One day the Supreme Court will take a case that could overturn the regime of abortion currently allowed by the U.S. legal system. When that happens, the country will have a legal and political conflagration such as it has never seen or heard of before. Massive armies on either wide will assemble and advance on each other and upon the Court.
The prospect of such a fight and what may follow is likely a reason that some people still poll in favor of Roe v Wade, even though they may believe our current regime of abortion for any or no reason is unjust.
You can be sure abortion proponents will throw the kitchen sink at the high court and at the country. They will include what they consider to be international norms. They will argue that the world is pro-choice and they will point to certain laws and documents to make their case. And they will cite the laws of other countries, particularly those in Europe.
They will invoke decisions of the European Court of Human Rights, and U.N. treaties and the conclusions of treaty bodies. They will cite non-binding documents such as those that came out of the Cairo Conference on Population and Development. We may even be treated to lessons from a document of the African Union called the “Maputo Protocols,” the only international treaty that calls for legal abortion.
A case just handed down by the Inter-American Court of Human Rights shows us how this works and gives us a glimpse into our own future.
Last week the court struck down a Costa Rican law that banned in vitro fertilization. Piero Tozzi of Alliance Defending Freedom explains that the court ruled such “restrictions violated rights to privacy, personal autonomy, and ‘sexual and reproductive health’ under the American Convention on Human Rights (ACHR), commonly knows as the Pact of San José.” He says the Court also “ruled that a human embryo lacks the legal status of a ‘person,’” and that life begins not at conception, but at implantation – even though the ACHR is the only international treaty that explicitly protects the right to life “from conception.”
The glimpse into our future lies in the fact that the Court cited numerous foreign documents including the Cairo Program for Action, the Bejing Platform for Action, reports of the World Health Organization, general observations of a U.N. Treaty Monitoring Body, and cases from the European Court of Human Rights.
This is the long-time legal strategy of the international abortion lobby: to create a body of legal or quasi-legal decisions that courts may quote in striking down or upholding abortion laws. The court then uses these references to supposedly show a growing global consensus in favor of – in this case – in vitro fertilization, but more broadly “reproductive rights” that include a right to abortion.
The problem with these references is that they cannot properly be cited to reach any such conclusions. The Cairo and Beijing documents were non-binding documents and therefore cannot honestly represent any global consensus on IVF, abortion, or any other thing. U.N. Treaty Monitoring bodies do not have any authority to bind states to do anything. Still lawless judges, judges who stand for themselves and not the rule of law, do whatever pleases them.
Here is the problem for us. It is a dead certainty that abortion proponents will use these same documents and bodies when the Supreme Court eventually rehears Roe. Some on the Court will cite them, too, either a majority if Roe is upheld or a minority if it is struck down.
The Supreme Court has already shown a taste for this. Justices cited the Convention on the Rights of the Child, a treaty the United States has never ratified, when they struck down the death penalty for crimes committed under the age of majority. In the same case, the Court cited the International Covenant on Civil and Political Rights, a treaty we have ratified, but they referred to a part of it, on the death penalty, that we formally rejected at ratification.
When the Court constitutionalized homosexual sodomy, Justice Kennedy cited decisions of the European Court of Human Rights. In that same Lawrence decision, he cited an amicus brief submitted by former U.N. human rights chief Mary Robinson that claimed international norms now demand striking down laws against homosexual acts.
The current Supreme Court may very well continue to go this way. Scalia and Thomas are already on record opposing the use of foreign and international law and both Roberts and Alito rejected this practice during their Senate hearings. But the majority of the Court – Kennedy, Sotomayor, Breyer, Ginsburg, and Kagan – is fine with it.
The Costa Rica case will not have any direct impact on the United States. We are not a party to the Pact of San José and we already have the most wild and wooly laws on IVF, that is, we have no regulations at all. The case will have an impact on IVF laws around Latin America and will eventually have a profound impact on legal abortion around the continent.
You can be sure, however, that the use of foreign law and international bodies will be noted approvingly by the usual suspects on the Court.
The Costa Rica case shows in great detail what Robert Bork described in one of his final and most important books, Coercing Virtue: The Worldwide Rule of Judges , how judges, those he called “Olympians,” look down from on high, contort law, and impose their own private contortions on the rest of us.
It is the sorry and frightening that our own Supreme Court Justices think they have more in common with the judges on the Inter-American Court than with their own people or the founders of our country.