Laws on Abortion in the United States - Case Study Example

Research Memorandum QUESTIONS PRESENTED I Identify a range of restrictive state provisions from 3 or 4 post-Casey decisions of the US Supreme Court or US Court of Appeals where the restrictions have been upheld as not being unduly burdensome. Make a list of 6 or more of the commonest restrictions not found burdensome. II (a) Discover whether the US is a signatory to the treaty or treaties and, if it is, whether it has entered any relevant reservations, understandings or declarations as to the relevant provision. (b) If the US is a signatory but not a ratifier, can it be said that state actions defeat the “object and purpose” of the treaty? (c) If the US has filed RUDs trying to tie interpretation of the relevant treaty provision to some part of the US Constitution, is that valid? (d) Is there an “ejusdem generis” principle in treaty interpretation? (e) If so, how would that affect interpretation of the “inhuman or degrading treatment” (or close equivalent) provision? (f) What precedent is there on the width of interpretation of the phrase? BRIEF ANSWERS I Some of the restrictive state provisions on abortion enacted by US state legislatures after Planned Parenthood of Southeastern Pennsylvania v Casey 505 US 833 {1992) are: the requirement of parental involvements with respect to minors; parental notification by abortion providers on the parents of minors about to have an abortion; mandatory counseling and waiting periods; limiting state funding for abortions; regulations on abortion practice; II (a) The United States is a state party to the International Convention on Civil and Political Rights (ICCPR) because it signed the treaty on October 5, 1977 and ratified it on June 8, 1992. Article 7 of ICCPR explicitly states in part “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. “ In ratifying the ICCPR, the US Congress has attached and filed several RUDs: 5 Reservations; 5 Understandings; and 1 Declaration. (b) No. If a treaty entered into by the US President is not ratified subsequently, subsequent state actions adverse to the terms of the treaty cannot be said to defeat the object and purpose of such a treaty because the states are not bound to such a treaty (c) Yes. Filing Reservations, Understandings and Declarations (RUDs) that essentially ties up a vague provision of a treaty, especially a human rights treaty, to some constitutional provisions is valid if it is not specifically prohibited by Article 19 of the Vienna Convention on the Law of Treaties. (d) Yes, the principle of ejusdem generis, a canon of statutory interpretation, may be made applicable to international treaty provisions. Art. 31 of the Vienna Convention on the Law of Treaties provide that where a treaty provision is ambiguous as to its term or meaning, recourse can be had on the “supplementary means of interpretation.” (e) The application of the principle of “ejusdem generis” to the phrase “inhuman or degrading treatment” opens the latter to a very wide and broad class of acts that can be generally characterised and attached to anything that are below the standard of treatment afforded to human beings. (f) The ruling of the British Prize Court in the treaty between Britain and Sweden in 1661. DISCUSSION I Identify a range of restrictive state provisions from 3 or 4 post-Casey decisions of the US Supreme Court or US Court of Appeals where the restrictions have been upheld as not being unduly burdensome. Make a list of 6 or more of the commonest restrictions not found burdensome. After the precedent-setting case of Planned Parenthood of Southeastern Pennsylvania v Casey 505 US 833 (1992), the US Supreme Court decided a few other cases applying the undue burden test established in Casey. Some of the cases passed the test and were upheld as constitutional. The undue burden test determines whether a state law regulating abortion “has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus” and therefore operates to hamper on the exercise of a right which makes it unconstitutional. The undue burden test was used in the case of Ayotte v Planned Parenthood of Northern New England 546 US 320 (2006) which tackled the constitutionality of the New Hampshire Parental Notification Prior to Abortion Act. This 2002 New Hampshire legislation sought to impose, among others, the obligation of parental notification on abortion providers 48 at least hours before the actual procedure of abortion. Although the Court did not rule directly on the law’s constitutionality, it nevertheless vacated the judgment of the First Circuit which rendered the measure unconstitutional and remanded the case. In the case of Gonzales v Carhart 550 US __ (2007), the issue was the Partial-Birth Abortion Ban Act of 2003 that was passed by the US Congress. The Act sought to prohibit an abortion procedure known as partial-birth in which entails the taking of the fetal head or trunk past the navel out the mother’s body. The