International elites are taking a stance on the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, and they’re not happy. Some nations are going as far as taking action to protect abortion access in their nation. French President Emmanuel Macron decried the court’s decision while members of parliament belonging to his political party introduced legislation to provide a constitutional right to an abortion. Israel is easing restrictions on abortion access and will provide abortion pills through the nation’s healthcare system.
Abortion is a fundamental right for all women. It must be protected. I wish to express my solidarity with the women whose liberties are being undermined by the Supreme Court of the United States.
— Emmanuel Macron (@EmmanuelMacron) June 24, 2022
The Supreme Court allowed the states to choose their own frameworks on abortion, making the United States unique among Western nations by not having a uniform set of regulations regarding abortion on the federal level. Our European allies have abortion laws that would not be allowed under the standard established by Roe v. Wade. France’s gestational limit is 16 weeks, Belgium’s is 14 weeks, and the United Kingdom does not allow it on demand. Yet the leaders of these nations have criticized the Dobbs ruling despite their own laws not holding up to the Roe standard.
Rather than calling out European leaders on their hypocrisy, some American pundits have taken their side. An opinion piece published Wednesday morning by the Washington Post makes a leap by saying Dobbs “undermined U.S. credibility on human rights.” Columnist Josh Rogin uses international critiques of Dobbs as the foundation for his claim that the high court’s decision will have a major impact on developing countries.
Rogin can be given the benefit of the doubt on one thing. He points to a denouncement of Dobbs by U.N. experts accusing the U.S. of violating the International Covenant on Civil and Political Rights. According to the covenant, governments should not ban abortion in cases of “rape or incest or where the pregnancy is not viable.”
On that point I agree — but not because the United Nations is an objective arbiter of human rights. Abortion bans that do not cover exemptions for rape, incest, and medical emergencies are inhumane because they remove the mother from the equation entirely. Abortion for contraceptive purposes can be eradicated without removing the humanity from the mother.
Rogin’s argument fails to hit its mark beyond that specific point. He talked to Karla Berdichevsky Feldman, an official for Mexico’s Ministry of Health, and she argues the Supreme Court “has set a dangerous precedent by deciding women’s health issues without considering scientific evidence or health outcomes.”
Dobbs did not decide “women’s health issues.” Legislatures have and will continue to do that. The Supreme Court is a judicial body, not a board of doctors. Roe and Planned Parenthood v. Casey rested on an interpretation of the Due Process Clause of the Fourteenth Amendment. Thus, the issue at the center of Dobbs required a proper historical analysis of the clause rather than a medical justification for abortion. No scientific study can be strong enough to excuse a major violation of the Constitution.
“The Supreme Court’s majority decision in the Dobbs case doesn’t even address the international human rights legal implications,” Rogin said. Why is that treated as a failure? Does judicial review get thrown out the window because our foreign policy will have to be recalculated? Rogin is refusing to treat American institutions as the final authority on the matter.
If the Supreme Court began deferring to international institutions, the implications would be disastrous. China is on the U.N. Human Rights Council despite utilizing forced abortions and sterilization for its genocidal ambitions against the Uyghurs. But according to Rogin, it’s the U.S. that has lost its legitimacy on abortion.
The issue at the core of this discourse results from the degradation of the rule of law. Our Constitution is no longer seen as the arbiter of American law. It’s perceived as an obstacle in the way of preferred policy outcomes that come in the name of public health. America’s national reckoning with abortion will not be easy, and no one claimed it will be. Outsourcing important legal questions to international public health bureaucrats is far from being the solution. If pro-choice activists want a federal compromise on abortion, they need to get used to legislation that is in line with the American constitution.
James Sweet is a summer 2022 Washington Examiner fellow.
