Amicus Curiae Brief — Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al., Petitioners v. Jackson Women's Health Organization, et al.
Supreme Court briefJul 28, 2021
Ask Donna
What actually matters in this document.
Text
No. 19-1392
================================================================================================================
In The
Supreme Court of the United States
---------------------------------♦--------------------------------THOMAS E. DOBBS, STATE HEALTH
OFFICER OF THE MISSISSIPPI
DEPARTMENT OF HEALTH, ET AL.,
Petitioners,
v.
JACKSON WOMEN’S HEALTH
ORGANIZATION, ET AL.,
Respondents.
v.
On Writ Of Certiorari To The
United States Court Of Appeals
For The Fifth Circuit
---------------------------------♦--------------------------------BRIEF OF AMICUS CURIAE
CENTER FOR FAMILY AND HUMAN RIGHTS
IN SUPPORT OF PETITIONERS
---------------------------------♦--------------------------------ALEXIS I. FRAGOSA, ESQ.
Counsel of Record
STEFANO GENNARINI, ESQ.
CATHLEEN A. RUSE, ESQ.
CENTER FOR FAMILY AND
HUMAN RIGHTS, C-FAM
757 3rd Avenue, Suite 2119
New York, NY 10017
(202) 844-6538
alexis@c-fam.org
stefano@c-fam.org
Counsel for Amicus Curiae
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................
iii
INTEREST OF AMICUS CURIAE ......................
1
SUMMARY OF THE ARGUMENT .....................
1
ARGUMENT ........................................................
3
I.
STATE LAW PROTECTIONS FOR CHILDREN IN THE WOMB ARE CONSISTENT WITH THE INTERNATIONAL
HUMAN RIGHTS OBLIGATIONS OF
THE UNITED STATES .............................
3
A. The Text of the International Covenant
on Civil and Political Rights and Its
Interpretation by the Executive Branch
Do Not Exclude Children in the Womb
from the Legal Protections Afforded by
the Covenant .........................................
4
B. The Travaux Preparatoir of the Covenant Affirm a Wide Agreement Among
the Covenant’s Framers That Children in the Womb Were Not Excluded
from Its Protections .............................
9
C. Other State Parties to the Covenant
Do Not Exclude Children in the Womb
from the Protections of the Covenant .... 13
II.
INTERNATIONAL HUMAN RIGHTS
LAW DOES NOT ESTABLISH A RIGHT
TO ABORTION BY CUSTOM ................... 15
A. International Consensus is Against an
International Right to Abortion .......... 17
ii
TABLE OF CONTENTS—Continued
Page
B. When International Human Rights
Mechanisms Promote Abortion as a
Human Right, They Are Acting Ultra
Vires and Cannot Create New Obligations ..................................................... 21
III.
THE COURT HAS THE CONSTITUTIONAL RESPONSIBILITY TO CLARIFY
WHETHER THE MISSISSIPPI GESTATIONAL AGE ACT IS CONSISTENT
WITH THE INTERNATIONAL HUMAN
RIGHTS
OBLIGATIONS
OF
THE
UNITED STATES ....................................... 24
A. Pursuant to Its Constitutional Authority,
the Court May Declare Its Interpretation
of Article 6 of the Covenant................... 24
B. The Court Should Define U.S. Human
Rights Obligations to Prevent Interference by International Human Rights
Mechanisms and Foreign Powers in
U.S. Domestic Abortion Debates .......... 25
C. The Court Should Define the Legal
Status of Children in the Womb Pursuant to U.S. Treaty Obligations to
Promote a Consistent Approach to
Fundamental Human Rights by the
Executive Branch ................................ 29
CONCLUSION..................................................... 34
iii
TABLE OF AUTHORITIES
Page
CASES
Air France v. Saks, 470 U.S. 392 (1985) ................. 9, 13
Dred Scott v. Sandford, 60 U.S. 393 (1856) ................34
El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525
U.S. 155 (1999) ........................................................13
Griswold v. Connecticut, 381 U.S. 479 (1965) ............23
Marbury v. Madison, 5 U.S. 137 (1803) ......................25
Medellín v. Texas, 552 U.S. 491 (2008) .........................5
Sumitomo Shoji America, Inc. v. Avagliano, 457
U.S. 176 (1982) ..........................................................6
U.S. v. Bellaizac–Hurtado, 700 F.3d 1245 (11th
Cir. 2012) .................................................................16
Zicherman v. Korean Air Lines Co., 516 U.S. 217
(1985) ................................................................... 9, 13
RULES AND CONSTITUTIONAL PROVISIONS
U.S. Sup. Ct. R. 37.6 ......................................................1
U.S. Const., art. III, cl. 2 .............................................25
U.S. Const., art. VI, cl. 2 ..............................................24
iv
TABLE OF AUTHORITIES—Continued
Page
OTHER AUTHORITIES
149 CONG. REC. E2534-35 (daily ed. Dec. 8,
2003) (statement of Rep. Christopher Smith) ........22
Administration of Joseph R. Biden, Jr.,
Memorandum on Protecting Women’s Health
at Home and Abroad (Jan. 28, 2021) ......................32
American Convention on Human Rights art. 4,
Nov. 22, 1969, 1144 U.N.T.S. 123....................... 11, 12
Andrew Kloster and Joanne Pedone, Human
Rights Treaty Body Reform: New Proposals,
Journal of Transnat’l Law & Policy, Vol. 22,
Spring 2013 .............................................................23
Annex to the letter dated 2 December 2020 from
the Permanent Representative of the United
States of America to the United Nations
addressed to the Secretary-General, UN
Document No. A/75/626 (December 7, 2020) ...... 21, 30
Center for Reproductive Rights, The World’s
Abortion Laws, https://maps.reproductiverights.
org/worldabortionlaws (last visited July 15,
2021) .................................................................. 14, 16
Convention on the Rights of the Child pmbl.,
Nov. 20, 1989, 1577 U.N.T.S. 3 (China, France,
Tunisia, Luxembourg, and the United Kingdom) ................................................................... 12, 15
Convention on the Rights of the Child, Nov. 20,
1989, 1577 U.N.T.S. 3, preambular paragraph
9 ...............................................................................15
v
TABLE OF AUTHORITIES—Continued
Page
Declaration of the Rights of the Child, G.A. Res.
1386(XIV), U.N. Doc. A/RES/1386(XIV) at preambular paragraph 3 (20 November 1959) ........ 7, 15
Douglas A. Sylva & Susan Yoshihara, Rights by
Stealth: The Role of the UN Human Rights
Treaty Bodies in the Campaign for an
International Right to Abortion, 8 INT’L ORG.
RES. GRP.: WHITE PAPER SERIES 1, 10 (2d
ed. 2009) ..................................................................22
Fifth periodic report submitted by the United
States of America under article 40 of the
Covenant pursuant to the optional reporting
procedure, due in 2020, U.N. Doc. No.
