons dont la société civile peut exploiter la profondeur de l'engagement juridique international de son gouvernement. Les engagements fortement légalisés—caractérisés par un niveau élevé d'obligation, de précision et de délégation—devraient aider les groupes à se mobiliser et leur donner accès à des forums juridiques internationaux en mesure de menacer de façon crédible le gouvernement. D'après cet argument, nous anticipons que les pays ayant ratifié le Protocole facultatif à la Convention sur l’élimination de toutes les formes de discrimination à l’égard des femmes, un traité hautement légalisé, protègent le droit des femmes à l'avortement quand la participation des femmes dans la société civile est forte. Nous utilisons plusieurs modèles statistiques pour évaluer nos hypothèses et obtenons des résultats qui accordent un certain crédit à l'argument. Les engagements hautement légalisés permettent aux acteurs de la société civile de faire valoir la responsabilité des gouvernements vis-à-vis de leurs engagements, ce qui débouche sur une protection plus libéralisée du droit à l'avortement.

Introduction

Abortion rights are in flux.¹ Some states, like Poland and the United States, have restricted the right creating only narrow exceptions for when a woman can receive an abortion and/or erecting barriers to make the process more difficult. At the same time, some countries are liberalizing their abortion laws. For example, France enshrined the right in its constitution in 2024. Colombia, too, increased access by decriminalizing abortion up to 24 weeks. All four countries are democracies. And while one might expect liberalization from France given its place in the EU, Poland is also a member, and they drastically reduced women's rights to abortion. Likewise, while one country in the Americas (the United States) restricted the right, another (Colombia) liberalized it. The stark contrast between France and Poland, as well as the United States and Colombia, leads one to wonder what has caused the recent changes to abortion rights.

We turn our attention to the international human rights legal regime. We ask whether international law can effectively protect abortion rights? If so, how? There is probably more at play than the mere ratification of the treaty that most directly protects abortion—the Convention on the Elimination of the Discrimination against Women (CEDAW)—since all but seven countries in the world have done so. Is there a mechanism, then, that makes a country's international legal obligation to women's rights more likely to protect abortion rights?

Training our attention on the relatively recent liberalization of Ireland's abortion laws offers some clues. In 1983, the staunchly Catholic Republic outlawed abortion outright by including the 8^th Amendment in their Constitution which protected a fetus’ right to life as much as a mother's. Two years later, Ireland ratified the United Nations treaty meant to specifically protect women's rights—the Convention on the Elimination of Discrimination against Women (CEDAW).

Although the treaty does not directly mention abortion, the Committee on the Elimination of the Discrimination against Women (CmEDAW, or the Committee), whose statements clarify state responsibilities under the treaty, has. In 2008, and several times since, the Committee has reminded state parties that their legal obligation to protect women's rights includes providing safe, legal access to abortion. A few years later, civil society groups began organizing around achieving the right to abortion.²  Carnegie and Roth (2019) document their time in the Abortion Rights Campaign (ARC) pursuing several strategies for achieving their goals, including grassroots campaigns to erase stigma and recruit other members. However, one strategy stands out to us as particularly interesting and important. Carnegie and Roth (2019, 112–3) recount how they dealt with the frustration of running up against resistant Irish politicians despite having success convincing the general public:

Fortunately, there were other influential audiences who were willing to listen—and moreover, to call on Irish legislators to act. ARC and other civil society organizations such as Amnesty International recognized that appealing to international human rights monitoring bodies could be an effective tactic to embarrass the state and press for legal and policy change. These bodies’ proceedings shone a spotlight on Ireland's reproductive rights abuses and provided a formal mechanism to refute anti-choice rhetoric about why abortion should remain illegal.

The Irish case suggests a plausible theoretical pathway by which international law can affect abortion rights.³ Using the case as inspiration, we construct a more general argument where a country's international legal obligations create opportunities for civil society to press their government for change. Specifically, we argue that state ratification of optional protocols (OPs), which grant a treaty's committee the ability to accept and rule on individual complaints, as well as publicly comment on state rights behavior, leads to more liberal abortion rights in the presence of a strong civil society poised to take advantage of those legal opportunities. We test the implications of our argument using data on domestic abortion rights and country ratifications of the OP-CEDAW. Across several model specifications, we find that ratification of the OP-CEDAW leads to better abortion rights when women's civil society groups are more active.⁴

The paper contributes to several overlapping literatures. First, we highlight yet another instance in which international human rights law constrains state behavior conditional on domestic conditions (Simmons 2009; Dai 2014), but take the lessons from the legalization literature into account (Abbott et al. 2000), showing how increasing legalization of the commitment presents opportunities for interested domestic actors.⁵ Our main contribution, then, is to theoretically weave these schools of thought into a more coherent process by which civil society takes advantage of international law, highlighting a specific instance of the classic Boomerang Model (Keck and Sikkink 1998). We also contribute to the literature on women's rights by focusing attention on a surprisingly overlooked right—abortion. Whereas scholars have quantitatively studied the effects of law on other women's rights—political, economic, social, and violence against women (e.g., Simmons 2009, Ch. 6; Englehart and Miller 2014; Richards and Haglund 2015; Hill and Watson 2019)—we know of only three studies that quantitatively evaluate its effects on abortion (Asal, Brown, and Figueroa 2008; Boyle, Kim, and Longhofer 2015; Hunt and Gruszczynski 2019). We build on their work and expand it using a more comprehensive measure and modeling strategy.

