REPORT OF THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
Case 2141 (UNITED STATES)
March 6, 1981
OF THE CASE
1. On January 19,
1977, Christian B. White and Gary K. Potter, filed with the Inter-American
Commission on Human Rights a petition against the United States of America
and the Commonwealth of Massachusetts for the purposes established in the
Statute and Regulations of the Commission. The petition is accompanied by
a cover letter of the Catholics for Christian Political Action, signed by
Gary Potter, President.
2. The pertinent
parts of the petition are the following:
of the person whose human rights have been violated; "Baby Boy"
(See Exhibit, p.ll, line 7 from top, and Amplificatory Document p. 1)
Address: Boston City Hospital, Boston Massachusetts.Description of
Victim was killed by abortion process (hysterectomy), by Dr. Kenneth
Edelin, M.D., in violation of the right to life granted by the American
Declaration of the Rights and Duties of Man, as clarified by the
definition and description of the American Convention on Human Rights (See
Amplificatory Document p.1).
and date of the violation: Boston
City Hospital, Boston, Massachusetts, October 3, 1973, U.S. Supreme Court
Building, Washington, D.C. January 22, 1973.
authority who took cognizance of the act and the date on which this
occurred: District Atrorney's Office, Boston, Massachusetts.
or court which took cognizance of the act and the date on which this
Court of Boston, Massachusetts, Judge McGuire sitting, April 5-11, 1976.
decision of the authority (if any) that acted in the matter; The
Supreme Judicial Court of Massachusetts, Boston, Massachusetts, acquitted
Edelin on appeal, on December 17, 1976.
the case of it not being possible to have recourse to a local authority,
judge or court, explain the reasons for such impossibility: On
a related point, no appeal to the Supreme Court of the United States is
possible. (See Amplificatory Document, p.6).
the names and addresses of witnesses to the act (if any) or enclose the
corresponding documents: Exhibit
A: Official copy of the decision of the Supreme Judicial Court of
Massachusetts in the case of Commonwealth vs. Edelin; Exhibit B:
"Working and Waitinz,"The Washington Post, Sunday, August 1,
undersigned should indicate whether they wish their identity to be
withheld: No withholding is necessary.
3. In the
"Amplificatory Document" attached to the petition; the
petitioners add, inter alia, the following information and arguments:
The victim in this case, a male child not yet come to the normal term of
pregnancy, has from the beginning been identified by the Massachusetts
authorities only as "Baby Boy", Exhibit A, p.ll, line 7 of Case
S-393 SJC, Commonwealth/of Massachusetts/vs. Kenneth Edelin.
This violation of the following rights granted by the American Declaration
of the Rights and Duties of Man, Chapter 1, Article I ("... right to
life...", 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...") began on
January 22, 1973, when the Supreme Court of the United States handed down
its decisions in the cases of Roe vs. Wade, 410 U.S. 113
and Doe vs. Bolton, 410 U.S. 179.
The effect of the Wade and Bolton decisions, supra, in
ending the legal protection of unborn children set the stage for the
deprivation of "Baby Boy's right to life. These decisions in and of
themselves constitute a violation of his right to life, and the United
States of America therefore stands accused of a violation of Chapter 1,
Article I of the American Declaration of the Rights and Duties of Man.
United States Government, through its Supreme Court, is guilty of that
At trial, the jury found Dr. Edelin guilty of manslaughter, necessarily
finding as fact that the child was such as to fit within a "protectable
exception" (over six months past conception and/or alive outside the
womb) to the Supreme Court of the United States' rubric in the Wade
and Bolton cases. On appeal, the Supreme Judicial Court of
Massachusetts reversed, on these grounds;
Insufficient evidence of "recklessness" and "belief
in" [or concern about] "the viability of the fetus"
(paraphrased). Exhibit A, p.190, line 17 to p.19, line 6.
Insufficient evidence of life outside the womb. Exhibit A, p.22, line 5,
to p.25, line 1.
Procedural error. Exhibit A, p.25, line 2 to p29, line 7.
This decision came down on December 17, 1976, and, by preventing Dr.
Edelin from being punished for his acts, put the State of Massachusetts in
the posture of violating "Baby Boy's" right to life under the
The Supreme Court of the United States has no jurisdiction in this matter,
since the grounds for reversal given in the opinion of the Supreme
Judicial Court's opinion is based on points of law that are purely state
matters, and Edelin's rights were not violated by his being held harmless.
Evidentiary sufficiency on the elements of a crime and matters of
state court procedure may be addressed by the Supreme Court of the United
States, or any other U.S. Federal Court, only where the state has
not considered the matter.
