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.” 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.” 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.”
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 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.
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. Because of this controversy, the Court has taken a hands-off approach on the issue of when life begins, leaving the question to the discretion of the individual State. However, the Court has acknowledged that the same exceptional cases for access to abortion seem to exist as under the UN. The situation is somewhat different under the OAS system. The OAS system formally protects the right to life starting at conception. 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. 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. 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 Bartolomé de las Casas, Francisco Suárez, 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.
Protecting the Unborn Child: The Current State of Law Concerning the So-Called Right to Abortion and Intervention by the Holy See,
89 Neb. L. Rev.
Available at: https://digitalcommons.unl.edu/nlr/vol89/iss4/11