We present the remainder of the paper as follows. First, we introduce those three papers on abortion. Then, we review the literature on human rights legal compliance, quickly turning our attention to women's rights in particular. Next, we present our argument wherein domestic actors in civil society strategically use their county's commitments to hold that country accountable. Modeling compliance in this way allows us to consider the importance of treaty design. Specifically, we argue that those agreements characterized by high legalization allow civil society to more successfully press their home governments to fulfill their obligations, leading us to a testable hypothesis: Those countries with highly legalized commitments to protect women's rights and strong civil society will more effectively protect abortion rights. We present the data and models used to test that hypothesis, followed by the results. In the end, we put the findings into a broader global context.

Abortion and International Law: What We Know

The three extant cross-national quantitative papers on abortion (Asal, Brown, and Figueroa 2008; Boyle, Kim, and Longhofer 2015; Hunt and Gruszczynski 2019) give us some clues as to the relationship between a country's legal commitment to CEDAW and its abortion liberalization. Asal, Brown, and Figueroa (2008) consider CEDAW ratification a “cultural factor” and do not find a relationship between it and abortion rights.⁶ In direct response, Hunt and Gruszczynski (2019) point out the near ubiquity of CEDAW ratification in Asal, Brown, and Figueroa's (2008) study and measure the variation in states’ depth of commitment by considering reservations and the OP. Those states that ratified the CEDAW and its OP had better abortion rights than those that ratified with reservation or did not ratify at all. Finally, in a more general study about frames, Boyle, Kim, and Longhofer (2015) find that the rights frame, proxied by CEDAW ratification, does not affect abortion liberalization.⁷

Those three papers represent the entirety of the cross-national empirical record when it comes to the relationship between CEDAW and abortion rights. And they leave us with a rather ambiguous conclusion—CEDAW ratification is either (1) positively correlated with abortion rights, or (2) has no effect. We view this ambiguity as an opportunity.

We seek to add clarity to these results by offering a theoretical account of how a country's legal commitment to a treaty can result in increased abortion rights. Although important first steps, both Asal, Brown, and Figueroa (2008) and Boyle, Kim, and Longhofer (2015) do not set out to understand international law's effects, but rather to identify important covariates that explain variation in abortion rights. Hunt and Gruszczynski (2019) do train their focus on international law and we build off of their work more directly. We present a theoretical account of international law that draws from and combines two major strands of the international law literature that explain how human rights treaties constrain governments—(1) domestic enforcement, and (2) legalization. Doing so allows us to specify the important actors and institutions that constrain them as they interact, and how that affects abortion rights.

Two Mechanisms of Human Rights Compliance

We seek to understand the extent to which international human rights law can effectively protect abortion rights. The international human rights law framing strikes us as appropriate given the deliberative inclusion of abortion rights in various human rights treaties. While the word “abortion” does not appear in any of the original legal texts, several of the committees tasked with overseeing the treaties have weighed in to say that international human rights law protects the right to abortion.⁸

We focus primarily on CEDAW, the treaty meant to protect women's rights, for several reasons. Like the other treaties, CEDAW does not mention abortion. However, there are explicit protections for reproductive health and family planning (Articles 4, 5, 11, and 16), and the CmEDAW has clarified that those protections include the right to abortion. As such, this treaty represents the most directly protective document. Secondly, and almost certainly related to the first, the scant research that exists on international law's effects on abortion focuses on CEDAW (Asal, Brown, and Figueroa 2008; Boyle, Kim, and Longhofer 2015; Hunt and Gruszczynski 2019).

All human rights treaties face considerable challenges to effectively changing state behavior. Whereas many treaties can rely on self-enforcing mechanisms to lock in future gains (Axelrod 1984; Keohane 1984) such as retaliatory noncompliance (Guzman 2008, 42–8), human rights treaties do not offer those opportunities. So, they share the same enforcement challenges as most treaties, plus, they cannot rely on self-enforcing mechanisms. However, empirical evidence suggests human rights treaties can still constrain states (Hill 2010).

Domestic Enforcement

One convincing explanation lies in the importance of domestic politics. Building off of Dai’s (2005) work, Simmons (2009) set out a comprehensive argument about the ways in which domestic actors can leverage state commitment to hold governments accountable. Those explicit and public commitments create focal points for human rights advocates, which in turn help them to mobilize political and legal support from society and horizontal accountability institutions. She tested her argument across several human rights treaties and found support for her argument. Others have continued the tradition by testing the effects of domestic legal institutions (Powell and Staton 2009; Lupu 2013) and human rights institutions (Welch 2017) on states’ international human rights legal commitments, lending support to the argument that while international human rights treaties are not easily enforced by other states or international legal tribunals, domestic constituencies are there to hold their governments accountable to their promises.

Legalization

However, the domestic enforcement literature largely ignores variation in treaty design and its importance on rights protection. All international treaties, including those meant to protect human rights, represent the result of negotiations between states over what to allow or proscribe, and what mechanisms will exist to monitor and enforce the agreement (Chayes and Chayes 1993), which in turn affects who will commit to the arrangement (Koremenos, Lipson, and Snidal 2001). Abbott et al. (2000)present a general framework meant to explain the variation over the almost infinite design decisions of a treaty by conceptualizing three separate dimensions—obligation, precision, and delegation. Obligation refers to the extent to which a state is bound to a legal rule. Precision is how clearly the legal rule is presented. Delegation allows third parties authority in implementing and/or interpreting the legal rules. Increases in each of these result in an increase in legalization.

