Protecting the Unborn Child: the Current State of Law Concerning the So-called Right to Abortion and Intervention by the Holy See

• Publication year: 2021

89 Nebraska L. Rev.1132. Protecting the Unborn Child: The Current State of Law Concerning the So-Called Right to Abortion and Intervention by the Holy See

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Comment(fn*)

Protecting the Unborn Child: The Current State of Law Concerning the So-Called Right to Abortion and Intervention by the Holy See

TABLE OF CONTENTS

I. Introduction.......................................... 1133

II. Abortion: Current State of Legal Affairs............... 1135
A.International System of Human Rights............ 1135
1.Universal Declaration of Human Rights........ 1135
2.International Covenant on Civil and Political Rights......................................... 1137
3.Covenant on the Elimination of All Forms of Discrimination against Women................. 1138
4.The 1994 Cairo Conference and the 1995 Beijing Conference .................................... 1138
B.Current State of Law.............................. 1139
1.Complete Ban on Abortion.....................1140
2.Middle-of-the-Road: Maternal Interests v. Fetal Interests ......................................1141
3.Unfettered Access to Abortion ..................1153
C.Regional Systems of Human Rights................1156
1.European Convention on Human Rights........ 1156
2.Organization of American States ............... 1157

III. Abortion: Holy See Intervention ....................... 1159
A.Overview of Catholic Teaching on Abortion ........ 1159
B.Roman Catholic Involvement in Human Rights .... 1160
1.Historical Development ........................ 1160
2.Current Involvement .......................... 1163
C. What Can the Holy See Offer Human Rights Discourse in the Future?.......................... 1165

IV. Conclusion............................................ 1170

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I. INTRODUCTION

Arguments for the right to have an abortion range from allowing abortions only when necessary to save a woman's life to, most broadly, allowing abortions for socio-economic reasons or simply upon request. The most liberal arguments support a "right to voluntary motherhood."(fn1) Under these arguments, the right to obtain an abortion is "arguably integral to a constellation of other fundamental human rights such as women's right of equality, life, health, security of person, private and family life, freedom of religion, conscience and opinion, and freedom from slavery, torture and cruel, and inhuman and/or degrading treatment."(fn2) Furthermore, "women's right to self determination falls under the overarching freedom in decision-making about private matters. Such provisions include protections of the right to physical integrity, the right to decide freely and responsibly the number and spacing of one's children and the right to privacy."(fn3)

Although there are a number of different arguments that may be raised in support of a right to abortion, the most convincing arguments focus on three different sets of circumstances. The first is when the mother invokes her right to life over that of her unborn child. The second set of circumstances occurs when a mother invokes her abortion rights on the preservation of her health. In such situations, the mother's interest in her own well-being competes with the unborn child's right to life. The third situation in which abortion rights have their strongest hold in international law is when the woman seeks an abortion for a pregnancy resulting from rape or incest. Interests in voluntary motherhood and the right to reproductive health usually underlie this situation.

This Comment proposes that outside of these three situations, any argument that access to abortion is a human right is groundless. Furthermore, although these three situations present the best arguments for a right to abortion, it remains difficult to claim that even these situations rise to the level of a right under international law.

Part II of this Comment discusses the current state of legal affairs regarding the so-called right to abortion in two sections. Section II.A discusses the current international system of human rights under the United Nations (UN). This Comment analyzes the relevant UN

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materials pointing to the state of a right to abortion under international law. This Comment concludes that although there is ample discussion of a right to abortion, such a right does not yet exist under international law. At best, the UN has, in certain situations, repeatedly urged Member States to recognize exceptions to their general prohibitions of abortion. Of course, the UN has not expressly stated that there is not a right to abortion. However, certain UN agencies have urged that abortion not be used as a method of family planning.(fn4)

Section II.B examines the current state of affairs concerning regional systems of human rights, namely, the European Convention on Human Rights and the Organization of American States (OAS). The European Court of Human Rights has noted that there is much controversy as to when the legal right to life ought to begin.(fn5) Because of this controversy, the Court has taken a hands-off approach on the issue of when life begins,(fn6) leaving the question to the discretion of the individual State.(fn7) However, the Court has acknowledged that the same exceptional cases for access to abortion seem to exist as under the UN.(fn8) The situation is somewhat different under the OAS system. The OAS system formally protects the right to life starting at concep-tion.(fn9) However, in practice the OAS does not fully uphold this protection, as it allows for similar exceptions as provided by the European system and the UN.(fn10) Under both the European and OAS systems, allowing for abortion in exceptional cases might ultimately be something on which both sides of the issue can compromise.

Part III of this Comment will discuss the role of the Holy See in international human rights. The Roman Catholic Church has been one of the leading developers of a system of human rights within the Western world, in part due to its long institutional history and its mission to love as Christ loved. This Comment will analyze the role of the Catholic Church in three ways. First, it will give a general overview of the Catholic Church's cohesive and immutable teaching on abortion according to its magisterial power based on Scripture and Sacred Tradition.

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Second, it will provide a brief overview of the history of the Church and human rights by highlighting the influence and progress during the late-Middle Ages by individuals such as Bartolome de las Casas, Francisco Suarez, and Francisco de Vittoria; noting the involvement of Vatican City as a sovereign nation in the early organized human rights dialogue; discussing the influence of Jacques Maritain, a prominent Catholic and French philosopher, on international human rights; and by providing background on the Church's current involvement. Finally, this Comment will analyze what the Holy See, as a Permanent Observer to the United Nations, can offer the human rights discourse concerning the issue of abortion.

II. ABORTION: CURRENT STATE OF LEGAL AFFAIRS

A. International System of Human Rights

1. Universal Declaration of Human Rights

The Universal Declaration of Human Rights (UDHR) was adopted by the UN General Assembly in December 1948.(fn11) The UDHR was the "first comprehensive human rights instrument to be proclaimed by a global international organization."(fn12) The document can be categorized into two broad categories of rights, namely, civil and political rights and social, economic, and cultural rights.(fn13) Examples of civil and political rights are "the right to life, liberty, and security of person; the prohibition of slavery, of torture and cruel, inhuman or degrading treatment ... freedom of speech, religion, assembly and freedom of movement."(fn14) Examples of cultural, social, and economic rights are "the individual's right to social security, to work, and to 'protection against unemployment,' to 'equal pay for work,' and to 'just and favorable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection,'"(fn15) as well as the "right 'to rest and leisure'" and the right "'to a standard of living adequate for the health and well-being of himself and of his family.'"(fn16)

Although the UDHR is not a treaty and it lacks binding legal force, its legal effect is not questioned, and at least some of its provisions have the force of customary international law.(fn17) Rather, the dispute

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over its legal effect concerns which provisions are binding and under what circumstances they are said to be binding. There is also dispute as to whether the document derives its binding effect from its "authoritative interpretation of the human rights obligations contained in the UN Charter, its status as customary international law, or its status as a general principle of law."(fn18)

The UDHR contains no explicit reference to a right to abortion. However, scholars have argued that various articles of the Declaration, implicitly or when interpreted as an integral whole, contain a right to abortion.(fn19) The articles that are pertinent to a dialogue on this issue are: Article One (all humans born free and equal in dignity and rights); Article Two (prohibits discrimination based on sex); Article Three (right to life); Article Five (freedom from torture or...