White and Potter (Baby Boy) v. United States

Resolution 23/81, Case 2141, March 6, 1981; OEA/Ser.L/V/II.54, Doc. 9 rev. 1, 16 October 1981
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The President of the Catholics for Christian Political Action and another filed a claim against the United States and the Commonwealth of Massachusetts claiming they failed to fulfill their obligations under the American Declaration of the Rights and Duties of Man (the Declaration) and American Convention on Human Rights (the Convention) (the United States has signed but not ratified the Convention).

The Petitioners claimed a “baby boy” was killed by abortion process in the United States and a doctor, who stood trial for performing an abortion in the Commonwealth of Massachusetts, was prevented from being punished for the allegedly criminal act. Petitioners claimed both acts violated the right to life under article 1 of the Declaration, as informed by the definition and description of the right to life in the Convention. They also claimed violations of article II (“All persons are equal before the law… without distinction as to race, sex, language, creed, or any other factor,” here, age), article VII (“All children have the right to special protection, care, and aid”), and article XI (“Every person has the right to the preservation of his health…”) of the Declaration.

The Petitioners also claimed the Supreme Court of the United States’ decisions in Roe vs. Wade, 410 U.S. 113 (1973), and Doe vs. Bolton, 410 U.S. 179 (1973), which established the lawfulness of abortion under particular circumstances, constituted violations of the right to life. Petitioners argued the rulings imported “absolute arbitrariness” into the decision as to whether an abortion shall be performed in a particular case. They claimed this violated article 4 (right to life) of the Convention, which states that no one shall be “arbitrarily deprived of his life.” Petitioners also contended that the the right to life was protected under the Convention “from the moment of conception.”

The United States presented three counter-arguments as to why the right to life in the Declaration had not been violated:

  1. Conferees at the adoption of the Declaration in Bogotá in 1948 rejected language extending the protection of the right to life to the unborn;
  2. The Convention was intended to complement the Declaration but existed on a separate legal plane and should be analyzed as such;
  3. United States and Brazilian delegations had placed a statement on record during the second plenary session of the San José Conference of States Parties indicating that they interpreted the right to life in article 4 of the Convention as preserving the discretion of State Parties as to the content of the right in light of their own social development, experience and similar factors.

The Commission found that the United States and the Commonwealth of Massachusetts did not violate the rights to preservation of health, equality before the law, and special protection, care, and aid of all children under the Declaration. The decisions of the Supreme Court of the United States and the Supreme Judicial Court of Massachusetts and other facts stated in the petition did not constitute a violation of articles I, II, VII and XI of the Declaration. The Commission stated that the rights had “no direct relation to the facts set forth in the petition.”

The Commission declared that the right to life did not begin at the moment of conception under the Declaration, as the legislative history of the Declaration did not support this contention. Drafters in Bogotá in 1948 rejected language that would have extended the right to life to the unborn. Adopting that interpretation would have implied the obligation of States Parties to derogate provisions of their Penal Codes in force in 1948, as many such articles did not provide for penal sanction of the crime of abortion when performed under certain circumstances.

The Commission further stated that the Petitioner’s use of the Convention to interpret the Declaration in asserting that the right to life began at the moment of conception was misguided. The statement in the Convention that the right to life “shall be protected by law and, in general, from the moment of conception” was not intended to modify the concept of the right that prevailed in Bogotá in 1948. This was particularly so given that the prevailing interpretation of the right to life at Bogotá excluded the notion that the right began at the moment of conception.

"When dealing with the issue of abortion, there are two aspects of the Convention's elaboration of the right to life which stand out. First, the phrase ‘in general’. It was recognized in the drafting sessions in San José that this phrase left open the possibility that states parties to a future Convention could include in their domestic legislation ‘the most diverse cases of abortion.’ (Conferencia Especializada Interamericana sobre Derechos Humanos, OEA/Ser.K/XVI/1.2, at 159.) Second, the last sentence focuses on arbitrary deprivations of life. In evaluating whether the performance of an abortion violates the standard of Article 4, one must thus consider the circumstances under which it was performed. Was it an ‘arbitrary’ act? An abortion which was performed without substantial cause based upon the law could be inconsistent with Article 4." Para. 14.

"In the light of this history, it is clear that the petitioners' interpretation of the definition given by the American Convention on the right of life is incorrect. The addition of the phrase ‘in general, from the moment of conception’ does not mean that the drafters of the Convention intended to modify the concept of the right to life that prevailed in Bogota, when they approved the American Declaration. The legal implications of the clause ‘in general, from the moment of conception’ are substantially different from the shorter clause ‘from the moment of conception’ as appears repeatedly in the petitioners' briefs." Para. 30.

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