CCPR/C/USA/5, Annex B (January 19, 2021) ........30
G.A. Res. 60/251, U.N. GAOR, 60th Sess., U.N.
Doc. No. A/RES/60/251 (April 3, 2006) ...................27
G.A. Res. 70/1, U.N. GAOR, 70th Sess., U.N. Doc.
A/RES/70/1 at target 5.6 (Oct. 21, 2015) .......... 19, 20
G.A. Res. 75/49, U.N. GAOR, 75th Sess., Supp.
No. 49, U.N. Doc. A/75/49 (Vol. I).............................20
General Assembly, 49th Session, 92nd plenary
meetings December, 19 December 1994, U.N.
Doc. No. A/49/PV.92 .................................................19
Human Rights Committee, List of issues prior
to submission of the fifth periodic report of the
United States of America, U.N. Doc. No.
CCPR/C/USA/QPR/5 (18 April 2019) .....................27
vi
TABLE OF AUTHORITIES—Continued
Page
Human Rights Council Forty-sixth session,
Report of the Working Group on the Universal
Periodic Review: United States of America,
U.N. Doc. No. A/HRC/46/15 .....................................28
International Covenant on Civil and Political
Rights, Dec. 16, 1966, S. EXEC. DOC. E, 95-2
(1978), 999 U.N.T.S. 171 (entered into force
Mar. 23, 1976) .................................................. passim
Observations of the United States of America
On the Human Rights Committee’s Draft
General Comment No. 36 On Article 6—Right
to Life, October 6, 2017, made available by the
Office of the United Nations High Commissioner of Human Rights at: https://www.
ohchr.org/en/hrbodies/ccpr/pages/gc36-article6
righttolife.aspx ..........................................................8
Office of the High Commissioner for Human
Rights, Information Series on Sexual and
Reproductive
Health
(updated
2020),
available at: https://www.ohchr.org/Documents/
Issues/Women/WRGS/SexualHealth/INFO_
Abortion_WEB.pdf (last visited July 15, 2021,
7:10 PM) ..................................................................22
OHCHR Internal Communications Clearance
Form, Document No. AL USA 11/2020 ...................26
OHCHR Internal Communications Clearance
Form, Document No. OL USA 8/2017 ....................26
Rep. of the Ad Hoc Comm., 7th Sess., Jan. 16–
Feb. 3, 2006, U.N. Doc. No. A/AC.265/2006/2
(2006) .......................................................................20
vii
TABLE OF AUTHORITIES—Continued
Page
Rep. of the Fourth World Conf. on Women,
Beijing, September 4–15, 1995, U.N. Doc. No.
A/CONF.177/20/Rev.1, at paragraph 106(k)
(1995) .......................................................................19
Rep. of the Int’l Conf. on Pop. and Dev., Cairo,
September 5-13, 1994, U.N. Document No.
A/CONF.171/13/Rev.l (1994) ............................. 17, 18
Report of the Commission on Unalienable
Rights (2021), at 48, https://www.state.gov/
wp-content/uploads/2020/07/Draft-Report-ofthe-Commission-on-Unalienable-Rights.pdf
(last visited July 22, 2021) ......................................33
Resolution of Ratification: Senate Consideration
of Treaty Document 95-20 (April 2, 1992) ................6
S. Rep. No. 102-23 (1992) ..............................................7
San Jose Articles, Article 6, https://sanjosearticles.
com/ (last visited July 15, 2021, 7:15 PM) ................23
Secretary Antony J. Blinken Remarks to the
Press, March 30, 2021, available at:
https://www.state.gov/secretary-antony-j-blinkenon-release-of-the-2020-country-reports-onhuman-rights-practices/..........................................33
Statement of the U.S., General Assembly, 73rd
session, 54th plenary meeting Monday,
December 14, 2018, U.N. Doc. No. A/73/PV.54 ........31
Statement of the United States, General
Assembly, 73rd session, 55th plenary meeting
Monday, December 17, 2018, U.N. Doc. No.
A/73/PV.55 ...............................................................31
viii
TABLE OF AUTHORITIES—Continued
Page
Statement of the United States, General
Assembly, 74th Session, 49th plenary
meetings Monday, December 16, 2019, U.N.
Doc. No. A/74/PV.49 .................................................31
Statement of the United States, General
Assembly, 74th Session, 50th plenary
meetings Wednesday, December 18, 2019, U.N.
Doc. No. A/74/PV.50 .................................................31
The Records of the Federal Convention of 1787,
21 (Farrand ed. 1911) ..............................................23
Thomas Finegan, International Human Rights
Law and the “Unborn”: Texts and Travaux
Préparatories 25 Tul. J. Int’l & Comp. L. (20162017), 89-126 ................................................. 9, 10, 11
Thomas W. Jacobson and Wm. Robert Johnston
(eds.), Abortion Worldwide Report (2018),
available at: https://www.globallifecampaign.
com/abortion-worldwide-report (accessed July
2021) .................................................................. 14, 16
U.N. Dep’t of Econ. and Soc. Affairs, Population
Div. (2020), World Population Policies 2017:
Abortion laws and policies—A global assessment: Highlights, U.N. Doc. No. ST/ESA/
SER.A/448 (2020) .............................................. 14, 22
ix
TABLE OF AUTHORITIES—Continued
Page
U.N. Human Rights Council Res. on U.N.
Human Rights Council: Institution-Building,
U.N. Doc. No. A/HRC/RES/5/1, June 18, 2007 ........32
Vienna Convention on the Law of Treaties
Between State and International Organizations or Between International Organizations
arts. 31-32, May 23, 1969, 1155 U.N.T.S. 331 ...........9
1
INTEREST OF AMICUS CURIAE1
C-Fam is a non-partisan, non-profit research institute in special consultative status with the Economic
and Social Council of the United Nations. C-Fam
experts have published influential scholarship on
international human rights law as it relates to the
right to life of the unborn, participate actively in the
work of international human rights mechanisms, and
contribute regularly to UN human rights and social
policy debates. This submission transmits the accumulated knowledge and experience of C-Fam human
rights scholars and practitioners on the bearing of
international human rights law to the question
presented of “whether all pre-viability prohibitions on
elective abortions are unconstitutional.”
---------------------------------♦---------------------------------
SUMMARY OF THE ARGUMENT
The 2018 Mississippi Gestational Age Act banning
most abortions after the 15th week of pregnancy, when
the child in utero is known to suffer pain from common
abortion procedures, is fully consistent with International Covenant on Civil and Political Rights ratified
by the United States, which presumptively protects
1
All the parties have filed blanket consents with the Court
to allow the submission of the amicus brief. Pursuant to Rule 37.6,
counsel for amicus curiae authored this brief in whole, no counsel
for a party authored this brief in whole or in part, and no person
or entity—other than amicus, its members, and its counsel—
contributed monetarily to the preparation or submission of this
brief.
