“Abortion, Dobbs, and Foreign Law at the U.S. Supreme Court” by M. Christian Green

Photo by Joshua Fuller on Unsplash.

On December 1, 2021, the United States Supreme Court will hear the case of Dobbs v. Jackson Women’s Health Organization, a case that threatens to be the death knell for abortion rights, reproductive freedom, and the right of women to bodily autonomy and security in the U.S. In Dobbs, Mississippi’s last remaining abortion clinic is challenging the state’s 2018 Gestational Age Act, which would ban abortion after 15 weeks, before the standard of fetal viability set forth in Roe v. Wade and still recognized by medicine. If upheld, this “heartbeat bill,” premised on the idea that a fetus’s heartbeat can be detected before viability, could end up having broader implications. Given the Texas Legislature’s recent passage of a ban on abortion after 6 weeks, a point before most women even know they are pregnant, these consequences could include the overturning of Roe. Needless to say, the prospect of overturning a nearly 50-year-old precedent supporting abortion rights has generated considerable debate. A recent New York Times editorial by legal commentator Adam Liptak raises another interesting dimension of the Dobbs case — one that is not lost on those of us who work in international law and human rights. Specifically, Liptak points to an interesting debate that has occasionally occurred at the Supreme Court — namely, what influence, if any, foreign and international law should have on American jurisprudence. Indeed, the question of foreign law was once a divisive issue between two justices in particular, the late Justice Antonin Scalia and the now-retired Justice Anthony Kennedy. Given the many briefs referencing international law and norms submitted in the Dobbs case, the question now arises whether foreign and international law will figure into the decision on abortion.

In his editorial, Liptak recites Justice Scalia’s spirited remarks on foreign law. In his dissent in the Missouri case of Roper v. Simmons, in which the majority held that it is unconstitutional to impose the death penalty on persons under the age of 18, Scalia wrote, “The basic premise of the court’s argument — that American law should conform to the laws of the rest of the world — ought to be rejected out of hand. . . . To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decision-making, but sophistry.” In his notable dissent on the issue of sexual relationships of same-sex couples, in Lawrence v. Texas, which overturned the Court’s previous precedent in Bowers v. Hardwick, Scalia similarly fulminated, using italics for emphasis:

Constitutional entitlements do not spring into existence because some States choose to lessen or eliminate criminal sanctions on certain behavior. Much less do they spring into existence, as the Court seems to believe, because foreign nations decriminalize conduct. The Bowers majority opinion never relied on “values we share with a wider civilization,” but rather rejected the claimed right to sodomy on the ground that such a right was not “‘deeply rooted in this Nation’s history and tradition,'” Bowers‘ rational-basis holding is likewise devoid of any reliance on the views of a “wider civilization.” The Court’s discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is therefore meaningless dicta. Dangerous dicta, however, since “this Court . . . should not impose foreign moods, fads, or fashions on Americans.” 

In his remarks on Justice Kennedy’s majority opinion, Scalia took particular issue with Kennedy’s reference to European law. At one point in the Lawrence opinion, Kennedy argued, in what was becoming a hallmark of both his concept of liberty and his cosmopolitan jurisprudence:

In all events we think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. . . . This emerging recognition should have been apparent when Bowers was decided . . . . Of even more importance, almost five years before Bowers was decided the European Court of Human Rights considered a case with parallels to Bowers and to today’s case. The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights. . . . Authoritative in all countries that are members of the Council of Europe . . . . , the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization.

The Scalia-Kennedy split over foreign and international law would become a regular visitor to the Supreme Court chambers when the Court argued cases on a range of issues related to human rights and fundamental freedoms. 

It should not be missed that Justices Scalia and Breyer also had an interesting debate over the American constitutional relevance of foreign court decisions in 2005. In 2009, the late Justice Ruth Bader Ginsburg also affirmed the value of “comparative side glances” at foreign law. In her 2020 Justice Antonin Scalia Lecture at Harvard Law School, “Who Needs Foreign Law?,” comparative law scholar Mary Ann Glendon provided a more complicated and nuanced assessment of Scalia’s record on foreign law in U.S. courts. Setting the record straight, Glendon noted that before his time on the Supreme Court bench Scalia had taught comparative law and private international law for 12 years at the University of Chicago and the University of Virginia, and had once stated that “comparative law should be a mandatory subject in every American law school.”

Justice Kennedy seems to have taken a remarkably different view of foreign and international law than did Justice Scalia, and some have attributed Kennedy’s moderate position on the court to this more cosmopolitan perspective. As legal commentator Jeffrey Toobin observed in 2005:

Kennedy has a passion for foreign cultures and ideas, and, as a Justice, he has turned it into a principle of jurisprudence. Over the past two years, he has become a leading proponent of one of the most cosmopolitan, and controversial, trends in constitutional law: using foreign and international law as an aid to interpreting the United States Constitution. Kennedy’s embrace of foreign law may be among the most significant developments on the Court in recent years — the single biggest factor behind his evolution from a reliable conservative into the likely successor to Sandra Day O’Connor as the Court’s swing vote. 

Does a global and cosmopolitan perspective on the law breed an admirable moderation of views? It is perhaps a question worth pondering in what is frequently described as our polarized political climate that has given rise to a politicized court.

