Globe.

Questioning the Comparative Relevance of US Abortion Jurisprudence

By Payal Shah

In the U.S., June Medical Services L.L.C. v. Russo is a critical decision to stall regression on abortion rights. From a global perspective, however, June Medical, along with the Court’s contemporaneous decision upholding the U.S. government’s Anti-Prostitution Loyalty Oath (APLO) in Agency for International Development v. Alliance for Open Society International, reflect another truth—the growing idiosyncrasy, insufficiency, and impropriety of comparative reference to U.S. abortion jurisprudence.

U.S. abortion jurisprudence has been cited by courts across the world in recognizing reproductive rights. This is in part because the U.S. was among the first countries to state that a women’s right to decide whether to continue a pregnancy is a protected constitutional right.

However, in the almost 50 years since Roe, the U.S. constitutional framework on abortion has not evolved in a comprehensive manner; instead has been shaped reactively, in response to laws passed by anti-abortion legislatures. Yet, constitutional courts continue to “ritualistically” employ Roe as the “hallmark of progressive law.”

The June Medical and Alliance for Open Society decisions ultimately maintain the national status quo on abortion rights—including the possibility of reversal of Roe v. Wade— and also facilitate the silencing of sexual and reproductive health rights (SRHR) movements abroad. In doing so, these decisions call into question the contemporary comparative relevance of U.S. abortion jurisprudence.

US Abortion Law Is Out of Step with Global Norms

U.S. abortion law and policy have diverged from a clear global trajectory towards abortion law liberalization. In the last 25 years, while the U.S. has slowly hollowed out the right to abortion by denying public funding and allowing procedural incursions, nearly 50 countries have liberalized their laws and several others have even removed abortion wholesale from criminal codes. U.N. human rights law has consistently affirmed the right to abortion information and services and recognized states’ positive obligations to ensure all individuals can access abortion without barriers such as restrictive laws, medically unnecessary procedural requirements, or practical obstacles like stigma and cost.

COVID-19 provides a current illustration of  the U.S.’ idiosyncratic approach; while countries around the world were recognizing abortion as essential healthcare and expanding medication abortion access, several U.S. states took action to effectively prohibit abortion access. This position was condemned by U.N. experts as “the latest example illustrating a pattern of restrictions and retrogressions in access to legal abortion care across the country.”

US Agenda to Undermine SRHR Abroad

U.S. actions to restrict SRHR and promote non-evidence-based policies globally further exemplify its failure as a beacon in this field. Recently, the U.S. government has repeatedly abdicated leadership roles on human rights and public health, including through withdrawal from the U.N. Human Rights Council and the World Health Organization. On SRHR, the U.S. has not only defunded UNFPA, but also pursued an agenda to erase these rights from international commitments and human rights resolutions.

The U.S. also has escalated attacks on SRHR across borders, including through an unprecedented expansion of the “Protecting Life in Global Health Assistance” policy (a.k.a. “the Global Gag Rule”), which prohibits foreign nongovernmental organizations receiving U.S. global health funding from providing, referring, counseling, or advocating for abortion care.

It is telling that on the same day that the June Medical decision was issued, the Supreme Court also upheld the APLO, which allows the U.S. to silence non-U.S. civil society, including foreign affiliates of U.S.-based organizations, by requiring that any foreign organization that receives President’s Emergency Plan for AIDS Relief (PEPFAR) funding adopt a policy “explicitly opposing prostitution.”

Both policies have caused significant harm and contradict evidence on effective sexual and reproductive health responses.

Emergence of Alternative Standard-Bearers on SRHR

Domestically, U.S. abortion jurisprudence has long been criticized even by its own supporters as insufficient.

The U.S. abortion framework is rooted in privacy, understood in the U.S. as a negative right that does not require states to take positive measures such as public funding to ensure access.

Further, as noted by Justice Ruth Bader Ginsburg, the failure to ground abortion rights in gender equality has resulted in a fractured framework where decisions around abortion, pregnancy, and women’s sexuality are seen distinctly, rather than as part of a broader context in which women’s gender-based differences are disregarded and minimized. The U.S. reproductive justice movement, founded and led by Black women drawing on the human rights framework, has extensively critiqued this approach as insufficient without adequate state and social structures to provide individuals with the practical ability to access these rights.

Conceptualizing privacy as only a negative right contravenes comparative developments and human rights law. Numerous judgments have emerged that reimagine the legal framework on abortion and articulate states’ positive obligations to ensure safe abortion, strike down restrictive abortion laws that reflect discriminatory gender stereotypes, and even jettison the underlying criminalization of abortion.

One example is the Supreme Court of Nepal’s decision in Lakshmi v. Government of Nepal, which links abortion rights to gender equality and recognizes positive obligations to ensure abortion in practice, including funding and decriminalization. Abortion-related decisions from several other countries also provide critical comparative touchpoints that engage human rights standards. U.N. human rights bodies have similarly outlined states’ positive obligations concerning safe abortion, including in two recent Human Rights Committee decisions in Mellet v. Ireland and Whelan v. Ireland, which mandate that states ensure abortion is equally accessible regardless of socioeconomic status.

Conclusion

Even within the U.S., national reproductive justice leaders celebrating the June Medical decision also flooded social media with the cautionary hashtag #believeinmore. This call to action should resonate amongst judges and advocates globally and prompt scrutiny as to whether and how to reference U.S. abortion jurisprudence in court documents and beyond.

The Supreme Court’s SRHR decisions this term call into question the validity and propriety of comparative reference to the U.S. as a standard-bearer on reproductive rights.

For judges, lawyers, and policymakers seeking to advance a human rights-based approach to abortion, the proven limitations of the U.S. abortion jurisprudence underscore that “believing in more” means looking beyond the U.S. for inspiration.

 

Payal K. Shah is a Fellow with the University of Toronto Faculty of Law’s International Reproductive and Sexual Health Law Program and an independent consultant.

The Petrie-Flom Center Staff

The Petrie-Flom Center Staff

The Petrie-Flom Center staff often posts updates, announcements, and guests posts on behalf of others.

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