States can adjust the legalization of their legal commitments to many of the core human rights treaties by ratifying OPs of the parent treaty.⁹ OPs are extensions of a parent human rights treaty that add substance, monitoring mechanisms, and/or complaints procedures.¹⁰ For example, the first OP to the International Covenant on Civil and Political Rights (ICCPR-OP1) allows the Committee on Civil and Political Rights to accept individual complaints in a quasi-judicial manner. The second OP to the same treaty (ICCPR-OP2) clarifies that the right to life includes an obligation by the state not to engage in capital punishment.

OPs, then, represent a potential increase in the legalization of a parent treaty across all three dimensions—obligation, precision, and delegation (Abbott and Snidal 2000). For obligation, OPs reaffirm the state's commitment to the human rights principle of the parent treaty. For example, when a state that has ratified the CEDAW pays the time, political, and diplomatic costs of then ratifying the OP to the CEDAW, it increases its obligation to protect women's rights.

OPs also clarify rights thus increasing the precision of the state's commitment. For example, although the CEDAW mentions reproductive rights in several articles, it never once mentions the word abortion. The ambiguity allowed proponents and opponents of abortion rights to claim that they were following their legal obligations. The CmEDAW, empowered by the CEDAW-OP, though, has clarified over time that reproductive rights, do in fact, explicitly include the right to receive an abortion. The CEDAW-OP, then, led to an increased precision in the rights covered by CEDAW to include abortion.

Lastly, OPs can increase the delegation of an agreement. Many OPs create a committee that can conduct inquiries into state practice as well as the ability to field individual complaints about alleged violations of the treaty. The CEDAW-OP, for example, creates the CmEDAW and gives it the power to receive and consider petitions claiming rights violations by individuals or their representatives (Articles 1 and 2). It also allows the CmEDAW to question state representatives about grave abuses, or even send a member to conduct in-person inquiries (Articles 8 and 9).

All things equal, an increase in any individual dimension increases overall legalization. Although helpful to think about them as separate independent dimensions, they can reinforce each other. For example, when the CmEDAW makes a ruling on an individual complaint (delegation), it justifies its judgment with jurisprudential arguments which can, in turn, clarify the state's commitments (precision).

Although OPs represent a clear increase in legalization of a treaty, we lack systematic evidence of their effects on the international human rights regime. Smith-Cannoy’s (2012) book is the most comprehensive treatment of the subject, but its strengths lie in its tests on when states ratify OPs—during economic crisis, ostensibly to gain access to financial aid. Cole (2005)finds that states with better rights ratify OPs. Most germane to this study, Hunt and Gruszczynski (2019) consider state ratification of the CEDAW-OP and whether that affects abortion liberalization. They argue that CEDAW-OP ratification represents full commitment to the CEDAW, whereas CEDAW ratification represents partial commitment. We agree. However, we build upon their work to specify and test a theoretical mechanism linking this increased commitment to increased abortion rights protection. Below, we lay out how increasing the legalization of a state's commitment to CEDAW gives domestic civil society extra leverage while pressing for abortion rights.

Considering Both Mechanisms: Legalization and the Importance of Domestic Politics

As stated above, OPs increase the legalization of an agreement. However, even the most legalized international human rights institutions still face similar enforcement challenges as outlined at the beginning of the paper. Whereas ratification of the base treaty creates vulnerabilities for the government, the increase in legalization increases the strategy space domestic constituencies can use. Here we briefly, but more explicitly, outline our theory that simply takes seriously both schools of thought for how human rights treaties can change government behavior (legalization; domestic constituencies) by increasing the costs of abusing rights or not protecting rights, even in the absence of strong (self-)enforcement mechanisms.

We focus on two main actors. First, the executive represents the political actor ultimately responsible for observed human rights policy. His ability and willingness to adjust the policy directly affect observed rights outcomes (Hillebrecht 2012, 2014; Haglund 2020).¹¹ Rights repression represents a tool he can use to weaken or neutralize threats to his political security (Poe 2004). Those threats to his position include the very social structure that allowed him to achieve and remain in office—the patriarchy. Whereas all government actors wish to remain in their positions, and most will guard the status quo that allowed them to achieve that power, the executive usually commands the security and bureaucratic apparatuses—the government agents most able to enforce the status quo, whether through rules or repression (). All things equal, he would prefer to keep the tool of repression in his repertoire. However, international human rights treaties legally insist that he pack that tool away. Separately, the executive may actually have the willingness to change policy away from the status quo but lack the ability, such as the requisite resources, thus rights respect becomes a lower priority. International legal agreements insist rights respect be given higher priority. But without considering the other actor in our story, he has few reasons to comply.

Civil society groups can use international law to press for human rights protections (e.g., Risse, Ropp, and Sikkink 1999; Simmons 2009; Conrad and Ritter 2019). It creates a focal point that helps groups overcome the collective action problem, raise awareness to their cause, and strengthen their bargaining position with the government. However, those who have proposed and tested the extent to which civil society can effectively use international legal commitments have ignored the importance of treaty legalization in this process. We build that here. Recall, legalization can increase as a result of increases along three dimensions—obligation, delegation, and precision. We take each in turn, describing how increases in those dimensions can increase the ability of civil society to successfully pressure the government to make human rights changes. Civil society's increased ability increases the relative costs of human rights violations increasing the probability the government chooses to accommodate (some of) civil society’s demands, thus, on average increasing rights respect (Moore 2000; Poe 2004).

