Hostname: page-component-848d4c4894-pftt2 Total loading time: 0 Render date: 2024-06-04T17:36:06.128Z Has data issue: false hasContentIssue false
  • English
  • Français

International Dimensions of the Department of Justice Arguments in the Webster Case

Published online by Cambridge University Press:  29 April 2021

Rebecca J. Cook
Get access Rights & Permissions [Opens in a new window]

Extract

In the Brief for the United States as Amicus Curiae supporting the Attorney General of Missouri in the Webster case, the Department of Justice invoked a favorable image of European legislative responses to the practice of abortion in order to argue the appropriateness of locating legislative control at the state level, as opposed to the level of federal law. It was further claimed that it was necessary for the Court to set aside its 1973 decision in Roe v. Wade in order for legislation in the U.S. to be consistent with the laws of other countries with which the U.S. “shares a common cultural tradition.”

The foundation on which these arguments were based is fundamentally flawed. The Department's brief omitted reference to the setting of Western European national legislation within the framework of international law , and in particular of the European Convention on Human Rights and Fundamental Freedoms.

Type
Article
Information
Law, Medicine and Healthcare , Volume 17 , Issue 4 , Winter 1989 , pp. 384 - 394
Copyright
Copyright © American Society of Law, Medicine and Ethics 1989

