Conservatives, Often Wary of Foreign Law, Look Abroad in Abortion Case

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When the Supreme Court hears arguments from Mississippi in a major abortion case this fall, it will consider double accounts of international practices.

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WASHINGTON — Not so long ago, when US judges cited foreign law in their rulings interpreting the Constitution, conservatives drove it crazy.


When the Supreme Court took into account international trends 2005 decision For example, abolishing the juvenile death penalty, wrote Justice Antonin Scalia. a fierce disagreement. “The basic premise of the court’s argument—that American law must be in line with the laws of the rest of the world—should be dismissed out of hand,” he wrote.

Justice also accused his colleagues of opportunism and hypocrisy. In other areas of law, he wrote, the court had ignored conservative foreign rulings on criminal procedure, religion, and especially abortion. Justice Scalia wrote, “Invoking foreign law when it agrees with one’s own thinking, and ignoring it otherwise, is not an argument for decision-making, but sophistication.”

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MPs in Mississippi appeared to take a different view in 2018, when they enacted an act Law banning most abortions after 15 weeks.

in the first legislative finding justifying the law, its drafters looked overseas for support. “The United States is one of only seven countries in the world that allows non-therapeutic or elective abortion-on-demand after the 20th week of gestation,” the discovery said. “In fact, fully 75 percent of all countries do not allow abortion after 12 weeks of gestation, except (in most cases) to save lives and maintain the physical health of the mother.”

the law was a calculated challenge Roe vs. Wade, a 1973 decision that established the constitutional right to abortion and barred states from banning the procedure prior to embryo viability, or at approximately 23 or 24 weeks. The Supreme Court will hear arguments challenging the law in December.

Statements by lawmakers about foreign practices generally appear to be correct. a fact-checking column The Washington Post in 2017 largely confirmed the first one: “This statistic seemed suspicious at first, as it seemed extreme for just seven of the 198 countries to allow elective abortion after 20 weeks of pregnancy. was,” it said. “But digging further, the data supports the claim.”

and 12 weeks is a typical nominal limit, said Mary Ziegler, professor of law at Florida State University, although the social context is usually quite different.

“Something like 12 weeks in most places in the world, but with public health insurance,” she said. “They pay for it. If you want to have an abortion in the first 12 weeks, there’s no real reason you can’t.”

Martha F DavisA law professor at Northeastern University said the limits were usually subject to significant exceptions for patients who later needed an abortion.

“Many countries, but not all, and our closest peers don’t have cutoffs that on paper have pre-feasibility,” she said. “But they make a lot of exceptions that allow abortion more liberally.”

on your confirmation hearing In 2005, Chief Justice John G. Roberts Jr. questioned the use of foreign law in US constitutional matters, saying it was destined to be selective.

“In foreign law, you can get whatever you want,” he said. “Looking at foreign law for support is like looking out from a crowd and choosing your friends.”

one in Supreme Court Brief, Officials in Mississippi focused on the nation’s opponents. “The United States finds itself in the company of China and North Korea as the few countries that allow elective abortions after 20 weeks of gestation,” the brief said.

Lawyers for abortion providers challenging Mississippi law asked the court Other nations to consider.

“In countries with legal traditions and democratic values, such as Great Britain and Canada, compared to the United States, abortion is legal at least as far as viability,” he wrote. “And many countries that have limitations earlier in pregnancy continue to allow abortions after that point for broader social and health reasons, functionally allowing abortions later in pregnancy.”

The Allied-Court dueling in the Mississippi case also supported Chief Justice Roberts’ observation about selectivity.

In a brief, international law professors supporting the Mississippi law stated that “France, Italy, Germany, Spain, Norway and Switzerland have a gestational limit of 14 weeks or earlier for abortion on demand, with the latter exception only on restricted medical grounds.” is allowed.” short quote Data collected by the Center for Reproductive Rights.

On the other hand, a brief Another group of international and comparative law scholars supporting abortion providers in Mississippi focused on countries that were said to have similar legal traditions to the United States, particularly Canada, New Zealand, and Britain. that allow abortion “until or near feasibility.”

“Beyond their widely approved laws,” the brief said, “these countries also support abortion rights and reproductive decision-making through universal health care, access to abortion services, and access to contraception.”

Summarizing that recent international trends have been toward easier access to abortion, more than 50 countries have liberalized their laws over the past 25 years. Conversely, summarised, rejecting Roe “would put the United States in the company of countries such as Poland and Nicaragua, one of the few countries moving toward greater restrictions on legal access to abortion in the past 20 years.” Is.”

Professor Ziegler said there was something artificial about the recent conservative attention to foreign nations with a nearly 12-week limit.

“People who are anti-abortion are hypocrites about this, because they’re not proposing 12 weeks,” she said. “They are proposing six weeks, or they are proposing fertilization.”

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