End Abortion

Looking Toward the Possible End of the Abortion Regime – Part 2

Rick Plasterer on November 1, 2021

An earlier article reviewed a panel discussion at the Family Research Council’s PrayVoteStand conference discussing the momentous Dobbs vs. Jackson Women’s Health Center case, in which it is expected that the Supreme Court will reconsider the 1973 Roe vs. Wade decision, which declared a constitutional right to abortion. Among the issues the court might consider in this connection is whether or not international law requires a right to abortion. This is now commonly claimed by U.N. treaty monitoring bodies, and was discussed by Austin Ruse, President of the Center for Family and Human Rights (C-Fam), which concerns itself with life and family issues at the United Nations, and Stefano Gennarini, Vice-President for Legal Studies at C-Fam.  

Ruse first observed that C-Fam is concerned with the obligations that governments have under international law regarding unborn children. These questions “have been raised now for many, many years.” The Dobbs case concerns abortion of unborn children who can feel pain. C-Fam has submitted an amicus brief to the Supreme Court regarding the Dobbs case, endeavoring to answer the claim that international law includes the right to abortion and addressing what are America’s treaty obligations regarding abortion

Ruse explained that Roe vs. Wade established a system of trimesters in pregnancy, with progressively greater restrictions on abortion allowed in later trimesters. But this was deceptive, since exceptions to these restrictions allowed abortion to protect the mother’s health, without clearly specifying what “health” means. The same day the Roe decision was issued, the court issued its decision in another case, Doe vs. Bolton, which defined health to include “emotional” and “psychological” factors. Hence, virtually anyone could claim the right to abortion by citing emotional distress. Gennarini observed that abortion was being debated in many state legislatures at the time these decisions were issued. Roe and Doe cut off these debates, and gave the issue of abortion to the U.S. Supreme Court.

But what is less known, Gennarini said, is that the effect of these decisions had an “international scope.” He called the court’s assumption of power over the abortion issue “a primordial act of judicial supremacy.” The Roe vs. Wade decision “epitomizes the kind of rule by judges that we are seeing in many parts of the world, and undermining self-government.” More particularly, “we’ve seen it cited all around the world as an example to be followed by abortion advocates.” U.S. Supreme Court cases “are cited by just about every supreme court around the world.” As an example, the Mexican Supreme Court cited the Roe vs. Wade decision in overturning abortion laws in Mexico, while a couple of years earlier India’s Supreme Court cited Roe and the so-called “sweet mystery of life” passage in Casey vs. Planned Parenthood (1992) (i.e., liberty means the right to define life and the universe) to overturn India’s sodomy laws.

Ruse asked if overturning Roe in the Dobbs case “would be influential around the world.” He doubted that it would be, because the emotional commitment to the doctrine of moral autonomy is too far advanced with the international Left. Gennarini agreed that a favorable decision in Dobbs would have limited impact, but thought that overturning Roe could break the momentum of the pro-abortion forces around the world. He cited Argentina, Chile (both by legislative action), and Mexico (by court order) as recent examples where abortion has been imposed. He observed that only ten years ago, the Mexican Supreme Court had said that “the views of U.N. experts were not binding on Mexico.” But now, it has “said the opposite, that there is an international right to abortion based on the recommendations of U.N experts.” Ruse added that it is non-binding recommendations that the Mexican Supreme Court accepted as international law. Gennarini said that restoring power over the abortion issue to legislatures and “judiciously” interpreting international law would be a striking example to the world, particularly where social conservatives continue to be an important presence.

Ruse then turned to analysis of the Casey decision. This replaced the old abortion regime of Roe and its three trimesters with a somewhat new framework. A plurality (not majority) of the court reached another monumental decision. The court admitted that Roe was legally a poor decision, but said the decision had to be sustained to avoid losing credibility, and that women now organized their lives around the right to abortion. This writer would remark that to publicly admit that one is sticking with a bad decision for fear of losing credibility only makes one’s credibility problem worse. Similarly, slavery was once important in the American South, but that did not justify maintaining it. However, the Casey decision did lower the standard for judging restrictions on abortion from “strict scrutiny” (requiring a compelling state interest exercised in the least restrictive way, which is virtually impossible to overcome), to an “undue burden” standard, which seems to have meant that judges decide if a restriction on abortion is “undue.”

While the pro-life movement endeavored to craft legislation that would pass the strict scrutiny standard in the pre-Casey era, there proved to be no way to craft legislation that would survive in court, Gennarini said. Ruse observed that pro-life advocates have been “creative” in crafting laws under Casey jurisprudence, but these have had difficulty in the courts, most notably in the Whole Woman’s Health vs. Hellerstedt decision in 2016. This decision voided a Texas law that required abortion providers to have admitting privileges at a local hospital and abortion facilities to meet the standards of outpatient surgery.