2
the right to life of children in the womb (hereinafter,
the “Covenant”), International Covenant on Civil and
Political Rights, Dec. 16, 1966, S. EXEC. DOC. E, 95-2
(1978), 999 U.N.T.S. 171 (entered into force Mar. 23,
1976), as well as other human rights commitments and
obligations of the United States.
A careful reading of the text and history of the
Covenant 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. While the Covenant
does not prescribe any express obligations to prevent
the use of abortion to deprive a child in the womb of
his or her right to life, sovereign nations retain wide
discretion under its provisions to outlaw and regulate
abortion.
Whether children in the womb may be protected
under the Covenant is directly relevant to the question
presented. Treaty law is the supreme Law of the Land
and the Court has a constitutional responsibility to
declare what the law is. The Court should make a
finding of law that children in the womb are not
excluded from the right to life under the Covenant,
given the plain meaning of the text of the Covenant
when it was ratified by the U.S., the interpretation of
the Covenant by the Executive branch, and its
implementation by other States who are party to the
treaty, therefore, laws to protect children in the womb
from being arbitrarily deprived of their right to life,
regardless of viability, are consistent with the
3
international human rights obligations of the United
States.
Because the question presented only regards the
constitutionality of pre-viability abortion regulation it
is not necessary for the Court to decide whether
abortion is per se a violation of the right to life of the
child under the Covenant, although it is a related
question and one the Court could decide in this or a
future case. The Court should nonetheless say
something substantive on the topic of the status of the
unborn in international human rights law without
upsetting honest political debates that are legitimately
carried out through democratic institutions. The Court
should do this for prudential reasons, including that of
shielding itself from accusations that it is avoiding
foundational human rights questions and to preempt
interference from international actors and foreign
powers in U.S. domestic legal and political disputes.
---------------------------------♦---------------------------------
ARGUMENT
I.
STATE LAW PROTECTIONS FOR CHILDREN IN THE WOMB ARE CONSISTENT
WITH THE INTERNATIONAL HUMAN
RIGHTS OBLIGATIONS OF THE UNITED
STATES.
Mississippi’s Gestational Age Act, which prohibits
abortion from the moment a child in utero is capable of
suffering pain, does not contravene any obligations of
the United States under the Covenant because Article
4
6 of the Covenant protects the right to life for “all
human beings.” The text of Article 6 cannot be
interpreted to exclude unborn children from the right
to life and the framers of the Covenant never agreed
to exclude children in the womb from the right to life.
In addition, subsequent implementation of the treaty
by other state parties demonstrates that children in
the womb are not excluded from the Covenant’s
Article 6 protections and the U.S. government ratified
the treaty without rejecting the applicability of the
Covenant’s protections to children in the womb.
A. The Text of the International Covenant
on Civil and Political Rights and Its
Interpretation by the Executive Branch
Do Not Exclude Children in the Womb
from the Legal Protections Afforded by
the Covenant.
The protections of the Covenant extend broadly to
“all human beings” without exception. Article 6 of the
International Covenant on Civil and Political Rights
adopted by the United Nations General Assembly in
December 1966 and entered into force in March 1976
states that “every human being has the inherent right
to life.” (Emphasis added). In addition, it states that
the “inherent right to life” shall be protected by law
and that “no one shall be arbitrarily deprived of his
life.” International Covenant on Civil and Political
Rights, Dec. 16, 1966, S. EXEC. DOC. E, 95-2 (1978),
999 U.N.T.S. 171 (entered into force Mar. 23, 1976).
5
To ascertain the scope of Article 6, it is necessary
to analyze the terms of the Covenant, both individually
and in context with the entirety of the Covenant.
Medellín v. Texas, 552 U. S. 491, 506 (2008) (the
interpretation of a treaty, like the interpretation of a
statute, begins with its text). The Covenant’s Preamble
acknowledges that the “recognition of the inherent
dignity and of the equal and inalienable rights of all
members of the human family is the foundation of
freedom, justice and peace in the world.” The Preamble
further recognizes that inalienable rights are
“derive[d] from the inherent dignity of the human
person.”
Article 6.1 of the Covenant defines the obligations
of the parties to the Covenant and asserts that all
parties to the Covenant are obliged to protect the lives
of all “human beings”—without exceptions. The article
reads, “Every human being has the inherent right to
life. This right shall be protected by law. No one shall
be arbitrarily deprived of his life.” The text, by its
categorical formulation, intended “human being” in the
broadest possible sense. The terms of the Covenant
contain no language qualifying the term “human
being” to exclude certain types or classes of human
being. In fact, to do so would undermine the purpose
for which the Covenant was created as stated in the
Preamble.
The child in utero’s right to life is also recognized
in Article 6.5 of the Covenant, which states, “Sentence
of death shall not be imposed for crimes committed by
persons below eighteen years of age and shall not be
6
carried out on pregnant women.” The plain meaning of
this Article is to afford special protections to innocent
children in the womb because their lives are held to be
separate and apart from their mother’s lives. There is
no plausible reading of these provisions that would
exclude children in the womb from the protections of
the Covenant.
When analyzing the Covenant’s text to ascertain
the meaning of its provision, the Court may also take
into consideration the Executive Branch’s interpretation of the treaty at the time it was ratified by the
U.S. Sumitomo Shoji America, Inc. v. Avagliano, 457
U. S. 176, 184–185, n. 10 (1982) (the Executive
Branch’s interpretation of a treaty “is entitled to great
weight”).
In this case, at the time the U.S. ratified the
Covenant, it made several reservations, understandings and declarations in regard to federalism,
separation of powers, and the Constitution, including
reservations relating to the substantive areas of the
Covenant, like free speech and the application of the
death penalty to minors. See Resolution of Ratification:
Senate Consideration of Treaty Document 95-20 (April
2, 1992). The U.S. did not make any reservations,
understandings or declarations that would effectively
exclude unborn children from the right to life. Id.
In fact, the Executive Branch ratified the Covenant with the understanding that children in the
womb were not excluded from the right to life,
regardless of the stage of development of the child in
7
utero or the concept of viability. In presenting reservations, understandings, and declarations to the U.S.
Senate, the administration of President George H.W.
Bush stated that “The Administration accepted the
obligation (to not apply capital punishment) with
respect to pregnant women,” in Article 6.5 of the
Covenant. S. Rep. No. 102-23 (1992). The Bush
administration also 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.” Id (emphasis added). The Bush
administration submission to the Senate does not
include caveats or exceptions to Article 6.5 for cases of
pre-viability abortion. Therefore, the ratification of the
Covenant by the executive branch included the
recognition that children in the womb presumptively
have a right to life independent of their mother and
independent of viability.
