Justice Scalia’s Foreign Law, Abortion Complaints Apply to Potential Obama Pick
by Steven Ertelt
LifeNews.com Editor
November 18, 2008
Washington, DC (LifeNews.com) — Justice Antonin Scalia condemned the use of foreign laws and court decisions in rendering decisions on policies in the United States. His criticisms, which included abortion, apply to one of the lawyers seen as a potential top pick for Barack Obama for the Supreme Court.
Scalia spoke to the Houston, Texas chapter of the Bar Association on Monday night and he said he worries the use of foreign laws and court decisions is eroding the U.S. Constitution.
"I fear the courts’ use of foreign law in interpreting the Constitution will continue at an accelerated pace," he said, according to the Houston Chronicle.
Scalia noted the controversial Lawrence v. Texas decision striking down sodomy laws in the state as an example of when the courts have wrongly used cases in foreign courts to make decisions on American laws.
The newspaper also indicated that Scalia said the proponents of using foreign laws and court decisions are not applying them uniformly. He pointed to court cases regarding abortion in the majority of nations in the world where abortion is illegal and said legal activists are inconsistent.
"The court has ignored foreign law in its abortion cases," he said.
Scalia’s comments are particularly appropriate because Harold Hongju Koh, the dean of Yale Law School, is likely one of the people on the short list for Barack Obama to select as the next member of the Supreme Court.
As Piero A. Tozzi, of the Catholic Family and Human Rights Institute, wrote in a recent article, Koh is strongly pro-abortion and relies on the use of foreign law and court decisions.
Tozzi notes that Koh’s academic writings have redefined sovereignty as “a nation’s capacity to participate in international affairs,” and have blurred any distinctive national identity.
"Koh goes on to say that the way a nation exercises sovereignty responsibly is to accept all United Nations (UN) documents and the UN human rights review process," Tozzi writes.
With the United Nations, aided by a supportive Obama administration, possibly setting out to make abortion an international right and approving documents requiring countries across the globe to honor that right, a Koh appointment would make it that much harder to overturn Roe.
While the Supreme Court "took a step away from transnationalism " in the case of Medellín v. Texas, holding that domestic constitutional principles outweighed an international directive, Koh has tried to lobby the court otherwise.
Tozzi says Koh authored an influential “friend-of-the-court” brief arguing for the incorporation of international norms in a death penalty case. The same arguments could be applied to abortion to make the U.S. comply with the pro-abortion sentiments of the UN.
Tozzi also pointed to the same case Scalia referred to and condemned.
"Substantively more worrisome to social conservatives, however, is the importation of abortion," the CFAM author notes and points out that the Supreme Court ruling in Lawrence v. Texas referenced evolving international norms.
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