The United Nations Convention on the Rights of Persons with Disabilities, despite its innocent-sounding name, contains a Trojan horse for the pro-life movement. It is the first treaty that contains a reference to “reproductive health.” This term may sound innocuous, but it is not. Ever since the U.N. Conference on Population and Development, held in Cairo in 1994, anti-life forces have used the term to try to promote a binding, international legal right to abortion. They have argued — and continue to argue — that the repetition of these words, in various statements in a variety of contexts around the world, has created a “customary law” right to abortion that, in turn, binds every nation in the world.
While this is an international treaty, it’s important to note that it impacts U.S. law. Under the U.S. Constitution (article VI), treaties are “the supreme law of the land” (along with federal laws and the Constitution). Treaties may not be made by states (article I, sec. 10). The treaty-making power is reserved to the president if two-thirds of the Senate concurs (article II, sec. 2). Since treaties create legal obligations binding upon Americans, the Senate should carefully consider every proposed treaty that comes before it.
Given their proclivities, activist judges in the United States must be denied the opportunity to rule that abortion is included under “reproductive health” in this treaty. The Senate has refused, so far, to add language making this absolutely clear. This refusal is significant, because a door not closed clearly leaves an opening for activist judges to exploit.
In the absence of express disavowal of abortion coverage, the treaty must be opposed. Otherwise, if ratified, it simply provides a weapon for anti-life forces to use against legal protection of the unborn.
While it is true that Supreme Court precedent has recognized (contrary to reason and history) a “right to abortion” in Roe v Wade and other cases, it does not follow that ratification of the disabilities treaty is “beside the point.” Roe’s own contradictions mean the Supreme Court will certainly reverse it one day.
But on the next day, you can be sure pro-abortion lawyers will argue to activist judges that a “right to abortion,” though no longer contained in the 14th Amendment’s guarantee of liberty, is still contained within the “reproductive health” guarantees of the treaty on disabilities as well as under customary international law. We must not give them that opportunity. We must recognize the Trojan horse contained in this treaty, and reject it.
— William Saunders is senior vice president for legal affairs and senior counsel for Americans United for Life.