By Dean M. Harris, J.D., Associate Professor (Retired), Department of Health Policy and Management, Gillings School of Global Public Health, University of North Carolina at Chapel Hill, USA, Dean_Harris unc.edu

Anti-abortion groups and politicians in the US have been using misleading information about abortion laws in other countries. Their goals include convincing the US Congress to enact a federal law that would generally prohibit abortion in all US states after 15 weeks of pregnancy.

A big part of that strategy is trying to show that the US is an extreme outlier on abortion law as compared to other countries, especially countries in Europe, on the ground that the US is allegedly too flexible by allowing elective abortion after 15 weeks. Anti-abortion groups and politicians argue that US abortion law should be more like laws in Europe, and less like laws in North Korea and China. That argument is grossly misleading. However, that argument has already influenced consideration of abortion by the US Supreme Court, and more recently has been used in efforts to prohibit elective abortion after 15 weeks in all US states by federal law. 

Many of the statements about European abortion laws can be traced to one or more reports issued by the Charlotte Lozier Institute (CLI). CLI describes itself as the “research and education institute of Susan B. Anthony Pro-Life America,” (SBA), which is a powerful anti-abortion organization. According to CLI’s report, dated July 27, 2021, “47 out of 50 European countries analyzed in this report either do not allow elective abortion (8) or limit elective abortion to 15 weeks or earlier (39) ….”  That type of information was referenced in oral argument and written opinions of the US Supreme Court in Dobbs v. Jackson Women’s Health Org.,142 S.Ct. 2228 (2022), which overruled the precedent of Roe v. Wade, 410 U.S. 113 (1973).

Even among US Supreme Court justices, it is controversial to use examples from foreign laws, or to argue that US laws should be changed to conform to foreign laws. In a 2005 case, the Supreme Court’s use of examples from foreign laws was severely criticized by Justice Antonin Scalia, who is highly respected by conservative justices. In his dissenting opinion in that 2005 case, Justice Scalia raised two objections to the Court’s consideration of foreign laws. First, Scalia clearly rejected the principle that US laws “should conform to the laws of the rest of the world.” Roper v. Simmons, 543 U.S. 551, 624 (2005) (Scalia, J. dissenting). In addition, Scalia criticized other justices because of their inconsistency in conforming US law to foreign laws in some cases but not in other cases. Justice Scalia was clearly correct on his second point about the Court’s hypocrisy in only conforming US law to foreign laws when it wants to do so. In fact, if the current US Supreme Court really wants to follow the example of foreign law in protecting the “right to life,” it should follow the universally adopted policy of all 46 Member States in the Council of Europe that abolished the death penalty and created a “death penalty free zone.”  

The CLI report about European abortion laws misses the basic principle of European laws

After the Supreme Court’s decision in Dobbs, anti-abortion groups and politicians have been using information about foreign abortion laws in their efforts to prohibit elective abortion after 15 weeks in all US states. For example, Republican US Senator Lindsey Graham introduced proposed federal legislation to prohibit abortion in all US states after 15 weeks. According to Senator Graham’s press release, his proposed legislation “Puts the United States in line with other modern societies – 47 out of 50 European nations limit elective abortion prior to 15 weeks gestation.” The president of an anti-abortion organization, SBA, praised Senator Graham’s proposed federal law, and issued a statement that referenced the report of CLI, which is an affiliate of SBA. According to the president of SBA, “This bill would bring the U.S. in line with  47 out of 50 of our European allies who protect life at this stage or even earlier.”

However, the CLI report about laws in Europe, on which both SBA and Senator Graham relied, totally missed--or simply ignored--the most fundamental principle of European abortion law. That principle is that every Member State of the European Union (EU) and the Council of Europe (CoE) has the freedom to make its own decision about when to allow elective abortion.

For the 27 Member States of the EU, abortion law is within the authority of each Member State (or within their “competence”), because the EU has no competence for abortion law in its Member States. Treaty on the Functioning of the European Union (TFEU), Article 168(7). For the 46 Member States of the CoE, the European Court of Human Rights (ECtHR) has held that Member States generally have flexibility (or “a broad margin of appreciation”) to determine their own abortion laws. A, B and C v. Ireland, No. 25579/05 (2010), § 249. Rather than following the example of European law, the proposal for a US federal law is a total rejection of European law.

