The Supreme Court Should Look At International Abortion Law and Overrule Roe v. Wade

Ligia De Jesus Castaldi
September 6, 2021
Reproduced with Permission
Public Discourse

International law on abortion has been back in the public eye in the last few weeks. That's because the precedents set by the international community support Mississippi's challenge to the viability standard for abortion and its health exception in Dobbs v. Jackson Women's Health , the landmark abortion case that will soon be decided by the US Supreme Court.

Commentators of all stripes have expressed shock and embarrassment at the fact that, as of 2021, the United States is one of only eight countries in the world that allow abortion on demand beyond fourteen weeks' gestational age. America enjoys mixed company in this category with Canada, China, the Netherlands, North Korea, Singapore, Sweden, and Vietnam. These strange bedfellows have the world's most permissive abortion regimes, legally allowing late-term abortions on demand up to twenty weeks gestational age (eighteen weeks in Sweden) or up to the time of birth. Russia used to be in this category, but since 2011 has been incrementally limiting abortion on demand to the first trimester due to the negative demographic effect caused by its ultra-liberal abortion regime during the communist era.

Several of the eighty pro-life amicus curiae briefs in Dobbs v. Jackson discuss international and foreign law on abortion. The Center for Family and Human Rights (C-Fam)'s amicus brief in support of petitioners shows that Mississippi's law is consistent with the obligations of the United States under international human rights law and emphasizes the nonexistence of an international customary right to abortion. The amicus curiae brief of 141 international legal scholars , which I co-wrote, argues that if the Court chooses to consider international law in the Dobbs case, it should find that international human rights law and foreign law generally recognize unborn children as rights-holders and affirm the prerogative of sovereign states to protect their lives by rigorously regulating abortion. Many countries' abortion laws are much more restrictive than the Mississippi Gestational Age Act.

The brief was signed by two former judges of the European Court of Human Rights, Giovanni Bonnello and Vincent De Gaetano; a former chief justice of the Inter-American Court of Human Rights, Rafael Nieto Navia; and former judges of the constitutional courts and supreme courts of several countries, including Argentina, Chile, Germany, India, Korea, Poland, and the Philippines. It was also signed by nine deans of American and international law schools and eminent professors from twenty countries, including the United States, Austria, Brazil, Canada, Chile, Croatia, Germany, Mexico, Poland, Singapore, South Korea, Spain, Slovakia, and the United Kingdom.

Whether the court will give international law on abortion any persuasive authority in Dobbs v. Jackson is still unclear. The US Supreme Court has certainly looked at international and foreign law when deciding death penalty cases in the past, such as Atkins v. Virginia , Coker v. Georgia , and Roper v. Simmons . In both Roper and the landmark abortion case Planned Parenthood v. Casey , Justices Scalia and Thomas noted the court's inconsistency in looking at international consensus on the death penalty but refusing to look at international and foreign law when deciding cases on abortion. As they pointed out, Roe and Doe turned America into "one of only six countries that allow abortion on demand until the point of viability." Similarly, in Casey , Chief Justice Rehnquist's dissent contrasted Roe with the 1975 West German abortion decision, decided only two years after Roe , that reached the opposite conclusion, finding that prenatal life was constitutionally protected in that country.

If the US Supreme Court does decide to look at international law, it will find that viability is not an international legal standard for abortion. As of today, even the most liberal abortion regimes in Western countries establish a twelve-week gestational age limit, not the child's ability to survive outside the womb, as the most important limitation for abortion on demand. The viability rule, created by seven US Supreme Court judges in Roe , is uniquely arbitrary both from a comparative law and from a constitutional law perspective because it prohibited any state legal protection of the unborn child's right to life before viability, identified at around twenty weeks' gestational age. It held that a state's interest in prenatal life begins only after the point of viability, using the child's biological dependence on her mother against her. Casey reaffirmed Roe and its viability rule, toning down its prohibition of pre-viability regulation of abortion, holding that states may protect both state interests in women's health and fetal life before viability. This is a test that Mississippi's law certainly seems to meet.

Like most countries in the world, Mississippi defined its health exception to abortions after fifteen weeks' gestation as physical, not mental health. But alas, Doe v. Bolton , Roe 's companion case, created a broad catch-all health exception that exempted post-viability abortions from any judicial or legal scrutiny as long as a physical, social, or psychological health excuse could be identified by the abortion provider, regardless of the obvious conflict of interest. This is why states are currently unable to give meaningful protection to the unborn child's right to life even after the point of viability. Law Professor Teresa Collett indicated in a recent symposium that, in Dobbs , the US Supreme Court is presented with an opportunity to overrule the over-broad definition of health created in Doe, limiting it to the ordinary understanding of the term as physical health.

The great majority of countries regulate abortion more heavily than Mississippi does.

Mississippi's law has been called "rather modest by international standards," given that its legal protection of unborn children begins only at fifteen weeks' gestational age and allows abortions after fifteen weeks under a physical health exception. The legal status of abortion in most of the world today is probably similar to the status of abortion in America before Roe was decided in 1973: in the absence of an international right to abortion, countries are allowed to exercise their prerogative under international law to heavily restrict access to abortion by way of narrow grounds, gestational limits, and other requirements.

The great majority of countries regulate abortion more heavily than Mississippi does. According to the Center for Reproductive Rights (CRR) - a global advocacy group seeking to make abortion an international human right - 117 countries either prohibit abortion entirely or permit the practice only on narrow grounds. In this category, twenty-four countries prohibit abortion altogether, with some allowing for limited exceptions to save the life of the mother under the criminal-law principle of necessity. The other ninety-three countries permit abortion only on the grounds of saving the mother's life, preserving her health, or in cases of rape, incest, or fetal impairment.

Dobbs could be an important international pro-life precedent if a majority of the US Supreme Court chooses to act on the opportunity to overrule the inhumane and arbitrary viability rule, to expand states' ability to regulate pre-viability abortions, or to narrow down Doe 's unreasonable definition of health. Just as Roe v. Wade is internationally cited by foreign and international judges and courts that support abortion, Dobbs could be cited by foreign and international courts to recognize and enforce human rights protections for unborn children. More importantly, such a ruling in Dobbs could set an example for other countries that have highly permissive, seemingly inalterable abortion regimes, showing that it is possible for the highest court in the most powerful nation to reverse course and correct wrongs even after almost fifty years of judicial abortion legislation.


Top