Most simply, ratifying an OP adds further legal obligations onto an already existing human rights treaty. They do so by reaffirming commitment, creating additional rights situations within the treaty (e.g., ICCPR-OP2’s prohibition on the death penalty), and adding laws to the treaty regime. When a state accepts additional obligations on top of the parent treaties’, it further ensnares the state into a discursive disadvantage if it should wish to deny those rights. Civil society groups can point to the extra rights to which the state committed to draw human rights concessions (Risse, Ropp, and Sikkink 1999). Doing so can make human rights protection more likely for a simple reason. If civil society can use the state's international legal obligations as a rallying cry, renewing and deepening those obligations can only strengthen civil society's hand. Any potential costs civil society could threaten or impose on the state for not protecting rights will increase as a result of the state's increased obligation incurred by ratifying the human rights treaty OP.

If obligation adds legal layers, delegation and precision describe how those added obligations can affect the state and civil society groups who wish to push for rights. OPs delegate two important functions to the committees tasked with overseeing their particular treaty—the communications procedure and the inquiry procedure.¹² The first, the communications procedure, allows individuals or groups to petition the treaty committee when they believe their rights have been violated by the government and the committee can rule on the extent of the government's culpability. In essence, then, OPs transform the committees into quasi-judicial institutions. The ruling creates a legal censure that has crossed relatively high legal standards for admittance and ruling—petitioners must show they exhausted domestic legal mechanisms, show their claim is relevant to the committee, show it is not politically motivated, and provide sufficient evidence of violation. Thus, a committee's ruling against a state might have more authority than accusations leveled without legal backing (e.g., naming/shaming campaigns of nongovernmental organizations [NGOs]). Civil society can use this information to mobilize higher numbers because publics tend to oppose their government's use of human rights violations, especially when they know the abuses also broke the law (Wallace 2013). Higher levels of mobilization represent more resources (capital or people) that civil society groups can use to more effectively achieve their aims (McCarthy and Zald 1977; Tilly and Wood 2015). Further, the state knows civil society has this strategy, thus they may protect rights to avoid any legal costs it might incur from the committee ruling against it (see Haglund and Welch 2021 for a similar argument about the European Court of Human Rights’ ability to increase rights respect).

OPs achieve higher legalization through delegation via a second method—the inquiry procedure—which allows the committee to conduct its own investigations into abuse. The committees create and maintain a network of collaborators in countries to enhance their work. They remain plugged into current issues via these networks. They can receive tips from civil society as to particularly grave or systematic abuses occurring where the government is unwilling to acknowledge them. For example, in its 2021 report on its inquiry concerning South Africa, the Committee lists the eleven civil society groups that sent them information regarding South Africa's failure to prevent violence against women (CEDAW 2021, 1). The committees, then, can use their legal authority to send rapporteurs to investigate. The committees use the newly acquired information and release statements, increasing information available to other actors on the ground who may do their own investigations (e.g., civil society, media, and NHRIs) further uncovering abuse. Civil society can and does leverage this tool. The information uncovered during inquiry procedures can increase the costs to the state by embarrassing it, which may further threaten material benefits, such as aid, trade, and investment opportunities. Increasing the relative costs of ignoring civil society increases the odds civil society can achieve their goal of rights protection.

Increases in precision occur when rights are clarified by the OP, which can occur in one of two ways. First, the text of the OP can take the lessons learned over time from the existing treaty regime and update the information of the treaty to clarify what certain rights entail. The example of the ICCPR-OP2 above fits this category. Though it added an additional obligation—abolish the death penalty—it did so by clarifying that a right to life included a right not to receive capital punishment from the state.

Second, the OPs in the two delegation methods described directly above—communications and inquiry procedures lead to quasi-judicial decisions and inquiry reports, respectively. The communications procedures allow contestation of a right, its existence, the extent to which it places obligations on the state, and the details that constitute violation and nonviolation, all of which clarify the right by more precisely detailing the state's legal obligation. For example, Communication 22/2009, discussed in further detail below, clarified that Peru had violated its own domestic laws by not allowing an abortion to a pregnant teenager at medical and emotional risk. But, importantly, it also felt compelled to weigh in on those domestic laws and insist that Peru liberalize and administer them in line with its international legal obligations. Again, the word abortion never appears in the original CEDAW, but the contestation inherent in the communications procedure allowed the Committee to increase the precision of the reproductive rights found in the original treaty to include liberalized abortion laws.

Inquiry procedures, too, produce precision-enhancing reports.¹³ As described above, committees can engage in active visitation, investigation, and monitoring of any state party to the OP. Though a clear example of increased delegation to the committee to monitor state parties’ legal obligation, the inquiry procedures end with a report detailing the committee's findings. Though these reports can be shame-inducing, Carraro (2019) points to committee reports as primarily providing accurate assessments of the state's human rights conditions along with constructive learning opportunities to better manage state parties’ legal human rights obligations. By comparing the state's current human rights to its obligations, the committee clarifies how the committee interprets the rights to be obtained and the exact ways in which the state party is (not) meeting those obligations. These concrete examples of a right and (non)compliance with it increase the precision of the right in question for the state party. The CmEDAW did so four times making the right to abortion more precise in inquiry reports for the Philippines (2015), United Kingdom (2018 and 2019), and South Africa (2021). These more precise rights give civil society actors pressing the government for change more clearly defined boundaries to police, which in turn allows them to more accurately call out specific behavior from the government, which increases the cost to the government of ignoring civil society's calls for rights protection.

