Seyb v. Labrador in a Global Context:

Health Exceptions to Abortion Bans under International Human Rights and Comparative Law

Paulina Macías Ortega, Sarah Wetter, and Rebecca Reingold

 Abortion care is part of essential health care. This notion is perhaps most obvious when abortion is “medically indicated,” or constitutes the recommended course of action in a medical setting. This can be the case under a wide range of circumstances, including when pregnancy complications jeopardize the pregnant person’s health (e.g., preterm premature rupture of membranes) or where the pregnancy exacerbates underlying health conditions (e.g., cystic fibrosis and sickle cell disease) or interferes with standard treatment (e.g., lupus and cancer). Abortion can also be medically necessary where the pregnancy puts the pregnant person at risk of suicide or self-harm.

In light of this, international human rights bodies, as well as the overwhelming majority of countries around the world, recognize a right to abortion when a pregnancy poses risks to the pregnant person’s health. A case currently pending in a United States district court could move the U.S. closer to aligning itself with international human rights law standards and comparative law trends, as well as improving access to abortion care in states with near-total abortion bans.

Seyb v. Labrador

On June 8, a federal district court in Idaho heard opening arguments in Seyb v. Labrador, a case focused on the constitutionality of state abortion bans that fail to include an exception for medically-necessary abortion care post-Dobbs. Through both a total ban and a six-week ban, Idaho state law currently prohibits nearly all abortion care, containing narrow exceptions when abortion is permissible to save the pregnant person’s life and in some cases of rape or incest (subject to reporting requirements).

The plaintiff in the case, a maternal-fetal medicine specialist, argues that these narrow exceptions fail to cover a broad range of circumstances under which continuing a pregnancy may jeopardize a person’s physical or mental health, thus “increase[ing] the likelihood that pregnant people in Idaho will die from preventable causes.” Citing research from Idaho’s Maternal Mortality Review Committee, the complaint emphasizes that mental health conditions (which are not covered by Idaho’s life exception) were the most common underlying causes of maternal death from 2018 to 2021. According to the plaintiff, the bans also affect access to lawful care, chilling providers’ “willingness to provide reproductive health care that may be mistaken for abortion care,” and driving at least five maternal-fetal specialists and 50 OB/GYNs to stop practicing in Idaho since 2022.

Idaho’s failure to guarantee access to medically-necessary abortion care, according to Seyb, violates two clauses of the U.S. Constitution’s Fourteenth Amendment. First, it violates the due process clause because it interferes with the right to seek medical treatment without undue government interference, which is rooted in U.S. history and traditions. Second, it violates the equal protection clause, which prohibits states from discriminating against individuals who face a risk of death from self-inflicted harm.

International Human Rights Law

Universal and regional human rights bodies have called upon countries to decriminalize abortion when a pregnancy poses risks to the pregnant person’s health. Importantly, human rights bodies understand health to encompass both physical and mental health, consistent with the World Health Organization’s (WHO) definition of health as a “state of complete physical, mental, and social well-being and not merely the absence of disease or infirmity.”

The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) is the only international human rights treaty to explicitly reference a health exception to abortion bans, requiring States Parties to authorize abortion care when continuing the pregnancy “endangers the mental and physical health” of the pregnant person. However, human rights bodies have interpreted other treaties to require health exceptions to abortion bans, establishing that a failure to provide for such an exception results in a range of human rights violations. The Human Rights Committee (HRC), for example, has interpreted the International Covenant on Civil and Political Rights’ right to life to require access to safe, legal, and effective abortion when the health of the pregnant woman or girl is at risk, or when carrying a pregnancy to term would cause substantial pain or suffering. The Committee on the Elimination of Discrimination Against Women (CEDAW Committee), similarly, has called on States to legalize abortion on several grounds, including where continuing a pregnancy poses a risk to the physical or mental health of the pregnant person.