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Hereafter referred to as “Department's brief.”Google Scholar
Webster v. Reproductive Health Services, 109 S.Ct.3040 (1989).Google Scholar
410 U.S. 113.Google Scholar
Department's brief at 23.Google Scholar
European Convention for the Protection of Human Rights and Fundamental Freedoms opened for signature, Nov. 4, 1950, Europ. TS No. 5, 213 U.N.T.S. 222 (hereinafter referred to as “the European Convention”).Google Scholar
Department's brief at 23.Google Scholar
See Cook, R.J., chart on Regional Developments in Abortion Laws: 1967–1988, 15 “Abortion Law and Policies: Challenges and Opportunities” Int. Gynecol, J.. & Obstet. Supp 3:61, 1989. See also, Cook, R.J. and Dickens, B.M., “A Decade of International Change in Abortion Law: 1967–1977,” 68 Am. Pub, J.. Health 637 (1978); Cook, R.J. and Dickens, B.M., “International Developments in Abortion Laws: 1977–1988,” 78 Am. Pub, J.. Health 1305 (1988). English translations of laws available in U.N. Population Fund and Harvard Law School Library, Annual Review of Population Law (1974–85; World Health Organization, International Digest of Health LegislationGoogle Scholar
Glendon, M.A., Abortion and Divorce in Western Law: American Failures, European Responses (1987).Google Scholar
Department's brief at 23.Google Scholar
For helpful surveys, see M. Buquicchio-De Boer, “Children and the European Convention on Human Rights” in Matscher, F. and Petzold, H. (eds.) Protecting Human Rights: The European Dimension (1988) at 73–89, and Golsong, H., “The European Court of Human Rights and the National Lawmaker: Some General Reflections,” id at 239–244.Google Scholar
Id.Google Scholar
X. v. United Kingdom (Re Detention of a Mental Patient), 4 E.H.R.R. 188 (1981) at 203.Google Scholar
Article 57.Google Scholar
Sieghart, P., The International Law of Human Rights (1983) at 27.Google Scholar
Judgment of October 11, 1974. Constitutional Court, Erklarungen des Verfassungsgerichtshofs 221 (Aus.)Google Scholar
Paton v. United Kingdom, 3 E.H.R.R. 408 (1980) at 413.Google Scholar
Bruggeman and Scheuten v. Federal Republic of Germany, 3 E.H.R.R. 244 (1977). The 1976 West German Abortion Law conformed to broad guidelines for legislation on abortion laid down by the Constitutional Court of the Federal Republic of Germany in Judgment of February 25, 1975 Bundesverfassungsgericht, 39 BVerfGE 1, translated in Jonas & Gorby, “West German Abortion Decision — A Contrast to Roe v. Wade” 9 John Marshall Prac, J.. & Proc. 551 (1976), which held the earlier 1974 law permitting abortion on request during the first trimester unconstitutional.Google Scholar
Appealing the High Court of Ireland decision in Attorney General (S.P.U.C.) v. Open Door Counselling, 1987 I.L.R.M. 477.Google Scholar
The decision of Nov. 14, 1988 of the Cour d'Appel de Gand overturning the acquittal of individuals for performing abortions (Judgment of Feb. 12, 1988 Tribunal Correctionnel de Gand) is being appealed to the highest Belgian Court, the Cour de Cassation. Once domestic remedies are exhausted it is likely to be appealed to the European Commission of Human Rights.Google Scholar
See Henkin, L., “Introduction,” in The International Bill of Rights (Henkin, L., ed. 1981) at 27.Google Scholar
410 U.S. 179Google Scholar
Judgment of October 31, 1980, Conseil d'Etat Recueil Dalloz-Sirey [D.S.Jur.] 19732 (France 1982).Google Scholar
Law of 7 May 1981, s.5.Google Scholar
Section 1(1)(d).Google Scholar
Section 5(1).Google Scholar
Department brief at 23.Google Scholar
Section 15 of Law No. 194 of 22 May 1978 on the Social Protection of Motherhood and the Voluntary Termination of Pregnancy requires that health regions provide refresher training courses for health and allied health personnel in contraception.Google Scholar
These countries are Austria para. 97, Denmark sec. 8, Finland sec. 4, France sec. 3, Germany (Federal Republic of) sec. 218 b. Greenland sec, 8, Iceland sec. 12, Italy sec. 5, Luxembourg sec. 353 (1(d)(1), Netherlands sec. 5, New Zealand sec. 35, Norway sec. 1, Sweden —paid for as a matter of government policy. With the exception of Sweden all section numbers refer to the respective national abortion laws, see below.Google Scholar
