If American foreign policy is going to promote human rights as a priority, it has to begin with the right to life. It is a shame, then, that the much-anticipated inaugural report of the U.S. Commission on Unalienable Rights released last month says nothing about the status of the unborn in human rights law. The commission didn’t just give the issue short thrift; it summarily dismissed it as too difficult a question to address.
The report of the Commission on Unalienable Rights only cryptically states that the members of the commission “are not of one mind” when it comes to abortion. It is not clear what the commissioners meant by that. Does this mean they don’t agree that abortion is not an international right? Do they not all agree that an unborn child is human and deserving of protection? Regardless of what they meant, it would have been better not to say anything about abortion at all than to say that. Neutrality won’t help the unborn escape the clutches of those set on their destruction.
One hopes that the commission will revise the initial draft of the report after the public comment period concluded last month.
The global abortion industry has a well-funded, polished political machine that promotes abortion efficiently and effectively. They have been able to capture every UN agency and human rights mechanism. What is needed is an effort from the State Department to counter and dismantle this machine, but there isn’t much backing for such an operation in the report of the commission. Far from it: the neutral posture of the commission on abortion may even hurt the pro-life cause. The foremost experts on human rights in the United States could not agree that international human rights law affords children in the womb any protections at all. How can U.S. Secretary of State Mike Pompeo and his team be expected to contradict them in U.S. diplomacy? There is very little chance that the U.S. State Department can create cogent guidance on the protection of the right to life in the prenatal phase for U.S. diplomats around the world. The commission’s neutrality will be the final word.
The organization I represent, the Center for Family and Human Rights, submitted a comment about the report on behalf of Civil Society for the Family, a coalition of over two hundred organizations that promote life and family internationally. The comment asks the commission to clarify where, if at all, U.S. Supreme Court precedent fits in the diplomatic calculus on human rights of the U.S. Secretary of State, focusing precisely on the hot-button issues of abortion, the family, and LGBT issues.
Using U.S. Foreign Policy to Undermine Judicial Supremacy
There is an urgent need for brave men and women in our government to promote the protection of the unborn, regardless of what the Supreme Court says. Sadly, the first draft report of the U.S. Commission on Unalienable Rights did not do this, failing to take advantage of an opportunity to erode the odious legacy of Roe v. Wade. Foreign policy is an important forum where the legislative and executive branch can challenge the hegemony of the Supreme Court. A constitutional amendment is not the only way to reverse a bad Supreme Court precedent, as Josh Hammer demonstrates in a recent article in the University of St. Thomas Law Journal.
Each branch of the federal government has an independent obligation to uphold and defend the Constitution that must be exercised when the U.S. Supreme Court overreaches. Judicial supremacy is a fairly late invention in American legal culture, one too often applied to controversial social issues. In light of this ongoing gross abuse of judicial power by the Supreme Court, there is no other remedy. The political branches of government must exercise their own independent prerogative to uphold and defend the Constitution, even if it means creating tension between the three branches of government. In a sense, this is the way the Constitution was designed to work.
When it comes to controversial social issues, and abortion specifically, legislators and presidents have used their powers to undermine Roe v. Wade ever since it was decided, beginning with the Helms Amendment through to the Mexico City Policy. These policies apply restrictions on funding to foreign organizations that promote and perform abortion. The Trump administration, especially through the Department of Health and Human Services, has done excellent work to counter the global abortion lobby, but never with the help of the State Department that would give that work the greatest impact. One of the frequently cited obstacles to American pro-life diplomacy within the State Department is Roe v. Wade. The report of the U.S. Commission on Unalienable Rights was an opportunity to coax the State Department into supporting the Trump administration’s pro-life diplomacy and to ground pro-life foreign policy in international human rights law. That opportunity is rapidly slipping away.
The State Department is rumored to be incorporating the Bostock decision into American foreign policy—essentially letting the judicial branch commandeer the executive branch. If this is allowed for LGBT issues, it is easy to see that Roe v. Wade will become dispositive for American diplomats as well. It is all the more urgent for moral men and women in positions of power, like those on the U.S. Commission on Unalienable Rights, to help steer U.S. human rights discourse. No one is better positioned than the commissioners to point out the conflicts and contradictions that U.S. Supreme Court jurisprudence is creating between the U.S. Constitution and the human rights obligations of the United States under treaties it has ratified.
