United States Abortion Policy in the International Context

MEMORANDUM

TO:                 Interested Parties

FROM:           Americans United for Life Legal Team

DATE:           August 1, 2012

RE:                 United States Abortion Policy in the International Context: U.S. one of only four nations permitting abortion for any reason after viability

In 1973, the U.S. Supreme Court in Roe v. Wade (and its companion case Doe v. Bolton) “constitutionalized” abortion, nullifying the abortion laws of all 50 states. As a result, the United States is currently one of only nine nations that allow abortion after 14 weeks of gestation.[1]Even among this group, however, the United States is the most lenient in its treatment of abortion, placing it in the company of China, North Korea, and Canada, the only countries in the world that permit abortion for any reason after viability.

Abortion-on-Demand in the United States

Four decades after it was decided, Roe v. Wade remains controversial. However, while a majority of Americans answer that they are familiar with Roe, polling demonstrates that most do not understand the extent of what the Court’s rulings permit.[2]

In Roe,[3] by a 7-2 vote, the Court struck down a Texas law that prohibited abortion except where necessary to preserve maternal life.  The opinion, written by Justice Harry Blackmun, held the “right to privacy” (found in the “penumbras” of the Fourteenth Amendment’s liberty interest) includes a right of a woman to decide “whether or not to terminate her pregnancy.”

In Doe v. Bolton,[4] decided the same day as Roe v. Wade, and also written by Justice Blackmun, the Court invalidated a Georgia abortion law by a vote of 7-2.  Significantly, the Doe opinion created an unlimited definition of maternal “health.” The Court wrote, “[T]he medical judgment may be exercised in the light of all factors- physical, emotional, psychological, familial, and the woman’s age – relevant to the well being of the patient.  All these factors may relate to health.”  The Court held that the abortionist alone was allowed to make that judgment.

Because Roe authorized abortion even after viability for “life or health” of the mother, Doe’s definition of “health” makes abortion-on-demand available through all nine months of pregnancy.

Harvard Law School professor Mary Ann Glendon, who conducted a landmark study in 1987 on Abortion and Divorce in Western Law, has written about Doe’s significance in creating a more radical abortion policy in the United States than “most other liberal democracies,”

Though Roe got all the attention, I think it is fair to say that Doe, decided on the same day, was the more ominous of the two decisions. It was Doe that signaled the doom of legislative efforts to provide even modest protection of unborn life—statutes of the type that are in force in most other liberal democracies (where the regulation of abortion has largely been left to be worked out in the ordinary democratic processes of bargaining, education, persuasion, and voting).[5]

That the decisions in Roe v. Wade and Doe v. Bolton invalidated the abortion laws of all 50 states is readily understood by the legal community.  Harvard Law School professor Laurence Tribe, recognized as a leading liberal constitutional law scholar, wrote in 1973 that Roe and Doe “impos[ed] limits on permissible abortion legislation so severe that no abortion law in the United States remained valid.”[6] In 1975, Elizabeth Moore observed that “in practical effect” the decisions “legalized abortion on demand in this country.”[7]

Villanova Law professor Joseph Dellapenna, who in 2006 published perhaps the most substantive history of abortion, notes, “The Supreme Court’s haste to decide these cases…imposed a more extreme approach to abortion on the United States than is found in almost any other nation.”[8]

Subsequent Supreme Court decisions touching on abortion have modified aspects of Roe, but not explicitly changed its abortion-on-demand policy.

Although the 1992 plurality decision of three Justices (Anthony Kennedy, Sandra Day O’Connor, and David Souter) in Planned Parenthood v. Casey permitted states to enact some life-affirming legislation (such as parental involvement and informed consent laws), it reaffirmed the “essential” holding of Roe.

