BRIEF OF 137 INTERNATIONAL LEGAL SCHOLARS AS AMICI CURIAE IN SUPPORT OF PETITIONERS.

• Author: Castaldi, Ligia

INTERESTOF AMICICURIAE (1)

Amici curiae consist of 137 international legal scholars, including former judges and justice officials, deans of law schools, and law professors and law scholars. A full identification of each amicus appears in the Appendix.

Amici assert the inherent right to life of the unborn and recognize Mississippi's interest in limiting access to abortion on demand. Amici are concerned with preserving the principle of state-level freedom to tailor abortion regulations.

Amici believe it is beneficial for the Court to take into consideration the international legal context, including how a decision of the Court might be understood in relation to other State practices.

Amici write to inform the Court that there is no international human right to abortion, and that international law is predicated on an understanding of the unborn child as a rights-holder. They also seek to inform the Court about the existence of a general standard of international practice among the minority of States that allow elective abortion, limiting abortion on demand to pregnancies of twelve weeks' gestation.

SUMMARYOFTHEARGUMENT

If the Court chooses to consult international law in this case, it will find there is no treaty that recognizes a so-called human right to abortion, nor has such a right been established through customary law. To the contrary, the practice across all regions demonstrates a consistent State prerogative to protect unborn life. Nor has any international court declared the existence of an international right to abortion, even in regions with the most permissive abortion regimes. Third-party actors seeking to invent a new right to abortion err when interpreting key international instruments, such as the Convention on the Elimination of Discrimination against Women, the Rome Statute, and the International Conference on Population and Development. The clear language in those documents defies any attempt to repurpose them to create an international human right to abortion.

On the other hand, provisions recognizing the unborn child as a rightsholder can be found in many international human rights instruments, including the American Convention on Human Rights, the United Nations Convention on the Rights of the Child, and the International Covenant on Civil and Political Rights. Most States choose to exercise the prerogative to protect unborn life by regulating abortion much more strictly than in the United States. Even in the minority of States that permit elective abortions, most specify a gestational limit of twelve weeks. That limit is more restrictive than Mississippi's Gestational Age Act, which allows elective abortion until fifteen weeks' gestation, and then permits abortion only for medical emergencies or severe fetal abnormality.

ARGUMENT

If the Court chooses to consider international law in this case, it will find that human rights law and the pattern of State practice do not recognize a socalled right to abortion. To the contrary, the law recognizes unborn children as rights-holders and affirms the prerogative of sovereign States to protect their lives by regulating abortion even more restrictively than the Mississippi Gestational Age Act (2) challenged here.

1. WHATEVER ROLE INTERNATIONAL LAW PLAYS IN EVALUATING ABORTION REGULATIONS IN THE UNITED STATES, IT OFFERS NO BASIS FOR THE EXISTENCE OF A HUMAN RIGHT TO ABORTION.

   At times, the Court consults international law to interpret the U.S. Constitution. Should the Court find it useful to consider international law in this case, it will find no authority for a human right to abortion.

   1. International Law Can Be Instructive in Evaluating Abortion and Its Regulation.

      At times the Court has referred to international law as "instructive" or persuasive authority in reaching decisions on a variety of constitutional matters, including the death penalty (3) and the nature of certain due-process rights. (4) Members of the Court have taken note of international law when inquiring whether a right is "deeply rooted" in history and tradition, (5) even finding that certain rights are not deeply rooted "in the tradition of other nations." (6)

      Some members of the Court have questioned the propriety of consulting international law when interpreting the Constitution, rejecting the premise "that American law should conform to the laws of the rest of the world." (7) They have cited instances where the Court has been inconsistent in its practice, especially in its abortion jurisprudence. (8)

      As argued throughout this brief, international law can be instructive on the nature of abortion and its regulation. The consensus of human rights law and State practice confirms the absence of any global right to abortion, and the recognition that unborn children are rights-holders worthy of State protection.

