On May 2, 2022, many Americans’ fears were realized when Politico published a leaked Supreme Court decision which would overturn the landmark case Roe v. Wade, thereby rescinding the federal constitutional right to abortion. The nation was thrown into turmoil as thousands across the country marched and protested to condemn the Supreme Court’s leaked Dobbs v. Jackson Women's Health Organization opinion. Many understood the repercussions of the leaked Alito draft: the legitimacy of the Supreme Court would be undermined by overturning a nearly 50-year-old precedent; the lack of a national abortion law would return many states to centuries-old, draconian abortion bans; millions of people across the country would no longer have access to basic medical care; other constitutionally-guaranteed rights such as same-sex marriage and contraception could be threatened.
On June 24, 2022, worst fears were confirmed when the Supreme Court issued a final ruling on Dobbs that was largely unchanged from the leaked majority opinion, apart from the addition of three concurrences and a dissent. The effects of this decision are undoubtedly widespread and extremely concerning. In fact, according to a United Nations report issued in 2020, “[b]etween 1996 and 2017, the percentage of countries permitting abortion increased gradually for all legal grounds, while the percentage of countries not permitting abortion on any grounds declined.” The Dobbs opinion thus ran counter to a decades-long trend of relaxing abortion laws. According to that same report, “[a]s of 2017, only four countries did not permit abortion under any circumstances.” The fact that only four countries in the world do not allow abortion makes it all the more shocking that a number of American states (e.g., Texas, Louisiana, South Dakota, Alabama, etc.) have enacted or will soon enact near-total abortion bans in the wake of Dobbs.
There have been many journal articles and think-pieces written on this decision, its effects, and our nation’s future, and this article does not seek to belabor the point. Instead, it will examine global trends in abortion law to illustrate how the United States should proceed.
Abortion laws vary widely across national borders. The strictest laws, found in countries including El Salvador, Malta, Nicaragua, and the Holy See (Vatican City), criminalize abortion with no exceptions, even to save the life of the pregnant person. Some countries allow abortion only to save the life of the pregnant woman, including Afghanistan, Bangladesh, Haiti, Madagascar, the Philippines, and Senegal (requiring 3 doctors to testify that a pregnancy is life-threatening).
The next most common justification for abortion is to preserve the pregnant person’s health. According to the U.N. Report, “[i]n 2017, 72 per cent of countries permitted abortion as a means of preserving a woman’s physical health, and 69 per cent identified mental health as a legal justification for abortion.” Fetal impairment, another common justification for legal abortions, rose in prevalence from 41% of countries in 1996 to 61% in 2017. Similarly, the allowance of abortions in cases of rape or incest grew from 43% of countries in 1996 to 61% in 2017.
The most liberal abortion laws, which allow abortions on economic or social grounds, or simply on request, are not found widely across the globe:
“In 2017, 85 per cent of countries in Europe and Northern America authorized abortion for economic or social reasons, and 80 per cent permitted abortion on request. Conversely, in 2017 Oceania had the lowest share of countries authorizing abortion on economic or social grounds, or on request (6 per cent for both), followed by sub-Saharan Africa (10 per cent for both), and Latin America and the Caribbean (18 per cent for economic or social reasons, and 12 per cent on request).”
In addition to the prevalence of such laws restricting or allowing abortion, the strictness of these laws also varies widely. For example, gestational limits are not uniform within regions, let alone across the globe. In 2017, 65% of countries required the authorization of a healthcare professional to induce an abortion. 42% of countries required parental consent for to induce an abortion for a minor. Notably, “[m]andatory waiting periods and counselling are not prevalent requirements for induced abortion,” although such tactics have been discussed widely in American jurisprudence.
While abortion law varies greatly across state lines and across the globe, examining how other countries have approached abortion law may help the United States reach a more sensible policy.
It is first important to understand American sentiment about abortion law. According to data gathered by the Pew Research Center, 57% of American adults “disapprove of the court’s decision that the U.S. Constitution does not guarantee a right to abortion and that abortion laws can be set by states, including 43% who strongly disapprove[.]” 62% “say abortion should be legal in all or most cases, … [including] 29% of Americans who say it should be legal in all cases and 33% who say it should be legal in most cases.” Only 8% of American adults say abortion should be illegal in all cases.