Taken together, then, we expect strong civil societies will be more effective in states that ratify treaties with higher legalization. Increased obligation, delegation, and precision work independently and together to increase the relative costs to the government of abusing rights and ignoring calls to reform rights policy. Increases in the relative costs increase the probability the state will accommodate civil society's demands for rights protections (Moore 2000; Poe 2004). Next, we bring our more general theory back to our specific case of abortion rights.

The Case of CEDAW, CEDAW-OP, and Abortion

The CEDAW is the core UN human rights treaty concerned solely with protecting women's rights. Created in 1979, it went into effect two years later in 1981. Currently, most countries in the world have ratified the agreement.¹⁴ The types of rights protected by the CEDAW—including civil, political, social, economic, and cultural rights—are broader than any other of the core UN human rights treaties.

CEDAW-OP represents the culmination of a long history of advocacy to strengthen CEDAW that began during the drafting of CEDAW in 1976. With the wind of the 1995 Beijing World Conference on Women in its sails, the international human rights regime began to negotiate the terms of the OP in earnest, ending in General Assembly adoption in 1999. It gives the Committee the power to receive and consider petitions claiming rights violations by individuals or their representatives (Articles 1 and 2). For example, in 2009 an individual with the help of two NGOs submitted a complaint to the Committee claiming that her 13-year-old daughter's rights were violated because doctors refused to perform an abortion for her despite diagnoses that the pregnancy threatened her physical and mental health, with a potential outcome of death.¹⁵ Both NGOs involved—the Center for Reproductive Rights and Latin American and Caribbean Committee for the Defense of Women's Rights—used legal action to secure reproductive rights, an opportunity made possible by the existence of the CmEDAW's communication procedures granted in the OP. The Committee in a public report published in 2011 found Peru violated her rights by not performing the abortion given Peru's existing laws for therapeutic abortion. Aside from urging Peru to implement its existing laws, it recommended liberalizing its abortion laws further.

It also allows the CmEDAW to question state representatives about grave abuses, or even send a member to conduct an inquiry (Articles 8 and 9). For example, in 2008 the Committee received a request from nineteen mostly domestic NGOs. In it, they asked the CmEDAW to investigate the abuses to women's rights that resulted from Manila's new laws that discouraged contraception. The resultant increase in pregnancies led to larger numbers of unsafe abortions since all abortions were illegal at the time. The Committee gave the government a chance to respond to the accusations, which it did by tersely denying them. The Committee, then, decided to send members to conduct a site visit investigation. They concluded that the Philippine government violated several women's rights including the right to safe, legal abortion. It recommended the government legalize abortion in cases of rape, incest, threats to life, or fetal abnormalities, and to decriminalize all other abortions. Similarly, civil society groups in Northern Ireland informed the Committee about the difficulty of obtaining an abortion despite the United Kingdom (UK)’s ratification of CEDAW and the OP.¹⁶ Specifically, assisting with or procuring an abortion was criminalized with a maximum punishment of life in prison. The laws caused women to seek abortion elsewhere—by traveling to places where it was legal or receiving unsafe, illegal abortions at home. The Committee sent two rapporteurs to conduct an inquiry that resulted in a lengthy report (2018), the UK's response, and CmEDAW's response to that (2019). Ultimately, abortion was decriminalized in late 2019.

These abilities increase legalization of the CEDAW directly by increasing the delegation dimension. NGOs’ involvement in the case as well as their ability to access public findings create opportunities to rally support for pressuring the government for liberalizing abortion rights. Findings like this also serve to increase precision by clarifying the right to abortion, and the legal foundations on which it rests citing specific articles of CEDAW, the Committee's past findings and recommendations, and the Beijing Declaration and Platform for Action.

While the (threat of) a legal censure can make executives more receptive to civil society demands through the delegation mechanism, the increase in precision and obligation may also give civil society actors a stronger focal point. The OP-CEDAW ratification represents an increase in legal obligation, if not only a reiteration of its obligations to women's rights. This (re)commitment can entangle the state in its own obligations making it vulnerable to rhetorical strategies employed by civil society (Risse, Ropp, Sikkink 1999). Recall Carnegie and Roth’s (2019) recounting of the ARC's strategy to appeal to UN treaty bodies to further shine a spotlight on Ireland's abortion practices and how they violated its international legal obligations. They did this as a workaround since the Parliament remained unreceptive (Keck and Sikkink 1998). Framing abortion as an international legal right allowed them to rally higher numbers of public supporters (Hunt 2021). The public support played a large role in Taoiseach Varadker announcing plans to hold a public referendum. By over two-thirds, the public voted to repeal the 8th Amendment effectively giving women access to legal abortion.¹⁷

The general theoretical argument and more specific application to CEDAW, CEDAW-OP, and abortion leads us to expect that highly legalized international human rights commitments can create and strengthen opportunities for civil society, which will in turn cause the government to protect abortion rights. We can now state a testable hypothesis. 