This understanding is consistent with the position
of the U.S. government in international agreements
during the time when the Covenant was being framed.
At the same time the Covenant was negotiated, the
1959 Declaration on the Rights of the Child was
adopted by the United Nations General Assembly, recognizing that the “the child, by reason of his physical
and mental immaturity, needs special safeguards and
care, including appropriate legal protection, before as
well as after birth.” Declaration of the Rights of the
8
Child, G.A. Res. 1386(XIV), U.N. Doc. A/RES/1386(XIV)
at preambular paragraph 3 (20 November 1959).
More recently, the U.S. government took positions
in United Nations debates and in its interactions with
United Nations bodies consistent with the view that
children in the womb are not excluded from the
Covenant’s protections. For example, when the Human
Rights Committee began drafting a comprehensive
commentary of Article 6 of the Covenant in 2016,
eventually published as General Comment 36, it called
on state parties and stakeholders broadly to provide
inputs. The U.S. State Department submitted comments explicitly refuting the notion that abortion could
be considered a right under Article 6 of the Covenant,
as in the draft of the committee’s general comment. See
Observations of the United States of America On the
Human Rights Committee’s Draft General Comment
No. 36 On Article 6—Right to Life, October 6, 2017,
made available by the Office of the United Nations
High Commissioner of Human Rights at: https://www.
ohchr.org/en/hrbodies/ccpr/pages/gc36-article6righttolife.
aspx. The U.S. government’s submission stated that
“bearing in mind the history of the negotiations of the
two Covenants, any issues concerning access to
abortion (paragraph 9 of the Committee’s draft) are
outside the scope of Article 6.” Id.
Similarly, the U.S. government took the same and
similar views with regards to the meaning of the
Article 6 on multiple occasions. See Section 3(C) below.
9
B. The Travaux Preparatoir of the Covenant Affirm a Wide Agreement Among
the Covenant’s Framers That Children
in the Womb Were Not Excluded from
Its Protections.
The Court may also consider a treaty’s negotiating
and drafting history (travaux preparatoires), in
addition to the treaty’s text and the Executive Branch’s
disposition, to ascertain the binding legal obligations
of the United States. Zicherman v. Korean Air Lines
Co., 516 U. S. 217, 226. The Court’s interpretation of
the “specific words of a treaty” must also be “consistent
with the contracting parties” shared expectations. Air
France v. Saks, 470 U. S. 392, 399 (1985).2
Here, the debates surrounding the adoption of
Article 6.5 of the Covenant against the application of
capital punishment to a pregnant women prove that
Article 6.5 was specifically included in the Covenant
because the parties were concerned for the right to life
of the innocent unborn child in the womb, in the same
way as they were concerned about the application of
the death penalty to children more broadly. Thomas
Finegan, International Human Rights Law and the
2
In this case, the understanding of other state parties to
the treaty is based on similar interpretative methodology as
that developed by this Court. In fact, this Court’s principles of
interpretation for a treaty are consistent with the relevant
articles of 1986 the Vienna Convention on the Law of Treaties,
which has near universal ratification. See Vienna Convention on
the Law of Treaties Between State and International Organizations or Between International Organizations arts. 31-32, May
23, 1969, 1155 U.N.T.S. 331.
10
“Unborn”: Texts and Travaux Préparatories 25 Tul. J.
Int’l & Comp. L. (2016-2017), 89-126. Not a single
delegation denied the right to life of children in the
womb while voting on Article 6.5. In fact, several
delegations insisted from the earliest stages of the
Covenant’s negotiations, without any contrary views
being voiced, that children in the womb were protected
by the Covenant, including in the context of debates on
Article 6.5. It was under these circumstances and with
this understanding that the delegates voted in favor of
adopting Article 6.5 to the Covenant. Id.
In addition, to adopting Article 6.5, the framers of
the Covenant rejected the inclusion of a Covenant
obligation permitting state parties to allow for abortion in cases where a child is conceived by rape, incest,
or when carrying a pregnancy to term might endanger
the life of a mother. The proposal of the United
Kingdom was criticized for its similarities to Nazi
legislation during negotiations. It should be noted that
even that proposal did not exclude children in the
womb from the right to life. According to Finegan:
“Paragraph 2 contained a very limited right to
abortion as a derogation from the unborn
child’s human right to life. From the available
records, it is fair to assume that the most
likely reason for its rejection was concern for
domestic sovereignty over the matter, a
concern expressly motivated by a forthright
rejection of all forms of abortion on human
rights grounds.” Id.
11
Throughout the period when the Covenant was negotiated from 1947 to 1966, a majority of the state
parties’ laws provided comprehensive and whole protections for children in the womb. With the exception
of communist nations like the Soviet Union and China,
most countries prohibited abortion in their criminal
laws. However, even the Soviet Union and China did
not deny that children in the womb were protected by
the Covenant during negotiations for the Covenant,
but instead they simply made arguments to defend
their own sovereign prerogative to define their own
abortion laws. Id.
In 1957 the framers of the Covenant voted to
exclude a positive affirmation of the right to life “from
the moment of conception” as in the Inter-American
Convention on Human Rights. American Convention
on Human Rights art. 4, Nov. 22, 1969, 1144 U.N.T.S.
123. However, this vote cannot be seen as having the
effect of excluding children in the womb from the
Covenant’s right to life. Instead, this vote should be
understood in light of the rejection of the 1947 proposal
to expressly derogate from the right to life to allow
abortion in some circumstances. Id. This is because
states only expressed concern about the indeterminacy
of the 1957 proposal in voting against it. Overwhelmingly, they did not deny that children in the womb had
a right to legal protection Id. The United Kingdom
alone, with support from its former colony Ceylon,
denied that the protections of the Covenant were
meant for children in the womb. Id. Therefore, the
rejection of an express recognition of the right to life of
12
children in the womb “from conception” should not be
seen as excluding children in the womb from the right
to life. Rather, it should be viewed as allowing state
parties to the Covenant wide latitude in measures to
protect the right to life of children in the womb. Id.
Notwithstanding, the debates about the status of
unborn children during the negotiations of the
Convention, the widespread understanding of the
parties was that the protections of the Covenant
presumptively applied to all human beings, including
unborn children in the womb. This understanding is
evidenced by the fact that not a single state party
made a reservation, understanding, or declaration
stating that the protections of the Covenant do not
apply to children in the womb. See ICCPR. Although
some state parties to the Covenant eventually made
reservations, understandings, and declaration to
exclude the child in utero from the right to life in their
subsequent ratification of the Convention on the
Rights of the Child, the same reservations, declarations, and understandings were not made at the time
they entered the Covenant by parties who ratified both
treaties. See Convention on the Rights of the Child
pmbl., Nov. 20, 1989, 1577 U.N.T.S. 3 (China, France,
Tunisia, Luxembourg, and the United Kingdom). Ultimately, the compromises reached by the negotiating
state parties allowed nations with vastly different
understandings of when and how the right to life
applies in the prenatal phase to ratify the treaty.