plaintiff’s position was that the Act could affect other partial-birth abortion methods like the more common “D&E” (or dilation and evacuation) along with the rare “D&X” (dilation and extraction). The Court upheld the constitutionality of the law because it did not constitute undue burden on the right to abortion, among others. The case of Lambert v Wicklund 520 US 292 (1997) is another abortion case that employed the undue burden test. The law in issue here is the Parental Notice of Abortion Act passed by the state of Montana. The Act sought to prohibit abortion without the abortion provider having notified at least one of the parents or guardian of the minor at least 48 hours before the scheduled abortion. The law allows resort to judicial bypass in lieu of parental notification only if it would be in the minor’s interest. Both the Federal District Court and the Court of Appeal struck the law down on constitutional ground. The US Supreme Court however upheld the law on the ground that it was not in contravention with its previous rulings on parental notification and judicial bypass not violating the undue burden test. Other restrictions imposed by federal and state laws on abortion which have not been struck down as unconstitutional are: parental consent requirements on minors; mandatory counseling and waiting periods; limiting state funding on abortion; regulations on abortion practice; legality of protests at abortion opponents (Scheidler v National Organization for Women 537 US 393 [2003]), and; restriction of performance of abortion to licensed physicians (Mazurek v Armstrong 520 US 968 [1887]). II (a) Discover whether the US is a signatory to the treaty or treaties and, if it is, whether it has entered any relevant reservations, understandings or declarations as to the relevant provision. (a) The United States is signatory to the International Convention of Civil and Political Rights, a United Nations treaty established in December 16, 1966. The US affixed its signature on the treaty on October 5, 1977 and subsequently ratified the same on October 8, 1992 (UN Treaty Collection). It entered the following five Reservations (as part of the RUDs it attached to its ratification papers): the right not to enact laws that abridge constitutionally protect rights of freedom of speech and association in relation to Art 20; the right to impose capital punishment; the right to be bound to the Art 7 clause of “cruel and unusual punishment” only if it has the same meaning under the 5th, 8th and 14th Amendments of the US Constitution; the right not to to adhere to the 3rd clause of paragraph 1 of article 15, and; the right to treat juveniles as adults (UN Treaty Collection). On the other hand, the US entered five Understandings in its ratification of the ICCPR: the guarantee to enforce equal protection of the laws and the extent and limitation of the priciple; right to compensation; the reference to “exceptional circumstances” under paragraph 2(a) of the ICCPR; the instances when the right to counsel of choice is not necessary and the limitation of the double jeopardy requirement; the obligation to implement treaty provisions by the federal and state governments (UN Treaty Collection). Finally, the US attached three Declarations to the ICCPR ratification: the non-self executing nature of Arts 1 to 27; that the US, and hopefully all state parties do not set a limit or restriction on any of the rights laid down in the Covenant even if the latter allows it diminution in certain cases; that Art 47 is exercisable only in accordance with international law (UN Treaty Collection). (b) If the US is a signatory but not a ratifier, can it be said that state actions defeat the “object and purpose” of the treaty? According to the US Constitution, the President may enter into a treaty but it shall be made subject to the concurrence of two-thirds of the Congress (Sec. 2, Article II, U.S. Constitution). A treaty therefore that has not passed ratification is not a valid treaty where the US is considered and is not considered as part of the law of the land in accordance with Article VI which partly states “…and all treaties, made or which shall be made, under the authority of the United States, shall be the Supreme law of the land…” The implication therefore is that the states are not bound by the provisions of treaties which have not been ratified in accordance with the Constitution because they are not valid and therefore not considered as part of the law of the land.. (c) If the US has filed RUDs trying to tie interpretation of the relevant treaty provision to some part of the US Constitution, is that valid? Yes, a US RUD attached to its ratification papers submitted to the a committee overseeing a particular treaty which ties an interpretation of a treaty provision to the US Constitution if it is not specifically prohibited by the treaty or not in contravention of its purpose. Under Article 19, Section 2 of the Vienna Convention on