Research Design

To test our hypothesis, we constructed a dataset from several sources, which we detail below. Our population is in every country post-World War II. We created a time series cross-section dataset with 202 countries over the years 1945–2021. However, our sample is limited by the fact that not every variable contains those years. When we include only those years wherein each variable contains information, our final time series is limited to the years 1997–2015.¹⁸ Our unit of analysis is the country-year. We specify several linear regression models, most of them after preprocessing the data with various matching routines (discussed in more detail after we describe the variables).

Dependent Variable

Our dependent variable is a state's codified abortion rights. CEDAW makes clear that to comply requires altering national law to protect women's rights (Articles 2 and 15). We collected the data to create this measure from the WomanStats project, which makes available data on various women's rights.¹⁹ Here we accessed each country's information on the extent to which abortion was (not) legally protected. The website contains information from various sources including academic experts, NGOs, IGOs, and the media. The information for each country lists statements from each of these sources on the legalization of abortion practices arranged temporally. Following Hunt and Gruszczynski (2019) we coded whether abortion was legal in each of the following circumstances: to protect the mother's life, to protect the mother's physical health, to protect the mother's mental health, following rape or incest, for economic or social reasons, or in the case of fetal impairment.²⁰ We coded a country as protecting that right in the earliest instance WomanStats had information that it was protected. We assumed it remained protected unless a future instance appeared in the WomanStats data that suggested otherwise.²¹ We also coded if the sources mentioned that the country's laws prohibited abortion in those instances.²² The process left us with a vector of 1 s (protected), 0 s (not mentioned), and -1 s (prohibited) on each of the instances for potential abortion legalization. We then added each of the instances to create the Abortion Rights Index with a theoretical range of -6 to 6, with higher numbers representing better protection for abortion rights. Figure 1 represents the distribution of the measure.

Explanatory Variables

To test our hypothesis, we must include an interaction term that captures high legalization and strong civil society. For the former, we collected information on whether a state has ratified the CEDAW-OP from the UN Human Rights Treaty Dashboard.²³ The variable takes the value 1 in the year the country ratified, and every year thereafter, and takes value 0 otherwise. As of the time of writing, 115 states are party to the OP (i.e., have ratified the agreement). Figure 2 visualizes the distribution of CEDAW-OP ratification status in our sample.

Our concept of a strong civil society includes the legal openings for diverse voluntary associations to participate in public, political ways without state interference and the extent to which groups actually do so. To measure civil society strength, we turn to the Varieties of Democracy (V-DEM) dataset (Coppedge et al. 2022). Given our concern with women's rights, we use the Women Civil Society Participation Index—a Bayesian factor analysis index using underlying information on the freedom of women to openly discuss political issues, women's participation in civil society, and their participation in journalism (Sundström et al. 2015). It can theoretically take values from 0 and 1. Figure 3 shows the empirical distribution in our sample. Including the women's civil society participation index, as opposed to a more general measure of civil society participation, most accurately captures the types of activity that would leverage international law to pressure the government for abortion rights. Furthermore, it better avoids including instances where strong civil society protection and participation leads to mobilization in defense of abortion restrictions (e.g., Eisele 2022).

Controls

We include several control variables to guard our statistical results from spuriousness. We detail each below.²⁴

Democracy

The relationship between democracy and human rights is so common, scholars refer to it as the Domestic Democratic Peace (Davenport 2007). For women's rights, in particular, the level of democracy correlates with rights protection (Simons 2009). Further, regime type affects OP ratification (Cole 2009), and the extent to which citizens can and will engage in civil society (Risse, Ropp, and Sikkink 1999; Tilly 2003). We include the Polity score to account for the level of democracy, which captures the extent to which executive recruitment to the political process (from closed to open), constraints on the executive (from none to many), and political competition (from low to high) occur in a country-year. The index combines scores that capture these differences and ranges from -10 to 10, with higher numbers representing more democratic polities.²⁵

National Human Rights Institutions

We include a control for whether a state has a National Human Rights Institution (NHRI). Past research finds that NHRI presence can increase rights protections (Cole and Ramirez 2013), especially in the context of international law (Welch 2017). Haglund and Welch (2021)argue that NHRIs facilitate civil society action meant to hold governments accountable for international human rights commitments. We include a dummy variable for the presence of an NHRI taken from the National Human Rights Institution Data Collection Project (Conrad et al. 2013; Welch, DeMeritt, and Conrad 2021).

Human Rights

Some states may inherently support the international human rights regime and pursue rights protections. These states may be more inclined, then, to also protect abortion rights using domestic law. They might also be more likely to commit to international human rights treaties. Simmons (2009) calls them “sincere ratifiers.” These states are probably more likely to protect civil liberties such as the right to assemble, potentially affecting women's civil society participation as well. We include the CIRI physical integrity rights index, which measures the extent to which the state protects the people’s rights from extrajudicial killings, torture, political imprisonment, and disappearance (Cingranelli, Richards, and Clay 2014). It ranges from zero to eight with higher numbers representing higher respect for rights.

Women in Parliament

We also include the percentage of women in parliament (World Bank 2019). Past work has found that increasing women's descriptive representation can lead to stronger abortion rights (Asal, Brown, and Figueroa 2008; Boyle, Kim, and Longhofer 2015; Hunt and Gruszczynski 2019). The higher descriptive representation leads to better substantive representation, too (Celis 2006), which may influence a government's decision to ratify agreements that protect women's rights and allow legal space for women in civil society.

