Why the Supreme Court may look to China as it reconsiders Roe v. Wade
WASHINGTON – A heated debate over how foreign countries regulate abortion is playing into a challenge to Roe v. Wade – even though the Supreme Court’s conservative justices have often looked askance at taking cues from overseas.
Anti-abortion advocates and groups that support abortion rights have filed dueling briefs claiming to be on the side of international norms in Mississippi’s blockbuster challenge to Roe v. Wade, the 1973 ruling that established a constitutional right to end a pregnancy.
A majority of the court signaled during arguments last week that it may uphold the Mississippi law, which bans most abortions after 15 weeks of pregnancy. That's about nine weeks earlier than viability – the point when a fetus can survive outside the womb – that the court set in Roe v. Wade as the cutoff for obtaining an abortion.
Most of the court's discussion focused on the Constitution and precedent.
But how other countries approach the divisive question has repeatedly come up: Mississippi lawmakers included a global comparison in the first section of the legislation they sent to the governor in 2018; state attorneys raised it in their written arguments to the high court in July; and Chief Justice John Roberts asked about it during the oral arguments.
"When you get to the viability standard, we share that standard with the People’s Republic of China and North Korea," Roberts told the lawyer for Mississippi's last abortion clinic, Jackson Women's Health Organization. “I don't think you have to be in favor of looking to international law to set our constitutional standards to be concerned."
But claims about where other nations draw the line on abortion often lack context, and both sides choose comparisons to make their opponents appear as if they're in league with the world’s most notorious autocrats. Roberts is correct that both China and North Korea have lax laws on abortion. What he didn't mention: So does Canada.
Mexico, a heavily Roman Catholic country where abortion has long been widely restricted, drew international attention this fall when its high court unanimously ruled that states could no longer criminally prosecute people for having an abortion.
"Justice Roberts' references to China and North Korea were based on conservative talking points, I'm afraid," said Martha Davis, a Northeastern University School of Law professor who, along with other scholars, filed a brief in the case opposing the Mississippi law. "Our current abortion law actually puts us in the company of the U.K., Canada and the Netherlands, among other countries with which we share common values."
'Nominal' standards on abortion
Advocates on both sides of the abortion debate count roughly 40 European countries – including France, Germany and Italy – with preliminary 15-week-or-earlier cutoffs. And anti-abortion groups say Mississippi’s law doesn’t look like an outlier by comparison.
But opponents say the number by itself lacks context: Many of those countries allow people to end a pregnancy long after such a limit. That's because many European countries allow people to have an abortion after the cutoff by invoking broadly interpreted exemptions, such as showing that continuing the pregnancy would harm the mental health of the patient. By comparison, Mississippi’s law offers no exception for rape or incest, let alone the possibility that continuing a pregnancy would lead to harm to a patient's mental health.
"The majority of countries that permit legal access to abortion allow access right up until viability, even if they have nominal lines earlier," Julie Rikelman, representing the Mississippi clinic, responded to Roberts during arguments last week.
Germany, for instance, sets its cutoff at 14 weeks of pregnancy. But a German national can get an abortion up to viability if, in light of "present and future circumstances," it is needed to avoid harm to mental or physical health. Switzerland sets its cutoff at 12 weeks but waives penalties after that point if a physician determines the procedure is needed to prevent "serious physical injury or serious psychological distress."
Many European countries also provide government funding for the procedure, which reduces the financial burden abortion rights advocates say can force some people to delay an abortion. Contraception is also more widely available in many Western democracies.
Anti-abortion groups note the European countries in dispute require a justification after the initial cutoff. They point to a 2017 United Nations report that found 34% of countries allow an abortion "solely based on a woman’s request." Seven other countries besides the U.S. allow abortion without reason requirements after 20 weeks: Canada, China, Iceland, the Netherlands, North Korea, Singapore and Vietnam. It's a number anti-abortion advocates often have focused on in the debate over the law.
"That is not progress," Mississippi told the court in written arguments earlier this year. "The time has come to recognize as much."
Even though a number of European countries offer exceptions to their "nominal lines," they nevertheless are putting a marker down, said Stephen Billy, executive director of the Charlotte Lozier Institute, a research group opposed to abortion. In that sense, many European nations do have stricter laws than those in place in the U.S.
"Say what you will about it, it exists in black-and-white letter law," he said. "Those countries have a limitation and those limitations are in place."
Foreign views on abortion
That such comparisons to other countries are being made in the first place is something of a departure from how many conservative justices have viewed constitutional law in the past.
The court has often debated the salience of other nations' laws in the context of the death penalty, including in a 2005 case in which a 5-4 majority ruled that executing minors was a "cruel and unusual punishment" that violated the Eighth Amendment.
"The United States is the only country in the world that continues to give official sanction to the juvenile death penalty," wrote Associate Justice Anthony Kennedy, a swing vote nominated by President Ronald Reagan. Looking to other countries, Kennedy wrote, "does not lessen our fidelity to the Constitution or our pride in its origins."
But in a sharp dissent, Associate Justice Antonin Scalia blasted the court for "putting forth foreigners’ views." Any suggestion that "American law should conform" to the laws of other countries, he wrote, "ought to be rejected out of hand." Scalia died in 2016, but his approach to the law remains influential, including with the three associate justices President Donald Trump named to the court since then.
Roberts himself, during his 2005 Senate confirmation hearing, warned of what he described as the danger of jurists looking abroad for help in interpreting U.S. law.
"In foreign law you can find anything you want," he told senators. "If you don’t find it in the decisions of France or Italy, it's in the decisions of Somalia or Japan or Indonesia or wherever. As somebody said in another context, looking at foreign law for support is like looking out over a crowd and picking out your friends. You can find them."
The sentiment has been shared widely among conservatives.
"The conservative legal movement more generally has been very clear that looking to other sources of law beyond the United States is not something that the United States Supreme Court or federal courts ought to do," said Melissa Murray, a law professor at New York University. "There's been a strong strain of American legal exceptionalism in the conservative legal movement."
Conservatives say that cuts both ways: If progressives see value in trying to glean something about U.S. law by looking to global standards, why not for abortion?
"We're told all the time how enlightened Europe is by the left,” said Billy, with the Charlotte Lozier Institute. "It makes sense to look at other countries for context about whether a pretty commonsense limitation will lead to the kind catastrophe the left is trying to forecast."