Notably, with respect to the Dobbs case, abortion is another issue where Justice Kennedy’s cosmopolitan appeal to diversity manifested itself, in what Scalia would come to deride as Kennedy’s “sweet-mystery-of-life passage.” At a key point in the Casey v. Planned Parenthood of Southeastern Pennsylvania decision, the Court’s last recent precedent to uphold the Roe v. Wade framework on abortions prior to fetal viability, Kennedy wrote:

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

It seems especially significant that, in the same section of the Lawrence opinion where Kennedy invoked international law, he also saw fit to reiterate, through direct quotation, his earlier reflections on liberty in the Casey decision on abortion. The reiteration of the Casey “mystery passage” is certainly due to the way in which the Lawrence decision became a forum in which Kennedy and Scalia revisited and relitigated the question of stare decisis, or when one can overturn a longstanding precedent, which was at issue in both cases. But it also raises some interesting questions about whether ideas of liberty and cosmopolitanism are intertwined in Kennedy’s thinking.

Does a more cosmopolitan approach to the law give rise to an expanded definition of liberty, particularly in regards to the freedoms enabled by reproductive rights? Should the Court follow the lead of international law and other nations in its effort to ensure a woman’s sense of bodily autonomy, security, and freedom to achieve her potential? As Justice Kennedy wrote in the Roper decision on the juvenile death penalty, contra Scalia’s assertions, “It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.”

Does a more cosmopolitan approach to the law give rise to an expanded definition of liberty, particularly in regards to the freedoms enabled by reproductive rights?

Something like this argument for cosmopolitan human rights liberalism may emerge again with the Dobbs case. Indeed, defenders of Mississippi’s lone abortion clinic have argued that it should. A brief of United Nations Special Rapporteurs and human rights experts argues that allowing the Mississippi law to stand would mean “retrogressing on human rights contrary to international law.” A brief by legal and political history scholars notes the importance of an approach that “frames abortion in human rights terms — a strategy that has proven successful internationally.” In language that would surely pique Scalia’s curiosity (or ire), were he still with us, a brief by European law professors argues that the abortion clinic’s position and the Roe v. Wade precedent are consistent with the “overwhelming and strengthening European consensus in favor of strong abortion rights.” Perhaps channeling Kennedy’s concerns for liberty, a brief of Mississippi reproductive justice organizations argues that “well-established international norms make clear that liberty without the right to make this choice is not liberty at all.” Surprising no one, a brief of international and comparative law scholars advised the Court that “a rigorous comparative law analysis of foreign abortion laws provides this court with a useful perspective.” Of the importance of the ability of women to safely terminate a pregnancy and the integral nature of this right to women’s autonomy and well-being, a brief by women lawyers states, “International human rights bodies have found that denying or obstructing a woman’s ability to do so can amount to cruel, inhumane, or degrading treatment under multiple human rights treaties.” A group of organizations and scholars supporting birth equity to address the situation of women of color (who disproportionately suffer from pregnancy and childbirth complications) maintains that “the right to make individual reproductive health decisions is a fundamental human right, protected under international law.” A brief of experts, researchers, and advocates against criminalization of abortion makes abundant citation to international law on the harm that comes from abortion criminalization.

Other groups and organizations opposed to abortion reference arguments from international law in their briefs. These include the European Center for Law and Justice arguing for an “international duty to prevent abortion”; Illinois Right to Life and other anti-abortion groups defending international “fetal rights”; the Center for Justice and Human Rights arguing against an “international right to abortion by custom”; a group of conservative international law scholars arguing against a “human right to abortion”; and a group of European legal scholars arguing against a right to abortion under the European Convention on Human Rights. This is a shorter list than those citing international law in support of abortion rights.

Recent years have seen shifts toward more permissive abortion laws in a range of nations, some of which were formerly very restrictive of abortion rights.

It is not surprising that the list of amicus briefs citing international law against abortion rights is shorter than those in support. Recent years have seen shifts toward more progressive abortion laws in a range of nations, some of which were formerly very restrictive of abortion rights. On May 25, 2018, two thirds of Irish voters supported a referendum overturning Ireland’s longstanding ban on abortion. In Argentina, the Senate voted to legalize abortion in December 2020. In 2017, Chile legalized abortion in cases of rape, fetal unviability, or where the pregnancy was a threat to the pregnant woman’s life, and in September 2021 Chile’s lower Chamber of Deputies voted to begin debate to consider further decriminalization liberalization. Also in September 2021, Mexico’s Supreme Court voted unanimously to decriminalize abortion. There are, however, nations that have gone in the other direction, such as Poland, which enacted a near total abortion ban that went into effect in January 21.

It remains to be seen what attention, if any, will be given to foreign and international law in the Dobbs case. From the perspective of U.S. scholars who work in comparative and international law (and know that many nations around the world not only look to other nations’ laws for guidance but also fully domesticate the substance of international treaties to which they are signatories into their own law), the ongoing debate over whether to pay any heed to global legal trends can seem curious. Is eschewal of foreign law just another example of “American exceptionalism,” or does it demand a more substantive debate over the status of cosmopolitan jurisprudence? One thing is for sure: the late Justice Scalia’s Lawrence opinion is not the sole, much less the dominant, view of the matter. ♦

---

---

Recommended Citation

Green, M. Christian. “Abortion, Dobbs, and Foreign Law at the U.S. Supreme Court.” Canopy Forum, November 23, 2021. https://canopyforum.org/2021/11/23/abortion-dobbs-and-foreign-law-at-the-u-s-supreme-court/.