Roughly 200 human rights organizations are asking the United Nations to declare that the United States is a violator of “international human rights law” because some states have passed pro-life laws after the Supreme Court’s Dobbs decision. Given that many countries ban and heavily restrict abortion, it is a pitch that is unlikely to gain traction at the U.N. However, the premise shows a significant escalation of rhetoric by groups like Amnesty International, the Human Rights Watch and other organizations.
The 53-page letter informs the U.N. that there are a host of barriers now in place for women and girls in the United States that deny them their human rights. Some of the alleged denials of health care are contestable under existing laws. For example, they claim that there are barriers to “accessing abortion in cases of miscarriage” and “denial of care in cases of ectopic pregnancy.”
The signatories make an “urgent appeal” that “by overturning the established constitutional protection for access to abortion, and through the passage of the state laws discussed above, the US is in violation of its obligations under international human rights law.”
The International Covenant on Civil and Political Rights (ICCPR)
The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD),
The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
The International Covenant on Economic, Social and Cultural Rights (ICESCR) (unratified)
The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (unratified)
The Convention on the Rights of the Child (CRC),188 and the Convention on the Rights of Persons with Disabilities (CRPD).
While the cited states are seeking to protect what they view as the lives of the unborn, the letter accuses the United States of contravening its “human rights obligations to respect the right to life and the right to health.”
The 13 states expressly named are: Alabama, Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, Oklahoma, South Dakota, Tennessee, Texas, West Virginia, Wisconsin, and Oklahoma. Georgia is also named for its severe limitation on abortion rights.
It also shows an increasing effort by individuals and groups to enlist other countries in core fights over rights in the United States. For example, figures such as Hillary Clinton have enlisted foreign governments to compel the censoring of fellow citizens: If Twitter can’t be counted on to censor, perhaps the European Union will be the ideal surrogate to rid social media of these posters if U.S. companies or courts will not do so.
The letter raises a long-standing debate over the role of international law as precedent in U.S. court. The Supreme Court has long debated the question with sharply different views.
In Lawrence v. Texas, Justice Kennedy referenced foreign precedent and practice in his majority opinion declaring sodomy laws to be unconstitutional. Justice Scalia shot back in dissent that “constitutional entitlements do not spring into existence … because foreign nations decriminalize conduct.”
Scalia repeatedly warned about the application of international law as precedent in U.S. cases, as in his concurring opinion in Sosa v. Alvarez-Machain where the Court considered whether the Alien Tort Claims Act granted a private right of action to individuals for torts under the law of nations. He wrote:
“The notion that a law of nations, redefined to mean the consensus of states on any subject, can be used by a private citizen to control a sovereignís treatment of its own citizens within its own territory is a 20th-century invention of internationalist law professors and human-rights advocates. The Framers would, I am confident, be appalled by the proposition that, for example, the American peoples’ democratic adoption of the death penalty, … could be judicially nullified because of the disapproving views of foreigners.
… We Americans have a method for making the laws that are over us. We elect representatives to two Houses of Congress, each of which must enact the new law and present it for the approval of a President, whom we also elect. For over two decades now, unelected federal judges have been usurping this lawmaking power by converting what they regard as norms of international law into American law. Today’s opinion approves that process in principle, though urging the lower courts to be more restrained.”