Truth is Truth: U.S. Abortion Law in the Global Context
American Constitution Society Issue Brief, August 2018
17 Pages Posted: 11 Oct 2018
Date Written: August 2018
As part of an effort to enact new abortion restrictions, abortion opponents increasingly characterize laws regarding abortion access in the United States as being far more permissive than the rest of the world. To support this argument, they point to a rudimentary global tally of national laws on abortion and urge policymakers to enact bans and further restrictions on abortion access in order to bring the United States more in step with “international norms” on abortion access. But international norms on abortion access cannot be portrayed through a “yes-no” tally, and uncritical reliance on a simplified scorecard is misleading, inaccurate, and ignores important protections for women’s health. There is nothing inherently troubling about looking beyond U.S. borders to inform legal and policy approaches. Both foreign law and international human rights law can provide a useful perspective for U.S. courts as well as policymakers as they assess legal questions, policy, and practice. However, a global comparative approach must give an accurate account of the laws that are being compared, and the descriptions that underlie the global abortion tally fail to meet this threshold standard. Even when relevant laws are accurately described, a valid comparative analysis requires more than just nose-counting. The comparative anti-abortionist argument treats all countries’ abortion laws as relevant for both comparing United States’ law and practice and also for identifying an international consensus, even though many of the countries listed do not share a legal tradition or other commonalities. Notably, many of the countries that inform the statistic have dramatically different legal traditions concerning gender equality and the role of religion in the law. In reality, the international trend is toward liberalization, which coincides with increasing protections in international human rights law.
Keywords: Abortion, Women's Health, Comparative Law
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