Who Are Our Peers on Abortion Rights?
By Martha F. Davis | October 12, 2021
Martha F. Davis is University Distinguished Professor at the Northeastern University School of Law.
The intensifying battle over abortion rights in the U.S. belies a global trend. Around the world, barriers to abortion are falling. Mexico, Argentina, Iceland, Nepal, Ireland and Australia are among the most recent of over 50 nations where abortion access has expanded in the past 25 years. At the same time, countries where abortion was already broadly available, such as the United Kingdom, Canada, New Zealand and the Netherlands, have held firm in assuring women’s reproductive choices, reconfirming the importance of abortion access as a matter of equality and public health.
In contrast to this overall trend toward liberalization, a few nations in recent years have taken dramatic steps to limit abortion access. As of January 2021, Poland – named the world’s most “autocratizing country” – allows abortion only in cases of rape or incest or when the pregnancy threatens the life of the mother. The abortion ban in Nicaragua, another emerging dictatorship, dates from 2006, and has had dire consequences for the health and lives of women in that country. Honduras, under autocratic rule, hardened its abortion ban in 2021 by placing it in the national constitution.
In Dobbs v. Jackson Women’s Health Organization, the Supreme Court will have the chance to decide where the U.S. belongs in terms of abortion law: with the liberal democracies or with the autocrats.
In Dobbs v. Jackson Women’s Health Organization, set for oral argument on December 1, 2021, the U.S. Supreme Court will have the chance to decide where the U.S. belongs in terms of abortion law: with the liberal democracies or with the autocrats. The Mississippi legislation challenged in Dobbs bans abortion at 15 weeks. This is in plain violation of the existing protection for abortion until viability, a line established in Roe v. Wade and upheld in Planned Parenthood v. Casey. The State of Mississippi has aggressively called for the reversal of both of these venerable precedents.
Why should the U.S. Supreme Court pay any heed to what is happening in the rest of the world?
Surprisingly, the Mississippi legislation’s own text explicitly invokes international trends by arguing that the U.S.’s current viability-based abortion law is an outlier internationally. However, this legislative assertion is just plain wrong. A more nuanced and accurate comparative analysis shows that U.S. law is in line with our closest legal peers – e.g., Canada, the U.K. – and consistent with abortion access in most other liberal democracies. And the overall trend toward liberalization, driven by concern for women’s health, dignity and autonomy, could not be clearer. Amicus briefs in the Dobbs case filed by prominent comparative law scholars from around the world drive home this point.
International trends have played a role in many Supreme Court cases involving significant constitutional questions that are common across nations and peoples. Notably, the Court has looked to international trends in narrowing the scope of the death penalty, and in expanding protection of privacy to encompass same-sex relationships.
Still, many observers expect that the Court is preparing to withdraw federal constitutional protection to access abortion, allowing states like Texas to adopt a 6-week abortion ban that creates impossible hurdles for women, who may lose their eligibility for abortion before they even learn of their pregnancy. If the Court takes that step, it will do so with the full knowledge that it is backing away from the standards adopted by our legal peers, ignoring global trends toward liberalization, and instead aligning U.S. law and policy with nations that are truly outliers.