The Court’s 2007 decision in Gonzales v. Carhart, upholding the federal ban on the partial birth abortion procedure is also significant. However, the law at issue in Gonzales only prohibits a particular kind of abortion procedure.  The law does not create a gestational limit or rationale-based restriction on abortion.  Thus, Gonzales does not expressly alter the abortion-on-demand rubric of Roe and Doe.

Over the past few years, a number of states have debated and considered a variety of abortion prohibitions (or bans).[9]Arizona, for example, has enacted a prohibition on abortions after 20 weeks of pregnancy, citing medical evidence that late-term abortions pose significant risks to women’s health and safety.  The law has been challenged by the Center for Reproductive Rights and the American Civil Liberties Union in Isaacson v. Horne, arguing that although how abortions are performed may be regulated, abortions may not be prohibited based on gestational age.

Late-Term Abortion in the Western World

Although abortion is common in developed countries in Europe and the United States, most nations prohibit abortion after 14 weeks of gestation. However, the United Kingdom, the Netherlands, Sweden, and Canada do not.

In the United Kingdom, abortion is available under certain conditions until 24 weeks.[10]After that time, abortion is only legal to save the life of the mother, in cases of extreme fetal abnormality, or when continuing the pregnancy poses a grave risk to the mother’s physical or mental health.[11]However, abortion is still illegal in Northern Ireland, except to save the life of the mother.[12]

In the Netherlands, abortion is permissible on request up to 13 weeks following a five day waiting period[13]and available thereafter until 24 weeks if the woman is in a state of distress.[14]In Sweden, abortion is available on request up to the 18th of pregnancy.[15]

Only Canada places no restrictions on abortion.[16] Although such legislation is arguably permissible under Canadian jurisprudence, politicians have been reluctant to legislate in the abortion context. However, there have been calls for reform from the electorate, often citing Canada’s company with China and North Korea, countries not generally known for their leadership in safeguarding human rights.[17]

Abortion in Asia

Despite cultural and institutional differences, the legality of late-term abortions in Asia is similar to that in Europe and North America in that only a handful of countries permit them. Singapore permits abortion up to 24 weeks of pregnancy, after which time abortion is available only if immediately necessary to save the life of the mother or to prevent permanent injury to her physical or mental health.[18] Since 1987, a 24-hour waiting period is required, and mandatory counseling is mandated before and after the procedure.[19]Vietnam, which has one of the highest abortion rates in the world, prohibits abortion after 22 weeks.[20]

China does not place limits on abortion before 28 weeks, with the exception that abortions based on the child’s sex are technically illegal.[21]Thereafter, it is illegal.[22]As a result, abortions of viable children are available without restriction as to reason. Similar circumstances appear to prevail in North Korea as well,[23]although it is difficult to find data on that country.

Conclusion

The United States is one among only four nations in the world that allows abortions for any reason after viability. As noted by one Canadian organization, to share this attribute with two of the most authoritarian regimes in the world is a “dubious distinction.”[24]


[1] That subset consists of Canada, China, Great Britain, North Korea, the Netherlands, Singapore, Sweden, Vietnam, and the United States.

[2] See e.g. http://www.humanevents.com/2006/04/25/poll-americans-dont-understand-roe/ (last visited July 28, 2012). A poll conducted in 2006 by REAL Women’s Voices found 65% of respondents said they were familiar with Roe, but when asked which of four descriptions were accurate only 29% of respondents chose correctly, “[m]ade abortion legal in essentially all circumstances throughout pregnancy.”  (18% believed Roe “[m]ade abortion legal but only in the first trimester,” 17%  believed it “[m]ade abortion legal but only in limited circumstances,” and 15% believed it “[m]ade abortion legal but only in the first and second trimesters.”)

[3] 410 U.S. 113(1973).

[4] 410 U.S. 179 (1973).

[5] http://www.orthodoxytoday.org/articles2/GlendonAbortion.php

[6] Laurence Tribe, The Supreme Court, 1972 Term—Foreword: Toward a Model of Roles in the Due Process of Life and Law, 87 Harv. L. Rev. 1, 2 (1973).