For the aforementioned reasons, to assert or imply
that unborn children are excluded from the Covenant’s
13
Article 6 “right to life” provision is not consistent with
the text and drafting history (travaux preparatoires) of
the treaty, which must be read as presumptively
allowing for the protections of the Covenant to apply
to children in the womb.
C. Other State Parties to the Covenant Do
Not Exclude Children in the Womb
from the Protections of the Covenant.
To determine the legal effect of Articles 6.1 and
6.5, the Court may also consider “the post-ratification
understanding of the contracting parties” in addition
to the drafting history of a treaty to interpret its
provisions. Zicherman, supra, 516 U. S. at 226.
Historically, the Court has recognized, the “opinions of
our sister signatories” to any treaty are “entitled to
considerable weight.” El Al Israel Airlines, Ltd. v. Tsui
Yuan Tseng, 525 U. S. 155, 176 (1999), Air France v.
Saks, 470 U. S. 392, 404 (1985).
Many state parties to the Covenant, including
those nations with established abortion regimes,
continue to understand the Covenant as including
protections for children in the womb in the context of
abortion legislation and regulation. Although a vast
majority of state parties to the Covenant punish abortion in their penal legislation, the state parties with
permissive abortion laws and regulations generally
apply criminal penalties to abortions. For these state
parties, the criminal penalties for abortion remain in
place, but they are not enforced in those cases excepted
14
by laws and regulations. See Thomas W. Jacobson and
Wm. Robert Johnston (eds.), Abortion Worldwide
Report (2018), available at: https://www.globallife
campaign.com/abortion-worldwide-report (accessed July
2021).
National officials recently responded to official
periodic surveys about abortion laws and policies
carried out by the United Nations Secretariat among
all United Nations Member States, of which a majority
have ratified the Covenant. Officials from ninety-five
per cent of the surveyed countries affirmed in their
responses that they would enforce their criminal laws
against abortion in circumstances not excepted by law.
U.N. Dep’t of Econ. and Soc. Affairs, Population Div.
(2020), World Population Policies 2017: Abortion laws
and policies—A global assessment: Highlights, U.N.
Doc. No. ST/ESA/SER.A/448 (2020).
Since the establishment of the Roe v. Wade
precedent, U.S. law permits abortion-on-demand, also
referred to as “elective abortion,” throughout pregnancy—notwithstanding viability. The U.S. approach
to abortion regulation is much more permissive than
most nations in the world, even compared to those
nations that allow for legal abortion. In fact, organizations promoting abortion internationally acknowledge that abortion-on-demand after the twelfth week
of a child’s development in utero is only legal in a small
minority of countries. See Center for Reproductive
Rights, The World’s Abortion Laws, https://maps.
reproductiverights.org/worldabortionlaws (last visited
July 15, 2021).
15
These laws and policies reflect the understanding
of civilized nations that children should be protected
before as well as after birth. This understanding is
further evidenced by the Declaration of the Rights of
the Child which is incorporated into the Preamble of
the United Nations Convention on the Rights of the
Child and which states, “the child, by reason of his
physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth. . . .” Declaration of
the Rights of the Child, G.A. Res. 1386(XIV), U.N. Doc.
A/RES/1386(XIV) at preambular paragraph 3 (20
November 1959). The Convention on the Rights of the
Child achieved near universal ratification. See
Convention on the Rights of the Child, Nov. 20, 1989,
1577 U.N.T.S. 3, preambular paragraph 9. Only five of
the one hundred and ninety-six nations that ratified
the Convention on the Rights of the Child did so with
a reservation against the applicability of the
Covenant’s protection of the right to life in Article 6 to
children before birth. See Convention on the Rights of
the Child, supra, at pmbl.
II.
INTERNATIONAL HUMAN RIGHTS LAW
DOES NOT ESTABLISH A RIGHT TO
ABORTION BY CUSTOM.
Abortion proponents argue that even though the
text and history of international human rights treaties
do not establish a right to abortion, such a right is
emerging or has already emerged by way of customary
international law. This argument is not well founded.
16
Customary international law historically emerged in
areas of law where direct interactions between sovereign states is common and expected, like admiralty
law, the law of consular relations, and the laws of war.
Human rights law is notably different from these areas
of law because it governs the relation of a state to its
own citizens and not the relationships between separate sovereign states, and therefore does not evince the
exchanges and retaliation between sovereign states
that is normally required for a customary international norm to emerge. Nevertheless, it is easily
demonstrable that no human right to abortion has
emerged by custom.
When assessing claims of customary international
law Federal Courts follow the rule that, “customary
international law is determined by examining state
practice and opinio juris. . . .” U.S. v. Bellaizac–
Hurtado, 700 F.3d 1245, 1252 (11th Cir. 2012). As
discussed above in Section I(C), there is no widespread
general practice against all pre-viability regulation of
abortion. In fact, most civilized nations do not allow
abortion-on-demand after twelve (12) weeks of gestation (See Jacobson and Center for Reproductive Rights,
supra) and there is no evidence of a widely held
understanding by sovereign states that abortion is a
human right under any circumstance. On the contrary,
there is ample evidence that abortion is not widely
understood to be an international human right.
17
A. International Consensus is Against an
International Right to Abortion.
The United Nations General Assembly in 1994 at
the International Conference on Population and Development, hereinafter “ICPD,” legitimized abortion as
part of “sexual and reproductive health” in UN policy
alongside other non-controversial elements like maternal health and family planning. Rep. of the Int’l Conf.
on Pop. and Dev., Cairo, September 5-13, 1994, U.N.
Document No. A/CONF.171/13/Rev.l (1994). The following terms are all defined in the ICPD agreement as
generally including abortion: “sexual and reproductive
health,” “reproductive health,” “reproductive health
care,” “primary health-care,” and “reproductive health
services.” See ICPD 7.6 and 13.14. Abortion is also
declared part of a “comprehensive” approach to
reproductive health. See ICPD 13.15.
Notwithstanding the ICPD outcome’s acknowledgment of abortion procedures as part of “sexual and
reproductive health” programs, the agreement does
not create or establish a right to abortion. In fact, the
ICPD agreement includes specific caveats that cast
abortion in a negative light and make it impossible to
consider abortion a human right or even a humane
solution to a crisis pregnancy. Specifically, it affirms
that:
(1) Abortion is a subject that must be exclusively addressed in national legislation without external interference (ICPD
8.25);
18
(2) Governments should take appropriate
steps to help women avoid abortion
(ICPD 7.24);
(3) In no case should abortion be promoted as
a method of family planning (ICPD 8.25);
(4) Women must be provided with postabortion healthcare and counseling (ICPD
8.25); and
(5) The ICPD agreement does not establish
any new international human right
(ICPD 1.15).
