What Right to Abortion?
By Bill Muehlenberg - Used with permission.
Abortion is of course legal in many nations. Thus it is simply assumed that
there is some sort of universal and binding right to an abortion. But this in
fact is simply not the case. And a new document has appeared which proves this.
A group of scholars meeting in San Jose, Costa Rica have made this quite
In March of this year a team of international experts – lawyers, health
workers, scientists, politicians, bioethicists, law professors, philosophers and
others – produced the San Jose Articles to clarify what actual rights exist
concerning abortion. As they state in their explanatory paper:
“It is now commonplace that people around the world are told there is a new
international right to abortion. Those who receive this message are people who
have the power to change abortion laws; parliamentarians, lawyers, judges and
others. Those delivering this message are influential and believable people; UN
personnel, human rights lawyers, judges and others.
“The assertion they make is false. No UN treaty makes abortion an
international human right. Even so, the assertion is gaining traction around the
world. The high court of Colombia changed their country’s abortion laws based on
this false assertion. More are considering such a change.
“The purpose of the San Jose Articles is to provide expert testimony that no
such right exists. The San Jose Articles were prepared by a group of 31 experts
in international law, international relations, international organizations,
public health, science/medicine and government. The signers include law
professors, philosophers, Parliamentarians, Ambassadors, human rights lawyers,
and delegates to the UN General Assembly.
“The purpose of the San Jose Articles is also to demonstrate that the unborn
child is already protected in human rights instruments and that governments
should begin protecting the unborn child by using international law.”
Although the nine Articles were drafted a half year ago, it was only this
month that they were officially launched at the UN in New York. Ambassador
Joseph Rees, former US Ambassador to East Timor and one time US representative
to the UN Economic and Social Council and Professor Robert George of the
Catholic Family and Human Rights Institute launched the San Jose Articles at a
UN press conference on October 8.
Charles Colson offers some backdrop to the Articles: “Colombia has a rich
Catholic heritage and so it’s no surprise that Colombians are prolife. Their
laws once reflected that, but thanks to the U.N. and others, abortion is now
legal. In 2002, Colombia was sued for violating international treaties that
supposedly demand legalized abortion. Colombia’s high court responded by
overturning the country’s abortion laws. More recently, the U.N. Special
Rapporteur on Health reported that abortion is an international human right and
the highest officials at the U.N. including the Secretary General agree.”
It was to combat such myths that these articles were produced. They need to
be widely distributed and promoted. Here then are the nine Articles:
San Jose Articles
Article 1. As a matter of scientific fact a new human life
begins at conception.
Article 2. Each human life is a continuum that begins at
conception and advances in stages until death. Science gives different names to
these stages, including zygote, blastocyst, embryo, fetus, infant, child,
adolescent and adult. This does not change the scientific consensus that at all
points of development each individual is a living member of the human
Article 3. From conception each unborn child is by nature a
Article 4. All human beings, as members of the human
family, are entitled to recognition of their inherent dignity and to protection
of their inalienable human rights. This is recognized in the Universal
Declaration of Human Rights, the International Covenant on Civil and Political
Rights, and other international instruments.
Article 5. There exists no right to abortion under
international law, either by way of treaty obligation or under customary
international law. No United Nations treaty can accurately be cited as
establishing or recognizing a right to abortion.
Article 6. The Committee on the Elimination of All Forms of
Discrimination Against Women (CEDAW Committee) and other treaty monitoring
bodies have directed governments to change their laws on abortion. These bodies
have explicitly or implicitly interpreted the treaties to which they are subject
as including a right to abortion.
Treaty monitoring bodies have no authority, either under the treaties that
created them or under general international law, to interpret these treaties in
ways that create new state obligations or that alter the substance of the
Accordingly, any such body that interprets a treaty to include a right to
abortion acts beyond its authority and contrary to its mandate. Such ultra vires
acts do not create any legal obligations for states parties to the treaty, nor
should states accept them as contributing to the formation of new customary
Article 7. Assertions by international agencies or
non-governmental actors that abortion is a human right are false and should be
There is no international legal obligation to provide access to abortion
based on any ground, including but not limited to health, privacy or sexual
autonomy, or non-discrimination.
Article 8. Under basic principles of treaty interpretation
in international law, consistent with the obligations of good faith and pacta
sunt servanda, and in the exercise of their responsibility to defend the lives
of their people, states may and should invoke treaty provisions guaranteeing the
right to life as encompassing a state responsibility to protect the unborn child
Article 9. Governments and members of society should ensure
that national laws and policies protect the human right to life from conception.
They should also reject and condemn pressure to adopt laws that legalize or
Treaty monitoring bodies, United Nations agencies and officers, regional and
national courts, and others should desist from implicit or explicit assertions
of a right to abortion based upon international law.
When such false assertions are made, or pressures exerted, member states
should demand accountability from the United Nations system.
Providers of development aid should not promote or fund abortions. They
should not make aid conditional on a recipient’s acceptance of abortion.
International maternal and child health care funding and programs should
ensure a healthy outcome of pregnancy for both mother and child and should help
mothers welcome new life in all circumstances.
We — human rights lawyers and advocates, scholars, elected officials,
diplomats, and medical and international policy experts — hereby affirm these