As soon as next year, the U.S. could take up company with the small cohort of countries with high courts that have rejected or undermined abortion rights. But another path is possible.
We may be watching the endgame of constitutional protection for the right to abortion in the United States. Two cases—Roe v. Wade and Planned Parenthood v. Casey—prohibit states from creating undue burdens on a pregnant person’s right to end a pre-viability pregnancy.
As a practical matter, for many in the U.S., abortion access at any stage of pregnancy presents significant and unnecessary challenges, and access is almost non-existent at the later stages of pregnancy. That has not kept many Southern and Midwestern states from passing legislation that flagrantly flaunts the holdings of Roe and Casey.
Eight states have passed laws that allegedly protect women’s health or fetal dignity by preventing abortions early in pregnancy. These laws are evidently unconstitutional, though they have been largely enjoined by federal courts. Texas S.B. 8, a near-total abortion ban, went into effect after both a federal appellate court and the Supreme Court refused to stop the law’s enforcement—not on constitutional grounds but on procedural points that have been written about elsewhere. Most recently, the U.S. Department of Justice sued Texas in another effort to suspend S.B. 8.
Though S.B. 8 is a blatant run-around of constitutional protections, its peculiarities may be immaterial as soon as next year as the Supreme Court is poised to permit states to ban abortion throughout pregnancy. This term, the Court will decide Dobbs v. Jackson Women’s Health Organization, a case concerning a Mississippi law that bans abortion after 15 weeks of gestation. If that happens, 15-week, six-week or total bans could become constitutionally permissible, and numerous states have “trigger” laws, which automatically ban abortion in almost all circumstances if the Court overturns Roe.
Already, 58 percent of women of reproductive age live in states hostile to abortion rights. After Dobbs, people’s right to an abortion will further turn on their zip codes. Equal rights under the law will ring hollow.
One of the persistent challenges Roe and Casey have faced from opponents is that abortion rights are crafted by courts, rather than the result of legislative processes. The U.S., however, could pass federal legislation protection abortion rights. Federal legislation might ensure that pregnant people enjoy the same civil rights no matter in which state they live, superseding state laws and guaranteeing equal protection and enjoyment of abortion rights.
In fact, many countries, whose legal traditions are similar to ours, guarantee their residents the right to abortion through legislation.
- As far back as 1967, the United Kingdom decriminalized abortion in England, Wales and Scotland. (This statutory protection was extended to Northern Ireland in 2019, the delay related to historic opposition to abortion in the region.) Abortions are permitted up to 24 weeks of gestation for “health” reasons and require the authorization of two physicians; in practice, physicians approve nearly all abortions before twelve weeks and use a broad, contextual approach to understanding health protections thereafter.
- In addition, the U.K.’s National Health Service covers the cost of abortion services and ensures that contraception is widely available and affordable.
- New South Wales recently legalized abortion through the Abortion Law Reform Act of 2019; it joins the rest of Australia’s states in permitting abortion without restrictions up to the 22nd week of pregnancy. After 22 weeks, two medical practitioners authorize an abortion and, like the U.K., health policies and programs ensure that abortion services are accessible and affordable.
- New Zealand also passed a permissive abortion law in 2020 to protect the autonomy and privacy rights (among others) of pregnant people. The Abortion Legislation Act allows unrestricted abortions until 20 weeks of gestation and afterwards upon the authorization of a health practitioner. National health insurance covers the costs of abortion and many forms of contraception, and the act directs the Minister of Health to make abortion available throughout the country.
- The Netherlands, France, Iceland, and Denmark, to a name a few examples, have legislation that makes pre-viability abortions easily available, accessible, safe and affordable.
Taken as a whole, these countries treat abortion as a health care rather than a source of controversy or stigma.
The United States could well follow in the footsteps of these countries. The Women’s Health Protection Act (WHPA), passed by the House and before the Senate, protects the right of health care providers to perform and patients to receive abortion care throughout pregnancy. It also preempts many of the state bans and restrictions on the books today. By passing the WHPA, the United States would join with other democracies that respect the rule of law and are committed to ensuring its equal application to all its residents, no matter their embodiment or location.
The U.S. historically has been considered in the vanguard of abortion rights, with Roe held up as a model (and sometimes anti-model) for other countries to follow. But as soon as next year, the U.S. could take up company with the small cohort of countries with high courts that have rejected or undermined abortion rights. Another path is possible. The U.S. would join the global trend toward permitting abortion by statute.
Yet we know from our nearly 50-year struggle to implement the rights guaranteed in Roe that abortion has been treated exceptionally in this country. Federal legislation such as the WHPA is necessary but far from sufficient to ensure equal rights for the potentially pregnant.
What examples from the U.K., Australia, New Zealand and a host of other countries demonstrate is that the context in which legal rights are implemented is important. In these countries, physicians who authorize pre-viability abortions are given wide discretion, with few (if any) additional requirements imposed on abortion provision—no waiting periods, no unnecessary ultrasounds. These countries also include abortion, as well as a broad range of reproductive health care services, in their health insurance schemes. Taken as a whole, these countries treat abortion as a health care rather than a source of controversy or stigma.
We have been muddling through decades of polarization that has sought to demonize and stigmatize individuals whose pregnancies are untenable and the health care providers who serve them. To counteract this pull, public education efforts and social movement mobilization will be critical in transforming attitudes and beliefs about abortion—a commitment that ensures that all who live in the U.S. should enjoy the same rights, regardless of zip codes and state borders.
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