4. Exhibit A,
attached to the petition, is a xerox copy of the full text of the decision
of the Massachusetts Supreme Judicial Court in the case of
Commonwealth vs. Kenneth Edelin
5. On April 1,
1977, Mary Ann Kreitzer (4011 Franconia Rd. Alexandria, Va. 22310) wrote a
letter to the Commission, on behalf of herself and six other persons,
asking "to be considered as complainants in the communications
brought before the Commission by Mrs. Potter and White and Catholics for
Christian Political Action concerning the Edelin case...".
6. Later, a
similar request was made by Reverend Thomas Y. Welsh, Bishop of Arlington
(200 North Glebe Rd. Arlington, Va.), Frederick C. Greenhalge Jr. (Box
1114, Los Gatos, Santa Clara County, California 95030) and Lawyers for
Life, represented by Joseph P. Meissner (Room 203 3441 Lee Road, Shaker
Heights, Ohio 44120).
7. By a letter of
May 5, 1977, the petitioners submitted to the consideration of the
Commission four questions on what reservations are acceptable to the
American Convention on Human Rights.
8. The Commission,
at its 41st Session (May, 1977) decided to name a rapporteur to prepare a
note to the Government concerned, but at its 42nd Session, adopting a
recommendation made by its Ad Hoc Committee, the Commission directed the
Secretariat to forward to the Government of the state in question the
pertinent parts of the petition and to request the usual information.
9. By a note of
July 20, 1978, the Chairman of the Commission requested the Secretary of
State of the United States to supply the information deemed appropriate,
in accordance with articles 42 and 54 of its Regulations.
On January 26, 1979 the Commission received a letter from the
United States having failed to reply to your Commission's letter of
inquiry of July 20, 1978, within the 180 days permitted by your
Commission's regulations (article 51), the regulations now require you to
regard the allegations of fact as proven (article 51).
On February 22, 1979, Ambassador Gale McGee, Permanent
Representative of United States to the Organization of American States
submitted to the Commission's "a memorandum prepared within the
Department of State replying to the principal points raised by the
A preliminary question was raised in the United States response:
respect to the exhaustion of legal remedies in the Edelin case, decisions
of state supreme courts are appealable to the U.S. Supreme Court. However,
no appeal was taken in this case and the time for appeal has now lapsed.
On the facts referred to by the petition, the memorandum states:
specific case brought to the attention of the Commission is that of
"Baby Boy", the name given to the fetus removed by Dr. Kenneth
Edelin in performing an abortion in Boston on October 3, 1973. Dr. Eldelin
was indicted for manslaughter on the basis of that abortion and convicted
after trial. The Supreme Judicial Court of Massachusetts reversed the
conviction and directed the entry of a judgment of acquittal on December
17, 1976. The Court found that there was insufficient evidence to go to a
jury on the overarching issue whether Dr. Edelin was guilty beyond a
reasonable doubt of the "wanton" or "reckless" conduct
resulting in a death required for a conviction, and that motions for a
direct verdict of acquittal should have been granted.
The U.S. Government response, on the substantive questions raised
by the complainant, is developed in a three part argument that the
right-to-life provisions of the American Declaration on the Rights and
Duties of Man was not violated, even in the hypothesis that the American
Convention on Human Rights could be used as a means of interpretation in
With regard to the right to life recognized by the Declaration, it is
important to note that the conferees in Bogotá in 1948 rejected language
which would have extended that right to the unborn. The draft placed
before them had been prepared by the Inter-American Juridical Committee.
Article 1 of that draft provided:
persona tiene derecho a la vida, inclusive los que están por nacer así
como también los incurables, dementes y débiles mentales. (Every person
has the right to life, including those who are not yet born as well as the
incurable, the insane, and the mentally retarded.) Novena Conferencia
Internacional Americana, Actas y Documentos, vol V, at 449 (1948).
Conference, however, adopted a simple statement of the right to life,
without reference to the unborn, and linked it to the liberty and security
of the person. Thus it would appear incorrect to read the Declaration as
incorporating the notion that the right to life exists from the moment of
conception. The conferees faced this question and chose not to adopt
language which would clearly have stated that principle.
While the American Convention on Human Rights clearly was intended to
complement the Declaration, these two documents exist on different legal
planes and must be analyzed separately. The Declaration, adopted as a
resolution at the Ninth International Conference of American States in
Bogotá in 1948, provides a statement of basic human rights. It was
adopted by unanimous vote, the United States participating. When the
Commission was created in 1959, the Declaration gave form to its charge to
protect the observance of human rights in the Americas. The Convention,
however, is a treaty which has only recently entered into force among 13
states, not including the United States. It defines in detail the human
rights which its parties undertake to observe. The specificity of those
rights, in comparison with the ones enumerated in the Declaration,
suggests the need for their being undertaken by treaty. While the
vagueness of the rights described in the Declaration may leave substantial
room for interpretation by the Commission, that interpretation must be
consistent with the intentions of those who adopted the Declaration. In
particular cases, the Convention may or may not provide accurate
guidelines for defining the terms of the Declaration.