The CLI report is both overinclusive and underinclusive in choosing countries to compare

The CLI report compares the US to some European countries that are not even remotely comparable to the US and certainly not worthy of emulating, such as Russia. According to the 2022 annual report by Transparency International, of the 42 European countries that CLI said allow “elective abortion,” two-thirds of the total (28 out of 42 countries) are perceived to be more corrupt than the US. One of the countries in CLI’s report about European countries is Kyrgyzstan, which actually is located in Asia and borders on the People’s Republic of China.

In addition to comparing the US to some countries that are not remotely comparable, that CLI report excludes some countries that really are comparable. The history and culture of the US are most closely related to the United Kingdom (UK) and other high-income countries whose legal traditions are based on English common law. The law of Great Britain (those parts of the UK other than Northern Ireland, which has different laws) imposes a relatively simple procedural requirement for abortion, even at an early stage of pregnancy. Therefore, CLI excluded Great Britain from its list of nations that allow “elective abortion.” In reality, Great Britain is the place most comparable to the US, and it allows abortion with very few restrictions up to 24 weeks.

In addition, by focusing that report only on Europe (plus Kyrgyzstan), CLI did not compare US abortion law to the laws of other high-income countries that have legal traditions based on English common law. That includes Canada (which has no legal limit on access to abortion), New Zealand (which allows elective abortion up to 20 weeks),  and Australia (which allows each state or territory in its federal system to make its own decision about abortion laws). Comparing the US to countries that really are comparable proves that the US is not an outlier by allowing elective abortion after 15 weeks, and shows that states can make their own decisions.

The CLI report failed to consider the exceptions in European abortion laws

The CLI report about European nations merely collected the numbers in isolation for a single variable, which was the time limit in each country for “elective abortion.” Although the numbers collected by CLI have generally been confirmed to be accurate, those numbers were taken totally out of context and are extremely misleading. The CLI report about Europe did not even consider the exceptions in many European abortion laws. Those exceptions can make abortion much more accessible than it might initially appear to be. As stated by a group of international and comparative legal scholars, “Engaging in a superficial ‘tallying’ of abortion law time limits provides a misleading picture of those laws.”  For example, the law of Denmark includes a 12-week limit for abortion, but provides exceptions for abortion after 12 weeks, including for mental health of the pregnant woman with consideration of economic and social factors such as her income, occupation, and personal interests. (Id. at 24).

The 46 Member States in the CoE have agreed to comply with the European Convention on Human Rights (ECHR), including Article 8 which provides a right to respect for private and family life. The European Court of Human Rights (ECtHR) held that Article 8 does not provide an absolute right to abortion, but Article 8 does provide protection for access to abortion when necessary to protect the pregnant woman’s health or wellbeing. A, B and C v. Ireland, No. 25579/05 (2010), § 214. Moreover, if the law of a Member State includes exceptions to allow abortion under some circumstances, that State has a positive obligation to create procedures to give individuals a fair and effective mechanism to enforce their rights. (https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-114098%22]}) P and S v. Poland, No. 57375/08 (2012), § 99. Thus, abortion laws in all 46 CoE Member States must meet both the substantive requirement of protecting the pregnant woman’s health or wellbeing and the procedural requirement of a fair and effective mechanism for individuals to avail themselves of the exceptions provided by law. Also, abortion laws of the 46 Member States are subject to judicial scrutiny by an international tribunal that has authority to rule against Member States.

Conclusion

If anti-abortion groups and politicians in the US really want to make US abortion laws conform to European standards, they would need to provide: (1) exceptions that permit abortion to protect a pregnant woman’s health or wellbeing; (2) fair and effective procedural mechanisms to qualify for all available exceptions; (3) a binding commitment by treaty or international convention to submit US abortion laws to judicial scrutiny by a legal tribunal outside the US; and (4) authority for each US state to set its own limit for “elective abortion,” without interference by any other state or the federal government.