Consistent with these caveats, the U.S. delegation
to the ICPD 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.”
See Rep. of the Int’l Conf. on Pop. and Dev., supra, at
177.
19
When the ICPD agreement was received and
adopted by the United Nations General Assembly,
several UN member states expressed the position that
abortion was not an international right and that they
did not consider it part of “sexual and reproductive
health” in their national legislation. Not one UN
member state responded by making a claim that
abortion was, in fact, an international right pursuant
to the agreement of the ICPD. See General Assembly,
49th Session, 92nd plenary meetings December, 19
December 1994, U.N. Doc. No. A/49/PV.92.
The consensus reached at the ICPD was reaffirmed verbatim at the Fourth World Conference on
Women, held in Beijing in 1995, hereinafter “Beijing.”
See Rep. of the Fourth World Conf. on Women, Beijing,
September 4–15, 1995, U.N. Doc. No. A/CONF.177/
20/Rev.1, at paragraph 106(k) (1995). This consensus is
still held among UN member states today.
When the United Nations General Assembly
adopted the current overarching pact for international
cooperation on sustainable development for the years
2015-2030, known as Sustainable Development Goals,
it reaffirmed a commitment to “sexual and reproductive health” only “as agreed in accordance with” the
outcomes of ICPD and Beijing and the official review
outcomes of those conferences by the General
Assembly. G.A. Res. 70/1, U.N. GAOR, 70th Sess., U.N.
Doc. A/RES/70/1 at target 5.6 (Oct. 21, 2015). The
target commitment reads, “Ensure universal access to
sexual and reproductive health and reproductive
rights as agreed in accordance with the Programme of
20
Action of the International Conference on Population
and Development and the Beijing Platform for Action
and the outcome documents of their review conferences.” Id. (emphasis added). This language is repeated
verbatim in dozens of resolutions adopted by the
General Assembly each year. See G.A. Res. 75/49, U.N.
GAOR, 75th Sess., Supp. No. 49, U.N. Doc. A/75/49
(Vol. I).
On more than one occasion, the General Assembly
has had an opportunity to re-define and evaluate the
term “sexual and reproductive health” in binding
international human rights treaties, but it has always
done so with the understanding that it did not establish an international human right to abortion. For
example, in the Convention on the Protection and
Promotion of the Rights and Dignity of Persons with
Disabilities (hereinafter, the “CRPD”), the states negotiating the convention once again agreed that abortion
was not an international right. The report of the drafting committee transmitting to the General Assembly,
included a footnote 4 to Article 25 on the right to
health, clarifying that the use of the phrase “sexual
and reproductive health in the convention would not
constitute recognition of any new international law
obligations or human rights.” Rep. of the Ad Hoc
Comm., 7th Sess., Jan. 16–Feb. 3, 2006, U.N. Doc. No.
A/AC.265/2006/2 (2006) (emphasis added).
To this day, sovereign states continue to make
known their position against an international right
to abortion. For example, the Geneva Consensus
Declaration On Promoting Women’s Health and
21
Strengthening the Family signed by 35 UN member
states affirmed 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.” Annex to the letter dated 2 December 2020
from the Permanent Representative of the United
States of America to the United Nations addressed to
the Secretary-General, UN Document No. A/75/626
(December 7, 2020). There is no alternate declaration
by any number of UN member states declaring the
opposite, namely, that abortion is an international
right. And few governments assert that abortion is an
international right in official UN meetings.
B. When International Human Rights Mechanisms Promote Abortion as a Human
Right, They Are Acting Ultra Vires and
Cannot Create New Obligations.
The persistence of criminal abortion laws as well
as restrictions on abortion is a testament to the
enduring norm in favor of protections for children in
the womb. For over two decades international human
rights mechanisms have been exploited by the abortion
industry lobby to promote abortion. Under the influence of this powerful lobby, UN treaty bodies have
systematically read a right to abortion in various
treaties and multinational agreements as part of a
deliberate attempt to manufacture a right to abortion
22
under customary international law. Douglas A. Sylva
& Susan Yoshihara, Rights by Stealth: The Role of the
UN Human Rights Treaty Bodies in the Campaign for
an International Right to Abortion, 8 INT’L ORG. RES.
GRP.: WHITE PAPER SERIES 1, 10 (2d ed. 2009).
Strategic documents of the pro-abortion legal group
Center for Reproductive Rights that document this
plan were introduced in the congressional record by
Rep. Christopher Smith. See 149 CONG. REC. E253435 (daily ed. Dec. 8, 2003) (statement of Rep. Christopher Smith). As of this writing, almost all nine expert
bodies monitoring compliance with the core United
Nations human rights treaties have made recommendations to United Nations Member States to change
their abortion laws to make abortion progressively
more available. See Office of the High Commissioner
for Human Rights, Information Series on Sexual and
Reproductive Health, (updated 2020), available at:
https://www.ohchr.org/Documents/Issues/Women/WRGS/
SexualHealth/INFO_Abortion_WEB.pdf (last visited
July 15, 2021, 7:10 PM).
Despite these systematic, and ever more intrusive,
attempts by international human rights mechanisms
to change the abortion laws of sovereign states, most
states remain committed to enforcing their abortion
laws, as noted above. See U.N. Dep’t of Econ. and Soc.
Affairs, Population Div. (2020), World Population
Policies 2017: Abortion laws and policies—A global
assessment: Highlights, supra.
Treaty monitoring bodies have no authority, either
under the treaties that created them or under general
23
international law, to create new state obligations or to
interpret the treaties in ways that alter the substance
of the treaties. See San Jose Articles, Article 6,
https://sanjosearticles.com/ (last visited July 15, 2021,
7:15 PM). United Nations bodies do not have a
mandate to interpret a treaty to include a right to
abortion. Id. 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. Id. Moreover, states should not accept treaty
bodies as contributing to the formation of new
customary international law. Id.
Treaty bodies do not have the authority to act as
an international “council of revision.” See The Records
of the Federal Convention of 1787, 21 (Farrand ed.
1911), cf. Justice Black Dissent in Griswold v.
Connecticut, 381 U.S. 479 (1965). Under the terms of
United Nations human rights treaties, the opinions of
any treaty body are neither binding nor authoritative
because 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 the United Nations treaty bodies in this
regard. Andrew Kloster and Joanne Pedone, Human
Rights Treaty Body Reform: New Proposals, Journal of
Transnat’l Law & Policy, Vol. 22, Spring 2013.