Human rights bodies, moreover, have considered a handful of cases involving denials of medically-necessary abortion care. In K.L. v. Peru, the HRC determined that Peru had violated a seventeen-year-old girl’s right to be free from cruel, inhuman, or degrading treatment, among other rights, for failing to guarantee access to a legal abortion when the pregnancy posed serious risks to her physical health and caused severe psychological suffering, including depression. In L.C. v. Peru, the CEDAW Committee found that Peru failed to consider the effects of a pregnancy on a thirteen-year-old girl’s health, including her mental health.

Finally, human rights experts have consistently and repeatedly called for the decriminalization of abortion when a pregnancy poses a threat to the pregnant person’s physical or mental health.

United Nations Special Rapporteurs have opposed the removal of health exceptions from abortion laws and stated that abortion should, at a minimum, be legal when a pregnancy endangers a woman’s physical or mental health, among other circumstances. Others have condemned the denial of abortion to a ten-year-old rape victim despite the risks to her health, warning that forcing girls to continue such pregnancies may amount to cruel, inhuman, or degrading treatment. These statements have been issued in response to highly restrictive abortion regimes, including in El Salvador, the Dominican Republic, and, following Dobbs, the United States.

Comparative Law

Permitting abortion when continuing a pregnancy threatens a person’s health is common worldwide. According to the WHO, 67 countries expressly permit abortion when continuing a pregnancy threatens the pregnant person’s health. Many of these laws specifically refer to physical health (38 countries) or mental health (37 countries). Once more permissive legal frameworks (i.e. that permit abortion on broader socioeconomic grounds or at a pregnant person’s request) are taken into account, nearly two-thirds (125) of countries worldwide allow abortion in circumstances that encompass risks to health.

Some jurisdictions expressly incorporate an exception for threats to both physical and mental health into their abortion laws. India’s Medical Termination of Pregnancy Act, for example, permits abortion where continuing the pregnancy would result in grave injury to the pregnant woman’s physical or mental health. The Act expressly addresses threats to mental health through two statutory explanations, providing that the anguish associated with a pregnancy resulting from rape and a pregnancy resulting from contraceptive failure, shall be presumed to constitute a grave injury to mental health. The Act also authorizes consideration of the pregnant woman’s actual or reasonably foreseeable environment when assessing risks to her health.

Courts have likewise played an important role in defining the scope of exceptions to abortion bans for threats to health. In Colombia, the Constitutional Court held in Decision C-355/06 that criminal penalties could not be imposed for abortion when continuing a pregnancy poses a risk to the health of the pregnant person. The Court rejected the notion that a woman may be required to undertake “heroic sacrifices” or surrender her own fundamental rights for the benefit of others. It further clarified that the health exception encompasses risks to both physical and mental health and relies, in part, on international human rights standards. The Court also stressed that determining whether a pregnancy endangers a person’s health is a medical question to be assessed by health professionals according to professional and ethical standards of care.

Other countries afford significant discretion to health professionals to determine what constitutes a medically-necessary abortion. Article 26(4) of Kenya’s Constitution permits abortion when, in the opinion of a trained health professional, emergency treatment is required or the life or health of the pregnant person is in danger. The constitutional framework operates alongside criminal provisions prohibiting abortion, as well as relevant legislation and professional guidance. The Health Act defines health as a state of complete physical, mental, and social well-being. Professional regulations further instruct practitioners applying Article 26(4) to consider health broadly, in light of the constitutional right to health, consumer rights, and the right to information.

Conclusion

With the Idaho trial now underway, federal courts have an opportunity to definitively establish that the U.S. Constitution protects a right to abortion when a pregnancy threatens a patient’s health, including mental health, post-Dobbs. It would move the U.S. one step closer to complying with international human rights law obligations and aligning itself with global trends in the area of abortion decriminalization. More importantly, it would pave the way for the provision of medically-necessary abortion care that is currently being withheld from pregnant people in states with the most restrictive abortion bans, with devastating consequences for their health and well-being.