What Right to Abortion?
By Bill Muehlenberg - Used with permission.
Abortion is of course legal in many nations. Thus it is simply assumed that there is some sort of universal and binding right to an abortion. But this in fact is simply not the case. And a new document has appeared which proves this. A group of scholars meeting in San Jose, Costa Rica have made this quite clear.
In March of this year a team of international experts – lawyers, health workers, scientists, politicians, bioethicists, law professors, philosophers and others – produced the San Jose Articles to clarify what actual rights exist concerning abortion. As they state in their explanatory paper:
“It is now commonplace that people around the world are told there is a new international right to abortion. Those who receive this message are people who have the power to change abortion laws; parliamentarians, lawyers, judges and others. Those delivering this message are influential and believable people; UN personnel, human rights lawyers, judges and others.
“The assertion they make is false. No UN treaty makes abortion an international human right. Even so, the assertion is gaining traction around the world. The high court of Colombia changed their country’s abortion laws based on this false assertion. More are considering such a change.
“The purpose of the San Jose Articles is to provide expert testimony that no such right exists. The San Jose Articles were prepared by a group of 31 experts in international law, international relations, international organizations, public health, science/medicine and government. The signers include law professors, philosophers, Parliamentarians, Ambassadors, human rights lawyers, and delegates to the UN General Assembly.
“The purpose of the San Jose Articles is also to demonstrate that the unborn child is already protected in human rights instruments and that governments should begin protecting the unborn child by using international law.”
Although the nine Articles were drafted a half year ago, it was only this month that they were officially launched at the UN in New York. Ambassador Joseph Rees, former US Ambassador to East Timor and one time US representative to the UN Economic and Social Council and Professor Robert George of the Catholic Family and Human Rights Institute launched the San Jose Articles at a UN press conference on October 8.
Charles Colson offers some backdrop to the Articles: “Colombia has a rich Catholic heritage and so it’s no surprise that Colombians are prolife. Their laws once reflected that, but thanks to the U.N. and others, abortion is now legal. In 2002, Colombia was sued for violating international treaties that supposedly demand legalized abortion. Colombia’s high court responded by overturning the country’s abortion laws. More recently, the U.N. Special Rapporteur on Health reported that abortion is an international human right and the highest officials at the U.N. including the Secretary General agree.”
It was to combat such myths that these articles were produced. They need to be widely distributed and promoted. Here then are the nine Articles:
San Jose Articles
Article 1. As a matter of scientific fact a new human life begins at conception.
Article 2. Each human life is a continuum that begins at conception and advances in stages until death. Science gives different names to these stages, including zygote, blastocyst, embryo, fetus, infant, child, adolescent and adult. This does not change the scientific consensus that at all points of development each individual is a living member of the human species.
Article 3. From conception each unborn child is by nature a human being.
Article 4. All human beings, as members of the human family, are entitled to recognition of their inherent dignity and to protection of their inalienable human rights. This is recognized in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and other international instruments.
Article 5. There exists no right to abortion under international law, either by way of treaty obligation or under customary international law. No United Nations treaty can accurately be cited as establishing or recognizing a right to abortion.
Article 6. The Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW Committee) and other treaty monitoring bodies have directed governments to change their laws on abortion. These bodies have explicitly or implicitly interpreted the treaties to which they are subject as including a right to abortion.
Treaty monitoring bodies have no authority, either under the treaties that created them or under general international law, to interpret these treaties in ways that create new state obligations or that alter the substance of the treaties.
Accordingly, any such body that interprets a treaty to include a right to abortion acts beyond its authority and contrary to its mandate. Such ultra vires acts do not create any legal obligations for states parties to the treaty, nor should states accept them as contributing to the formation of new customary international law.
Article 7. Assertions by international agencies or non-governmental actors that abortion is a human right are false and should be rejected.
There is no international legal obligation to provide access to abortion based on any ground, including but not limited to health, privacy or sexual autonomy, or non-discrimination.
Article 8. Under basic principles of treaty interpretation in international law, consistent with the obligations of good faith and pacta sunt servanda, and in the exercise of their responsibility to defend the lives of their people, states may and should invoke treaty provisions guaranteeing the right to life as encompassing a state responsibility to protect the unborn child from abortion.
Article 9. Governments and members of society should ensure that national laws and policies protect the human right to life from conception. They should also reject and condemn pressure to adopt laws that legalize or depenalize abortion.
Treaty monitoring bodies, United Nations agencies and officers, regional and national courts, and others should desist from implicit or explicit assertions of a right to abortion based upon international law.
When such false assertions are made, or pressures exerted, member states should demand accountability from the United Nations system.
Providers of development aid should not promote or fund abortions. They should not make aid conditional on a recipient’s acceptance of abortion.
International maternal and child health care funding and programs should ensure a healthy outcome of pregnancy for both mother and child and should help mothers welcome new life in all circumstances.
We — human rights lawyers and advocates, scholars, elected officials, diplomats, and medical and international policy experts — hereby affirm these Articles.
