Emerging Threats :: Americans United for Life

By Denise M. Burke

Vice President & Legal Director, Americans United for Life

Pro-life Americans were rightfully pleased and energized by the United States Supreme Court's (USSC) April 2007 decision upholding the federal ban on partial-birth abortion. This landmark decision marked the first time that the Court has upheld a ban on a specific abortion procedure and, equally importantly, opened the door to more meaningful regulation of abortion.

However, as we work to take maximum advantage of new opportunities, we must remain cognizant of existing and emerging threats to women and the unborn, recognizing that abortion supporters were equally energized by the Court's decision in Gonzales v. Carhart and are diligently working to advance their agenda of abortion-on-demand.

Among these threats are three that are especially worthy of meaningful and immediate attention: the Freedom of Choice Act; international law and conventions; and the increasing reliance of American courts on international jurisprudence in interpreting the U.S. Constitution and laws. In this article, we will take a brief look at each of these critical issues. Further, recognizing the importance of analysis and discussion of emerging threats to human life, we also plan to provide even more comprehensive coverage of these and other threats in future editions of Defending Life.

Freedom of Choice Act

In the days following the Court's decision in Gonzales, pro-abortion leaders in Congress re-introduced the Freedom of Choice Act (FOCA),¹ sweeping legislation designed to enshrine abortion-on-demand into our laws and simultaneously wipe out existing federal and state laws related to abortion including informed consent, parental involvement, requirements that only licensed physicians perform abortions, protections for unborn victims of violence, protections for healthcare rights of conscience, and many others.

The sponsors and supporters of this legislation immediately emphasized that the FOCA would (among other things) nullify the USSC's decision in Gonzales, overturning the national ban on partial-birth abortion that is supported by a significant majority of Americans. In fact, many statements from Congressional sponsors and pro-abortion groups were pointedly critical of the Gonzales decision and set the stage for political battles ahead. For example, Kim Gandy, President of the National Organization for Women (NOW) stated that the FOCA "would legislatively reverse the Court's damaging decision and will enshrine in federal law our right to safe, legal abortion . . . Our ultimate success depends on electing a president who will sign the legislation and electing a Congress that can withstand any challenge or filibuster."²

Critically, supporters of the federal FOCA have disingenuously argued that it is simply a codification of Roe v. Wade and as such will protect women's health. Both statements are patently untrue.

In reality, the legislation would nullify any "statute, ordinance, regulation, administrative order, decision, policy, practice, or other action" that "den[ies] or interfere[s] with a woman's right to choose" abortion or that "discriminate[s] against the exercise of the right . . . in the regulation or provision of benefits, facilities, services, or information." Clearly then, the federal FOCA goes beyond Roe, enshrining abortion-on-demand into our laws. It would also overturn all abortion-related laws that have been approved by the USSC and other federal and state courts, such as informed consent, parental involvement, health and safety regulations for abortion clinics, and innumerable others designed to protect women from the negative consequences of abortion. Under the auspices of the FOCA, American taxpayers would also be forced to pay for elective abortions.

The impact and influence of the federal FOCA would reach beyond abortion to invalidate protections for unborn victims of violence by overturning laws criminalizing fetal homicide and assault and to threaten the freedom of conscience of healthcare providers by forcing them to participate in abortions or risk their jobs. Notably, proposed state versions of this dangerous legislation have also surfaced in places like New York.

International Law and Conventions

The threat posed by international law and conventions comes in two primary forms: (1) international conventions interpreted as calling for abortion-on-demand and for the elimination of any laws seen as restricting or interfering with the abortion license; and (2) efforts by American pro-abortion advocacy groups to impose abortion-on-demand on other nations and then argue that those pro-abortion laws should influence or even trump U.S. laws.

For example, abortion supporters have recently renewed their efforts to have the United Nation's Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) ratified by the U.S. Senate. CEDAW is, in significant part, another vehicle that could be used to invalidate state and federal abortion-related laws and impose radically pro-abortion policies on the American public.

In pertinent part, CEDAW states that "State Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning." While the term "abortion" does not appear in the text, the provisions of CEDAW have been interpreted by official bodies including the United Nations (U.N.) CEDAW Committee and the European Parliament to condemn limitations on abortion, on grounds that any restrictions on abortion are per se discrimination against women.³

In practice, the official U.N. CEDAW compliance committee has consistently exceeded its mandate, using the CEDAW as "the basis for criticizing member nations and pressuring them to weaken or repeal laws protecting women and the unborn."⁴ Nations targeted for criticisms by the CEDAW Committee have included Western nations with strong Catholic and pro-life traditions (such as Ireland and Poland) and nations in the developing world (especially in Latin America and in Africa).

