International abortion-rights groups are in a panic. With the confirmation of Brett Kavanaugh to the US Supreme Court, there is a real expectation that the Court may reverse Roe v. Wade wholly or in part when it reviews future abortion cases. Such a crippling loss would threaten legal abortion not just in the United States but around the world.
“We may face the greatest risk to the future of reproductive rights,” warned the Center for Reproductive Rights below an ominous, darkened photo of the Supreme Court on their home page last summer. The group, which was founded by the late, trailblazing abortion lawyer Janet Benchoff, has been at the heart of the international campaign for a human right to abortion since its founding in the 1990s.
“If confirmed, Kavanaugh would pose a grave threat to sexual and reproductive health and rights, both in the United States and around the world,” lamented Shannon Kowalski, director of advocacy at the International Women’s Health Coalition in a press release following Kavanaugh’s nomination on July 9th. With the help of the Clinton administration, this UN-focused abortion group was instrumental in getting abortion in UN policy at the 1994 International Conference on Population and Development.
While some might dismiss this as scaremongering by pro-abortion groups, their alarm is not without justification. If Kavanaugh were to side with the pro-life justices on the Supreme Court and help reverse Roe v. Wade in whole or in part, the Court would not just reverse a precedent binding on the fifty US states. It would also deal a severe—perhaps even fatal—blow to the campaign for an international right to abortion.
Ending the Global Campaign for an International Right to Abortion
Whenever the Supreme Court next revisits Roe v. Wade, abortion groups will almost certainly argue that a customary human right to abortion has emerged through international human rights mechanisms.
Scholars disagree on what qualifies as a binding, customary international norm. Some question the validity of making customary law claims in the area of human rights altogether. Traditionally, a binding customary norm is said to exist when States, with near uniformity and universality, engage in a specific type of conduct based on the understanding that such conduct is required by international law. In recent decades, both judges and activists have lowered this standard (without changing it altogether) to make the possibility of customary international law claims easier, including in new areas where customary international law never existed, such as human rights.
The strategy of abortion-rights groups is to capture UN agencies and the UN human rights machinery, get them to recommend the legalization of abortion internationally, and thereby allow abortion lobbyists to claim in national courts that a customary, international human right to abortion has emerged. Countries will then legalize abortion and claim they were bound by international law to do so.
This is not conjecture or a conspiracy theory. The details of the campaign for a human right to abortion were laid out in the Congressional Record by Rep. Chris Smith in 2003, after he obtained a leaked internal memo of the Center for Reproductive Rights. My C-Fam colleagues have documented extensively the progress of abortion groups in the UN human rights system, and abortion groups have already made this very argument in courts all around the world. While they have held back from making these claims in the United States, they have already cited non-binding UN agreements in US Courts as evidence of an international consensus that suggests the emergence of an international right to abortion.
In a lawsuit against the Mexico City Policy in 2002, the Center for Reproductive Rights subtly suggested that UN conferences in the 1990s, and other developments at the UN, were giving rise to a human right to abortion under customary international law. Then-Judge Sonya Sotomayor, who dismissed that case based on standing when she sat on the second circuit, may get a chance to pronounce on the merits of whether abortion is a customary international right on the Supreme Court in the not-too-distant future. Abortion-rights groups have been preparing carefully for the day when they can make this claim fully in federal court, and now they can cite hundreds of UN pronouncements from treaty bodies and other UN entities over the last thirty years in support of their claims.
The advocacy of abortion-rights groups like the Center for Reproductive Rights, and political inaction in the face of UN mechanisms that promote abortion, have already influenced courts around the world. Judges in Colombia, Argentina, Mexico, and throughout the Americas have ruled that abortion should be made legal following the opinions of UN bodies, whether binding or not. The Supreme Courts of Chile, Peru, and Mexico have declined to give non-binding UN expert opinions any legal weight, but the pressure on the courts to change their rulings is intensifying. A pro-life opinion from the US Supreme Court would possibly tip the balance against abortion.
The US Supreme Court’s liberal and conservative justices may react differently to the claim that there is a customary human right to abortion. The liberals will likely validate the hundreds of UN pronouncements in favor of abortion. They might point to them as persuasive authorities, as they have done already in other cases, and they may even cite them as authoritative interpretations of US international human rights obligations. The conservatives might dismiss the claims outright as entirely non-justiciable, insofar as they are based on the interpretations of UN human rights treaties, and in US law such treaties are not considered self-executing. This in itself could be read as a defeat for the campaign for an international right to abortion.
