ANALYSIS: The International Implications of the Kavanaugh Confirmation
NEW YORK, September 7 (C-Fam) International abortion groups are in a state of alarm because of the very real possibility the reconfiguration of the U.S. Supreme Court under U.S. President Donald Trump may lead to the reversal of Roe v. Wade.
“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 the nomination on Judge Brett Kavanaugh on July 9.
Their concern is not overwrought. If Kavanaugh provides the long-awaited fifth vote to strike down Roe, it might significantly set back the movement for an international right to abortion.
When the U.S. Supreme Court takes up the issue of abortion again it will almost certainly entertain new claims about the existence of a human right to abortion under customary human rights law. And the Court may have to address these questions. Such claims have already been made by abortion industry giant Planned Parenthood in federal court, albeit without success.
The next time, abortion groups and their supporters will be able to repeat a long list of pronouncements by UN officials and bodies that have pressured countries to decriminalize and liberalize their abortion laws on the basis of UN human rights treaties, some of which the U.S. has ratified. They will also cite foreign high court precedents deferring to UN bodies on their interpretation of international human rights law, even though such UN bodies don’t have authority to bind states. Then the U.S. Supreme Court will be asked to weigh on the issue—the most influential and emulated high court in the world.
If Kavanaugh finally provides the fifth vote to strike down Roe v. Wade, as voters who elected Trump expect, the Court will also necessarily deny the existence of an international right to abortion. And dissenting Justices will likely cite the interpretations of international bodies on the UN civil rights treaty, which the U.S. ratified in 1991.
But a ruling on international law will only be required if Kavanaugh has the stomach to overturn what he himself has described as “settled law.”
While there have been sporadic attempts to challenge Roe v. Wade in State legislatures and the U.S. Congress, by design most State-based legislative efforts against abortion do not challenge Roe v. Wade itself, but merely attempt to chip away at it.
During the hearings this week, many of the Senators tried unsuccessfully to get Kavanagh to commit for or against Roe. Even Republican Senator Lindsey Graham (R-South Carolina) asked Kavanaugh if a right to abortion was “rooted in the history and tradition” of the United States. Kavanaugh evaded the question.
“I hope one day the court will sit down and think long and hard about the path they (Supreme Court) have charted,” Graham said, urging Kavanaugh to reflect on the damage to democracy from judicial activism and “breathless” interpretations of the U.S. Constitution.
Senator Graham was powerless to do more.
“That’s my parting thought to you, and then you’ll decide what’s best for the country,” he conceded with what little breath he had left.