Thus, the majority of the country believes abortion should be allowed in at least some cases. This sentiment, in combination with the global trends towards less restrictive abortion laws, suggest that lawmakers should seek to ensure abortion access nationally, rather than leaving the decision up to the states. The U.N. Report does not show that most countries allow abortion on-demand with no justification; rather, the data shows that abortions are being allowed for more reasons (the patient’s life or health, fetal impairment, etc.). Instead of advocating for a complete allowance of all abortion, the United States could attempt to pass a relatively moderate policy that may require a health, social, or economic reason for someone to seek an abortion. This would allow most people seeking an abortion to receive care, without promoting a “free-for-all” abortion policy that may dissuade more conservative Americans.
In keeping with this theory, shortly after the Dobbs opinion leak, Democratic lawmakers introduced the Women’s Health Protection Act (“WHPA”) on June 8, 2021. The Act was passed in September 2021 by the House with 176 supporters, but failed in the Senate in February 2022 (winning 48 votes, short of the 60-vote filibuster threshold). It was widely viewed as symbolic. On July 15, 2022, the House again passed the WHPA, and it is now awaiting another vote by the Senate.
The WHPA appears to propose common practices consistent with other countries’ abortion policies. For example, the Act prohibits states from “requir[ing] patients to make medically unnecessary in-person visits before receiving abortion services or disclose their reasons for obtaining such services,” which aligns with the U.N. Report’s statement that waiting periods and counseling are not standard practice globally. It also prohibits the denial of abortion when “the pregnancy risks the patient’s life or health[,]” which is also standard in most of the world (98% of countries permit abortion to save the patient’s life, and 72% of countries permit abortion to preserve the patient’s health).
Further, the WHPA only prohibits medically unnecessary restrictions. “These restrictions include six-week bans, 20-week bans, mandatory ultrasounds, biased counseling, waiting periods, and requirements that providers obtain admitting privileges at local hospitals.” This does not mean that states cannot create medically necessary restrictions; this should allay some pro-life fears that the WHPA is an abortion “free-for-all” law.
Following the November 2022 midterm elections, the WHPA remains unlikely to pass. The Senate is now divided nearly evenly, with Democrats holding a slim majority with 51 seats and Republicans holding 49 seats. The Senate filibuster rule is still in place, so the WHPA would need a super-majority (60 votes) to pass, which is unlikely with only 51 Democrats.
Should the WHPA fail again in the Senate, access to abortion will continue to be decided on a state-by-state basis. Even in other countries lacking a federal abortion law, however, each state has independently decided to legalize abortion. For example, in 2022, South Australia became the last state in Australia to legalize abortion. Near total bans in some states, with legal on-demand abortions available in other states, are an exclusively-American phenomenon.
For more ideas on how to advocate for abortion rights in the United States, please visit the following resources:
Seven Things You Can Do Right Now For Abortion Rights, Center for Reproductive Rights, https://reproductiverights.org/seven-things-you-can-do-right-now-advance-abortion-rights/;
Six Ways You Can Join the Fight for Abortion Rights, ACLU, https://www.aclu.org/news/reproductive-freedom/six-ways-join-fight-for-abortion-rights-roe-v-wade;
Resources for advocates and decisionmakers, Ipas Partners for Reproductive Justice, https://www.ipas.org/resource-library/advocates-decisionmakers/;
Bans Off Our Bodies, Planned Parenthood, https://www.plannedparenthoodaction.org/rightfully-ours/bans-off-our-bodies;
NARAL Pro Choice America, https://www.prochoiceamerica.org/.
Lea Halberstein is a second-year law student at the Northeastern University School of Law in Boston, Massachusetts. Lea was born and raised in Massachusetts and earned her Bachelor’s degree in International Relations at Boston University. Since graduating from Boston University, she has taught English in Fort-de-France, Martinique and worked as a paralegal in both Providence, Rhode Island and Halifax, Nova Scotia. Lea is passionate about social justice and gender equality, and would like to work in international human rights law. During law school, Lea has been active in the International Law Society and Northeastern University Law Review. She enjoys meeting new people and living in different cultures to better understand others’ perspectives. She hopes to combine these interests in her future career to promote equality and human rights worldwide.