Jurisprudence

There’s a Way to Appeal Dobbs. It’s Worth Trying.

Alito makes a frowny face.
Supreme Court Justice Samuel Alito speaks during the American Bar Association’s Section on International Law Conference in Washington, DC, April 27, 2017. Saul Loeb/Getty Images

In Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court jettisoned the guarantee of abortion care, triggering a cataclysm of state bans—and it did so while trivializing and dismissing the profound consequences for pregnant people. But the Supreme Court need not have the final word on the case.

By centering the human rights of those marginalized by the Supreme Court, counsel for the pro-choice litigants can effectively appeal the Dobbs decision: Counsel can file a petition with the Inter-American Commission on Human Rights, the multilateral body tasked with promoting human rights across the Americas. Even if the U.S. does not ultimately implement the commission’s ruling, bringing the case to this body could prove to be a potent strategy in the fight for reproductive justice.

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The commission is more than 60 years old and based in Washington D.C., although domestic awareness of its existence and functions is minimal (by contrast, the commission is a household name in many Latin American countries). One of the body’s main functions is to adjudicate cases brought against member countries that have violated human rights standards. In general, a case is only admissible once the violating country’s highest court has rendered a decision; indeed, the commission is designed to be a forum of last resort.

If counsel files a petition, assuming it meets all of the technical requirements, the commission will review the Supreme Court’s decision, as well as the actions (and non-actions) of other government organs. The U.S. will submit multiple rounds of briefing trying to defend the country’s rollback of abortion care. The commission will then issue its own decision, explaining the pertinent human rights dimensions and likely ordering an array of remedial measures.

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Although the U.S. regularly participates in commission proceedings, administrations of every political stripe have posited that the country is not bound by the body’s rulings. In all probability, the government will not treat the commission’s decision as legal authority, and there is no enforcement mechanism to compel implementation.

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There are at least three reasons why counsel should consider bringing the case anyway.

First, a decision by the commission would help reframe access to abortion care from an issue of purported originalist interpretation to one of basic human dignity. Human rights standards seek to codify our innate and inalienable dignity—which the government cannot take away. The panoply of human rights supporting access to abortion care include the right to equality and non-discrimination; the right to health; the right to be free from torture and cruel, inhuman or degrading treatment; the right to enjoy the benefits of scientific progress; and the right to life (despite international lobbying efforts by anti-choice movements attempting to coopt this right). A ruling from the commission elucidating how the Dobbs decision violates these rights would provide normative validation that abortion bans are an affront to the inherent dignity of pregnant people. Such validation could help shore up resistance and serve as a bulwark against settling into the current reality as a “new normal.”

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Second, the case could bolster recent commission jurisprudence and advocacy movements promoting access to abortion care throughout the Americas. While the international human rights system, on balance, has been explicit in supporting access to abortion care, Inter-American bodies have been relatively loath to confront the issue. Their circumspection tracks the refusal of several member countries to legalize abortion. In recent years, however, local advocacy efforts have brought about greater legalization in Mexico, Argentina and Colombia, among other countries. Progress at the national level has coincided with (and possibly emboldened) official statements and a case against El Salvador in which the commission squarely addressed governmental strictures on abortion. The commission explained that such strictures implicate a range of human rights and that countries cannot reverse existing access to abortion. While any type of litigation carries some risk of a less-than-ideal ruling (and while only a few years ago this risk may have militated against seeking the commission’s review), the body has now signaled that it is a hospitable forum for abortion cases. Bringing Dobbs to the commission could help solidify access to abortion care as a regional human rights concern—one that countries must provide to their residents without any type of regression.

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Third, elevating the case to the commission may help galvanize action by the executive branch. International human rights law looks at a country’s impact as a whole; government organs cannot point fingers at each other to evade accountability. Thus, the State Department, which litigates commission cases on behalf of the U.S., may need to answer for the Supreme Court’s decision, states’ (particularly Mississippi’s) abortion bans and the failures of other organs to pursue corrective measures. This awkward posture could motivate the Biden administration to do more to protect access to abortion care, including declaring a public health emergency and asserting FDA preemption over abortion pills. Pressures from other countries, media outlets and reproductive justice advocates scrutinizing the case could provide further motivation to explore all viable options.

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These potential benefits support appealing Dobbs to the commission. Counsel has six months from the date of the Supreme Court’s decision to do so. The sooner the better because, although it can take several years to reach a decision on the merits, the commission can issue a preliminary opinion with precautionary measures within a matter of weeks.

The architects of the international human rights system intended for regional bodies, including the commission, to safeguard rights when national governments fail to ensure them. The Dobbs decision, brazen in its disregard for the human rights of pregnant people, amounts to such a failure.

This is the moment to invoke and an opportunity to engage with international human rights—a crucial last resort.

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