On the positive side, Gennarini believes that the current Supreme Court “would not have taken” the Dobbs case so soon after Hellerstedt unless it were willing to review Roe. He said that the court was unwilling to review the recent Texas “heartbeat” law, because there was no actual case of anyone being sued for an infraction against the law. The Texas law is the first pro-life law which attacks abortion through civil action rather than criminal penalties, and is a “testing of the limits of abortion jurisprudence.” Many efforts at enacting criminal law against abortion have been voided by the courts, but with the Texas law civil penalties are imposed. This law, and also other laws and regulations which have been advanced against abortion “keep showing that Roe vs. Wade is unsettled.” Once a law or rule has been commonly accepted, it is regarded as “settled law.” These state laws show constant attack, and lack of acceptance by the general public.

Gennarini noted an amicus brief referred to in the previous article, in which legal scholar Robert George maintains that the Fourteenth Amendment guarantees the right to life of unborn children, inasmuch as state law at that time accepted them as persons.

Gennarini then pointed out that C-Fam’s brief asked the Supreme Court to find that international law does not include a right to abortion. Ruse added that repeated challenges to the right to abortion also show that abortion is not settled in international law. “Customary international law requires a kind of settlement” – general agreement among nations that a particular norm is binding. He also said that the American “pro-life movement is the hope of the pro-life world, because it shows that even here, in the heart of a country that has the most radical abortion regime in the world, it is unsettled, and that means its unsettled in the whole world.”

Ruse and Gennarini disagreed about whether the abortion battle is being won or lost. Gennarini believes that the battle is being lost (apparently in the U.S.), but that it’s important to fight to show that the issue is unsettled internationally. Ruse, on the other hand, observed that 30 years ago only 25% of Americans identified as pro-life, today about half do. This, he observed, depends largely upon how the issue is presented. While the majority of Americans say they are “pro-Roe,” they also believe that abortion should be radically restricted, not realizing the decision precludes this. A recent Associated Press-NORC Center for Public Affairs poll shows 65% of Americans saying abortion should be illegal in most cases in the second trimester of pregnancy, and 80% in the third trimester.

However, Ruse does fear that if abortion were returned to the states, only a few would outlaw abortion entirely, while it would remain legal in many large states. Overturning Roe would “set up a fifty state battle.” Americans need to understand that overturning Roe in itself would not “ban abortion” (although finding that unborn children are persons, as reasonably they are, would ban abortion nationally).

Gennarini said that C-Fam’s amicus brief to the Supreme Court explains why abortion is not an international right, but merely the non-binding recommendation of U.N. experts. He feels that it would send a powerful message if the world’s “most influential court,” which has moved many foreign courts to favor abortion, were to declare that no such right exists. The court should say, he believes, that it is perfectly legitimate for American states to prohibit abortion.

Gennarini said that as he expected, seven U.N. agencies submitted a brief to the Supreme Court claiming that the court cannot overturn Roe vs. Wade because there is an international right to abortion. Unsurprisingly, their brief can quote no binding document, only their own recommendations. Included are recommendations cited from the Human Rights Committee, which monitors the implementation of the International Covenant on Civil and Political Rights, which the U.S. has ratified, although it includes no right to abortion. He observed that the human rights agencies’ judgments are not binding on the United States, and the U.S. has in fact “butted heads” with the Human Rights Committee “on many occasions, rejecting its recommendations.”

Ruse said that these treaty monitoring bodies “make wild claims” about what the treaties they monitor say. It has even been claimed that the “right to life” includes a right to abortion. Instead of monitoring compliance with binding treaties, “they have taken it upon themselves to re-interpret these treaties.” He noted that about ten years ago, a treaty monitoring body of the U.N. told the Vatican that Catholic sexual morality violates human rights, and more recently Victor Madrigal Borloz, the U.N.’s newly established LGBT czar,  maintains that Catholic teaching on homosexuality, transgenderism, and gender ideology “are in violation of existing human rights law. These are false claims,” Ruse said. He said that “nonetheless, these false claims are cited and have been cited by courts around the world.” While these are “empty claims,” they are “claims that judges around the world take quite seriously.”

Gennarini said that what he has found “crippling” is the “conservative aversion to international bodies and international things generally.” Conservatives do not understand how influential the United Nations is. This influence comes through the U.N. agencies themselves that support abortion and the sexual revolution in non-Western countries, and U.N. pronouncements that are taken seriously as international norms by non-Western courts. U.N. agencies also intervene with state legislatures in the United States, to say that non-binding recommendations on sex and abortion are international obligations to which the United States is bound.

