The San Jose Articles and an International Right to Abortion
Abortion advocates are on a mission to establish an “international” right to abortion using “soft norms” under customary international law. Their ultimate goal is to weave throughout the various sources of customary international law, language implying an international consensus that abortion is a necessary component of fundamental health that must be provided by States to their citizens. If national bodies, including courts, accept the notion that an international customary law right to abortion exists, those bodies could impose it upon their citizens.
To understand the dilemma, let us imagine the reversal of Roe v. Wade (1). From the perspective of a person who has faithfully participated in the March for Life (2) in Washington D.C. each year in protest of Roe. In one day the U.S. Supreme Court announces it is reversing Roe and holds that a right to abortion cannot be derived from the words of the Constitution (3). It does not take much imagination to understand the joy this news would bring to the faithful marcher, whose decades-long protest has apparently borne fruit. But then, imagine the devastation the marcher would feel if the Supreme Court were to announce that, despite the reversal of Roe, a right to abortion nonetheless exists in the United States because abortion has been established as a human right under customary international law. Such an established right is the prize for which abortion advocates are working—a failsafe backstop for the day when the Supreme Court finally reverses Roe.
Nonetheless, since, as demonstrated below, the foundational human rights documents do not recognize a right to abortion, the burden of proof lies upon abortion advocates to prove that an unwritten right to abortion has come into existence. It is a burden they cannot carry.
1 Roe v. Wade, 410 U.S. 113 (1973).
2 See MARCH FOR LIFE, http://marchforlife.org.
3 Neither under a “liberty” or “privacy” interpretation, U.S. Const. amend. XIV, § 1.