The “Partial Birth” Abortion Decision and the Utter Absence of International and Foreign Law

by Julian Ku

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.

http://opiniojuris.org/2007/04/18/the-partial-birth-abortion-decision-and-the-utter-absence-of-international-and-foreign-law/

9 Responses

  1. “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.”

    Haha—That’s a very cynical view, which I am sure is correct.

  2. This is a great day for the pro-life movement. We have Senator Sam Brownback to thank for rejecting the Miers nomination and getting Justice Alito on the court.

  3. And anti-internationalists to not cite foreign or international precedents in trying to make a virtue of their ignorance.

    Best,

    Ben

  4. Still, with Kennedy writing the majority, you think he would have seized this opportunity to gain a bit of positive PR among the right for citing to international law, since, as you said it would support his (and their) position.

  5. There is one footnote reference in Ginsburg’s dissent at note 9: “Eliminating or reducing women’s reproductive choices is manifestly not a means of protecting them. When safe abortion procedures cease to be an option, many women seek other means to end unwanted or coerced pregnancies. See, e.g., World Health Organization, Unsafe Abortion: Global and Regional Estimates of the Incidence of Unsafe Abortion and Associated Mortality in 2000, pp. 3,16 (4th ed. 2004) (“Restrictive legislation is associated with high incidence of unsafe abortion” worldwide; unsafe abortion represents 13% of all “maternal” deaths)”

    Not particularly helpful, but there you have it. Otherwise I agree with Julian’s sentiments.

    Roger Alford

  6. “we can expect pro-internationalist justices to continue citing foreign and international precedent when it supports them, but ignore it when it does not.”

    You could see it as inconsistent decision making by the “pro-internationalist” judges, but shouldn’t you rather be happy about the fact that they are not merely importing foreign law and applying it to the US context? Clearly they are making up their own mind, even if that leads them to a more liberal result than what foreign law would suggest…

    Is the issue really the reliance on international sources in other decisions or the fact that international sources in the past used to lend more support to the liberal, as opposed to the conservative, side of the argument? I wonder whether the reaction would have been the same as after Roper, if the Supreme Court had invoked international law this time round. My guess is not.

  7. There’s also the thing that they were not deciding on the merits of the right to abortion as such, but on the constiututionality of the ban on a particular abortion procedure. I haven’t even heard of any comparative case dealing with ‘partial birth’ abortion.

    But, in any event, you are right that international jurisprudence supports the conclusion that states are allowed to regulate abortion as they see fit, within certain minimal parametars.

  8. I find it much easier to distinguish this case from Roper than I do to distinguish it from Stenberg. I do not find it the least bit surprising that there was no discussion of foreign and international law in this case because, as Marko pointed out, there is no law (let alone international consensus) on how to deal with “partial birth” abortion. The 1975 German Constitutional Court case that Julian references is far too bound up in the intricacies of the German Basic Law to have any persuasive force in this context.

    I am also not surprised by Kennedy’s opinion here, but I do find it impossible to reconcile with his embrace of stare decisis in this very context in Casey.

  9. This is a great day for the pro-life movement. We have Senator Sam Brownback to thank for rejecting the Miers nomination and getting Justice Alito on the court.

    Of all the people to blame, why him? Do you feel Miers would have voted differently? I think it unlikely.

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