June 26, 2005

News Analysis

JUDICIARY

Global stage key battleground in life-issue debate

 

Pro-family organizations express alarm at how international law is creeping into U.S. courts

 

By Patrick Novecosky

When the U.S. Supreme Court legalized abortion with Roe vs. Wade in 1973, pro-life forces mounted a serious campaign to overturn the infamous ruling. What they’re starting to realize more than 30 years later is that even if they’re able to succeed in that endeavor, abortion on demand may still be legal.

The abortion battleground has grown. While Americans con­tinue the fight to overturn Roe and outlaw abortion domestically, a dramatic struggle is under way on the global stage to make abor­tion a fundamental human right worldwide.

 

Right to abortion?

At a 1998 diplomatic confer­ence in Rome to establish the International Criminal Court, a preliminary draft of the pro­posed ICC sought to establish a worldwide right to abortion on demand. The City University of New York’s Caucus for Gender Justice tried to convince partic­ipants that any country restrict­ing abortion was creating an environment of “enforced” or “forced” pregnancy, which they regarded as a “war crime” or “crime against humanity.” In the end, pro-life scholars’ arguments won out.

Similarly, the powerful abor­tion lobby has worked — and failed—to make abortion a fun­damental human right worldwide at U.N.-backed international women’s and population con­ferences in Beijing and Cairo. It has attempted to do so at every U.N. conference and meeting since, no matter how unrelated the topic might be.

Couched in ambiguous lan­guage like “women’s rights,” “reproductive rights” and “access to a full range of reproductive health services,” abortion advo­cates have attempted to make something stick. So far, they’ve been unsuccessful at building consensus that women have a uni­versal right to abortion.

A global coalition of pro-life and pro-family nongovernmen­tal organizations and nations ensured that the final documents at these conferences generally include language preserving national sovereignty on questions of human life and limiting the potentially expansive sweep of any reproductive rights lan­guage. Nonetheless, some U.N. bodies and powerful non­governmental organizations have deliberately misinterpreted such ambiguous language in order to promote abortion abroad.

The U.N. committee reviewing compliance with the Convention on All Forms of Discrimination Against Women (CEDAW) and the Human Rights Committee have pressured coun­tries to change their laws to make abortion legal. The committee’s recommendations are now the basis for a Colombian lawsuit that seeks dramatic alterations to that nation’s restrictive abortion laws.

 

Why worry?

So, why should the pro-life community in America be con­cerned? Until recently, American jurisprudence maintained a cer­tain autonomy from interna­tional law. But when the U.S. Supreme Court ruled two years ago that sodomy was legal in Lawrence vs. Texas, the pro-life community took notice — both because of the court’s actual holding and the law on which it was based.

Five members of the high court joined Justice Anthony Kennedy, who wrote the major­ity opinion, in a decision that relied heavily on international law. The ruling cited decisions from international tribunals and a brief filed by the former U.N. High Commissioner of Human Rights.

In his dissent, Justice Antonin Scalia said, “Constitutional enti­tlements do not spring into exis­tence because... foreign nations decriminalize conduct.” He called the majority decision “dangerous” because the court “should not impose foreign moods, fads or fashions on Americans.”

Richard Wilkins, a law pro­fessor and director of the World Family Policy Center at Brigham Young University, couldn’t agree more. Wilkins addressed the University Faculty for Life gath­ering June 4 at Ave Maria School of Law in Ann Arbor, Mich.

“Individuals and groups inter­ested in protecting the intrinsic value of human life must pay attention, not only to national laws, but to international treaties, U.N. conference declarations, and the opinions of jurists from legal systems that have no expe­rience with their own legal sys­tems,” he said.

The precedent set in Lawrence continued in the Supreme Court’s Roper vs. Simmons decision ear­lier this year. Writing for the majority, Justice Kennedy cited the U.N. Convention on the Rights of the Child — a treaty not ratified by the United States — to support the conclusion that the execution of minors is unconstitutional.

 

The fight wages on

Abortion-rights advocates don’t take their failings sitting down. The Center for Repro­ductive Rights was founded in 1992 with the express purpose of establishing abortion as a fundamental human right. In 2001, it instituted a lawsuit against President George W. Bush in which it spelled out its strategy to meet this objective.

Although a federal district court dismissed the complaint (a decision later affirmed on appeal), court documents show that the Center for Reproductive Rights plans to use U.N. treaty and con­ference documents to ultimately establish “a right to abortion in the United States and every other country on earth” through cus­tomary international law.

Unlike treaty law, customary international law can be binding on the nations of the world even if those nations do not formally consent to be bound by that law. Repetition of language from international conferences to which states give their approval is one way this can occur.

Despite the pressure abroad, pro-life advocates remain hope­ful. In March, the United Nations endorsed a declaration that called on member states to ban all forms of human cloning and adopt all necessary measures to protect human life in the application of life sciences. And last November, 149 countries signed onto a life-affirming document at a confer­ence in Doha, Qatar.

“One plank of the declaration was that life should be respected at all times along the whole con­tinuum of life,” said William Saunders, director-of the Center for Human Life & Bioethics at the Family Research Council. “The point is that we need to make sure that it’s clear, even to activist judges, that they can’t get away with imposing abortion on us by saying customary international law provides for it.”

Organizations on both sides of the debate will fight to further their agendas at the U.N.’s Millennium +5 Summit this fall. With the Doha Declaration under their belt, the pro-life lobby has some momentum, giving advo­cates like Saunders reason to be optimistic.

 

Mobilizing the pro-life masses

With the abortion lobby’s strong push to establish an international right to abortion, one pro-life scholar thinks he has a solution that would pre­vent international law gov­erning abortion from tak­ing hold in the United States.

Richard Wilkins, direc­tor of the World Family Policy Center at Brigham Young University, said the U.S. Constitution gives Congress the power to define “offenses against the law of nations.”

Americans, he said, should lobby Congress to pass a statute saying that no court, “shall base its decision upon a principle of international law unless it is contained in a treaty ratified pursuant to Articles 1 and 2 of the Constitution or set out in a statute enacted by Congress pursuant to Article 1, Section 8. That way, the American people know which norms of international law they’re going to be bound by and why, and the judges won’t be left to make it up as they see fit,” he said. Wilkins also urges Americans to financially support the pro-life lobby and educate themselves about the value of life.