The “Partial Birth” Abortion Decision and the Utter Absence of International and Foreign Law
Let me beat Roger to the punch on this one. Where are the international and foreign law precedents in today’s landmark U.S. Supreme Court decision upholding a federal law banning the so-called “partial birth abortion” procedure? As far as I can tell, today’s opinion is free of any such references.
This is surprising because the right to choose whether or not to have an abortion has been analyzed and considered by many countries. Like the ban on the execution of juveniles (Roper v. Simmons) or even the ban on homosexual sodomy (Lawrence v. Texas), the right to choose an abortion is fertile ground for constitutional comparativism. Indeed, a number of amici who participated in the decision did cite foreign and international practice in support of both sides. Probably the most extensive discussion of the 1975 West German Constitutional Court decision on the right to life of a fetus is found in a brief filed by a group called Legal Defense for Unborn Children (not available online).
But neither the majority opinion upholding the ban nor the dissenting opinion cited a single foreign or international precedent, as far as I can tell. The majority didn’t cite any such precedents largely because most of the justices in the majority eschew such precedents, even when it supports their side. The dissenting minority didn’t cite any such precedents because, frankly, most international precedents appear to allow severe restrictions or even bans on abortion procedures in the second two trimesters. So it doesn’t really help them very much.
Therefore, going forward, we can expect pro-internationalist justices to continue citing foreign and international precedent when it supports them, but ignore it when it does not.