Although the scope of the right to life recognized by the Convention is
not directly in issue here, the complainants' analysis of that point
warrants some comment. Paragraph 1 of Article 4 of the Convention
describes the right to life in the following terms:
person has the right to have his life respected. This right shall be
protected by law and, in general, from the moment of conception. No one
shall be arbitrarily deprived of his life.
the second plenary session of the San José conference, the U.S. and
Brazilian delegations placed the following statement on the record:
United States and Brazil interpret the language of paragraph 1 of Article
4 as preserving to State Parties discretion with respect to the content of
legislation in the light of their own social development, experience and
similar factors. (Conferencia Especializada Interamericana sobre Derechos
Humanos, Acta de la segunda sesión plenaria, OEA/Ser.K/XVI/1.2, at 6).
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.
The State Department memorandum responded also the petitioners'
allegations related to the opinion of U.S. Supreme Court and the Supreme
Judicial Court of Massachusetts on abortion:
allege that the decisions of the U.S. Supreme Court in Wade and Bolton
(Attachments A and B) imported "absolute arbitrariness" into the
decision whether an abortion shall be performed in a particular case. In
fact, what the Supreme Court did in these cases was to establish
Constitutional guidelines for state law regulating abortions. These
guidelines were not developed in an arbitrary fashion.
issue before the Court in Roe v. Wade was whether a state criminal
abortion statute that excepted from criminality only a life-saving
procedure on behalf of the mother was Constitutional.
The Court found that it limited the exercise of a "fundamental
right" --the right to privacy
--in a manner inconsistent with the compelling state interests" which
could justify regulation of that right. It is a basic tenet of U.S.
Constitutional law that States may limit the exercise of fundamental
rights only when they can show a compelling state interest in doing so,
and legislative enactments toward that end must be narrowly drawn to
express only the legitimate state interests at stake. The Court identified
two interests which could form the basis for legitimate state regulation
of abortions during certain stages of pregnancy--the mother's health (as
distinguished from her life) for the stage subsequent to approximately the
end of the first trimester and the potential life of the fetus for the
stage subsequent to viability. For the first trimester, the Court has left
the abortion decision and its effectuation to the medical judgment of the
pregnant woman's attending physician, 410 U.S. 113, 164.
allege that, by this decision, the U.S. Supreme Court has sanctioned the
arbitrary killing of human fetuses during the first six months of
development. In fact the Court expressly rejected the contention
"that the woman's right is absolute and that she is entitled to
terminate her pregnancy at whatever time, in whatever way, and for
whatever reason she alone choses." The Court declared that the right
to privacy was not absolute and that its exercise could be limited by
valid state regulations drafted in conformity with the guidelines
described above. Each state statute must be weighed against the basic
Constitutional criteria established by the Court.
Commonwealth v. Edelin,
the abortion was performed in the interim between the announcement of the
Wade decision, which rendered inoperative the Massachusetts criminal
abortion statute, and the enactment of new state legislation on abortions.
From January 1973 until August 1974, there were no legal restrictions on
the performance of abortions per se in Massachusetts, and Dr.
Edelin was prosecuted under a manslaughter statute. He was acquitted; the
record amply demonstrates the difficulty of bringing the facts of a legal
abortion within the terms of a manslaughter statute. It does not
establish, however, that the abortion was performed
"arbitrarily." Complainants note that the Edelin opinion
does not explain the factors which went into the decision to perform the
abortion; the court makes only passing reference to the pregnant girl's
and her mother's "having requested an abortion." Had the case
been tried under the 1974 Massachusetts legislation on abortions
(Attachment C), this aspect would have been fully explored. However, it
was not a central issue under the theory of manslaughter advanced by the
Commonwealth. Thus, the record is silent as to the pregnant girl's
motivation or medical need in seeking an abortion, and the Edelin case
cannot legitimately be seen a sanctioning a "mother's desire to kill
(unborn children) for improper reasons or no reason at all."
Complainant's Amplificatory (sic) Document, at 3. It seems worth noting,
however, that, at the time of the abortion, Dr. Edelin estimated the
gestational period as twenty to twenty-two weeks- under the time generally
believed required to produce a viable fetus" and he did not believe
the fetus was viable. The Court found nothing to impeach his good faith
judgment in this regard.
Attached to the V.S. response are copies of the full texts of the
opinions in Roe v. Wade and Doe v. Bolton, ant Sections 12K
- 12Y Chapters 112 of the Annotated Laws of Massachusetts.