Ruse observed that the U.S. Supreme Court has at times cited foreign law in interpreting the U.S. Constitution. Justice Anthony Kennedy, the author of both the Casey decision, and the court’s pro-homosexual decisions, was often in Europe at conferences on the importance of foreign law in jurisprudence. In particular, the court has cited the Convention on the Rights of the Child (which the U.S. has never ratified) to overturn the juvenile death penalty. The court also cited part of the ICCPR to which the U.S. has made reservations (i.e., has not accepted). Ruse believes that “it’s an absolute dead certainty” that U.N. documents will be cited either in sustaining Roe, or by dissenting justices if Roe is overturned. Gennarini also considers it a certainty that international law will be cited in oral arguments.

The presence of the U.N. is also felt in Congress, where the proposed Women’s Health Protection Act, mandating abortion on demand throughout the United States, claims abortion as “an international right based on the recommendation of U.N. experts.” Citing U.N. authority in support of abortion in American legislation “is something that has never happened before,” said Gennarini. Ruse added that President Biden has endorsed the idea that there’s an international obligation that abortion be legal, something that both Presidents Clinton and Obama rejected.

Gennarini said that it is “unprecedented” that U.N. authorities are making an “intervention in the U.S. legal system.” At other times, countries have invited the U.N. to intervene in their domestic affairs, but this is a unilateral intervention.

In answer to a question, Gennarini said that pro-abortion forces are moving “at every level, judicial, domestic, international, legislative, [and U.N.] General Assembly. The abortion groups have so much money, they’re able to push their issue everywhere. And that’s why it’s so important for the Supreme Court to actually say something on this issue.” He said that there are “hundreds of recommendations” saying that abortion is an international right.

Ruse pointed out that although C-Fam does not claim an international right to life, it does claim that countries are free to cite international law in enacting laws that protect unborn children. Gennarini added that the actual text of U.N. treaties were negotiated decades ago, and represent compromises between the free world, which at that time generally prohibited abortion, and communist governments, which generally allowed it. Thus, these treaties could reasonably be cited by either in favor of or against abortion. These treaties do enjoin a “positive obligation to protect life,” which could be interpreted a protecting unborn children.

Ruse commented that “one of the great accomplishments of the international pro-life movement” is that abortion has not been recognized as a right in any binding or even unbinding U.N. document. It is only the recommendations of experts in which it exists. This victory must be constantly protected, yet the pro-life movement has “basically won that.”

A questioner asked if amicus briefs make a difference. Gennarini said that some do and some don’t. The brief from the U.N. officials is unprecedented; C-Fam attempts to answer it and offer responses that the Supreme Court might not otherwise consider (although the C-Fam brief was submitted first, it did address the U.N. claims).

Another questioner asked in the Supreme Court should reject U.N. intervention. Gennarini said that the court should, but should also address the claims made in the brief, so that activists cannot claim that the U.S. is setting aside human rights law. He said it is the job the State Department to act against this intervention in U.S. internal affairs, which also contravenes the U.N. Charter.

Gennarini said he is looking forward to the Supreme Court addressing the issue of international law and abortion. He said if the court doesn’t say anything, U.N. officials and Democratic politicians “certainly will.”

Ruse believes that it will be devastating to the pro-life movement if Roe vs. Wade is not overturned, yet the pro-life movement “is remarkably resilient, and will not give up.” He urged people to watch the case closely and pray until June, when, presumably, a decision will be announced.

Photo Credit: deaconjohnspace.wordpress.com

  1. Comment by Thomas on November 6, 2021 at 10:08 am

    I think the article is a bit of a mess, in some references. Chile did legalized abortion in 2017, but only for extreme cases. Argentina sadly did it in 2020, even against the large majority of the Argentine people and their own Constitution, so this question is far from over in that country politics. From my understanding Mexico Supreme Court issued a decision only for a state, banning the laws that criminalized abortion. It did not legalized it. In Mexico there are some states were abortion is legal, while in the majority is still a crime. We also need to make a difference between laws that allow abortion only at the beginning of pregnancy and the legislation who wants to take any legal protection to the unborn, like it happened in New Zealand, and has been happening in some of the most liberal states of the United States.

  2. Comment by Rick Plasterer on November 12, 2021 at 5:06 pm

    Thomas,

    In the case of Mexico, the Mexican Supreme Court decision seems to be widely interpreted as legalizing abortion throughout the country. That is essentially what the NPR article I referenced says, although other sources disagree. LifeSiteNews, for instance, seems to assert your view. Chile indeed remains highly restrictive regarding abortion, but did move to legalize it by legislative action for cases where the mother or baby is not likely to survive. Argentina seems to have legalized abortion generally, however. I did note that legalization of abortion was by legislative action in Argentina and Chile, and judicial in Mexico, but should have noted that Chile’s abortion license is far less broad. I do believe, however, that my interpretation of the extent of legalization in Argentina and Mexico is correct.

    Rick

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