Abortion law has not been a story of long criminalization with the blip of Roe over the last 50 years. Rather, the trend has been support for abortion rights and laws that reflect it.
Justice Alito, in the leaked draft of the majority opinion in Dobbs v. Jackson Women’s Health Organization, employs a number of arguments to erase constitutional abortion rights. One of them has not received as much attention as the others: Like at oral argument in the case, Alito refers to the United States as an outlier among nations—one of six countries—because it permits terminating a pre-viability pregnancy “on-demand after the 20th week of gestation.” In this account, the U.S. stands only with Canada, China, the Netherlands, North Korea, Singapore and Vietnam, as well as Iceland and Guinea-Bissau. Forbidding abortion after 15 weeks—as the Mississippi law under review in Dobbs does—seems quite permissive from such a perspective.
Let’s examine the facts—starting with the assertation that the U.S. permits “nontherapeutic or elective abortion-on-demand after 20 weeks.” According to Planned Parenthood v. Casey, a 1992 case interpreting Roe v. Wade, the Supreme Court noted:
“Even the broadest reading of Roe, however, has not suggested that there is a constitutional right to abortion on demand. Rather, the right protected by Roe is a right to decide to terminate a pregnancy free of undue interference by the state.”
Before fetal viability, under Supreme Court jurisprudence, states are able to regulate abortion access in myriad ways: States require abortion seekers to wait up to three days after first visiting a provider; states order abortion seekers to undergo ultrasounds, be shown the image, and listen to a fetal heartbeat while hearing a state-mandated speech that often contains misinformation and dubious claims, such as abortion increasing risk of breast cancer (among other things).
Targeted regulation of abortion providers laws—or TRAP laws—in 23 states impose a bevy of requirements on providers that do nothing to protect patient safety and go well beyond what is imposed on similar healthcare facilities. These and numerous other constitutionally-permitted restrictions make pre-viability access difficult, to say the least. In addition, several states explicitly limit the reason for abortion by banning abortion for reasons of sex, race or fetal anomaly. In sum, “abortion-on-demand” implies ease of access when state impediments to care abound under the Roe and Casey precedents.
But that said, consider Alito’s claim on its face. “Abortion-on-demand” is a way to describe laws that do not require the person to show evidence of indications—that is, demonstrate socio-economic distress; risks to health and life; or proof of rape, incest and/or fetal anomalies.
Yet Alito’s use of the language “abortion-on-demand” is intentionally stigmatizing—it forwards the idea that pregnant people make capricious, immoral decisions to terminate their pregnancies. But abortion access is not the free-for-all that Alito intimates.
Bracketing the above-enumerated ways states interfere with abortion, all states require medical professionals to exercise their judgment about the person’s request and obtain informed consent from them. The reasons why people seek abortion are well documented: financial distress, timing, partner-related reasons and/or the need to focus on other children are the frequent reasons cited.
Alito’s use of the language “abortion-on-demand” is intentionally stigmatizing—it forwards the idea that pregnant people make capricious, immoral decisions to terminate their pregnancies. But abortion access is not the free-for-all that Alito intimates.
Moreover, the countries Alito selects span the geopolitical spectrum, with none of their differences discussed. The draft’s rhetoric echoes a familiar trope of the anti-abortion movement rather than offering an accurate, contextualized understanding of what those countries’ abortion laws say and how they are implemented. Canada, for example, has neither a national law on abortion nor a Constitutional decision restricting access. Rather, individual provinces (much like US states) regulate abortion access through their health sectors. Some provinces permit abortion up to 24 weeks without indications; others only to 12 or 16 weeks.
The legal regimes of the majority of other countries that permit abortion restrict access after 12 weeks (or roughly, the first trimester) except for reasons that have very broad applicability, such as socio-economic distress or mental health. In other words, the exceptions on the books cover almost every abortion sought. The United States, far from being an outlier, is very much in keeping with the practices of most industrialized peer nations and then some. Indeed, the U.S.—and specifically Roe v. Wade—was the model for many countries’ abortion codes.
Consider a final aspect of Alito’s argument: He justifies his nullification of abortion rights by looking to the comparative history of abortion law. In this regard, he walks the same path as Justice Kennedy, who famously looked to the historic and comparative evolution of laws regarding sodomy to overturn Bowers v. Hardwick and apply constitutional protection to same-sex intimacy in Lawrence v. Texas. But Alito is walking in the complete opposite direction.
The steady march of countries is toward liberalizing abortion laws and recognizing the equality of women and gender-diverse people. This ignores context in favor of pretext: Abortion law, in the U.S. or across the world, has not been a story of long criminalization with the blip of Roe over the last 50 years. Rather, the trend, on the whole, has been support for abortion rights and laws that reflect it.
Sign and share Ms.’s relaunched “We Have Had Abortions” petition—whether you yourself have had an abortion, or simply stand in solidarity with those who have—to let the Supreme Court, Congress and the White House know: We will not give up the right to safe, legal, accessible abortion.
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