24
III. THE COURT HAS THE CONSTITUTIONAL
RESPONSIBILITY TO CLARIFY WHETHER
THE MISSISSIPPI GESTATIONAL AGE ACT
IS CONSISTENT WITH THE INTERNATIONAL HUMAN RIGHTS OBLIGATIONS
OF THE UNITED STATES.
In accordance with its constitutional authority, the
Court may declare that Mississippi’s Gestational Age
Act is consistent with U.S. obligations under the
Covenant. Making this declaration would not only
discourage interference by foreign powers and international actors in U.S. domestic debates about
abortion, but would also help resolve inconsistent
interpretations of U.S. Covenant obligations by the
executive branch. It would also shield the Court and
the U.S. government more broadly from accusations of
ignoring fundamental human rights obligations.
A. Pursuant to Its Constitutional Authority,
the Court May Declare Its Interpretation
of Article 6 of the Covenant.
The U.S. government ratified the Covenant in
1992 and even though the Covenant is not selfexecuting, it still enjoys the status under the U.S.
Constitution as “supreme law of the land.” U.S. Const.,
art. VI, cl. 2. For this reason, any finding of law by the
Court on the status of the child in the womb under the
Covenant will pre-empt any act or decision on the
same by state legislatures, executive officers, and
judges.
25
To date, the Court has not set forth an opinion
interpretating Article 6 of the Covenant. Because “it is
emphatically the province and duty of the judicial
department to say what the law is” (Marbury v.
Madison, 5 U.S. 137 (1803)) and, in particular, to
declare the legal understanding of treaty law and
customary international law (U.S. Const., art. III, cl. 2),
the Court should exercise its authority to interpret the
obligations of the U.S. under the Covenant.
B. The Court Should Define U.S. Human
Rights Obligations to Prevent Interference by International Human Rights
Mechanisms and Foreign Powers in U.S.
Domestic Abortion Debates.
The Court should declare the legal status of the
child in the womb under the Covenant because foreign
governments and other international actors, including
official human rights mechanisms, increasingly interfere in federal and state law matters to pontificate on
U.S. federal and state abortion regulation, with direct
and indirect influence on legislators, executives, and
judges at the federal and state levels.
For example, in an official communication sent to
the U.S. Secretary of State, a group of United Nations
mandate holders complained about legislation limiting
access to abortion passed in the states of Alabama,
Texas, Iowa, Louisiana, and Ohio during the COVID19 pandemic. The UN mandate holders claimed this
legislation “r[an] contrary to international human
26
rights standards and to the obligations undertaken by
the United States, including through its ratification of
the International Covenant on Civil and Political
Rights (ICCPR).” OHCHR Internal Communications
Clearance Form, Document No. AL USA 11/2020
(emphasis added).
This was not the first occasion where UN mandate
holders interfered with the domestic legal affairs of the
U.S. On June 20, 2017, a group of UN mandate holders
sent an official communication to the New York state
legislature urging them to pass the Reproductive
Health Act (NYS S2796), reforming New York’s penal
and public health law regarding abortion. See OHCHR
Internal Communications Clearance Form, Document
No. OL USA 8/2017. The mandate holders sent an
official communication, transmitted by the Office of the
United Nations High Commissioner for Human Rights
in official letterhead, which stated that “This Act would
bring New York State legislation regarding abortion
more closely into compliance with international human
rights standards as regards the right of women to
sexual and reproductive health, physical integrity and
nondiscrimination. It would not only deviate from the
negative trend on women’s reproductive rights; it
would be a welcome precedent for other states in the
country and a hopeful signal that much needed reform
can and should be initiated.” Id. (emphasis added).
It would be a mistake to view these unsolicited
interferences in the internal affairs of the U.S. as
merely hortatory or comparable to a letter from a
group representing civil society. United Nations
27
mandate holders are established pursuant to resolutions adopted by United Nations Member States that
are legally binding on United Nations mandate
holders. They hold themselves out as authoritative
interpreters of human rights obligations in their
official communications with governments and view
these as having legal significance for opinio juris.
In addition, the Human Rights Committee, the
treaty monitoring body established under Article 28 of
the Covenant, has also criticized the U.S. government
based on U.S. state and federal abortion policies.
Following the submission of the U.S. report on state
party compliance, as required by the Covenant, the
Human Rights Committee criticized U.S. federal and
state laws that do not align with “the Committee’s
interpretation of Article 6 of the Covenant, which
according to the Committee requires that any State
party’s regulation of pregnancy or abortion must
ensure that women and girls do not have to undergo
unsafe abortions.” Human Rights Committee, List of
issues prior to submission of the fifth periodic report of
the United States of America, U.N. Doc. No.
CCPR/C/USA/QPR/5 (18 April 2019).
This interference of foreign actors is not limited to
international human rights mechanisms. During the
most recent Universal Periodic Review conducted by
the Human Rights Council, which was established to
review “the fulfilment by each State of its human
rights obligations and commitments” (G.A. Res. 60/251,
U.N. GAOR, 60th Sess., U.N. Doc. No. A/RES/60/251
(April 3, 2006)), foreign governments called on the
28
United States to change its stance on abortion funding
internationally. In the 2020 Universal Periodic Review,
fourteen countries (Australia, Austria, Canada, Denmark, Finland, France, Iceland, Luxembourg, Mexico,
Malaysia, the Netherlands, Norway, New Zealand, and
the United Kingdom) called on the U.S. to “ensure
access to sexual and reproductive health” and to
“remove restrictions” on abortion funding in U.S. law
and policy. The Netherlands explicitly called on the
executive branch of the U.S. government to “repeal the
Helms Amendment and the Protecting Life in Global
Health Assistance Policy and, in the interim, allow U.S.
foreign assistance to be used, at a minimum, for safe
abortion in cases of rape, incest and life endangerment.” Human Rights Council Forty-sixth session,
Report of the Working Group on the Universal Periodic
Review: United States of America, U.N. Doc. No.
A/HRC/46/15
Because the interference by foreign powers and
actors takes place, almost exclusively, outside the
purview of the judicial branch it is unlikely that the
Court will ever be called upon to resolve this
fundamental legal question on the human rights
obligations of the United States. Unless the Court
declares what the legal status of the children in the
womb is under the Covenant, foreign governments and
international organizations 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
29
Constitutional responsibility to declare what the law
is.
C. The Court Should Define the Legal
Status of Children in the Womb Pursuant
to U.S. Treaty Obligations to Promote a
Consistent Approach to Fundamental
Human Rights by the Executive Branch.
Because it is the Court’s responsibility to declare
what the law is, including the legal obligations
established by the U.S. government through treaties,
the Court should define the legal status of children in
the womb as an exigent prudential consideration.
Because the regulation of abortion is a question
that divides the principal political parties in the
United States, when Republican and Democrat presidents alternate each other, the position of the U.S.
government domestically and abroad changes significantly. Nevertheless, the legal obligations of the U.S.
