Ancillary #1: Abortion and International Law
In recent months, the right to abortion has once again taken the center stage of the American judicial system. As the conservative-leaning supreme court hears and decides Dobbs v. Jackson Women’s Health Organization, it seems likely that Roe v. Wade and Planned Parenthood v. Casey, the two cases that have been securing women’s right to access abortion without undue burden, are going to be overruled. The trend of pushing back the progress that has been made by proponents of reproductive rights does not only exists in the United States, as traditionalists in other countries such as Kenya and Poland are making similar efforts. With a right that many deem to be fundamental at risk, here comes the question: can international organizations such as the UN recognize abortion as a universal human right and offer substantive protection by making international laws accordingly? While I personally support women’s right to complete bodily autonomy, I would have to argue here that abortion is not an issue that can be addressed globally or through international laws.
For the proponents of codifying abortion into international law, there is an inevitable conflict between the right to abortion and the conflict of cultures and values. Most opponents of abortion (such as Roman Catholics in Poland and Evangelical Christians in the Southern United States) are driven by their religious belief that abortion is killing. According to international law, it is certainly not wrong for them to hold such belief as freedom of religion is a fundamental right according to the Universal Declaration of Human Rights of 1948 and the International Covenant on Civil and Political Rights of 1976. In most countries that attempt to limit women’s access to abortion, a large number of their citizens practice certain religions that indoctrinate the moral wrongness of abortion. Thus, for those who would like to legislate internationally on protecting the right to abortion, premised upon their politically progressive stance, a dilemma emerges: while they are generally welcoming towards religious and cultural diversity, to make the recognition of abortion universal, they would have to admit that the belief of “my body my choice” is somehow superior compared to “abortion is killing” and superimpose such value over the dissenting voices. Such action may pose a threat to the more recognized human right of religious liberty and even threaten the sovereignty of the countries in which religions against abortion are widely practiced. Here, if we use deductive reasoning, for a country C in which the vast majority of its population practices religion R that prohibits abortion, and the legislative institution of C is making law L that outlaws abortion while UN is making an international law I for the universal access of abortion, we would have the following:
P1: It is not wrong for people in C to believe in R;
P2: L would reflect the view of the vast majority of people in C;
C1: It is not wrong to make L.
P3: By making I that overrides the justly made L, the UN breaches the self-determination of the people in C (or breaches the sovereignty of C);
P4: It is wrong to breach a country’s sovereignty when a country has no wrongdoing;
C2: UN’s making of I is wrong.
In addition to the moral concern, the lack of practicability of international law further limits its potential to universalize abortion. Before I begin arguing for the lack of practicability, I must first concede that there has been some success in defending abortion via international law. For example, in a 2003 case of KL v. Peru, the UN human rights committee ruled that the Peruvian government must compensate KL, a minor whose pregnancy was caused by rape, for her loss due to the government preventing her from abortion. This case was later widely cited in Peruvian courts as the source of women’s right to abortion under some circumstances, which led to the progress of protecting reproductive rights in a country that was previously dominated by conservative Catholic values. However, the case of Peru is rare and most likely unrepeatable. First, while the case is about abortion in general, the specific texts that the decision cited were about cruel, inhumane, and degrading treatment and special protection of minors. The court may have ruled differently in a case with less special circumstances. Second, very few other countries may embrace the decision of an international organization as thoroughly as Peru did. For example, the Supreme Court of the United States had repeatedly ruled that the authorities of international laws and treaties are not recognized by the U.S. courts unless they are incorporated into U.S. codes, a federal appellate court had even ruled that U.S. citizens cannot bring their cases to UN Human Rights Committee for potential breach of the International Covenant on Civil and Political Rights. Hence, the range of protection of international law is often narrower than what it is intended to be, not to mention the fact that the enforcement of international law is often no more than countries’ self-restraint. If a country disagrees with certain international laws, it can simply choose not to sign or to ratify them, and this is exactly why the Saudi Arabian government was not held accountable for killing and quartering the Turkish journalist in 2018. In a potential case on abortion, if a country is simply against the provision of abortion, they are most likely to get away without consequences.
Therefore, considering the ethical and practical aspects of a potential international law that universalizes the right to abortion, I have to say that while there might be plenty of paths to protecting women’s reproductive rights, international law is unfortunately not one of them.