But the conservatives could go further. In their secondary explanations of their ruling (the obiter dicta), they could dismiss the claims on their own merits. The conservatives could justify such an intervention on two grounds: first, because customary international law is a hotly debated topic among US courts and among legal scholars; and second, because the US Supreme Court must clarify its position on such a fundamental question of international human rights law. This latter political consideration is legitimately within the Court’s purview, just as the political consideration of issuing a narrow and limited ruling. The Supreme Court should shield itself and the US government from the accusation that the United States ignores international human rights obligations, especially when no such international human rights obligations exist. This duty is as important as the Court’s duty to shield itself from accusations of unnecessarily weighing on matters that are not directly implicated in the cases before it.
If the Court does rule according to a conservative, textualist interpretation of international human rights law in a majority opinion—as is expected given the shift on the Court, and as is required by customary international law and the Court’s precedent—it will with near certainty state, even if just in obiter dicta, that the United States is not bound by international human rights law to permit abortion. The Court may go further still, judging that international law actually favors the broadest possible protection of life before birth, as the San Jose Articles suggest.
A ruling of this kind by the most influential domestic court in the world could set back the campaign for an international right to abortion several decades. In fact, it might defeat it once and for all. Such a decision would reverberate in courts all around the world, potentially reversing the momentum of global judicial activism on abortion that Roe v. Wade sparked.
A Shining Example of Judicial Restraint and Textualist Interpretation of the Law
If the US Supreme Court were to reverse Roe v. Wade, and in the process show that there is no human right to abortion under international human rights law, it would embolden courts around the world to rule likewise. It would also be a global example of judicial restraint and respect for the rule of law.
For decades, the Supreme Court—and Roe v. Wade and its progeny in particular—has provided the model of judicial activism that has inspired progressive lawyers and judges around the world. The best legal minds in every continent are thoroughly steeped in Justice Anthony Kennedy’s jurisprudence on privacy. Entire generations of judges and bureaucrats around the world have been taught to emulate his audacity. Just last year, Kennedy’s famous“sweet-mystery-of-life” passage made it all the way into the Indian Supreme Court’s decision that imposed same-sex marriage throughout India. Kennedy’s philosophical ruminations on social issues were cited by all four of the Indian Supreme Court judges responsible for that ruling.
Likewise, the US abortion lobby’s strategy to judicially impose abortion through Roe v. Wade is the blueprint for all abortion campaigns, both domestic and international. The method of the campaign for an international right to abortion—just as of many campaigns for socially progressive causes—is the exercise of raw judicial power and bureaucratic overreach.
The European Court of Human Rights and the Inter-American Court of Human Rights have modeled their legal decisions on US Supreme Court’s jurisprudence, especially on social issues. Though both operate in systems of civil law in which judicial decisions are traditionally short and include little explanation, these courts issue lengthy judicial opinions, in the style of the US Court. And though their decisions are not binding on lower courts and subsequent cases, their judges openly claim that their decisions are in fact precedents binding on their entire respective continents.
Reversing Roe v. Wade could change the judicial paradigm on human rights around the world and instill a new confidence in the rule of law. If the Supreme Court were to set an example of textualist interpretation of the law in the tradition of Antonin Scalia, instead of following Kavanaugh’s free-wheeling activist predecessor, Justice Anthony Kennedy, it would undoubtedly have a global, symbolic significance. It would have a salutary effect on how domestic courts, international bodies, and the human rights project more broadly interpret international human rights treaties.
If the US Supreme Court were to establish a precedent of applying human rights judiciously through a textualist interpretation of international law, as required by customary international law and the US Supreme Court’s precedent, it would embolden judges and lawyers throughout Europe and America to shore up respect for the rule of law and democratic lawmaking. It might even help restore respect for international law and sovereignty in the UN system.
For the first time in two generations, the US Supreme Court is in a position to reverse itself on abortion. If it does, it could also help disprove the existence of an international human right to abortion. This would deal a humiliating blow both to judicial activism and to the theory that judges must go beyond written law in order to rule justly—both of which are essential components of the international campaigns for abortion rights, LGBT rights, and other socially progressive causes.
It behooves the US Supreme Court to recognize finally that it made a mistake in 1973, and it would do well to do so swiftly and completely. Ultimately, Roe v. Wade is not just another court case about a moral issue. Like Dred Scott before it, it is a blight on the American project, and increasingly, on the history of the world.