No right under the [European] Convention was violated [where the plaintiffs were able to travel to another country to obtain an abortion], the court said by a vote of 11 to 6. Granted, “the process of traveling abroad for an abortion was psychologically and physically arduous” for these women. And granted also that in their particular circumstances, they could have obtained legal abortions in 35 to 40 other countries covered by the Convention. But because Ireland’s law is based “on the profound moral views of the Irish people as to the nature of life,” the court said, Ireland was entitled to an extra “margin of appreciation.” This phrase expresses a measure of deference toward a country’s right within the framework of international law to chart its own domestic course. With its extra margin, Irish law prevailed.
Greenhouse notes that the European Court accepted a situation similar to what would come into being if the United States Supreme Court withdrew the constitutional right to abortion and the matter were left to state law. She says the case gave her "the eerie feeling that I was peering into a domestic future."
Obviously, not all states would choose to join the anti-abortion bandwagon, even if they had the Supreme Court’s permission. California, New York, the District of Columbia, Connecticut and Massachusetts (once two of the most anti-abortion states, but times change) would remain places of refuge for desperate women, Englands to the Irelands that are Wyoming (which has no abortion provider), the Dakotas, or the Deep South, where a shrinking handful of doctors provide abortions in a hostile regulatory climate. More than a third of all women live in counties without an abortion provider, and that number is growing. Long-distance travel is made more onerous in the half of the states that require 24-hour waiting periods after “counseling,” necessitating two trips or an overnight stay.
The second commenter over there brings up Justice Kennedy's interest in referring to international law:
The right has roundly criticized Justice Kennedy for his interest in international law. Whaddaya bet they won't criticize him for citing the case of A, B & C v. Ireland? Watch the Court chip, chip, chip away at Roe & at Planned Parenthood v. Casey.
Well, what about the left? What about those who approve of the use of the decisions from foreign court in the analysis of American constitutional law? Whaddaya bet they won't want to have to pay any attention to "the right to life of the unborn... based on profound moral values deeply embedded in the fabric of society"?
Koh argues that American law should reflect "transnational" legal values—and that in an interconnected world it inevitably does to some extent already. In his writings, Koh has campaigned to expand some rights guaranteed by the U.S. Constitution—and perhaps shrink some others, including the First Amendment's guarantee of free speech—to better conform to the laws of other nations. He has, for instance, pushed for a more expansive view of what constitutes "cruel and unusual punishment" under the Eighth Amendment. Koh's views are in tune with—if bolder than—those of a majority of the Supreme Court on some issues....
Were his writings to become policy, judges might have the power to use debatable interpretations of treaties and "customary international law" to override a wide array of federal and state laws affecting matters as disparate as the redistribution of wealth and prostitution. He has campaigned to write into U.S. law the United Nations "Convention on the Elimination of All Forms of Discrimination Against Women," signed by President Carter in 1980 but never ratified by Congress. A U.N. committee supervising the treaty's implementation has called for the "decriminalizing of prostitution" in China, the legalization of abortion in Colombia, and the abolition of Mother's Day in Belarus (for "encouraging woman's traditional roles"). In 2002 Senate testimony, Koh stressed that these reports are not binding law, and he dismissed as "preposterous" the notion that the treaty would "somehow require the United States to abolish Mother's Day." Still, the reports are very much part of the "transnational" legal process that Koh celebrates.