On June 12, 1979, the petitioners' reply to the U.S. Government
response stated in summary that:
The State Department memorandum [implies] near-confession its guilt in
The U.S. Government has made no reply to the allegations of Messrs. Potter
and White as to the large numbers of abortions and the high proportion of
unjustified abortions performed merely for the sake of convenience, and
has not denied that U.S. Supreme Court has forbidden protection of the
lives of the unborn for the first 24 weeks of prenatal existence.
The Government is incorrect in sustaining that, in the Edelin case the
internal legal remedies have not been exhausted because the appellate
jurisdiction of the U.S. Supreme Court is strictly limited, both as to
appeals of right and as to the writ of certiorari.
The history of the development of the American Declaration demonstrates
that the U.S. argument is incorrect, because the change in working was
made simply and solely for purposes of simplification and not in order to
alter the content of the document.
The Wade and Bolton opinions, as the U.S. Government admits,
rendered the Massachusetts criminal abortion statute inoperative and had
the same effect, generally, on other State abortion statutes. This
destroyed the legal protection of the lives of the unborn.
The term "in general" cannot be viewed as applying only to the
prenatal period, by reason of the logical structure and wording of the
statement of the right to life, and the other life-affecting aspects, of
the Declaration and the Convention. These aspects of these two documents,
such as limitations upon executions for capital crimes, must be "read
into" the phrase "in general".
History clearly demonstrates that numerous human rights violations have
been based upon orderly processes for creating law, as in the Wade
and Bolton cases.
In their reply to the response of the U.S. Government, the
petitioners make frequent reference to the Annex to Amplificatory
Document, filed by Messrs. Potter and White on June 8, 1978. This
document is the result, in the opinion of the petitioners, of research
based on the Records of the Ninth International Conference of American
States and other related publications done to prove that the term
"life" in article 1 of the Declaration of Bogotá of 1948 on
human rights ant duties was, in fact, defined by the drafters and
promulgators of that Declaration so as to protect the individual’s right
to life "from the moment of conception."
On July 27, 1979, Messrs. Thomas Y. Yank, Henry Y. Hyde, Charles F.
Dougherty and Daniel E. Lungren, Members of the U.S. Congress, House of
Representatives, requested that the Commission inform them with regard to
that plenary Commission handling of this complaint is impending, we would
like to know whether, if the United States loses, it would be subject to
trade and diplomatic sanctions similar to those imposed upon Cuba by the
O.A.S. following, and partially on account of, the human rights violations
of the Castro regime?
the Commission suggest to the undersigned Members of Congress how
legislation might be shaped in order to eliminate any doubts as to U.S.
compliance with IACHR standards in this regard?
naturally sympathize with the Commission's aims and purposes, and send
these questions in a spirit of cooperation and with the intent of
furthering the work of the Commission.
Considering the case ready for decision, the Commission, in its 50
Session (September-October 1980), appointed Professor Carlos A. Dunshee de
Abranches as rapporteur to prepare the appropriate draft report, in
accordance with article 24 of its present Statute and article 49 of its
The basic facts described in the petition as alleged violations of
articles I, II, VII and IX of the American Declaration occurred on January
22, 1973 (date of the decisions of cases Roe v. Wade and Doe v.
Bolton by U.S. Supreme Court), October 3, 1973 (date of abortion of
Baby Boy performed at the Boston City Hospital) and December 17, 1976
(date of final decision of the Supreme Judicial Court of Massachusetts
that acquitted Dr. Edelin, the performer of the abortion.) The defendant,
the U.S. Government is not a state party to the American Convention on
Human Rights. The petition was been filed on January 19, 1977, before the
Convention entered into force on July 18, 1978.
Consequently, the procedure applicable to this case is that
established in articles 53 to 57 of Regulations of the Commission,
approved in 1960 as amended, in accordance with article 24 of the present
Statute and article 49 of the new Regulations.
Communications that denounce the violation of the human rights set
forth in Article 53 must be addressed to the Commission within six months
following the date on which, as the case may be, the final domestic
decision has been handed down..." (article 55 of the 1960
Regulations). However, the 1980 Regulations, maintaining the same rule,
clarifies that the initial term of the six months shall be the date on
which the party has been notified of the final ruling in cases in which
the remedies under domestic law have been exhausted (article 35.1
applicable to States that are not Parties to the Convention as provided in
The petitioners were not parties in the case Commonwealth of
Massachusetts vs. Kenneth Edelin, in which the final ruling by the
Supreme Judicial Court of Massachusetts was delivered on December 17, 1976
(Exhibit A attached to the petition.) So they have not been notified of
this said opinion, but in this case the point is irrelevant because the
petition was filed with the Commission on January 19, 1977, only 32 days
after the final ruling of State Court.
The Commission shall verify, as a condition precedent to exercising
its jurisdiction, whether the internal legal procedures and remedies have
been duly applied and exhausted (article 9 bis d of the Statute and
article 54 of the Regulations both of 1980 as amended.)