the Law of Treaties, states may formulate their own reservations to a treaty when they sign, ratify or approve it. This rule is subject to three exceptions: the treaty prohibits the reservation; the treaty enumerates the allowable reservations and the reservation made is not one of those enumerated; the reservation, not being within the ambit of the first two exceptions, is in contravention with the purpose of the treaty. (d) Is there an “ejusdem generis” principle in treaty interpretation? Yes, the ejusdem generis principle may be made applicable in treaty interpretation. The principle of ejusdem generis is a statutory construction tool which the court uses to construe provisions of law where particular words are followed by general words and restricting the meaning of the general words to those in the same class of the specific or particular words (Jones 132). Article 32, Section 2 of the Vienna Convention on Treaty Interpretation provides that recourse may be had to supplementary means of interpretation in order to determine the meaning of the treaty provisions when determining the conventional meaning of words results in a vague interpretation or when it results in an absurd interpretation. (e) If so, how would that affect interpretation of the “inhuman or degrading treatment” (or close equivalent) provision? Applying the principle of ejusdem generis as a statutory construction in the interpretation of the phrase “inhuman or degrading treatment” would mean that this phrase could be made applicable to that any kind of treatment that can be characterised as anything below the standard of treatment afforded to the majority of human beings in general. This presupposes that a standard set of treatment for human beings exists and any treatment afforded a person not afforded to the majority can be characterised as inhuman and degrading if the same does not measure up to that standard. The phrase is quite broad and general and the terms are not preceded by specific or particular words which imply that the application of ejusdem generis here may defeat the very purpose of the principle which is to narrow down the interpretation of general words to something that is specific and particular and make the meaning of a provision meaningful and specific. (f) What precedent is there on the width of interpretation of the phrase? The ejusdem generis rule was used by the British Prize Court in the interpretation of Article 11 of the Treaty of 1661 in which states in part “that no goods called goods of contraband, and particularly that no money, provisions, weapons, fire arms” and other munitions as the limit to what could be provided to the respective enemies of Britain and Sweden. The Treaty is an agreement between the two countries and in interpreting this provision the Court ruled that the mention of the things are for the purpose of giving examples rather than excluding others. Using the principle of ejusdem generis, the Court ruled that the Swedish cargo of pitch and tar was within the ambit of the provision (McDougal et al 203). CONCLUSION The present laws on abortion in the United States continue to be an issue of conflict and contention despite the so-called calming of the issue after the Planned Parenthood of Eastern Pennsylvania v Casey case. Many impediments to abortion still linger because the different states now and then manage to come up with laws that subtly make abortion a difficult option to take. Many of these laws have managed to be within constitutional bounds because they pass the undue burden test held in the Casey case. The pro-abortion citizens could tie the domestic issue of abortion in the United States however to the provisions of international treaties to which the US is a signatory to and had subsequently become a ratifier. In the first place, the provisions of these treaties are clothed in general language which allows the rules of statutory construction to be used, and be made applicable to abortion laws. International treaties properly ratified by the US Congress have the force and effect of law as so provided by the Constitution. They are therefore a rich source of support for anti-abortion state laws. References Ayotte v Planned Parenthood of Northern New England 546 US 320 (2006). “International Covenant on Civil and Political Rights.” UN Treaty Collection. http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en Gonzales v Carhart 550 US __ (2007). Jones, Chester Lloyd. Statute Law Making in the United States. BiblioBazaar, LLC, 2008. Lambert v Wicklund 520 US 292 (1997). McDougal, Myres & Harold Lasswell. The Interpretation of International Agreements and World Public Order. Martinus Nijhoff Publishers, 1994. Planned Parenthood of Southeastern Pennsylvania v Casey 505 US 833 {1992). Scheidler v National Organization for Women 537 US 393 (2003), The Vienna Convention of Treaty Interpretation. US Constitution. http://www.law.cornell.edu/constitution/constitution.overview.html. Read More