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Op-Ed

Op-Ed: U.S. Resumes World Leadership on Legal Protection for the Unborn

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In a highly commendable initiative to restore prenatal protection for every child, the United States has taken back international leadership from an ideologically corrupted United Nations bureaucracy.

USAID’s Monday letter to António Guterres, secretary-general of the U.N., requested that the organization remove abortion provisions from its global coronavirus emergency plan.

“The United States stands with nations that have pledged to protect the unborn,” the letter read.

From the start of the post-World War II human rights movement, it was universally agreed that neither governments nor individuals may derogate from the protection of the inalienable right to life that inheres in every human being. Any exception from a nonderogable right is inadmissible under the provisions of the International Covenant on Civil and Political Rights.

Article 4 stipulates that no state may derogate from protecting the right to life even in times of “public emergency.”

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Certainly, the U.N. has no authority to facilitate prenatal killing, not even in a coronavirus emergency.

U.N. Member States Promised Every Child “Legal Protection, Before as Well as After Birth”

The U.S. remains a party to the foundational universal human rights instruments which formally recognized the right to legal protection for every child “before as well as after birth.” (This recognition is verified through the historical context and analysis of the text of the Universal Declaration of Human Rights in “Human Rights and the Unborn Child.”)

The application of each principle set out in the Universal Declaration (1948) was debated thoroughly by U.N. delegations including a large contingent of capable and intelligent U.S. delegates.

In the Declaration on the Rights of the Child (1959), the U.S. went on to reach a formal agreement that “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth … the need for such special safeguards has been … recognized in the Universal Declaration of Human Rights.”

Furthermore, in the drafting of the Right to Life Article 6 of the International Covenant, the only recorded attempt to introduce abortion as an exception to the right to life occurred in the Working Group’s 2nd Session (1947). It was put to a vote in the Commission on Human Rights and was resoundingly defeated with U.S. leadership.

A principle was adopted in which the only exception to the unlawfulness of deprivation of life was to be in the execution of the sentence of a court following a conviction of a crime for which the penalty is provided by law.

U.S. Leadership in Post-World War II International Human Rights

The Travaux Préparatoires (drafting history) of the first human rights conventions that codified the founding principles in modern international human rights law revealed that U.S. delegates were dominantly engaged in negotiating the agreed-upon texts.

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These were never principles arbitrarily imposed on the U.S. but principles negotiated in good faith, painstakingly drafted and freely agreed upon and adopted by successive U.S. delegations with the full authority of U.S. governments legitimately elected by the U.S. people.

We all understand that under U.S. domestic law, treaties, like statutes, must meet the Constitution’s requirements; no treaty provision may have the force of law if it conflicts with the Constitution. (Reid v. Covert, 1957)

But logically, we understand too that all the treaty provisions concerning protection for every child must have met U.S. constitutional requirements since no reservation was introduced to exclude a child before birth from legal protection on the grounds that such protection conflicted with the U.S. Constitution.

To Save the Life of “The Innocent Unborn Child”

After World War II and before the precipitous rise of the sexual revolution’s discordant values, the U.S. honored the principle that every human being without exception is entitled to equal protection of the law.

In the 1947-48 negotiations of the Universal Declaration, one of the first things agreed upon by the U.S. and the other members of the international community was that the “innocent unborn child” was to be legally protected.

The ICCPR drafting history recorded repeatedly that protection of the law is to be “extended to all unborn children.”

One of the chief drafters, René Cassin, articulated the principle that “everyone has the right to recognition everywhere as a person before the law” and urged its incorporation as Article 6 of the Universal Declaration. Cassin was an eminent French jurist and Zionist who himself had suffered the loss of 39 family members in Nazi concentration camps. He convinced the drafting committee that they must start with “the fundamental principle of the unity of the human race” precisely because Hitler had started his killing programs “by asserting the inequality” of selected human beings deemed socially unwanted.

One hundred and thirty years earlier, the U.S. Supreme Court had laid down that very same principle of inclusion:

“The words ‘any person or persons’ … comprehend every human being … the whole human race.” (United States v. Palmer, 1818)

Regrettably, a disconnect emerged between what was promised by the U.S. in reforming international law after the World War II sacrifices made by soldiers, sailors and airmen in the forties and what was reneged on in domestic law by the Supreme Court in the seventies.

The solemnly promised universal protection for all members of the human family was trashed by Roe v. Wade in 1973 with its contemptible theory that the unborn child is not a “whole” person.

Eleanor Roosevelt and the Concept of Juridical Personality

In 1947-48, Eleanor Roosevelt chaired the drafting committee debate on Article 6 of the Universal Declaration.

In 1949, she recalled vividly the deliberations leading to universal recognition of the injustice of denying juridical personality to any human being:

“His [Cassin’s] suggestion was that we have an article that would read in French, ‘Personne ne doit être privé de sa personalité juridique,’ and I, without any legal knowledge, translated it into English as “No one shall be deprived of their juridical personality.”

“Well, I didn’t know what I had started. Behind my back, where lawyers sit from the departments in Washington, there was a storm. They all said, ‘There is no such expression as “juridical personality” in English or American law.’ And all the United Kingdom gentlemen who were lawyers put their heads together and said ‘No’ very firmly at me. So I knew that I hadn’t gotten the right word. Behind my back they kept arguing, saying what it means is ‘without due process of law,’ but how do you say it? Well, it took a long while to argue that out and finally one day one of my Department of Justice youngish lawyers handed me a piece of paper and said, ‘You can accept the translation “juridical personality” — it was once used in American law.”

“And when do you think it was used? It was used in the Dred Scott case when Justice Taney said ‘a slave has no juridical personality.’ So I accepted it.”

Universal Declaration Borrowed from the American Declaration of Independence

The Universal Declaration, borrowing from the American Declaration of Independence, begins: “[R]ecognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” This was recognized at the time as “a statement of general principle, which was independent of the existence of the United Nations and had an intrinsic value of its own.”

The drafters of the Universal Declaration, in fact, drew heavily on the American Founders’ understanding of self-evident truths and inalienable rights.

Indeed, for a short time, post-World War II and pre-Cold War, in a moment of grace and honesty and goodwill, the nations of our troubled world did unite to recognize human rights protection for “all without distinction.”

Led by the United States, sovereign nations joined together to recognize the equal and inalienable human rights of every human being without exception.

Well done, United States of America! Now come on — do it again!

The views expressed in this opinion article are those of their author and are not necessarily either shared or endorsed by the owners of this website. If you are interested in contributing an Op-Ed to The Western Journal, you can learn about our submission guidelines and process here.

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