42 U.S.C. sections 300–300a-41 (1982). See New York v. Bowen, 690 F. Supp. 1261 (S.D.N.Y. 1988), appeal pending, Nos. 88- 6204/06 (2d Cir.); Planned Parenthood Fed'n of Am. v. Bowen, 680 F. Supp. 1465 (preliminary injunction), 687 F. Supp. 540 (permanent injunction) (D. Colo. 1988), appeal pending, No. 88–2251 (10th Cir.); Massachusetts v. Bowen, 679 F. Supp. 137 (D. Mass.) (permanent injunction), appeal pending, No. 88- 1279 (1st Cir.).Google Scholar
Section 4, Law 75–17 of 17 Jan. 1975 (Fr.)Google Scholar
Section 2 of Law 194 of 22 May 1978 (Italy).Google Scholar
Section 16 of Law of 22 May 1975 (Ice.).Google Scholar
Section 5(1)(d) of Law of May 1981 (Neth.).Google Scholar
Section 9 of Law of 15 November 1978 (Lux.).Google Scholar
Section 11 of Law 2439 of 24 March 1970 (Fin.) requires that the “State Medical Board shall take measures to ensure that there are a sufficient number of physicians with authority to render opinions, and a sufficient number of abortion hospitals, in all parts of the country, and that physicians with authority to render opinions, and operating physicians make every effort to adopt an impartial and consistent approach.” Moreover, section 5 of the same law imposes a duty upon the State Medical Board to perform abortions “at the earliest possible stage of pregnancy.”Google Scholar
Decree No. 80–285 of 17 April 1980 (Fr.) and Decree No. 82- 1826 of September 1982 (Fr.) obligate regional and general hospitals and all public establishments equipped with surgical and maternity services to carry out voluntary interruptions of pregnancy.Google Scholar
Section 15 of Law 194 of 22 May 1978 (Italy).Google Scholar
Section 5 of Law 239 of 24 March 1970 (Fin.).Google Scholar
Section 13 of Law 194 of 22 May 1978.Google Scholar
Morgentaler, Smoling and Scott v. The Queen (1988), 44 D.L.R. (4th) 385.Google Scholar
See note 15 above.Google Scholar
Judgment of January 15, 1975, Conseil Constitutionnel, [1975] D.S.Jur. 529, Journal Officiel, Jan. 16, 1975.Google Scholar
Judgment of February 18, 1975, Corte Costituzionale [Corte Cost.], no. 27, 98 Foro It. I, Giurisprudencia Constituzionale e Civile [Giur. Cost. e. Civ.] 515 (Italy), translated in part in M. Cappellotti & W. Cohen Comparative Constitutional Law: Cases and Materials (1979) 612–14, The Court observed that women's health prevails over fetal life, because “there is no equivalence between the right not only to life but also to health of one who — like the pregnant woman — is already a person, and the safeguard of an embryo which has yet to become a person”. Id. at 613.Google Scholar
Judgment No. 108/81 of June 25, 1981, Corte Costituzionale, 57 Raccolta Ufficiale della Corte Constituzionale [Rac. uff. corte cost.] 823 (1981).Google Scholar
Stith, R., “New Constitutional and Penal Theory in Spanish Abortion Law,” 35 Amer. J. Comp. L. (1987) 513 at 514.Google Scholar
Id. at 528.Google Scholar
In Attorney-General for Queensland; Ex rel. Kerr v. T (1983) 46 A.L.R. 275 the High Court of Australia confirmed a decision of the Queensland State Court that an injunction could not be granted to an unmarried man to restrain the woman he had made pregnant from having an abortion. Moreover, there is a consistent trend in Australia for their state courts to recognize legitimacy of abortion on grounds of preservation of physical or mental health as determined by a physician acting in good faith; New South Wales – R. v. Wald [1971] 3 D.C.R. (N.S.W.) 25; Queensland – The Queen v. Bayliss and Cullen (1986) 9 QLD Lawyer Reps 6; Victoria – R. v. Davidson (1969) V.R. 667; see also the consistent New Zealand decision R. v. Woolnough [1977] 2 N.Z.L.R. 508.Google Scholar
Daigle v. Tremblay, Supreme Court of Canada decision, 8 August 1989, File No. 21553 unanimously reversing majority decision of the Quebec Court of Appeal.Google Scholar
Paton v. Trustees of British Pregnancy Advisory Service, [1978] 2 All E.R. 987; affirmed by the European Commission on Human Rights in Paton v. United Kingdom, E.H.R.R. 408 (1980) husband's attempt to enjoin his wife from having an abortion rejected); Gillick v. West Norfolk and Wisbech Area Health Authority (1985), 3 All E.R. 402 (parents' application for a declaration of entitlement to prevent their minor daughter from having an abortion rejected by House of Lords).Google Scholar
Judgment of October 31, 1980, Conseil d'Etat D.S.Jur 19732 (1982) (husband's attempt to enjoin his wife from having an abortion rejected); Judgment of November 8, 1982 Tribunal pour les Enfants d'Evry, 15 D.S.Jur. 218, (April 12, 1983) (parents' attempts to enjoin their minor daughter from having an abortion rejected).Google Scholar
