(C-FAM, Washington, DC) In an unprecedented move, a group of United Nations human rights experts told the U.S. Supreme Court that upholding a Texas pro-life law would violate international human rights law.
The U.S. Supreme Court may be on the verge of overturning the landmark abortion case Roe v. Wade, which made abortion a Constitutional right. It is thought this is the first such formal intrusion into a Supreme Court decision by UN actors.
“The United States would contradict international human rights law by overturning its established constitutional protections for abortion access,” the experts conclude in the brief. Abortion is “necessary for women’s autonomy, equality and non-discrimination,” they argue.
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The UN experts claim to want to “set the record straight and explain how international human rights law protects abortion access” in a legal brief submitted to the court last week in Dobbs v. Jackson Women’s Health.
The experts directly rebut the claims that children in the womb were never excluded from the right to life in international human rights law, in other briefs received by the Supreme Court in the same case, including a brief submitted by C-Fam, publisher of the Friday Fax.
“The right to life emanating from human rights treaties does not apply prenatally,” they claim.
The UN experts do not cite U.S. Supreme Court precedent, the U.S. Constitution, or the provisions of any UN human rights treaty ratified by the U.S. government to support their claim that abortion is an international right. Instead, they cite the non-binding opinions of UN experts.
“Over time, States and human rights bodies clarified that human rights treaty obligations encompass the reproductive rights of women and girls, including safe and legal abortion access,” they explain.
The brief argues that “protections for abortion access are necessary to fulfill the rights to equality and non-discrimination, life, privacy, health, and freedom from torture, cruel, inhuman and degrading treatment, as well as freedom from gender-based violence, among other rights.” Any prohibition on abortion access would result in a violation of these rights, according to the UN experts.
The experts also speculate that following a reversal of Roe v. Wade “many U.S. states will implement bans or near-bans on abortion access that will make individual state laws irreconcilable with international human rights law.”
The lead author of the brief is South African abortionist Tlaleng Mofokeng, who was appointed by the UN Human Rights Council as UN Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health in 2019. Following her UN appointment she came under scrutiny by anti-trafficking and child protection organizations for her promotion of legal prostitution as “sex work” for teen girls. Mofokeng was joined by 2 other UN mandate holders, including the UN special rapporteurs against racism and torture, as well as all five members of the UN Working Group on discrimination against women and girls.
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Though the experts claim the “privileges and immunities” afforded by diplomatic conventions in a disclaimer at the beginning of the brief, they were also transparent in acknowledging that their position was not supported by the United Nations.
“Authorization for the positions and views expressed herein, in accordance with the independence of the amici’s positions and respective mandates, was neither sought nor given by the United Nations, including the Human Rights Council, the OHCHR, or any of the officials associated with those bodies,” the brief says.
Editor’s Note: Stefano Gennarini, J.D. writes for C-Fam. This article first appeared in the Friday Fax, an internet report published weekly by C-Fam (Center for Family & Human Rights), a New York and Washington DC-based research institute (https://c-fam.org/). This article appears with permission.
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