The Center for Reproductive Rights says that it has suffered "irreparable harm" because of a leak. The organization is a leader among American legal activists committed to the right to abortion. Somehow, several internal memoranda about the group's future direction made their way to an organization on the other side of the debate: The Catholic Family and Human Rights Institute. The memos have caused some political embarrassment to the center-and may cause more damage to it still now that an attempt to quash the memos has failed. The memos may also raise the political stakes in an emerging debate about international law.
The movement for legal and subsidized abortion in America has never had a particularly democratic character. Its signal victories have come through the courts. The Supreme Court in 1973 tossed out the laws of all fifty states to impose a more liberal regime in which abortion was permissible at any stage of pregnancy for any reason, and no state was allowed to legislate otherwise. In 2000, the Supreme Court held that states could not ban even partial-birth abortion, a type of abortion that a large majority of the public, and the governments of 30 states, rejected. The organizations that favor these legal outcomes were able to achieve them without having to win a social and political consensus for them-and without having to engage in the compromises that the formation of a consensus might have required.
A move to international law to achieve the same results was thus not much of a stretch. United Nations conferences during the 1990s saw several attempts to move toward the international recognition of abortion as a basic human right. What makes the memos politically embarrassing is their frankness in discussing the center's hope of bypassing legislatures here and abroad to impose its favored abortion policies: "Our goal is to see governments worldwide guarantee women's reproductive rights out of recognition that they are bound to do so."
The memos outline various ways to achieve this goal. The legal activists at the center want, first, to create "soft norms" of international law favorable to abortion; second, to harden those norms into binding commitments; and third, to reinterpret existing "hard norms" to include abortion rights. So, for example, existing treaties that pledge countries to the protection of the right to life should be read to require those countries to keep women from dying in back-alley abortions-and thus to require the legalization of abortion. (Abortion opponents have, of course, commented on the Newspeak here: a right to abortion derived from a right to life.)
In the 1990s, the legal activists were able to win notional commitments from countries to "reproductive health" and "family planning," without explicit references to abortion being included in these terms (and in some cases with explicit denials of its inclusion). The goal now is to redefine the commitments to include abortion. It is hoped that the new international norms will prevent backsliding in the United States and make it possible to impose legal (and possibly subsidized) abortion on countries that do not want it. The memos admit that "there is a stealth quality to the work."
The memos also refer to "reactionary yet influential actors such as the United States and the Holy See."
The risk of a political backlash to the memo is heightened by the fact that American conservatives have begun to worry a lot about their opponents' use of international law and foreign law. The Supreme Court's decision to bar states from criminalizing sodomy relied in part on foreign laws and views. Justice Sandra Day O'Connor has suggested (approvingly) that such invocations of foreign laws and views would become more commonplace as the Supreme Court took it upon itself to win good will for America overseas. Most conservatives believe it both absurd and dangerous for the courts to look to the opinions of Germans in 2003 to determine the meaning of laws and constitutional provisions adopted by Americans in the 1790s. They also think that the selection of foreign views to include lends itself to political manipulation. Presumably the views and policies of Zimbabwe with respect to homosexuality are not going to be consulted by our courts. Judge Robert Bork has just written a book expanding on these dangers.
Nor is the potential danger to the Center for Reproductive Rights merely that it will suffer a public-relations hit. Its lawyers understand well that the repetition of the claim that something they want is already in international law, if not met by effective rebuttal, can have the effect of making it so. But these memos, in the course of arguing for a campaign to create new abortion-friendly norms, repeatedly admit that these norms do not yet exist. In future litigation, abortion opponents may well introduce these memos as evidence that international law does not say what the center wants it to say.
No wonder, then, that the center threatened legal action against the Catholic institute for distributing the memo far and wide, citing the "irreparable harm" that the distribution had done and would do. Chris Smith, an anti-abortion congressman, made this legal challenge moot by entering the memos in their entirety into the congressional record-thus ensuring, as one aide said, that they would be publicly available "for as long as the United States exists." Which, in a certain sense, is precisely what is at issue.
Ramesh Ponnuru is a senior editor for National Review (http://www.nationalreview.com).