The Human Rights Committee at the United Nations Office in Geneva has adopted a radically pro-abortion document that could have lasting implications for pro-life laws worldwide.
The document, known as General Comment No. 36, is the first of its kind to declare that states “must” legalize abortion in cases of rape, incest, health of the mother, and when the pregnancy “is not viable.”
The General Comment also calls on nations to remove laws that impose criminal penalties on health care workers who perform illegal abortions, claiming that the mere enforcement of pro-life laws “compel[s] women and girls to resort to unsafe abortion.” The Committee also declared that states “may not regulate” abortion in a manner that compels resort to “unsafe abortion” and that states “should revise their abortion laws accordingly.”
The document is an attempt by the Human Rights Committee to reinterpret Article 6 of the International Covenant on Civil and Political Rights (ICCPR), which deals with the “right to life.” The ICCPR is one of the most important and widely ratified international human rights treaties drafted through the U.N. system.
General Comment No. 36 seeks to reinterpret the “right to life” to mean that states “must provide…legal and effective access to abortion” under expansive terms. The adoption of the General Comment will inevitably provide pro-abortion activists in the U.N. system with sufficient grounds to place considerable pressure on pro-life countries to legalize abortion.
The document also attempts to redefine the “right to life” to mean that states are permitted to legalize physician assisted suicide and euthanasia for those suffering from “severe physical or mental pain” if they so choose.
Despite this, no right to abortion, euthanasia, or assisted suicide can be found anywhere in the ICCPR. To the contrary, Article 6 of the ICCPR specifically guarantees the right to life for “every human being”:
“Every human being has the inherent right to life. This right shall be protected by law.”
The treaty even explicitly prohibits the execution of the death penalty on a pregnant woman in order to protect the life of the unborn child. As the drafters of the ICCPR noted during the drafting process, “the authors of the original text had specified that sentence of death should not be carried out on a pregnant woman principally in order to save the life of an innocent unborn child.”
The Human Rights Committee adopted General Comment No. 36 by consensus this past Tuesday during its 124th Session.
In response, the Population Research Institute has started a petition to tell the Human Rights Committee that the right to life does not include a ‘right’ to abortion.
Pro-life advocates had been closely following the drafting of General Comment No. 36 since the process began back in 2015. Last summer, the Human Rights Committee completed its first reading of the draft document which was subsequently adopted paragraph by paragraph until the entire document was approved earlier last week.
In October 2017, the Committee accepted comments on the first reading draft from member states and civil society. Several member states, members of academia, and more than two dozen pro-life organizations pushed back hard against the Human Rights Committee’s draft General Comment, condemning the document as contrary to the universal right to life and rebuking the Committee for overstepping its mandate. Our own comment to the Committee explained at-length that General Comment No. 36 is clearly contrary to the universal and inherent right to life recognized in the treaty and contrary to international norms.
Despite receiving several comments from member states, members of Congress, and pro-life organizations imploring the Committee not to overstep its mandate by seeking to reinterpret the treaty in a manner never intended by states, the Committee pushed ahead with the drafting for General Comment No. 36 anyway. The only notice it took of such comments was to state that they could simply “ignore” any submitted statements that did not agree with their approach.
The final draft of the General Comment adopted by the Committee in fact goes far beyond the initial first-reading draft. The final draft includes text that was not included in the first-reading draft, including a sentence which calls on states to cease introducing new pro-life laws and to remove any current pro-life laws which create a “barrier” to obtaining an abortion, including “barriers caused as a result of the exercise of conscientious objection” rights of health care workers not to participate in abortion procedures.
The Human Rights Committee consists of a panel of so-called human rights experts that are tasked with monitoring the implementation of the International Covenant on Civil and Political Rights.
The Human Rights Committee, from time to time, issues documents known as General Comments that outline how the Committee interprets certain provisions or thematic issues contained in the treaty. General Comments often provide states with the Committee’s official opinion on how they should implement the treaty and they often outline actions the Committee believes states ought to take in order to be in compliance with their obligations under the treaty.
The recommendations issued by the Committee via General Comments are not legally binding on states, however. States are not required under international law to adopt the Committee’s recommendations for implementing the ICCPR.
But while General Comments are not legally binding on states, they do carry significant weight as authoritative documents issued by an instrument created by the treaty. General Comments carry certain implications for the development of what is known as international “soft” law, which are rules which do not have the force of a “hard” law or a binding legal obligation but nonetheless can contribute to the eventual development of international standards and norms. Over time, it is possible for certain “soft” law standards to evolve into “hard” customary norms.
And in some cases, it turns out, these “soft” laws standards are not so “soft” after all. In the past, certain non-binding recommendations issued by treaty bodies have in fact led some states to legalize abortion under limited circumstances.
For example, Chad, was chastised by the Committee on the Rights of the Child in its state party review in 1999 for maintaining legal restrictions on abortion. Later, in its 2007 state party report, Chad noted that it had “adopted a series of measures” “In response to the Committee’s concluding observations.” One of these ‘adopted measures’ that the Chad Government cited was Act No. 06/PR/2002, the law which legalized abortion in Chad in cases of health of the mother and fetal disability. Similarly, constitutional courts in Bolivia and Colombia have also legalized abortion based in-part on the supposedly non-binding recommendations issued by treaty bodies.