Judgment of March 31, 1988, Corte Cost., Gazzetta Ufficiale, 1 serie speciale, April 13, 1988, n.15; Giur. Cost e Civ. 2110 (1988) (husband's attempt to enjoin his wife from having an abortion rejected).Google Scholar
Department's brief at 23.Google Scholar
Reproductive Health Services v. Webster, 851 F. 2d 1071 (8th Cir. 1988).Google Scholar
References in German are to A. Eser and Koch, H.G., Schwangerschaftaabbruch im Internationalen Vergleich (Termination of Pregnancy in International Comparison) (1988); E. Ketting and P. Van Praag, Schwangerschaftaabbruch: Gesetz und Praxis im Internationalen Vergleich (Termination of Pregnancy: The Law and Practice in International Comparison) (1985); and The English Language references are to C. Tietze and Henshaw, S., Induced Abortion: A World View 1986 (6th ed. 1986).Google Scholar
Harris v. McRae, 448 U.S. 297(1980).Google Scholar
Note 53 above, at 1083.Google Scholar
See Greenberg, J., “Impact of Pre-natal Care in Different Social Groups,” 145 Am. J. Obstet. & Gyn. (1983) 797.Google Scholar
Id.Google Scholar
Population Reports, Series J No. 27 (May/month) 1984) Healthier Mothers and Children Through Family Planning.Google Scholar
See the British Abortion Act 1967 section 1(1)(a).Google Scholar
See note 57, above.Google Scholar
National Center for Health Statistics, Advanced Report on final Mortality Statistics 37:6 Monthly Vital Statistics Reports Supp. 42 Table 16(1988).Google Scholar
See Harris v. McRae, note 55 above.Google Scholar
Note 53 above, at 1083.Google Scholar
Grossman, M. and Jacobowitz, S., “Variations in Infant Mortality Rates among Countries of the United States: The Roles of Public Policies and Programs” 18(4) Demography (1981) 695. See comparable research findings in Alan Guttmacher Institute, Abortions and The Poor: Private Morality, public Responsibility (1979).Google Scholar
Law No. 239 of 24 March 1970 (Fin.), section 5.Google Scholar
Id., section 11.Google Scholar
note 40, above.Google Scholar
Beetz, J., concurring, id. at 456.Google Scholar
City of Akron v. Akron Center for Reproductive Health, Inc. 462 U.S. 416 (1983) at 461.Google Scholar
note 40, above, at 499, citing W.J. Sumner, Abortion and Moral Theory (1981) at 125–8.Google Scholar
Law 239 of 24 Mar 1970 as amended by § 5.Google Scholar
Law 79–1204 of 31 Dec 1979, § 12.Google Scholar
Law 1609 of 28 Jun 1986, § 304 (4)(1), (4).Google Scholar
Law 194 of 22 May 1978, § 6.Google Scholar
Law of 15 Nov 1978, § 353(3).Google Scholar
Law 66 of 16 Jun 1978, § 2.Google Scholar
Organic Law 9 of 5 July 1985, § 417(3).Google Scholar
Paton v. United Kingdom, note 49, above.Google Scholar
Case 2141, Inter-American Comm'n on Human Rights, OEA/ser.L./V./1154, doc. 9 rev. 1(1980). American Declaration of the Rights and Duties of man, Organisation of American States, OEA/ser.L./V./1.4 Rev.(1948), reprinted in OAS, Handbook of Existing Rules Pertaining to Human Rights, OEA/ser.L./V.11.50 doc. 6(1980).Google Scholar
Department's brief at 23.Google Scholar
Rubenfeld, J., “The Right of Privacy,” 102 Harvard Law Review. 737 (1989) at 791.Google Scholar
Savage, M., “The Law of Abortion in the Union of Soviet Socialist Republics and the People's Republic of China: Women's Rights in Two Socialist Countries,” 40 Stanford Law Rev. 1027 (1988) at 1050.Google Scholar
Ceausescu, N., cited in Der Spiegel, 20 Oct 1986.Google Scholar
David, H.P. Fleischhacker, J. and Höhn, C., “Abortion and Eugenics in Nazi Germany,” 14 Population and Development Rev. 81 (1988) at 94.Google Scholar
Id. at 81.Google Scholar
Id. at 94.Google Scholar
Cappelletti & Cohen, note 43 above, at 612.Google Scholar
S. Rep. No. 82 to accompany H.R. 2577(1985); 131 Congressional Record H5335–5355.Google Scholar
274 S.E. 2d 457 (Ga.1981); see generally Kolder, V. Gallagher, J. and Parsons, M., “Court Ordered Obstetrical Interventions,” 316 New England J. Med. 1987 1192 and Field, M.A., “Controlling the Woman to Protect the Fetus,” 17 Law, Med. & Health Care 1989:114.Google Scholar
In Re A.C., 533 A.2d 611 (D.C. App. 1987) reh'g granted and opinion vacated, No. 87–609 (March 17, 1988).Google Scholar
Several presenters at the Fifth International Congress on AIDS, held on June 4th-9th, 1989 in Montreal, pursued this theme.Google Scholar