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 the womb could help limit and avoid
inconsistent interpretations of U.S. international
obligations.
30
The executive branch has had inconsistent and
contradictory approaches on abortion internationally
in the highest international fora. In fact, the official
U.S. government response to the Human Rights
Committee’s questions, mentioned above, under the
administration of U.S. President Donald J. Trump,
affirmed that the legal status of abortion was outside
the scope of the Covenant, stating that “there is no
international human right to abortion under the
Covenant or elsewhere.” Fifth periodic report submitted by the United States of America under article 40 of
the Covenant pursuant to the optional reporting
procedure, due in 2020, U.N. Doc. No. CCPR/C/USA/5,
Annex B (January 19, 2021).
Similarly, the same U.S. administration joined
thirty-four countries in a multilateral statement called
the “Geneva Consensus Declaration On Promoting
Women’s Health and Strengthening the Family.”
Annex to the letter dated 2 December 2020 from the
Permanent Representative of the United States of
America to the United Nations addressed to the
Secretary-General, UN Document No. A/75/626
(December 7, 2020). The statement affirmed 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 longstanding international consensus that each nation has
the sovereign right to implement programs and
activities consistent with their laws and policies.” Id.
Consistent with these positions, the U.S. government made several statements and reservations
31
related to the term “sexual and reproductive health”
and “reproductive rights” in the United Nations
General Assembly and Economic and Social Council.
The official U.S. government position during the
previous administration was that general terms such
as “health services” and “health-care services” were not
legally defined to include “access to legal abortion” and
that the U.S. held the right to implement health care
programs consistent with its laws on multiple occasions. See Statement of the United States, General
Assembly, 74th Session, 50th plenary meetings Wednesday, December 18, 2019, U.N. Doc. No. A/74/PV.50.
The same administration also asserted that there was
no international right to abortion. See Statement of the
United States, General Assembly, 74th Session, 49th
plenary meetings Monday, December 16, 2019, U.N.
Doc. No. A/74/PV.49, see also Statement of the United
States, General Assembly, 73rd session, 55th plenary
meeting Monday, December 17, 2018, U.N. Doc. No.
A/73/PV.55 (“there is international consensus that the
Declaration and Programme of Action do not create
new international rights, including any right to
abortion”). Further, the administration did not accept
references to “sexual and reproductive health” that
would “promote abortion or suggest a right to abortion.” See Statement of the U.S., General Assembly,
73rd session, 54th plenary meeting Monday, December
14, 2018, U.N. Doc. No. A/73/PV.54.
In stark contrast to the previous administration,
the administration of U.S. President Joseph R. Biden,
Jr. issued a Memorandum on Protecting Women’s
32
Health at Home and Abroad, in which he declared, “It
is the policy of my Administration to support women’s
and girls’ sexual and reproductive health and rights
in the United States, as well as globally.” See Administration of Joseph R. Biden, Jr., Memorandum on
Protecting Women’s Health at Home and Abroad
(Jan. 28, 2021). The Memorandum goes on to describe
restrictions on abortion-related activities in federal
law as well those added by his predecessor in the
executive branch as “excessive.” Id. The Memorandum
instructs the Secretary of State to withdraw cosponsorship and signature from the Geneva
Consensus Declaration.”
In another dramatic shift, the Biden Administration “supported” each of the fourteen recommendations
by foreign powers to remove federal restrictions on
abortion funding in the last cycle of the Universal
Periodic Review, mentioned above in sub-section III(B).
To “support” human rights claims such as these in the
context of the Universal Periodic Review, means to
accept that they are legally founded and to commit to
remedy any human rights violations. See U.N. Human
Rights Council Res. on U.N. Human Rights Council:
Institution-Building, U.N. Doc. No. A/HRC/RES/5/1,
June 18, 2007. Rather than reject the claim that the
U.S. is obligated to promote and fund abortion because
of an “international right to abortion” like the
preceding administration, the Biden Administration
seemingly accepted a legal obligation imposed upon it
by the Universal Periodic Review.
33
Although, the Biden Administration has not
expressly stated that abortion is an international
human right, the administration’s actions through the
Universal Periodic Review, it’s withdrawal from the
Geneva Consensus Declaration and its support for
terminology on “sexual and reproductive health” to
include abortion, indicates the possibility of recognizing an international human right to abortion.
The shift in how U.S. administrations interpret
international human rights law is even straining the
normal functioning of independent U.S. government
entities established pursuant to Federal Law. The U.S.
Commission on Unalienable Rights, established pursuant to the Federal Advisory Committee Act,
acknowledged the existence of conflicting human
rights claims on issues such as abortion. See Report of
the Commission on Unalienable Rights (2021), at 48,
https://www.state.gov/wp-content/uploads/2020/07/DraftReport-of-the-Commission-on-Unalienable-Rights.pdf
(last visited July 22, 2021). The commission’s report
was “repudiated” by U.S. Secretary Anthony Blinken.
In his statement announcing the “disbanding” of the
commission, Secretary Blinken did not hide the
differences with the previous administration on this
subject, stating that, “women’s rights—including
sexual and reproductive rights—are human rights.”
Secretary Antony J. Blinken Remarks to the Press,
March 30, 2021, available at: https://www.state.gov/
secretary-antony-j-blinken-on-release-of-the-2020country-reports-on-human-rights-practices/.
34
The aforementioned examples are just a few
instances where shifting political paradigms result in
confusing and inconsistent legal interpretations of
treaty obligations by the U.S. State Department. The
Court should define the legal status of children in the
womb under international human rights law in order
to promote a consistent approach to human rights
between alternating administrations with widely
divergent views on abortion.
---------------------------------♦---------------------------------
CONCLUSION
Much as the framers of the U.S. Constitution
compromised on slavery to allow Southern states to
join the Union, the compromises reached in the Covenant and subsequent international agreements have
allowed nations with vastly different understandings
of when and how the right to life applies in the
prenatal phase to ratify the same instruments and
cooperate internationally. It behooves the Court to
interpret international instruments in a way that
respects the fundamental human dignity of all
members of the human family without exclusion and
avoid the mistakes of the past. See Dred Scott v.
Sandford, 60 U.S. 393 (1856). For these reasons the
Court should declare Mississippi’s law consistent with
35
the obligations of the United States under international human rights law.
Respectfully submitted,
ALEXIS I. FRAGOSA, ESQ.
Counsel of Record
STEFANO GENNARINI, ESQ.
CENTER FOR FAMILY AND
HUMAN RIGHTS, C-FAM
757 3rd Avenue, Suite 2119
New York, NY 10017
(202) 844-6538
alexis@c-fam.org
stefano@c-fam.org
Counsel for Amicus Curiae
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.