Further, many American abortion advocacy groups are also very active in these and complementary efforts. For example, on its website, the Center for Reproductive Rights (CRR) states that it "engages in international, regional, and national-level advocacy, policy analysis, legal research, public education, and international litigation with the goal of advancing women's equality throughout the world and ensuring that all women have access to a full range of freely chosen reproductive health services. In particular, [they] seek to ensure that national-, regional-, and international-level discussions of women's reproductive rights occur within a human rights framework. Moreover, [they] aim to contribute to the development of robust legal and policy foundations for reproductive rights in all of the regions and countries where [they] work."⁵

If the U.N., other international bodies, American pro-abortion advocacy groups, and their supporters are successful, abortion-on-demand will be seen and accepted as the international norm and that norm will be used to influence and even intimidate nations where abortion is regulated or restricted in any manner, including the United States.

American Courts' Reliance on International Jurisprudence

Another emerging threat involves the increasing tendency of American courts -- including the USSC -- to look to jurisdictions outside of the United States for guidance in interpreting our Constitution and laws. Many pro-abortion advocacy groups see this development as a promising way to defend the principles established in Roe v. Wade and to ultimately overturn existing state and federal laws with which they disagree, such as limitations on taxpayer-funded abortions, parental involvement for minors seeking abortions, and other measures designed to protect the health and safety of women seeking abortions.

The USSC has recently begun incorporating international law and norms into its decisions and its interpretation of the U.S. Constitution. This tendency will likely continue and even increase if more liberal justices are appointed to the Court in the future. For example, in March 2005 by a vote of 5-4, the USSC ruled that the death penalty could not be imposed on youthful murderers who were not yet 18 years of age at the time they committed the crimes. In his 25-page opinion, Justice Anthony Kennedy gave significant deference to international laws, noting that (at the time) the United States was one of only a small number of countries that still gave official sanction to the juvenile death penalty and that 19 of the world's 39 executions of youthful offenders had been carried out in the United States since 1990.⁶

Similarly, it is not hard to imagine the Court continuing this trend in cases involving so-called "reproductive rights" including abortion. In fact, this is exactly what groups like CRR are hoping for. They see international law as the future and best line of defense to protect the principles delineated in Roe v. Wade and to expand "reproductive rights." For example, CRR filed suit against the Bush administration in 2001, challenging the "Mexico City Policy," a policy prohibiting nongovernmental organizations (NGOs) from using U.S. taxpayer money to advocate abortion overseas. In that lawsuit filed in U.S. district court in New York, CRR states that "[c]ustomary international law is embodied, inter alia, in treaties (even if not ratified by the United States), the writing of international jurists, and documents produced by the United Nations international conferences."⁷ CRR goes onto argue that, even if Roe v. Wade were overturned by the USSC, because of the establishment of a customary [international] right, abortion would still be the law of our land, indeed, that "abortion is the law of the world."⁸

Despite pro-abortion arguments to the contrary, abortion-on-demand is not yet the "law of the world" or the United States and these insidious threats can be defeated. However, this requires that pro-life Americans and those who value our national sovereignty stay informed and make their values and concerns known.

Endnotes

1. See H.R. 1965 (2007) and S. 1173 (2007). FOCA was first proposed in the late 1980's when abortion supporters feared that the USSC might overturn Roe v. Wade.

2. See "The 'Freedom for Partial-Birth Abortionists Act' -- Pro- Abortion Lawmakers Propose 'FOCA' to Invalidate All Limits on Abortion" available at http://www.nrlc.org/FOCA/LawmakersProposeFOCA.html

3. See National Right to Life Committee (NRLC) Letter Urging Opposition to CEDAW available at http://www.nrlc.org/Federal/ForeignAid/SenateCEDAWletter020107.html

4. Id.

5 See http://www.reproductiverights.org/worldwide.html#ILP

6 See http://www.usinfo.state.gov/dhr/Archive/2005/Mar/02-169502.html

7 The Center for Reproductive Law and Policy v. Bush (S.D.N.Y. 2001).