The defendant sustains that decisions of state courts are
appealable to the U.S. Supreme Court decision, but that no appeal was
taken in this case. Conversely, the complainants replied that the
jurisdiction of the U.S. Supreme Court to review state court decisions by
appeal or by writ of certiorari is limited to specific situations, none of
which are applicable in this case. (See the reasoning transcribed in N. 3,
g, of this Report.)
The facts of the case are not in controversy. The text of the
decision of the Supreme Judicial Court of Massachusetts, produced by
petitioners, was accepted as authentic. Only the merits are under
scrutiny. The consideration of those facts and the terms of such decision
and the analysis of rules and precedents of U.S. Supreme Court, applicable
to this case, indicate that there was no internal remedy to be exhausted
by the petitioners before applying to the international jurisdiction.
The factual bases for this conclusion are the following:
On October 3, 1973, the defendant Dr. Renneth Edelin, Chief Resident in
obstetrics and gynecology at Boston City Hospital, performed an abortion
by hysterectomy on a seventeen year old, unmarried woman, she and her
mother having requested an abortion and consented to the operation. For
his conduct in connection with the operation, Dr. Edelin was indicted for
manslaughter, and convicted after trial. He appeals from the judgment of
conviction and from the trial judge's refusal of a new trial.
In Massachusetts, for many years a criminal abortion statute (G. L. c.
272, S 19) had had the effect in the Commonwealth of punishing as a crime
the performance of any abortion except when carried out by a physician
"in good faith and in an honest belief that it (was) necessary for
the preservation of the life or health of a woman."
On January 22, 1973, the Supreme Court of the United States decided the
cases of Roe v. Wade, 410 U.S. 113, and Doe v. Bolton, 410
U.S. 179. These decisions not only "rendered inoperative" the
Massachusetts criminal abortion statute, as the State Court had occasion
to say in Doe v. Doe, (365 Mass. 556, 560 (1974), but introduced a new
regime affording Constitutional protections as follows (quoting from Wade,
410 U.S. at 164-165):
For the stage prior to approximately the end of the first trimester, the
abortion decision and its effectuation must be left to the medical
judgment of the pregnant woman's attending physician.
For the stage subsequent to approximately the end of the first trimester,
the State, in promoting its interest in the health of the mother, may, if
it chooses, regulate the abortion procedure in ways that are reasonably
related to maternal health.
For the stage subsequent to viability, the State in promoting its interest
in the potentiality of human life may, if it chooses, regulate, and even
proscribe, abortion except where it is necessary, in appropriate medical
judgment, for the preservation of the life or health of the mother."
All six Justices of Supreme Judicial Court of Massachusetts who heard the
appeal, holding that there was error in the proceedings at trial, vote to
reverse the conviction. Five Justices also vote to direct the entry of a
judgment of acquittal; the Chief Justice, dissenting in part in a separate
opinion, would order a new trial. The five Justices are agreed that there
was insufficient evidence to go to a jury on the overarching issue whether
Dr. Edelin was guilty beyond a reasonable doubt of the "wanton"
or "reckless" conduct resulting in a death required for a
conviction herein, and that motions for a directed verdict of acquittal
should have been granted accordingly. "The judgment is reversed and
the verdict set aside. Judgment of acquittal is to be entered. So
The highest Court, in the conclusion of its opinion, states: This opinion
does not seek an answer to the question when abortions are morally
justifiable and when not. That question is wholly beyond our province.
Rather we have dealt with a question of guilt or innocence under a
particular state of facts. We are conscious that the significance of our
decision as precedent is still further reduced by the fact that the case
arose in an interregnum between the Supreme Court's abortion decisions of
1973 ant the adoption of legislation intended to conform to those
decision--a kind of internal circumstance not likely to be repeated. (See
Exhibit A pages 1, 2, 3 and 29.)
The jurisdiction of the Supreme Court to review decisions of the
state courts is based upon 28 U.S.C. S 1257, which reads as follows:
judgments or decrees rendered by the highest court of a State in which a
decision could be had, may be reviewed by the Supreme Court as follows:
By appeal, where is drawn in question the validity of a treaty or statute
of the United States and the decision is against its validity.
By appeal, where is drawn in question the validity of a statute of any
state on the ground of its being repugnant to the Constitution, treaties
or laws of the United States and the decision is in favor of its validity.
By writ of certiorari, where the validity of a treaty or statute of the
United States is drawn in question or where the validity of a State
statute is drawn in question on the ground of its being repugnant to the
Constitution, treaties or laws of the United States or where any title,
right, privilege or immunity is specially set up or claimed under the
Constitution, treaties or statutes of or commission held or authority
exercised under, the United States." (United States Code-1976
Edition - U.S. Government Printing Office.)