Independent Judiciary

We control for the independence of the domestic judiciary. Judicial independence—the extent to which courts can freely rule against the government (Staton and Moore 2011)—increases human rights protections (Powell and Staton 2009; Simmons 2009), decreases ratification rates (Simmons 2009); and presumably protects civil society's ability to mobilize and act. Thus, we include the CIRI measure of judicial independence (Cingranelli, Richards, and Clay 2014).

Religion

Past research has found religious beliefs affect abortion attitudes (Boyle, Kim, and Longhofer 2015). Specifically, scholars have found that Islam (Hunt and Gruszczynski 2019) and Christianity (Asal, Brown, and Figueroa 2008; Boyle, Kim, and Longhofer 2015; Hunt and Gruszczynski 2019) lead to more restrictions on abortion. Research also finds religion can affect whether states ratify CEDAW (Simmons 2009). We include the percentage of the overall population who identify as Muslim and Christian taken from Brown and James (2019).

GDP

Richer countries tend to protect human rights (Poe and Tate 1994), ratify more human rights agreements (Simmons 2009), and experience more civil society mobilization (Murdie and Bhasin 2011). We include a logged measure of GDP from the World Bank (2019).

Population

Population is correlated with lower levels of human rights protections (Henderson 1993; Poe and Tate 1994) and higher civil society action (Murdie and Bhasin 2011). We include a logged measure of the total population from the World Bank (2019).

Preprocessing the Data

We know states select into treaty regimes based on their belief about their ability to comply (Downs, Rock, and Barsoom 1996). Those whose ideal points more closely match the treaty's prescriptions and/or those with the ability to achieve those prescriptions will more often ratify agreements (Chayes and Chayes 1993; Simmons 2009). We turn to matching methods, then, to more convincingly isolate the causal effect of the explanatory variable. Doing so allows us to more closely simulate an experiment wherein the control group shares all of the same characteristics as the treatment group except the latter receives the treatment.²⁶ Several matching algorithms exist to achieve this balance within one's dataset. The discovery, proposal, and comparison of matching methods are ongoing in the methodology literature.²⁷ We do not take a strong stance on the method to be used, but instead preprocess our data using several algorithms, then estimate regression models. Specifically, we use nearest neighbor 1:1 with the propensity score, optimal, optimal full, genetic, and cardinality matching. For each, we use the observed covariates to balance the data between the control and treatment group, where what distinguishes them is whether they ratified the CEDAW-OP (control did not; treatment did). Different matching algorithms produced different balance results, but all of them resulted in more balanced data than the original dataset. Optimal full produced, by far, the most balanced dataset with a global standard mean difference of 0.00.²⁸ Sensitivity analyses using Rosenbaum bounds suggest the results obtained after matching are robust to unobserved confounders, with Γ values of at least 2 for each method (Rosenbaum 2002, 2005; Keele 2010).²⁹ As you will see below, the choice of matching methods does not meaningfully affect our results.

Statistical Model

After preprocessing the data, we estimated a linear regression model with an interaction term between CEDAW-OP ratification and women's civil society participation. We expect a positive and significant coefficient estimate.

Results

Table 1 shows the main results. The coefficient estimate remains positive and significant in each model, ranging from 2.28 to 3.98 with all five p-values under 0.05.³⁰ The average coefficient estimate between the five models is 2.83. The coefficient estimate from the most balanced dataset (optimal full, “Full” in table 1) suggests the strongest effect. Taken together, all coefficient estimates are positive, as expected, and statistically significant giving us more confidence to conclude that women's civil society participation positively moderates the effect of CEDAW-OP on abortion rights.

We can also glean some information about the constituent and control variables. Women's civil society participation is particularly important to protecting abortion rights. For states with no CEDAW-OP ratification, increases in participation result in stronger abortion protections. The model predicts CEDAW-OP ratification is associated with either no change or lower abortion protections when the women's civil society variable takes a value of 0 (though this never happens in the data). The finding seemingly contrasts with past work which suggests CEDAW-OP ratification increases abortion protection (Hunt and Gruszczynski 2019). However, the two results are not comparable. Our estimate is when civil society is 0; theirs would be at average levels of civil society. In fact, when we do not include an interaction term, CEDAW-OP ratification is associated with more liberalized abortion rights, mirroring their results (Online AppendixTable A9).

The control variables perform as expected. States with NHRIs, better human rights records, higher levels of women in parliament, independent judiciaries, and higher levels of wealth have higher levels of abortion protection. States with higher proportions of Christians and Muslims, as well as higher populations in general, have lower levels of abortion protection.

One control variable, though, may surprise readers. Higher levels of democracy are associated with lower levels of abortion protection. Though the finding begs for more theorizing about why and how political institutions affect abortion liberalization, we offer an admittedly partial explanation based on Cold War foreign policy here. During that time, both sides used ideas as ammunition against the other. The West touted civil and political rights, while the Communist bloc's rhetoric prioritized economic, social, and cultural rights. In this battle of ideas, each side passed laws to prove their superior rights records. Abortion was one more way for Communist countries to highlight their women's rights bona fides, and abortion laws in post-Communist countries tend to be more liberal (Harsch 1997).

