25 Sep Does the International Right to Life Prohibit Abortions?
One way to build political coalitions for greater use of international law in the U.S. would be to use international law to advance political goals of folks who would otherwise be suspicious of international law. So I wonder if there is some reason to think liberal internationalists would be willing to embrace the argument made in a recent book by Rita Joseph, Human Rights and the Unborn Child. As described over at National Review’s Bench Memos blog, Joseph’s book argues that international human rights law, properly understood, supports the protection of human fetuses and limits or prohibits abortions. Here is a description of her argument:
Joseph concludes that “the human rights of the unborn child were recognized…in the foundation documents of modern international human rights law.” Her argument is impressive, demonstrating an informed grasp of the textual and contextual development of the relevant instruments. An instrument central to her case is the U.N. Declaration of the Rights of the Child (1959). A crucial paragraph in its preamble reads:
“Whereas the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth.”
This Declaration confirms, she contends, international agreement that the UniversalDeclaration of Human Rights (1948) recognizes the rights of the unborn. She adds that the word “child” was understood in 1948 to include the child before birth. (She could have noted that the first definition of the word in the Oxford English Dictionary is the “unborn or newly born human being”). She recalls the historic legal prohibition on aborting any woman “with child” and the even longer Hippocratic prohibition on abortion, which was reaffirmed by the World Medical Association’s Declaration of Geneva only three months before the UniversalDeclaration: “I will maintain the utmost respect for human life from the time of conception, even under threat…”
I haven’t read the book, but it certainly looks like a pretty interesting argument.
This may be a bit off point, but I’m going to steal from an anonymous commenter on my blog, who said the following about the limitations of any discussion of “rights”:
there are probably always two (or more) competing “rights” that can be pitted against one another … . The possibility of meeting one made-up “right” with another competing, made-up “right” reduces the analytical value of speaking in terms of “rights”.
With that in mind, I’m not sure bringing the “right to life” vs. “right to choose” debate to the international sphere would be good for international law.
This is a very old issue, and was already the crux of a lawsuit in Nicaragua (in which a nine-year-old girl wanted an abortion in a highly Catholic country that had the right to life for the unborn enshrined in law).
In the end it will always come down to only one thing: what is our definition of ‘life’ and, consequently, to when protection for that life starts. Once that is clear, it boils down to more ‘standard’ medical ethics.
Of course, that definition of life is highly contested by philosophers (legal and otherwise), ethicists, and everybody else and their uncle. So good luck.