[7] Elizabeth N. Moore, Moral Sentiments in Judicial Opinions on Abortion, 15 Santa Clara Law. 591, 633 (1975).

[8] Joseph Dellapenna, Dispelling the Myths of Abortion History 746-47 (Carolina Academic Press 2006).

[9] In addition, four states have enacted bans on sex-selection abortions (Arizona, Illinois, Oklahoma and Pennsylvania).  The constitutionality of these prohibitions has not been challenged in court.

[10] See BBC News report, “Europe’s Abortion Rules,” available at http://news.bbc.co.uk/2/hi/6235557.stm

[11] Abortion Act of 1967 as amended by the Human Fertilisation and Embryology Act of 1990. See http://www.legislation.gov.uk/ukpga/1967/87.

[12] See Abortion Act of 1967, § 7(3)

[13] See U.N. Population Division report, available at www.un.org/esa/population/publications/abortion/ doc/nether.doc.

[14] See BBC News report, supra note 2.

[15] The Abortion Act, 1974:595 (2005) (Swed.) (Unofficial translation by Ministry of Health and Social Affairs, Sweden),  available at http://www.lexadin.nl/wlg/legis/nofr/eur/lxwezwe.htm

[16] The Supreme Court case R. v. Morgentaler (1988) created the abortion right in Canada, which has placed no restrictions on the procedure since 1988. R. v. Morgentaler, is available at http://www.canlii.org/en/ca/scc/doc/1988/1988canlii90/1988canlii90.html (last visited July 27, 2012).

[17] See, e.g., Mike Schouten, “Why Canada should ban late-term abortions,” National Post, July 20, 2012, available at http://fullcomment.nationalpost.com/2012/07/20/mike-schouten-why-canada-should-ban-late-term-abortions/. Mr. Schouten notes that Canada’s lack of abortion regulation puts it in the company of China and North Korea, a seemingly common refrain among Canadian pro-life activists.

[18] See U.N. Population Division report, available at www.un.org/esa/population/publications/abortion/doc/singapore.doc

[19] Id.

[20] H.T. Tuyet, P. Thuy, and H.N. Trang, “Second Trimester Abortion in Viet Nam: Changing to Recommended Methods and Improving Service Delivery,” 16 Reproductive Health Matters 145 (2008), available at http://www.ncbi.nlm.nih.gov/pubmed/18772095 (last visited July 27, 2012).

[21] Elina Hemminki, Zhuochun Wu, Guiying Cao, and Kirsi Viisainen, “Illegal Births and Legal Abortions – The Case of China,” 2 Reproductive Health 5 (2005),  available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1215519/pdf/1742-4755-2-5.pdf. (last visited July 27, 2012). The case of China is complicated by the one-child policy, resulting in forced abortions and restrictions on sex-selective abortions as well as use of ultrasound technology to determine the sex of a baby.

[22] Id.   See also http://www.dailymail.co.uk/news/article-2159178/Feng-Jianmei-China-apologises-forced-abortion-child-policy-breach.html#ixzz21lcOkoq2 (last visited July 27, 2012).  “Li Yuongjou, deputy chief of Ankang’s family department, said the reality was that Feng was not forced to abort. He said,“A lot of us tried for days to educate her. She agreed to the abortion herself.” He added that in China an abortion is allowed up to 28 weeks, saying: “It’s not illegal to conduct “medium term” induction of labour.”

[23] The oft-repeated refrain that China, North Korea, and Canada have the most liberal abortion laws in the world (see supra, note 8) is the best evidence available for this proposition. The Guttmacher Institute confirms this assertion, albeit without a citation. See http://www.guttmacher.org/pubs/IB_AWW-Asia.pdf (last visited July 27, 2012)

[24] Available at: http://weneedalaw.ca/index.php/resources/international-law (last visited July 27, 2012).



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