Substantive Results

While the positive and mostly significant results from the models lend support to our hypothesis, interpreting the substantive meaning of the finding requires additional steps (Brambor, Clark, and Golder 2006). To do so, we created a marginal effects plot using the best-matched dataset (Optimal Full). Figure 4 shows the estimated effect of CEDAW-OP conditional on women's civil society strength. It shows that ratification of CEDAW-OP requires a relatively strong civil society to exert a positive influence on a country's abortion rights. Specifically, women's civil society levels need to be around 0.70 on a zero-to-one scale to see positive results that we can confidently say are larger than zero. Although, this represents a high level of women's civil society, about 39 percent of the data are above the threshold (recall figure 3).

Conclusions

We began the paper considering the ARC's struggle during the Repeal the 8th movement in Ireland. Carnegie and Roth (2019) documented their time with the ARC and recounted how they shifted their strategy to appeal to international human rights treaty committees when the legislature stonewalled them. Inspired by the case, we sought to build a general theory for how civil society groups use highly legalized international commitments for policy concessions. Our results suggest that the Repeal the 8th Movement, which ended successfully with the passage of the 36th Amendment to the Irish Constitution represents a more general phenomenon—international legal commitments can constrain states by giving civil society a strategic option to leverage during their campaigns. The process we outline represents a textbook, yet unexplored, example of the Boomerang Model (Keck and Sikkink 1998) wherein domestic advocacy groups bypass domestic actors by seeking international allies, which in this case are international legal actors in the human rights treaty committees, who in turn pressure the formerly unreceptive government to change its behavior. Just as Irish activists used international human rights law, those in other countries where abortion rights are under threat would be wise to consider what legal commitments their governments have made. For example, abortion rights have been all but stripped in Poland under the Law and Justice Party's government (BBC 2021), leading to poor health outcomes for women, including death, when doctors refuse to perform abortions whether out of personal conviction or fear of domestic legal consequences (Bennhold and Pronczuk 2022). Activists there may be heartened to know that Poland ratified the CEDAW-OP in 2003, and the space for women's civil society participation is high (0.73 in 2020), though shrinking (0.92 in 2013).³¹

They and others may also turn to other human rights treaty committees to wrest back abortion rights. After all, international human rights legal jurisprudence suggests abortion rights are protected by other treaties as well, including the ICCPR, Convention on the Rights of the Child (CRC), Convention on the Rights of Persons with Disabilities (CRPD), and Convention against Torture (CAT).³² Poland has ratified the OPs that empower the ICCPR and CAT committees to receive individuals’ complaints as well. The interdependence of human rights law to protect abortion rights suggests avenues for future research. Although our empirical focus was limited to CEDAW-OP, we might expect other OPs to have similar effects, or to enhance each other's effects. In fact, the ICCPR Committee has heard more abortion cases than any other Committee, including the CEDAW Committee.³³

The Poland case also highlights the importance of better understanding how and when civil society pursues rights claims using international legal commitments. Although Hunt (2021) presents examples of human rights frames succeeded in liberal societies (i.e., Canada and Ireland), Snyder (2022)’s recent book suggests framing claims using rights language can provoke backlash in conservative and nationalist environments. The point challenges the idea that human rights still represent a master frame for social movements (cf. Snow and Benford 1992) as global illiberal trends continue. Perhaps this explains why Polish activists have yet to (successfully) leverage legal commitments. Using health frames may be strategically advantageous, instead (Boyle, Kim, and Longhofer 2015). Future research should parse out when and why civil society groups should embrace or avoid international human rights and legal frames.

Our research, like all other research, has limitations. An important empirical point to raise is the extent to which the effects we uncover represent causal effects. Although we attempted to mitigate some of the causal identification issues inherent in linear regression models of observational data by using matching methods, those methods carry their own assumptions worth probing. Although we (better) balanced the data, that balance is only conditional on observable covariates. However, our sensitivity analyses suggest unobservable confounders should not be a concern for our estimates. Given our inability to know the true model, we take the repeated positive and significant coefficients across several models as likely evidence that ratifying the CEDAW-OP has positive effects in the presence of a strong civil society.

All the caveats aside, though, we are generally confident that international law, when yielded by civil society actors, can lead to stronger rights protections for women. While our research contributes to the literature by marrying disparate international legal compliance literature—(1) mechanisms of domestic politics (e.g., Dai 2005; Simmons 2009), (2) depth of commitment (Downs, Rocke, and Barsoom 1996; Cole 2009),³⁴ and (3) institutional variation and legalization (Abbott et al. 2000; Abbott and Snidal 2000; Koremenos et al. 2001)—it also suggests avenues for activists holding the line against the recent attacks on abortion rights.

Author Biography

Amelia Gaudio is a Graduate Student at the University of South Florida. She is currently obtaining her masters in International Affairs with a concentration in security and diplomacy.

Ryan M. Welch is an Associate Professor in the Department of Political Science and International Studies at the University of Tampa. For the 2024–2025 academic year, he is an American Association for the Advancement of Science (AAAS) Science and Technology Policy Fellow.

Notes

Authors' note: We wish to thank Jillienne Haglund and participants in the Peace Science Panel at the International Studies Association 2023 Annual Meeting titled "Women's Rights as Human Rights" for their helpful feedback on an earlier draft of this paper.

Footnotes

References