An interesting issue that got minimal discussion from the US Supreme Court in the case of Dobbs vs. Jackson Women’s Health Organization is the role of international law in shaping US law particularly in relation to abortion. Which is likely the right thing to do.
The late great US Supreme Court Justice Antonin Scalia, in his dissent in Roper vs. Simmons, correctly wrote that “the court’s argument — that American law should conform to the laws of the rest of the world — ought to be rejected out of hand… To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decision-making, but sophistry.”
In the US — and definitely for the Philippines — international law is a secondary source of law, in the sense that the Constitution is paramount and cannot be relied on to subvert a constitutional precept.
In any event, had international law been taken up in Dobbs, such would have been useful if only to demonstrate how absolutely abortion is not an international right, contrary to what many in the academe or media would have people believe.
AMICUS CURIAE OF INTERNATIONAL LAWYERS
This was essentially the point made in the amicus curiae brief filed by “141 International Legal Scholars” in support of the petition seeking to uphold the constitutionality of a law banning abortion [For full disclosure, the author is one of the legal scholars signing the brief, the only Filipino invited to join as legal academic]:
“… international law can be instructive on the nature of abortion and its regulation. The consensus of human rights law and State practice confirms the absence of any global right to abortion, and the recognition that unborn children are rights-holders worthy of State protection.”
TREATIES AND CUSTOM
“Under the primary sources of international law — treaties and custom — States have no duty to legalize abortion because it is not recognized as a human right. With regard to treaties, abortion advocates can point to no international treaty that contains language referencing abortion, nor any reference that can be interpreted as recognizing the right to take the life of an unborn child. No such instrument exists.
“Nor has any so-called right to abortion been established through customary international law, as United Nations (UN) officials have acknowledged. To the contrary, most States prohibit or restrict abortion, reflecting a standard of practice at odds with any claim of a customary right to abortion. Recent evidence of State practice rejecting a global abortion right can be seen in the 2020 Geneva Consensus Declaration on Promoting Women’s Health and Strengthening the Family, signed by government representatives from 34 States across the globe. That declaration reaffirms that ‘there is no international right to abortion, nor any international obligation on the part of States to finance or facilitate abortion, consistent with the long-standing international consensus that each nation has the sovereign right to implement programs and activities consistent with their laws and policies.’ Such assertions make clear there has been no emergence of a right to abortion by way of custom.”
INTERNATIONAL COURTS, ORGANIZATIONS, OR CONFERENCES
“Nor has any international court ever declared the existence of a global right to abortion. To the contrary, the European Court of Human Rights rejected the concept under the European Convention on Human Rights.”
Indubitably, “some groups and advisory bodies have tried to reinterpret international law to include a right to abortion. Third-party actors, however, lack the authority to redefine international legal norms, which are created between sovereign States.”
Then there are some international instruments misused or misinterpreted to allege a “right” to abortion, the most notable of which are the Convention on the Elimination of Discrimination against Women (or CEDAW, which never even mentions the word “abortion”) and the Rome Statute (which created the International Criminal Court). Of the latter, admittedly the “treaty’s final compromise language includes the offense of ‘forced pregnancy’; however, the crime’s definition explicitly rejects any international obligation to decriminalize abortion. Specifically, the final definition states, ‘‘Forced pregnancy’ means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy.’ Thus, it is clear this provision neither requires any State to legalize abortion nor serves as a basis for creating an international right to abortion.”
Then there is the 1994 Cairo International Conference on Population and Development (ICPD) and the 1995 Beijing Fourth World Conference on Women, which produced two documents: the ICPD Program of Action, and the Beijing Declaration and Platform for Action. But as pointed out in the brief, despite the attendance of “thousands of participants from UN agencies, governments, and intergovernmental and non-governmental organizations,” “neither of these non-binding documents can or do create a right to abortion.”
DOBBS: THE BEGINNING OF THE END FOR ABORTION
Finally, as reported in the New York Times, nine US States completely outlawed abortion (with two instituting bans but with exceptions for rape or incest), with 12 more States imposing greater restrictions on abortion. That makes 21 US States, at present, that banned, will ban, or restrict abortion.
Clearly, there is still some long way to go, for the US and for the rest of the world, before the murderous scourge that is abortion is completely eliminated.
As for the Philippines, our Constitution declares protection for the “life of the unborn from conception.” And that is a right thing we proudly uphold, with or without international law.
Jemy Gatdula is a senior fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constitutional philosophy and jurisprudence