10. There is no
ground in this case for applying the sanction established in article 51 of
the 1960 Regulation as amended: -the presumption of truth of the alleged
facts. The petitioners affirmation is correct in noting that the State
Department response was received in the Commission 32 days after the
expiry of the time limit of 180 days, but this rule is flexible. That term
may be extended in cases in which the Commission deems justifiable
(article 51.2.) The nature, complexity and importance of the many legal,
moral and scientific issues disputed in this case justify the reasonable
delay in the Government's response.
there is no reason to declare as presumed the truth of facts described in
the petition if both parties in this case agree, as it is evident from the
examination of the file, that such facts are not in controversy. However,
it is opportune to clarify that in this case there is no logical or legal
relation between the presumption of the truth of the facts, described by
the petitioners and the request involving legal issues, as set forth in
the petition of January 22, 1979 (see n. 12 of this report.)
12. The last
preliminary question to be resolved is the admissibility of the request
made to this Commission by four honorable Members of the Congress of the
United States of an advisory opinion related to the consequences of an
eventual decision of the Commission adverse to the United States.
13. Since its
creation, the Commission has competence to serve the Organization of
American States as an advisory body in respect of human rights (Statute
1960 article 9c). This function has been confirmed by article 112
of the Charter of the OAS (as amended by the Protocolo of Buenos Aires,
1967), ratified by the United States of America on April 23, 1968. The new
Statute of the Commission, approved by the General Assembly in October,
1979, provides that the Commission shall have power with respect to the
member states of the Organization "to respond to inquiries made by
any member state through the General Secretariat of the Organization on
matters related to human rights in that state and, within its
possibilities, to provide those states with the advisory services they
request." (article 18 c).
14. This article
shows clearly that inquiries by members of the congress or any other power
or authority of a Member State, to be considered by the Commission, must
be officially forwarded through the international representative of such
State in the Organization. Without prejudging the substance of the opinion
requested, the Commission shall comply, at any time, with the duty to
respond such an inquiry if it is properly submitted to this advisory body.
The international obligation of the United States of America, as a member
of the Organization of American States (OAS), under the jurisdiction of
the Inter-American Commission on Human Rights (IACHR) is governed by the
Charter of OAS (Bogotá, 1948) as amended by the Protocol of Buenos Aires
on February 27, 1967, ratified by United States on April 23, 1968.
16. As a
consequence of articles 3 i, 16, 51 e, 112 and 150 of this Treaty, the
provisions of other instruments and resolutions of the OAS on human
rights, acquired binding force. Those instruments and resolutions approved
with the vote of U.S. Government, are the following:
American Declaration of the Rights and Duties of Man (Bogotá, 1948)
Statute and Regulations of the IACHR 1960, as amended by resolution XXII
of the Second Special Inter-American Conference (Rio de Janeiro, 1965)
Statute and Regulations of IACHR of 1979-1980.
17. Both Statutes
provide that, for the purpose of such instruments, the IACHR is the organ
of the OAS entrusted with the competence to promote the observance and
respect of human rights. For the purpose of the Statutes, human rights are
understood to be the rights set forth in the American Declaration in
relation to States not parties to the American Convention on Human Rights
(San José, 1969). (Articles 1 and 2 of 1960 Statute and article 1 of 1979
18. The first
violation denounced in the petition concerns article I of the American
Declaration of Rights and Duties of Man: "Every human being has the
right to life...". The petitioners admitted that the Declaration does
not respond "when life begins," "when a pregnancy product
becomes a human being" or other such questions. However, they try to
answer these fundamental questions with two different arguments:
The travaux preparatoires, the discussion of the draft Declaration
during the IX International Conference of American States at Bogotá in
1948 and the final vote, demonstrate that the intention of the Conference
was to protect the right to life "from the moment of
The American Convention on Human Rights, promulgated to advance the
Declaration's high purposes and to be read as a corollary document, gives
a definition of the right to life in article 4.1: "This right shall
be protected by law from the moment of conception."
brief legislative history of the Declaration does not support the
petitioner's argument, as may be concluded from the following information
Pursuant to Resolution XL of the Inter-American Conference on Problems of
War and Peace (Mexico, 1945), the Inter-American Juridical Committee of Río
de Janeiro, formulated a preliminary draft of an International Declaration
of the Rights and Duties of Man to be considered by the Ninth
International Conference of American States (Bogotá, 1948). This
preliminary draft was used by the Conference as a basis of discussion in
conjuction with the draft of a similar Declaration prepared by the United
Nations in December, 1947.
Article 1 - Right to Life - of the draft submitted by the Juridical
Committee reads: "Every person has the right to life. This right
extends to the right to life from the moment of conception; to the right
to life of incurables, imbeciles and the insane. Capital punishment may
only be applied in cases in which it has been prescribed by pre-existing
law for crimes of exceptional gravity." (Novena Conferencia
International Americana - Actas y Documentos Vol. V Pág. 449).