   2. Abortion Is Not a Human Right Under Either Conventional or Customary International Law.

      Under the primary sources of international law--treaties and custom (9)--States have no duty to legalize abortion because it is not recognized as a human right.

      With regard to treaties, abortion advocates can point to no international treaty that contains language referencing abortion, (10) nor any reference that can be interpreted as recognizing the right to take the life of an unborn child. No such instrument exists.

      Nor has any so-called right to abortion been established through customary international law, as United Nations (U.N.) officials have acknowledged. (11) To the contrary, most States prohibit or restrict abortion, (12) reflecting a standard of practice at odds with any claim of a customary right to abortion.

      Recent evidence of State practice rejecting a global abortion right can be seen in the 2020 Geneva Consensus Declaration on Promoting Women's Health and Strengthening the Family, signed by government representatives from thirty-four States across the globe. (13) That declaration reaffirms that "there is no international right to abortion, nor any international obligation on the part of States to finance or facilitate abortion, consistent with the longstanding international consensus that each nation has the sovereign right to implement programs and activities consistent with their laws and policies." (14) Such assertions make clear there has been no emergence of a right to abortion by way of custom.

      Nor has any international court ever declared the existence of a global right to abortion. To the contrary, the European Court of Human Rights rejected the concept under the European Convention on Human Rights. In A, B & C v. Ireland, the European Court unambiguously decided that Article 8's right to privacy, which protects individual personal autonomy, "cannot . . . be interpreted as conferring a right to abortion." (15) The Court also held that Ireland's nearly full abortion ban in existence at that time "struck a fair balance between the right of the [women] to respect for their private lives and the rights invoked on behalf of the unborn." (16)

      The European Court's legal determinations about Article 8 mean that a woman's right to autonomy cannot, "per se, suffice to justify an abortion in terms of Convention requirements." (17) Moreover, the European Court has since reaffirmed the principle that there is no legally enforceable international right to abortion. (18)

      Therefore, in the absence of any treaty or custom, it is clear that international law does not recognize a so-called human right to abortion.

   3. Oft-Cited International Instruments Cannot Be Fairly Understood as Recognizing a Global Human Right to Abortion.

      Despite an absence of support in treaty and customary law, some groups and advisory bodies have tried to reinterpret international law to include a right to abortion. Third-party actors, however, lack the authority to redefine international legal norms, which are created between sovereign States.

      Three noteworthy international instruments in this area require specific discussion.

      1. The Convention on the Elimination of Discrimination Against Women.

         The Convention on the Elimination of Discrimination against Women (CEDAW) (19)--signed but not ratified by the United States--was adopted by the U.N. General Assembly in 1979 after decades of work by a U.N. Commission. (20) The treaty is often mentioned by advocates in support of the effort to create an international right to abortion.

         A review of CEDAW's language reveals that it does not contain the word "abortion," or any equivalent term, nor does it articulate any concept of "reproductive rights" or advocate for the termination of pregnancies. To the contrary, Article 12(2) of the Convention places an obligation on States to "ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation." (21)

         Although CEDAW recognizes no right to abortion, advocates who desire to expand abortion access often reference statements on the topic made within reports of CEDAW's treaty-monitoring body. (22) That committee, however, was granted no authority to bind States Parties or to reinterpret the treaty's text. As such, its "suggestions and general recommendations" have no power to create international law. (23)

      2. The Rome Statute.

         The Rome Statute (24)--neither signed nor ratified by the United States--went into force in 2002, forming the International Criminal Court.

         While drafting the Rome Statute, abortion advocates stirred controversy by proposing a new crime--"enforced pregnancy"--which some worried could eventually be used to force States to legalize abortion domestically. (25)

         The treaty's final compromise language includes the offense of "forced pregnancy"; however, the crime's definition explicitly rejects any international obligation to decriminalize abortion. (26) Specifically, the final definition states:

         "Forced pregnancy" means the unlawful confinement of a...