What the U.S. Commission on Unalienable Rights Got Right
The Commission’s neutrality on abortion is all the more disappointing because its draft report is praiseworthy on many counts. It is a long-overdue reflection on how to integrate the American and international tradition of human rights in light of the proliferation of so-called human rights “soft law” over the past 30 years. These non-binding human rights claims of UN experts, committees, and other bodies are slowly but surely changing the human rights landscape. Now, thanks to this report, the State Department may be able to develop a more consistent approach to human rights.
The report grounds U.S foreign policy on human rights in the U.S. tradition of civil and political rights, as opposed to the Soviet Union’s legacy of economic and social rights. It clearly spells out the tense relation of sovereignty and international human rights, without sacrificing the integrity of either. And it even lays out a theoretical framework for evaluating human rights claims on the basis of both positive law and the natural law. Above all, the report demolishes a priori the extravagant claims of UN human rights bodies as shoddy work that can easily be the result of corruption. This may prove the most lasting contribution to global human rights of this report if Pompeo’s team is able to capitalize on it.
One of the greatest problems with international human rights law is how it is a legal realist enterprise for the most part. Human rights advocates operate under a reckless hermeneutic that sees international human rights treaties as “living instruments.” They rely almost exclusively on judicial and executive overreach. They believe that if they repeat that abortion is a human right enough times and convince a critical mass of judges and politicians, then a human right to abortion will be established.
In the face of this threat to the integrity of the human rights project, the report lays out some helpful criteria on how to interpret new human rights claims. These include a textual reading of treaties, universality, consistency with other human rights, and other criteria that would exclude a human right to abortion and spurious LGBT rights. Sadly, these good criteria are preemptively rendered moot on the issue of abortion because of the commission’s neutrality. And, in any case, future Democratic administrations are certain to use these very standards to read abortion and LGBT ideology into international human rights instruments, much as Justice Gorsuch read sexual orientation and gender identity into the meaning of the word “sex,” and argued this was a conservative legal interpretation of civil rights laws. The commission should recognize that defending the integrity of human rights cannot happen unless the substantive aims of human rights law—chief of which is the defense of innocent life—are upheld. And there are ways to promote the right to life for children in the womb through international law without lobbying for or against abortion or interfering in legitimate political debates.
What the Commission Should Say About Abortion
There is still a lot of room for the commission to say something about the right to life in international human rights law, and the commission should not waste this opportunity. Insisting on the legality of binding international human rights law, especially those treaties that have been ratified by the United States, can be another check on the Supreme Court’s abuses. Although the Supreme Court created abortion rights out of whole cloth in 1973, unborn children were never excluded from the right to life in international law. To say or imply otherwise is not consistent with the text and history of UN human rights instruments, including the UN Convention on Civil and Political Rights ratified by the U.S. Senate, as Irish scholar Thomas Finnegan has definitively proven.
The commission could say that the unborn are presumptively included in the right to life under international law, but that international law leaves the details of abortion laws to domestic legislation, consistent with American law. I doubt any of the commissioners would question this. Even the Supreme Court has avoided the question of when the right to life attaches to a human being, only pronouncing on the “interest of the state” in the life of the unborn child.
A declaration of this kind about the right to life is warranted. Abortion advocates repeatedly brought up abortion in the hearings held by the commission thus far. Even after the draft of the report was released, the comments submitted to the commission by pro-abortion groups aggressively attacked and personally insulted the commissioners over the mere prospect of the report’s being used to undermine a human right to abortion and international LGBT rights. Some seem written by activists who didn’t even take the trouble to read the report. Given this, the commission is rapidly losing an opportunity to provide an example of cogent analysis of how human rights law interplays with Supreme Court precedent. Such legal analysis would help undermine and dispel the useless alarmism of abortion groups and build the foundations of a better human rights jurisprudence on the right to life.
Despite many excellent elements, the Commission’s draft report falls short where it matters most. The right to life is the most fundamental right, the one on which all authentic human rights depend. One hopes that the commission will find the fortitude and conviction to produce a final report that provides the U.S. State Department with guidance that ensures future generations will remember the U.S. government and the U.S. Commission on Unalienable Rights, in particular, as champions of authentic human rights.