So while states are under no obligation to legalize abortion with the adoption of General Comment No. 36, such non-binding recommendations can sometimes cause states to loosen or abandon their pro-life laws nonetheless. The passage of General Comment No. 36 will inevitably empower and embolden the Human Rights Committee to apply stronger pressure on states to legalize abortion under the cases of rape, incest, health of the mother and fetal disability.
U.N. entities like the World Health Organization, and U.N. charter-based human rights bodies such as the Human Rights Council will also undoubtedly use General Comment No. 36 as a basis and justification for applying more pressure on states to legalize abortion, repeal pro-life laws, and restrict health care workers’ rights to conscientious objection. Certain human rights experts that hold mandates under Special Procedures of the Human Rights Council will also inevitably begin citing General Comment No. 36 as justification for harassing independent member states into legalizing abortion under certain cases, stipulating that “international human rights standards” now require them to do so.
What does this mean for the United States? While General Comment No. 36 is not legally binding on the U.S., the ICCPR is. The United States has ratified the ICCPR and is thus bound by the U.S. Constitution to abide by its terms. While the ICCPR does not in any way require states to legalize abortion or keep abortion legal, certain far-left activist judges in the U.S. federal court system could presumably attempt to use the General Comment as a basis for blocking certain pro-life laws by arguing that it is an authoritative interpretation of the U.S.’s obligations under the treaty.
Indeed, while it is exceptionally rare for federal courts to resort to General Comments when handing down decisions, if the current members of the Supreme Court make a ruling that significantly scales back or overturns Roe v. Wade, pro-abortion activist judges may try to get creative in keeping abortion legal. And indeed, it is not unprecedented for U.S. federal courts to resort to General Comments as authoritative interpretations of the U.S.’s obligations under certain treaties. The possibility now exists, even if at the present moment unlikely, that the radical pro-abortion views expressed by the U.N. Human Rights Committee in General Comment No. 36 could be cited in some future case on abortion.
General Comment No. 36 goes beyond the recommendations any other treaty body has made on abortion or euthanasia. With the adoption of General Comment No. 36, the Human Rights Committee has taken a significant step that threatens the right to life.
For too long, the Human Rights Committee—and certain other human rights treaty bodies that operate through the United Nations—have overstepped their mandate by reinterpreting treaties in a manner not intended by states. For too long treaty bodies have brazenly promoted abortion and have placed considerable pressure on pro-life countries to legalize abortion, despite the fact that no human rights treaty drafted through the U.N. system in any way requires states to legalize abortion.
States parties to the ICCPR must hold the Human Rights Committee accountable by thoroughly vetting candidates nominated to serve on the Committee. States parties must ensure that nominees to the Committee will not attempt to read new invented rights into the treaty. States parties that that are opposed to an international right to abortion should also actively seek out and nominate candidates that will defend the right to life at the Human Rights Committee.
Pro-lifers must also petition their national U.N. ambassadors (or their national representatives to the Human Rights Committee elections meetings) asking that they elect only pro-life candidates to serve on the Human Rights Committee and other treaty bodies.
States parties to the ICCPR should also issue public statements condemning General Comment No. 36 as an erroneous interpretation of the right to life recognized under the treaty.
All countries which have ratified the ICCPR’s First Optional Protocol should also immediately denounce and withdraw from the Protocol. States have a right to withdraw from the Protocol at any time and for any reason under the procedure laid out in Article 12. With the adoption of General Comment No. 36, it is now abundantly clear that states that have ratified the First Optional Protocol are particularly vulnerable to the Committee’s pro-abortion activism. States under the Protocol “recogniz[e] the competence” of the Committee to hand down judgements on complaints of violations under the treaty brought to the Committee by individual citizens against state parties.
The Human Rights Committee has already handed down several judgements requiring states parties to the Optional Protocol to provide restitution to women who were denied abortion by the state, including in the views adopted in K.L. v. Peru, L.M.R. v. Argentina, Siobhán Whelan v. Ireland, and Amanda Jane Mellet v. Ireland. With the adoption of General Comment No. 36, states parties to the treaty’s Option Protocol can only expect that judgements punishing states for their pro-laws will continue.
 International Covenant on Civil and Political Rights (ICCPR), art. 6(1), December 16, 1966, 999 U.N.T.S. 171.
 ICCPR, supra note 1, at art. 6(5).
 U.N. GAOR, 12th Sess., Third Comm., 819th mtg. at ¶33, U.N. Doc. A/C.3/SR.819 (Nov. 25, 1957).
 Comm. on the Rights of the Child, Concluding Observations, Chad, ¶30, U.N. Doc. CRC/C/15/Add.107 (Aug. 24, 1999).
 Comm. on the Rights of the Child, Second Periodic Reports of States Parties Due in 1997, Chad, ¶14, U.N. Doc. CRC/C/TCD/2 (Aug. 14, 2007).
 See Zorzi K. The impact of the United Nations on national abortion laws. Cath. U. L. Rev. 2015;65(2):409-428.
 See United States v. Bakeas, 987 F. Supp. 44 (D. Mass. 1997).
 Optional Protocol to the International Covenant on Civil and Political Rights, art. 1, December 16, 1966, 999 U.N.T.S. 171.