During oral arguments in Dobbs v. Jackson Women’s Health Organization, Chief Justice John Roberts observed that Mississippi’s 15-week abortion ban mirrored restrictions that are common in all but a handful of other countries, such as China and North Korea. While Center for Reproductive Rights attorney Julie Rikelman tried to deny the comparison and downplay its significance, it remains striking and instructive.
Only the United States and Canada—along with China, North Korea, Vietnam, Singapore, and the Netherlands—allow elective abortion after 20 weeks of pregnancy. The Supreme Court’s abortion jurisprudence, beginning with Roe v. Wade (1973), drives this anomaly. When the Roe court struck down Texas’s abortion regulations—and, in effect, those of nearly every other state as well—it declared abortion to be a fundamental constitutional right. Roe and its progeny, including Planned Parenthood v. Casey (1992), effectively barred any meaningful restrictions on abortion, and as such departed dramatically not only from American practice but also from most other nations’ approaches.
Given the regime created in Roe, and sustained in Casey, abortion-rights advocates can enact highly permissive abortion laws without concern for judicial interference, while limitations supported by abortion opponents (and many others) almost invariably—for now—are blocked. However, in Dobbs, the justices seem poised to return this issue to legislatures and other politically accountable actors. A Court majority appears to believe, as Justice Brett Kavanaugh put it during oral arguments, that—correctly understood—our Constitution is “scrupulously neutral” on the matter.
Many other political communities do address abortion in their highest laws, though. The Peruvian constitution, for example, guarantees to every person the right to life. The constitution of Poland does, too. These and other countries’ legal approaches—although not authoritative or controlling in the United States—can inform legislative enactments and reform efforts at home. Careful study of alternatives around the world does not tell us what our laws are, but foreign laws provide examples of what our laws could be.
A particularly valuable resource for engagement and exemplars is Unborn Human Life and Fundamental Rights: Leading Constitutional Cases under Scrutiny (Peter Lang, 2019), edited by William L. Saunders and Pilar Zambrano. This work comprehensively reviews and evaluates the legal, ethical, and policy questions about abortion, in vitro fertilization, and other life-related controversies in the United States and around the world. As the University of Notre Dame’s Carter Snead put it, the book is “a vital reference work for anyone concerned about human rights and the rule of law.” A collection of twelve essays covering eleven jurisdictions, Unborn Human Life and Fundamental Rights is a welcome addition to a scholarly and public conversation that can be frustratingly polarized.
The essays collected in this volume focus on two main topics, which Professor John Finnis, one of the world’s most accomplished jurisprudential thinkers, neatly summarizes in its conclusion: first, the legal and moral status of unborn persons and the reach and content of their human rights; and second, the role of the judiciary in identifying and securing these rights. Exploring how various political communities address these two themes, the book covers and considers the approaches of the United States, Canada, Italy, Spain, Poland, Ireland, Argentina, Chile, Mexico, Peru, and the Inter-American Court of Human Rights. As the volume explains, some jurisdictions and constitutions explicitly protect unborn human life, some do so while leaving open questions of application and enforcement, some implicitly protect unborn life, and a few permit abortion throughout pregnancy.
American Abortion Law
Essays by the collection editor and bioethicist William Saunders and Professor Gerard Bradley highlight logical problems at the heart of what is today an inconsistent American abortion regime. The Constitution of the United States does not explicitly protect or prohibit a right to abortion; as alluded to earlier, that supposed right is a creature of the Supreme Court’s understanding of unenumerated rights, due process requirements, the nature of privacy, and the content of liberty. The Roe v. Wade decision announced that, textual silence notwithstanding, the Constitution protects a woman’s broad right to choose an abortion, and its later ruling in Planned Parenthood v. Casey affirmed that this right may not be unduly burdened by state regulations.
Saunders argues that Justice Harry Blackmun’s foundational premise in Roe—that we cannot know when life begins—paved the way for practices like cloning and stem-cell research to become ethically permissible. While such biological tinkering may help cure diseases, however, Saunders warns that it manipulates and destroys developing human life. Disregard for these grave costs follows, Saunders believes, from the faulty premise that we cannot know when life begins.
