The International Implications of Overturning Roe v. Wade

By Stefano Gennarini, February 21, 2019

If the Supreme Court overturns Roe v. Wade it might set back the movement for an international right to abortion several decades. It might even defeat it once and for all.

International abortion-rights groups are in a panic. With the confirmation of Brett Kavanaugh to the US Supreme Court, there is a real expectation that the Court may reverse Roe v. Wade wholly or in part when it reviews future abortion cases. Such a crippling loss would threaten legal abortion not just in the United States but around the world.

“We may face the greatest risk to the future of reproductive rights,” warned the Center for Reproductive Rights below an ominous, darkened photo of the Supreme Court on their home page last summer. The group, which was founded by the late, trailblazing abortion lawyer Janet Benchoff, has been at the heart of the international campaign for a human right to abortion since its founding in the 1990s.

“If confirmed, Kavanaugh would pose a grave threat to sexual and reproductive health and rights, both in the United States and around the world,” lamented Shannon Kowalski, director of advocacy at the International Women’s Health Coalition in a press release following Kavanaugh’s nomination on July 9th. With the help of the Clinton administration, this UN-focused abortion group was instrumental in getting abortion in UN policy at the 1994 International Conference on Population and Development.

While some might dismiss this as scaremongering by pro-abortion groups, their alarm is not without justification. If Kavanaugh were to side with the pro-life justices on the Supreme Court and help reverse Roe v. Wade in whole or in part, the Court would not just reverse a precedent binding on the fifty US states. It would also deal a severe—perhaps even fatal—blow to the campaign for an international right to abortion.

Ending the Global Campaign for an International Right to Abortion

Whenever the Supreme Court next revisits Roe v. Wade, abortion groups will almost certainly argue that a customary human right to abortion has emerged through international human rights mechanisms.

Scholars disagree on what qualifies as a binding, customary international norm. Some question the validity of making customary law claims in the area of human rights altogether. Traditionally, a binding customary norm is said to exist when States, with near uniformity and universality, engage in a specific type of conduct based on the understanding that such conduct is required by international law. In recent decades, both judges and activists have lowered this standard (without changing it altogether) to make the possibility of customary international law claims easier, including in new areas where customary international law never existed, such as human rights.

The strategy of abortion-rights groups is to capture UN agencies and the UN human rights machinery, get them to recommend the legalization of abortion internationally, and thereby allow abortion lobbyists to claim in national courts that a customary, international human right to abortion has emerged. Countries will then legalize abortion and claim they were bound by international law to do so.

This is not conjecture or a conspiracy theory. The details of the campaign for a human right to abortion were laid out in the Congressional Record by Rep. Chris Smith in 2003, after he obtained a leaked internal memo of the Center for Reproductive Rights. My C-Fam colleagues have documented extensively the progress of abortion groups in the UN human rights system, and abortion groups have already made this very argument in courts all around the world. While they have held back from making these claims in the United States, they have already cited non-binding UN agreements in US Courts as evidence of an international consensus that suggests the emergence of an international right to abortion.

In a lawsuit against the Mexico City Policy in 2002, the Center for Reproductive Rights subtly suggested that UN conferences in the 1990s, and other developments at the UN, were giving rise to a human right to abortion under customary international law. Then-Judge Sonya Sotomayor, who dismissed that case based on standing when she sat on the second circuit, may get a chance to pronounce on the merits of whether abortion is a customary international right on the Supreme Court in the not-too-distant future. Abortion-rights groups have been preparing carefully for the day when they can make this claim fully in federal court, and now they can cite hundreds of UN pronouncements from treaty bodies and other UN entities over the last thirty years in support of their claims.

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Stefano Gennarini is the Vice President for Legal Studies at the Center for Family and Human Rights (C-Fam) in New York. He tweets as @prolifeadvocate. The views expressed here are solely his own.