A Working Group was organized to consider the observations and amendments
introduced by the Delegates and to prepare an acceptable document. As a
result of its work, the Group submitted to the Sixth Committee a new draft
entitle American Declaration of the Fundamental Rights and Duties of
Man, article I of which reads: "Every human being has the right
to life, liberty, security and integrity of this person."
This completely new article I and some substantial changes introduced by
the Working Group in other articles has been explained, in its Report of
the Working Group to the Committee, as a compromise to resolve the
problems raised by the Delegations of Argentina, Brazil, Cuba, United
States of America, Mexico, Peru, Uruguay and Venezuela, mainly as
consequence of the conflict existing between the laws of those States and
the draft of the Juridical Committee. (Actas y Documentos Vol. 5
pages 474-484, 495-504, 513-51S.
In connection with the right to life, the definition given in the
Juridical Committee’s draft was incompatible with the laws governing the
death penalty and abortion in the majority of the American States. In
effect, the acceptance of this absolute concept--the right to life from
the moment of conception--would imply the obligation to derogate the
articles of the Penal Codes in force in 1948 in many countries because
such articles excluded the penal sanction for the crime of abortion if
performed in one or more of the following cases: A-when necessary to save
the life of the modern; B-to interrupt the pregnancy of the victim of a
rape; C-to protect the honor of an honest woman; D-to prevent the
transmission to the fetus of a hereditary on contagious disease; E-for
economic reasons (angustia económica).
In 1948, the American States that permitted abortion in one of such cases
and, consequently, would be affected by the adoption of article I of the
Juridical Committee, were; Argentina - article 86 n.1, 2 (cases A and B);
Brasil - article n.I, II (A and B); Costa Rica - article 199 (A); Cuba -
article 443 (A, B and D); Ecuador -article 423 n.l, 2 (A and B); Mexico (Distrito
y Territorios Federales) - articles 333e 334 (A and B); Nicaragua -
article 399 (frustrated attempt) (C); Paraguay - article 352 (A); Peru -
article 163 (A-to save the life or health of the mother); Uruguay -
article 328 n. 1-5 (A, B, C. and F - the abortion must be performed in the
three first months from conception); Venezuela - article 435 (A); United
States of America - see the State laws and precedents;
Puerto Rico S S 266, 267 (A) (Códigos Penales Iberoamericanos -
Luis Jiménez de Asua - Editorial Andrés Bello - Caracas, 1946 - volúmenes
I y II).
On April 22, 1948, the new article I of the Declaration prepared by the
Working Group was approve by the Sixth Committee with a slight change in
the wording of the Spanish text (there was no official English text at
that stage) (Actas y Documentos) vol. V pages 510-516 and 578).
Finally, the definitive text of the Declaration in Spanish, English,
Portuguese and French was approved by the 7th plenary Session of the
Conference on April 30, 1948, and the Final Act was signed May 2nd. The
only difference in the final text is the elimination of the word
"integrity" (Actas y Documentos vol. VI pages 297-298; vol. I
pages 231, 234, 236, 260, 261).
Consequently, the defendant is correct in challenging the petitioners'
assumption that article 1 of the Declaration has incorporated the notion
that the right of life exists from the moment of conception. Indeed, the
conference faced this question but chose not to adopt language which would
clearly have stated that principle.
20. The second
argument of the petitioners, related to the possible use of the Convention
as an element for the interpretation of the Declaration requires also a
study of the motives that prevailed at the San José Diplomatic Conference
with the adoption of the definition of the right to life.
21. The Fifth
Meeting of Consultation of Ministers of Foreign Affairs of the OAS, held
at Santiago, Chile in 1959, entrusted the Inter-American Council of
Jurists with the preparation of a draft of the Convention on Human Rights
contemplated by the American States since the Mexico Conference in 1945.
22. The draft,
concluded by the Commission in about two weeks, developed the American
Declaration of Bogotá, but has been influenced also by other sources,
including the work in course at the United Nations. It consists of 88
articles, begin with a definition of the right to life (article 2), which
reintroduced the concept that "This right shall be protected by law
from the moment of conception." (Inter-American Year-book, 1968 -
Organization of American States, Washington, 1973 - pages 67, 237.)
23. The Second
Special Conference of Inter-American States (Rio de Janeiro, 1965)
considered the draft of the Council with two other drafts presented by the
Governments of Chile and Uruguay, respectively, and asked the Council of
the OAS, in cooperation with the IACHR, to prepare the draft of the
Convention to be submitted to the diplomatic conference to be called for
24. The Council of
the OAS, considering the Opinion enacted by the IACHR on the draft
convention prepared by the Council of Jurists, give a mandate to
Convention to be submitted as working document to the San José conference
(Yearbook, 1968, pages 73-93.)
