Dobbs has heralded an era of both regression and change for international human rights law, no less than for U.S. constitutional law. In 2022, the decision was criticized by prominent human rights commentators as an egregious rollback for reproductive rights and gender equality; it was also endorsed by others as defending a theory of fetal life as a basic human right. This Article argues that Dobbs’ outcome and its dicta must be understood within a larger set of moves by transnational actors who share and propel a distinctive “counter” vision of human rights. Considered in this perspective, Dobbs marks an inflection point in the development of a body of law that disconnects human rights arguments from current international human rights law and promotes the overturning of human rights understandings, just as it has for U.S. constitutional doctrine.
Two projects of the first Trump Administration are key to understanding the import of Dobbs in this new era for human rights: the Commission on Unalienable Rights and the Geneva Consensus Declaration. Each set out to reshape human rights as part of a broader shift in the toolbox of American foreign policy. Each sought to contest the evolving consensus around abortion, developing in international treaty law and the comparative human rights law of other domestic legal systems. But while reproductive rights contestation was a central component of each, the ambition was more novel: to help unsettle the contemporary paradigm of international human rights accountability and of U.S. human rights-defending alliances. Rather than segment such developments as the work of different domains or actors in law, this Article argues that reading Dobbs’ constitutional doctrine internationally and comparatively brings to light this new era for human rights: one which empowers newly appropriated human rights arguments, a new version of U.S. social rights exceptionalism, and an inversion of the U.S. foreign law debate. Through the abortion jurisprudence of Dobbs, the U.S. Supreme Court reveals itself not as a reluctant player in the transnational world of human rights but as a key participant in redefining the meaning of that body of law in both domestic constitutional and international settings. As the second Trump Administration now carves out a distinctive path for American and international human rights, the precursor of Dobbs and Dobbs’ own precursors become ever more relevant.