Supreme Court Snubs UN Human Rights Experts During Oral Argument in Major Abortion Case

By | December 2, 2021

Pro-life activists gather as SCOTUS hears oral arguments on Dobbs case.

WASHINGTON, D.C., December 3 (C-Fam) The Supreme Court ignored claims from human rights experts and academics that abortion is an international human right during oral arguments in the Dobbs v. Jackson Women’s Health Organization case.

The justices of the Supreme Court did not raise any questions about international human rights law during oral arguments in the Dobbs case even though UN human rights experts petitioned the court to overturn Mississippi’s ban on abortions carried out after the 15th week of pregnancy, the moment when children in the womb can feel pain.

The snub leaves open the question of how, if at all, the justices view international human rights law. Even though the justices did not assess international law claims during oral arguments, it does not mean the justices are not giving thought to international human rights law. On the contrary, a brief exchange between Supreme Court Justice John Roberts and Julie Rikelman, the attorney of the Center for Reproductive Rights representing the Mississippi abortion group, gave a glimpse of what the justices may discuss between themselves in coming weeks and months.

In what may prove to be a revealing moment, Chief Justice Roberts said Mississippi’s 15-week abortion ban was not “dramatic” since it reflected “the standard that the vast majority of other countries have.” 

Chief Justice Roberts notoriously disappointed pro-lifers in the Whole Woman’s Health v. Hellertedt case in 2016. He sided with liberal justices in striking down abortion restrictions because they imposed an “undue burden” on women’s ability to access abortion in Texas. In the Dobbs case pro-lifers hope that he will switch sides, and he certainly gave them some hopes that a switch may be in the works.

Roberts pointed out that the current U.S. abortion regime, which allows abortion on demand until a child in the womb is able to live independently of the mother, and is commonly known as the viability standard, is an outlier globally. Only “the People’s Republic of China and North Korea” share that standard, Roberts pointed out.

“And I don’t think you have to be in favor of looking to international law to set our constitutional standards to be concerned,” he added.

UN human rights experts submitted a friend of the court brief in the Dobbs Supreme Court case last Summer in the first ever interference by a UN mechanisms in the Court’s proceedings since the United Nations was founded. The interference in ongoing judicial proceedings is made all the more extraordinary by that fact that international human rights bodies cannot be called upon to resolve human rights claims unless all domestic legal channels are exhausted. Moreover, UN human rights experts normally do not interfere in the internal affairs of sovereign states, since such interference is prohibited by the UN Charter.

Even though the text of UN human rights treaties never refers to abortion or can be interpreted as implying a right to abortion, UN experts argued in their brief that an international right to abortion exists based on the non-binding recommendations of UN experts, which over time have modified the obligations of states. Two friend-of-the-court briefs from academics and C-Fam, the publisher of the Friday Fax, argued against these claims.

The Supreme Court ignored this debate entirely during oral arguments in Dobbs this week. The human rights claims are more likely to be addressed by the Court’s left wing in the final ruling of the court expected in June 2022.

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