Abortion Rights: The Next Front in International Law?

by Peter Spiro

Some prominent coverage in the last couple of days of Nicaragua’s recent enactment of a total prohibition on abortion – see front page stories here and here in the Boston Globe and Washington Post. The reports suggest plans to take the law to the Inter-American Commission and the UN Human Rights Council. The WaPo story also mentions protests by unspecified foreign governments.

Meanwhile, 74 House lawmakers have sent a letter to Amnesty International USA urging it to oppose a proposed AI policy deeming abortion to be a human right in limited circumstances. (That’s an interesting turn of the table: legislators lobbying NGOs, rather than the other way around.) See the respectful acknowledgment by AIUSA here. The matter will be taken up at an AI summit this summer in Mexico City. Of course there are now also international NGOs (leaving the Vatican aside) pressing a pro-life agenda as well.

One could imagine that over the next twenty years or so there will emerge an international norm protecting a right to abortion in some cases, which is not of course to say that it will be an easy agenda to advance.


7 Responses

  1. Peter,

    If we were to assess the status of human rights law today, abortion is not entirely unregulated. As

    First of all, there is no human right to abortion, nor do I personally feel there should be one. There is also no general consensus on when human life begins, so there is also no bar on abortion from a human rights standpoint. Today it is upon each individual state to opt for itself, through a democratic process, when abortion is permissible and when it is not, as it is upon each state to choose the moment at which human life begins. In HR lingo, due to a lack of moral consensus, states have a significant margin of appreciatiob. See, e.g., Vo v. France.

    But, international law does seem to provide for the outer limits of a ban on abortion. Of the three items now on Amnesty’s agenda, the first, the right to health care in regard to complications arising out of abortion would seem to be relatively uncontroversial.

    The second, namely the right to abortion in cases of rape, incest or risk to the woman’s life also seem to be entirely acceptable. If a case of a woman whose life is in danger due to her pregnancy and who is unable to abort due to a general prohibition would come before any international court or treaty body, I cannot imagine that her claims would be denied. But, it would not be her human right to abortion that would be at stake, but her right to basic physical integrity and her right to life.

    It is one thing to ask of a woman to bear the consequences of a risk that she willingly took when she engaged in consensual sexual conduct, it is quite another to ask of her to bear such consequences if the pregnancy itself was imposed on her or is endagering her own life. Indeed, in Ireland, a country which has a constitutionally protected right to life of a foetus and a constitutional prohibition on abortion, the Supreme Court has held that a rape victim whose life was in danger, as the unwanted pregnancy made her suicidal, must be allowed to have an abortion. See Attorney General v. X.

    It is the third item on Amnesty’s agenda which to me seems to be rather unworthy of being called a human right, namely the removal of criminal penalties for those who seek or provide abortion. I do agree that these penalties are stupid, unproductive and dangerous, but accepting this propostion would basically mean that there really is a human right to abortion in all circumstances.

  2. Peter, I think you are correct. In fact, on May 10, 2006, the Constitutional Court in Colombia overturned Colombia’s complete criminal ban on abortion, carving exceptions when the mother’s life is in danger and in cases of rape and incest. The Colombian Court rooted its decision in international human rights treaties, which enjoy supra-constitutional status in Colombia. A women’s rights NGO, dedicated to “promoting gender equality through the strategic implementation of human rights law worldwide” appears to have been at the helm of this litigation.

  3. Marko and Janet, Thanks for the interesting additional information. Sounds like some sort of norm is already starting to crystallizing here.

  4. Professor Spiro:

    Colombia overturned a complete ban on abortion, while Nicaragua implemented one. That’s an even split. How can you honestly claim that “some sort of norm is already starting to crystallize here”?

    You’ve elegantly demonstrated that int’l law professors just pick and choose to justify their own policy preferences and call them “law.”

  5. anon: the question is whether the Nicaragua law sticks. If not, and as a result of international pressure framed in terms of human rights, that would be (objective) evidence of the emergence a norm. Take a look at this map – very few countries have absolute bans on abortion.

  6. Dear all, having recently wrote a paper on this issue I agree with Marko that there is in fact already a right to abortion in limited situations that he is raising. To add the Human rights committee considered the issue in a recent Huaman case. There in addition to other reasons for abortion (life threatening pregnancy for th emother, rape, inces)it found that prohibition of abortion of an anencephalic foetus violates article 7 of the ICCPR.

  7. Jan–the fact that you wrote an article on it doesn’t make it so. That’s part of the problem w int’l law, as Sec. Chertoff recently explained, that law professors think that because they say the law is X, the law actually is X. And it should go w/o saying, tho’ apparently it must be said, again, that opinions of the Human Rights Committee are not law.

    Professor Spiro, what impresses me about the map is how far more restrictive of abortion rights is the rest of the American hemisphere than the United STates. As others have pointed out, why is int’l law (or Inter-American human rights law, as the case may be) only cited when it expands or confirms liberal US posistions on individual rights? This map could easily be cited for the position that the United States is not protective enough of unborn life and that the US is violating the “right to life” of unborn children in inter-american human rights law, with the result that the US must restrict abortion only to the most extreme cases. But I don’t expect that to happen anytime soon among law professors. I think it’s about as likely as someone citing Sharia as evidence of int’l law on the treatment of women and homosexuals.

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