The right to the highest attainable standard of health has become a powerful tool for lawyers and others who advocate for women’s autonomy, liberty, and equality around the world. In recent years, advocates for women’s rights have successfully used right-to-health reasoning to persuade states to liberalize policies relating to abortion, contraception, sex education, and health care. These reforms have improved social and health outcomes for women and have provided frameworks in which women can exercise autonomous decision-making and enjoy full control over their bodies.
Unfortunately, women in the United States do not enjoy similar protections for their right to health. The United States is one of the few countries in the world that neither recognizes a right to health in its constitutional law nor has ratified the international treaties that expressly create a right to health. Instead, it locates a limited right to reproductive health care, including the right to an abortion, within the right to privacy.’The current U.S. approach significantly limits women’s access to needed health services, including abortion and maternal health care. This Article argues that such limitations reduce women’s liberty and autonomy and thus constitute a barrier to equal citizenship. It suggests that a right to health underpins substantive gender equality, both theoretically and practically. Without admitting that a fundamental right to the highest attainable standard of health exists, the United States will not achieve real equality for women.
Part II of this Article introduces the legal framework surrounding the right to health. Part III describes three strands of reasoning used by international and foreign bodies to explain why the right to health includes a right to abortion, and provides case studies of instances in which foreign courts, legislatures, and international human rights tribunals have recognized the vital connection between these two rights. Part IV contrasts this trend with the situation in the United States, where constitutional jurisprudence grounds women’s limited rights to contraception and abortion in the right to privacy, and where the lack of universal access to health care leads to widespread gender discrimination. Part V discusses the negative impact these limitations have had on women’s health, rights, and equality. Part VI concludes by suggesting some avenues for right-to-health advocacy in the United States, while acknowledging that much more research and analysis needs to be done.
This Article seeks to demonstrate that, without recognizing a right to the highest attainable standard of health, the United States cannot achieve full equality, equity, and liberty for women. The right to health is thus not merely a strategic tool for women’s rights advocates, but an essential legal component of any state system that purports to hold women and men as equal.
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