US State Abortion Law in an International Context: Distinguishing Religion and Politics

Author(s): Paul J Zwier

US states have been adopting a conservative approach to abortion that have far reaching percussions to women. By a conservative approach, I mean a legal framework ascribing personhood to a fetus from the moment of conception. Depending on the state it may mean that women are not able to get access, for example, to certain birth control which contain medicine that thins the wall of the uterus and so helps inhibit pregnancies from forming. In its most extreme some conservative legislation tries to restrict access to medical abortion prescriptions [1]. A conservative turn in the states, whether coming from the federal district court, a state’s court, or legislature, puts women who advocate for their right—some say their human right to control their own bodies in early pregnancy [2], to strategize about the best way to secure those rights. Setting aside self-help options for women seeking abortions, (moving to a state or going across state lines to states with clinics that will prescribe the medication,) the broader question for those seeking to allow for medical abortions in early pregnancy is how to change the law in the state. Is the best advocacy strategy through the courts, or whether it is better for them to use the political process to make their advocacy to the public generally? Should it seek to secure an even more explicit amendment to their state’s Constitution? At the heart of the strategy will be an important question: How best to persuade a court or body politic about the religious aspects of the question. Is the court or legislature or regulatory agency the best institution to be tasked with balancing deep intuitions about the sacredness of potential human life with shared goals of also protecting the health of women during their pregnancies? How can the discussion avoid polarization and demonizing that leads to political deadlock? Regarding the latter questions, some help may come from looking at the international history of jurisdictions with conservative approaches to abortion. Ireland, Poland, Mexico, and Argentina each have had their unique confrontations with more conservative legal-religious settings. All four share a religious Catholic majority in their citizens that needed (and in the case of Poland, still needs) to be addressed [3]. The “religious” setting in a particular US state will likely share some of the “Catholic” perspectives on when human life may begin, but will likely also have some significant differences, especially around the source of its religious authority for criminalizing abortion. On the other hand, a particular US state may share a more “pluralistic” perspective, which balances off strong nonrational religious views against religious freedom concerns of other faiths. As a result, important compromises in Ireland, Mexico and Argentina reveal the more irrational nature of approaches that try to deny abortions after conception, or even at heartbeat, on religious grounds. These jurisdictions then have composed compromises that still do reverence to later stages of fetal development but permit women to control their bodies during the first 12, and in the case of Argentina and Mexico, to 14 weeks. US states may do well to aim for a similar compromise. Ireland and Poland also have European legal settings that are both similar and different, that can help a state see what approach its state supreme court might take to the question of how its constitution will be interpreted. They share decisions from their Constitutional Tribunals that have marked conservative shifts toward giving personhood rights to fetuses in the midterm of pregnancy. They also share a legal umbrella, brought about by the fact they are members of the EU, and as member states have committed to a shared protections of human rights under the authority of the European Court of Human Rights (EHRC), they use the argument of “natural” law to ground rights of women to control early pregnancy. As a result, they present a contrasting legal setting that can amplify the legal setting a particular US state might find itself in. Mexico shares a more “federalist” structure of the US, but also has rejected a criminalizing approach in a particular state’s jurisdiction, that had criminalized abortions before 12 weeks. Mexico, then, shares many of the challenges that US states face, but has in principle, at least, set aside its previous religious based position criminalizing all abortions after conception. Briefly, the situation in each country is as follows: In Ireland, Irish progressives had tried in the European Court of Human Rights (ECHR) to challenge the Irish Constitution. They lost in 2010 at the ECHR, and so turned to a national referendum to bring about change to its Constitution [4]. If progressives in US states adopt the approach that the Irish women did in 2018, they might take their case directly to the electorate and use state referendum provisions to amend the Constitution. An important feature of the Irish approach was that it then was forced politically to “trust” the Irish legislature to regulate abortion according to the majority will. They needed to present the case to the public generally, that “personhood” did not begin at conception. Having made that case to a majority of voters, they repealed a previously enacted 8th amendment to the Irish Constitution, declaring life beginning at conception, and were able to trust the Irish public health regulatory agency to enact health regulations that balanced the rights of women and the unborn. These regulations provide that Irish women have a right to choose during the first 12 weeks of pregnancy [5]. Thereafter, their rights are dependent on a woman’s ability to meet their burden of proof to health providers, regulated by the state, that they meet the exceptions provided by current Irish regulations, according to rape, incest, or, importantly, for health of the mother against the/right of the viable fetus [6]. In contrast to Ireland, in 2020, Polish women learned that their Constitutional Tribunal restricted their right to choose after years where abortion was widely available. The Tribunal found a right of the unborn not to be discriminated against based on “its” disability [7]. The Tribunal treated the fetus, even in early pregnancy, as a “person” for purposes of judging discrimination against it. That ruling has made a Polish right to choose virtually nonexistent, even when a woman’s life is at stake [8]. There seemed little appetite since then to challenge the holding by amending its Constitution. The history of abortion in Poland is made doubly political because of abortion having been linked in the mind of many Poles as being associated with Nazi concentration camps in Poland. It was also linked politically to “permissive” approaches to abortion backed by Soviet law pre-Polish independence. Add to that the Russia Ukraine war at its border, and some observers feel the time is not ripe to create political divisions on abortion rights in Poland [9]. There are also pragmatic worries about making the argument too political. They worry about how to amend the constitution in a way that won’t be interpreted by the Court in a manner that fails to be protective of their rights to control their own bodies. They are caught waiting on the ECHR to decide their case, and while their legal arguments might be strong, (the Court is more open to using Europe’s progressive morals as evidence of the existence of a human right), they are also subject to the court’s go-slow political reasoning when it comes to human rights. They also have brought the case as a class action, which may diminish the individual narratives of the women caught in the Polish legal trap. Those individual narratives demonstrate how protecting the fetus from disability discrimination requires medical providers to wait to determine the health of the fetus while risking the health of the mother. As a class it is harder to avoid the “self-help” possibilities available to women, generally, since abortion is so widely prevalent in other European states.