Comparative Pragmatism versus Comparative Formalism in the Abortion Context

In recent years, with the increased internationalization of the judiciary, we have witnessed growing support from advocates, policymakers, and judges for applying international and foreign law in a domestic context. To be sure, U.S. courts have demonstrated greater reluctance toward this approach than many courts in other parts of the world. As Margaret Marshall, Chief Justice of the Supreme Judicial Court of Massachusetts, has noted, “justices of some foreign constitutional courts traverse the world of global jurisprudence with an agility that leaves an American judge breathless.” But what happens when judges, intending a comparative approach, incorrectly interpret foreign jurisprudence? And even when these judges get the law right, are they looking at the right thing when they focus on comparative law rather than comparative practice? Rachel Rebouche considers these complex questions concerning international and comparative law as she tracks important global developments in abortion law over the past few decades. Rebouche starts with a challenge to the conventional wisdom that U.S. abortion law symbolizes protection of women’s constitutional rights while German abortion law symbolizes protection of fetal constitutional rights. While that dichotomy may have been true when Mary Ann Glendon first described it in 1987, Rebouche argues, the United States and Germany have, in fact, moved in opposite directions concerning abortion law and practice and the availability of abortion services. Developments in the U.S. since Roe v. Wade have made the constitutional right to an abortion “unrealizable for many women due to restrictive state and federal laws and the absence of providers in many areas.” By contrast, abortion law and practice developments in Germany have gone in the opposite direction, expanding access to abortion, rather than limiting it in the interest of protecting fetal rights. Though a 1975 decision by the Federal Constitutional Court of Germany (“FCC”) supported protection for “unborn life,” more recent developments have prioritized access to abortion — a position that sounds in the register of women’s rights — above fetal rights. A 1993 FCC decision reiterated that abortion is an unlawful act, but eliminated criminal punishment upon demonstration of proof of counseling (which is readily available in most regions of Germany at counseling centers that tend to be pro-choice) before the twelfth week of pregnancy. Moreover, state welfare funds are available in cases of financial need, which is interpreted so generously by most regional legislatures that in some regions, the government pays for nearly every abortion. The broad availability of state-funded abortion services has led some commentators to argue that “Germany, in effect, permits abortion for any reason.” While the U.S. and German legal developments have had enormous influence on the constitutional decisions of national courts in Colombia, South Africa, Portugal, and Mexico, these latter national court decisions, Rebouche argues, have stopped short of engaging with the “implications and evolution of abortion jurisprudence in the United States and Germany.” More troublingly, these national court decisions have, at times, misinterpreted U.S. and German law

Human Rights at Home: Domestic Violence as a Human Rights Violation

In 2005, Jessica Lenahan (formerly Gonzales) initiated the first international legal action against the United States for violating the human rights of a domestic violence victim. Ms. Lenahan's petition to the Inter-American Commission on Human Rights, Jessica Gonzales v. United States, alleged that the Castle Rock, Colorado police failed to protect her from the violent acts of her estranged husband, despite the guarantees contained in her restraining order against him, and that the U.S. judicial system (including the U.S. Supreme Court, which rejected her 14th Amendment procedural due process claim in June 2005) denied her a remedy for law enforcement's failure to respond appropriately to her. Through these actions, she contended, the U.S. government was responsible for violations of the American Declaration on the Rights and Duties of Man - specifically the rights to life, security, family, due process, equality, truth, and freedom from torture and cruel, inhuman, and degrading treatment. The U.S. government, represented by the State Department, has vigorously defended itself in the case, which is now at the final stage - the merits stage. A decision is expected in mid-2009. Jessica Gonzales v. United States marks the first time the Commission has been asked to consider the nature and extent of the U.S. Government's affirmative obligations to protect individuals from private acts of discriminatory violence. The case gives the Commission the opportunity to hold the United States to well-established international standards on state responsibility to exercise due diligence to prevent, investigate, and punish human rights violations and protect and compensate victims. The Gonzales case offers advocates the opportunity to contrast existing U.S. law and policy in the civil rights arena with international human rights principles. While the former provides only limited opportunities for private relief against governmental officers and has suffered a significant rollback in recent years, the latter holds federal, state, and local government actors to a higher and more expansive standard. Indeed, international human rights principles - in contrast to U.S. constitutional jurisprudence - make clear that the government has an affirmative obligation to protect individuals from private acts of violence, to investigate alleged violations and publicly report the results, and to provide an adequate and effective remedy when these duties are breached. The Gonzales case has also facilitated the mobilization of new coalitions among women's rights and domestic violence advocacy groups. By framing domestic violence as a human rights violation, the case challenges advocates and policymakers to re-think the current approach to domestic violence in the U.S., and asks whether fundamental rights are being respected, protected, and fulfilled. This holistic approach has the potential to spur development of new legal theories of governmental accountability for failure to protect domestic violence victims. The human rights framework pushes us to consider whether our country's current response to domestic violence, based largely upon a criminal justice model, is really a one-size-fits-all solution for protecting victims, especially those from communities that have troubled histories with law enforcement. This article tells the story of Jessica Gonzales's international quest for justice, her initiation of the first international legal action against the United States for violating the human rights of a domestic violence victim, and the impact of her journey on domestic violence and human rights advocacy in the United States and abroad. While her story could not have unfolded without Ms. Gonzales' very personal drive and commitment, it holds the potential to reshape domestic violence advocacy in the United States, and more broadly, the role of human rights standards in the domestic legal landscape

The Inter-American Human Rights System: A Primer

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