Professor Bradley observes inconsistencies in how unborn human life is treated in existing law. The status of unborn persons under laws against feticide, and their status in abortion jurisprudence, are in tension. The former, typified in the 2004 federal Unborn Victims of Violence Act, holds people criminally responsible for harming or killing a fetus in the same way as if they harmed or killed the woman carrying the fetus. The latter, by contrast, begins from the assertion that we do not know when human life begins and from the interpretation that the unborn are not constitutionally protected persons. One might think that the premises of abortion jurisprudence are incompatible with federal and state laws that prohibit and punish feticide: the latter recognize the humanity of the unborn while the former fails to do so. But the conflict has gone largely unaddressed.
Abortion and Foreign Constitutions
The book also reminds us that conflicts over when life begins, and the legal implications of that debate, are not unique to the United States. Ireland, as William Binchy’s essay demonstrates, has long been a home to these arguments. In Roche v. Roche, the Irish Supreme Court held that Article 40.3.3, a 1983 constitutional amendment acknowledging a “right to life of the unborn,” did not extend protection to the frozen embryos at issue in the case. Chief Justice Murray, the amendment’s author, wrote separately to explain that the issue was nonjusticiable, pointing to a lack of consensus regarding the moral status of the embryo and disagreement about the beginning of human life. Therefore, he argued, courts are ill-equipped to answer related questions.
But, Binchy rightly points out, there is a scientific consensus: “[T]he human embryo is alive, . . . and it is an entity completely distinct from the parents who generated it.” The lack of consensus is, rather, normative and philosophical. The relevant question is what the biological reality of an embryo means for law, morality, and policy. And this question should be brought to the forefront of the abortion debate. Perhaps the legislature is the best place to answer this question, but, Binchy contends, other branches of government are led astray when judges confuse a moral debate with a lack of scientific consensus.
More recently, the Polish Supreme Court struck down a 1993 law permitting abortion in cases of fetal abnormality or high likelihood of severe illness, explaining that such a law was inconsistent with their constitution’s protection for unborn human life. The court asserted that the embryo is a living human being and is therefore entitled to the highest degrees of constitutional and legal protection. This decision was an example of a court faithfully interpreting the written text and therefore preventing downstream confusion among other branches of its government.
Abortion and the Judiciary
The recent Polish Supreme Court case is an example of the judiciary’s importance in the abortion debate around the world. The collection reveals that few countries have fully established—complete with predictable results, determined standards, and appropriate limits—the courts’ roles in adjudicating and protecting human rights. Most jurisdictions lack clear standards, guidelines, and procedures for how judges should apply the written law to cases involving the rights of the unborn.
The essays in Unborn Human Life and Fundamental Rights show that clear, neutral standards are indispensable in upholding the rule of law. When the law is written with precision, is interpreted using disinterested principles, and provides fair notice, judicial discretion is appropriately limited and therefore less likely to curtail rights. Only with this kind of textual consistency and clarity can judges of any jurisdiction around the world best secure human rights—including those of the unborn.
When a jurisdiction lacks neutral standards, confusion and division can result from differences between text and political practice. One essay, “The Right to Life in the Context of the Mexican Legal Experience,” pointedly demonstrates this consequence. While Mexico’s constitutional text, norms, and treaties all guarantee the right to life to the unborn, recent judicial interpretive practice has created room for challenges to that right. And predictably, in 2021, Mexico’s Supreme Court prohibited penalizing abortion.
Judicial standards are a crucial part of securing human rights. While “neutral principles” of law and a legal culture of textual deference are difficult to attain, they are worthy goals. Otherwise, laws constructed to protect human rights can end up undermining that most worthy cause. When Mexico’s Supreme Court ruled that abortion could not be penalized, not only did it exceed its institutional limits, but it also began to unravel its constitution’s and legal traditions’ protections for the unborn.
Difficult questions about unborn persons’ human rights and their status in law and policy are at the heart of the abortion debate. The current Supreme Court of the United States seems poised to repent of its power grab in Roe and to return questions of abortion regulation and the legal protection of unborn persons to democratic decision-making. Legislators, government officials, and citizens of all stripes should be prepared to understand the decision in order to strengthen the rule of law and the protection of human rights—including those of the unborn. Learning about other nations’ abortion laws can instruct our view of the justice or injustice of our own laws.