25. To accommodate
the views that insisted on the concept "from the moment of
conception," with the objection raised, since the Bogota Conference,
based on the legislation of American States that permitted abortion, inter
alia, to save the mother's life, and in case of rape, the IACHR,
redrafting article 2 (Right to life), decided, by majority vote, to
introduce the words "in general." This compromise was the origin
of the new text of article 2 "1. Every person has the right to have
his life respected. This right shall be protected by law, in general,
from the moment of conception." (Yearbook, 1968, page 321.)
26. The rapporteur
of the Opinion proposed, at this second opportunity for discussion
of the definition of the right of life, to delete the entire final phrase
"...in general, from the moment of conception." He repeated the
reasoning of his dissenting opinion in the Commission; based on the
abortion laws in force in the majority of the American States, with an
addition: "to avoid any possibility of conflict with article 6,
paragraph 1, of the United Nations Covenant on Civil and Political Rights,
which states this right in a general way only." (Yearbook,
1968 - page 97).
27. However, the
majority of the Commission believed that, for reasons of principle, it was
fundamental to state the provision on the protection of the right to life
in the form recommended to the Council of the OAS in its Opinion (Part
One). It was accordingly decided to keep the text of paragraph 1 without
change. (Yearbook, 1968, page 97).
28. In the
Diplomatic Conference that approved the American Convention, the
Delegations of Brazil and the Dominican Republic introduced separate
amendments to delete the final phrase of paragraph 1 of article 3 (Right
to life) "in general, from the moment of conception". The United
States delegation supported the Brazilian position. (Conferencia
Especializada Interamericana sobre Derechos Humanos - ACTAS Y
DOCUMENTOS - Washington 1978 (reprinted) - pages 57, 121 y 160.)
29. Conversely, the
Delegation of Ecuador supported the deletion of the words "and in
general". Finally, by majority vote, the Conference adopted the text
of the draft submitted by the IACHR and approved by the Council of the
OAS, which became the present text of article 4, paragraph 1, of the
American Convention (ACTAS Y DOCUMENTOS - pages 160 and 481.)
30. 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
accepting gratia argumentandi, that the American Convention had
established the absolute concept of the right to life from the moment of
conception - it would be impossible to impose upon the United States
Government or that of any other State Member of the OAS, by means of
"interpretation," an international obligation based upon a
treaty that such State has not duly accepted or ratified.
32. The question of
what reservation to article I of the Convention should be admissible, as
suggested by President Jimmy Carter in his Letter of Transmittal to the
Senate on February 23, 1978, has no direct link with the objective of the
petition. This is not the appropriate place or opportunity for the
consideration of this matter.
33. The other
rights which the petitioners contend were violated --Articles II, VII and
XI of the American Declaration--have no direct relation to the facts set
forth in the petition, including the decision of the U.S. Supreme Court
and the Supreme Judicial Court of Massachusetts which were challenged in
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
The decision of the U.S. Supreme Court and the Supreme Judicial
Court of Massachusetts and other facts stated in the petition do not
constitute a violation of articles I, II, VII and XI of the American
Declaration of Rights and Duties of Man.
This decision must be transmitted to the petitioners and the U.S.
To include this resolution in the Commission's Annual Report.
Chairman Tom J. Farer, Second Vice Chairman Francisco Bertrand Galindo, and Doctors Carlos A. Dunshee de Abranches, Andrés Aguilar, and César Sepúlveda concurred in approving this resolution. Dr. Aguilar presented a concurring explanation of his vote. Doctors Marco Gerard Monroy Cabra and Luis Demetrio Tinoco Castro presented separate, dissenting, explanation of their votes. Those explanations of votes are included as appendices to this resolution.
410 U.S. 113" means United States Reports, vol. 410, p.113. This
explanation is offered for the benefit of persons unfamiliar with
United States systems of legal reporting and case citation.
The object of scrutiny in Doe v. Bolton was a more
sophisticated modern statute regulating the performance of abortions.
The opinion applies the principles developed in Wade and thus
does not warrant further discussion here.
It should be noted that the right to privacy is an extension of the
right to personal liberty guaranteed by the Fourteenth Amendment to
the U.S. Constitution. Article I of the American Declaration on the
Rights and Duties of Man joins the rights of life and liberty as basic
Daniel Callahan - Abortion: Law, Choice and Morality. William A.Nolen
- The Baby in the Bottle - Cowarn, McCann & Geoghengan, Inc. -New
York, 1978; 410 U.S. 113 provites a list of the articles of State's
Penal Codes and similar statutes on abortion in existence in a
majority of states in 1973 (pages 118-119).