DOBBS: Mock Oral Argument on International Human Rights Issues and Abortion

By Stefano Gennarini, J.D. | November 29, 2021

On December 1, the Supreme Court will hear oral arguments in the Dobbs v. Jackson Women’s Health Organization case. The court received dozens of Amicus Curiae briefs arguing many constitutional matters on both sides of the issue. Among these are six that include arguments about international human rights law, including the first ever amicus brief to the Supreme Court from UN human rights mandates. Below are six questions that justices might ask during oral arguments on December 1 together with answers drawn from C-Fam’s amicus brief to the Supreme Court.

  1. Is abortion a human right under international treaties ratified by the U.S. government?

No.

Sovereign nations retain wide discretion under international human rights treaties to outlaw and regulate abortion. International treaties ratified by the U.S. government do not expressly prohibit abortion, but a careful reading of the text and history of international human rights treaties reveals that children in the womb were never excluded from the right to life, and that, more broadly, international law does not establish a human right to abortion in any circumstance, either through treaty obligation or by custom. 

  1. Should international human rights law and how other countries regulate abortion matter to the U.S. Supreme Court?

Yes and no.

There is no simple answer to this question. On the one hand what other countries do is irrelevant to the United States because the United States cannot be legally bound by what other countries do internally or by international agreements that the U.S. government is not a party to. On the other hand, the U.S. Supreme Court has said that how other countries interpret international treaties ratified by the U.S. government can be relevant to determine the obligations of the U.S. government under those treaties. In the Dobbs case, the Supreme Court is asking whether all pre-viability restrictions on abortion are unconstitutional. Because a majority of countries in the world have in place stricter pre-viability abortion restrictions than U.S. states—something that is not disputed by any of parties or amici in the case—it is not possible to argue that there is an international consensus that all pre-viability restrictions on abortion are a violation of human rights law.

  1. Where should the U.S. Supreme Court look to see if Mississippi’s abortion laws are consistent with the human rights obligations of the United States under international law?

The best place to look to see if the United States has any obligations with regards to abortion and children in the womb is the International Covenant on Civil and Political Rights. Article 6.1 of the Covenant asserts that all parties to the Covenant are obliged to protect the lives of all “human beings” without exceptions. The categorical formulation of the text of the article defines “human being” in the broadest possible sense.  There is no qualifying language to exclude certain types or classes of human being from the protections of the Covenant. Moreover, Article 6.5 of the Covenant implicitly recognize the right to life of children in the womb by prohibiting the imposition of the death penalty “on pregnant women.”

The plain meaning of Article 6 of the Covenant is to afford special protections to innocent unborn children because their lives are held to be separate and apart from their mother’s lives. This is how the U.S. government understood this article when it ratified the treaty in 1991. In presenting reservations, understandings, and declarations to the U.S. Senate, the administration of President George H.W. Bush stated that, “Legislation giving effect to the Covenant’s prohibition against executions of pregnant women will not be required, since neither the Federal nor the state governments in fact carry out executions until after the birth of the condemned woman’s child.” (emphasis added).

  1. International human rights treaties are not self-executing, and neither petitioners nor respondents in Dobbs brought up any international law claims, so the Supreme Court should just ignore arguments that abortion is an international human right.

No.

In the Dobbs case, the Supreme Court has been formally told by United Nations human rights experts that abortion is an international human right in an amicus curae brief. It is as good an occasion as any to resolve a critically important legal question that may not otherwise come before the Court again.

The international human rights obligations of the United States are rarely addressed by the U.S. Supreme Court because they are normally addressed by the executive branch in diplomatic engagements or by State authorities in laws and policies. Foreign governments and other international actors, including official human rights mechanisms, increasingly interfere in federal and state law matters to pronounce themselves on what the human rights obligations of federal and state authorities, with direct and indirect influence on legislators, executives, and judges at the federal and state levels. Unless the Court declares what the legal status of children in the womb is under international human right treaties ratified by the United States, these foreign powers may have the final say on what the obligations of the U.S. government are under international human rights law without the U.S. Supreme Court having a chance to exercise its Constitutional responsibility to declare what the law is.

  1. The Supreme Court should stay clear of disputes about abortion and international human rights law to avoid encroaching on the prerogative of the executive branch and the Congress to enter into agreements and to execute them through legislation.

No.

The Supreme Court has its independent responsibility to interpret the U.S. Constitutions and to declare what the law is, regardless of what the executive and legislative branch do. And the court’s principal duty is to declare what the obligations of the U.S. government are under the Constitution, including international treaties, which enjoy the status of “supreme law of the land” under the U.S. Constitution.

The legal obligations of the U.S. government under international human rights law should not be subject to political manipulation and should be consistent with changing executive administrations.  Any difference in position taken by the U.S. government because of a political change in administration should still be consistent with the obligations of the U.S. as legally defined in binding international instruments. Providing clarity on the legal status of the child in utero could help limit and avoid inconsistent interpretation of U.S. legal obligations under international law.

  1. Hasn’t the United States government defended women’s privacy and their right to choose when and how many children to have internationally, including at the 1994 International Conference on Population and Development and the 1995 Beijing Women’s Conference?

Yes. But abortion was never understood to be part of a women’s reproductive rights or the right to privacy.

The U.S. delegation to the International Conference on Population and Development denied the belief that abortion is an international human right, stating:

“The United States Constitution guarantees every woman within our borders a right to choose an abortion, subject to limited and specific exceptions.  We are committed to that principle.  But let us take a false issue off the table: the United States does not seek to establish a new international right to abortion, and we do not believe that abortion should be encouraged as a method of family planning.  We also believe that policy-making in these matters should be the province of each Government, within the context of its own laws and national circumstances, and consistent with previously agreed human rights standards.”

The U.S. Government has similarly held that abortion is not an international right under both Bush administrations, the Obama administration, and the Trump administration.

  1. If United Nations human rights bodies experts say that abortion is an international right are they not entitled to deference?

No.

Under the terms of United Nations human rights treaties, the opinions of United Nations treaty bodies and UN experts are neither binding nor authoritative. In fact, the treaties steer clear of purporting to give UN treaty bodies quasi-judicial powers by avoiding any language that would suggest such powers. For example, instead of legal opinions or judgments, the treaties speak of “views” and “recommendations.”

The authority to contract and interpret treaties is a fundamental attribute of sovereignty, and no provision of any United Nations human rights treaty requires its signatories to forfeit their sovereignty to United Nations treaty bodies under any circumstance. Treaty monitoring bodies have no authority, either under the treaties that created them or under general international law, to create new state obligations or to interpret the treaties in ways that alter the substance of the treaties. Such ultra vires acts are illegal and cannot create any new legal obligations for states parties to the treaty beyond those already assumed in the treaty.

For over two decades international human rights mechanisms have been exploited by the abortion industry lobby to promote abortion. UN treaty bodies have systematically attempted to read a right to abortion in various treaties and multinational agreements as part of a deliberate attempt to manufacture a right to abortion under customary international law.

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