I was grateful to the Petrie From Institute at Harvard for inviting me to contribute to their symposium on the recent US Supreme Court case June Medical on the constitutionality of certain abortion restrictions. The post is reposted below, and originally published here.
By any ordinary standard of comparativism, one might suggest that the abortion jurisprudence of the United States is so particular to its own circumstances that it ought to be considered sui generis.
But U.S. Supreme Court abortion law decisions always attract international attention, not only because of the (perhaps peculiarly) combative nature of U.S. abortion law, but also because the United States is something of a bellwether for abortion law reform.
This is, in truth, rather undesirable. U.S. abortion law is shaped by the idiosyncrasies of at least three power struggles playing out in particular ways in the American politico-legal landscape: contestations between anti-abortion and pro-choice politics and activism, constitutionalist struggles between judicial and legislative decision-makers, and constitutional tensions between states and federal authority.
The fomented tensions of perpetually-contested authority in this multi-level constitutional system create contrived disputes; restrictions are sometimes introduced at the state level in an attempt to provoke federal judicial intervention and, ultimately, a reorientation of the constitutional landscape within which municipal abortion regulation must operate.
However, at least two factors mean that decisions such as June Medical do have international relevance.
The first is that the hyperactive production of restrictive abortion laws — motivated by a desire to create and exploit space in the politico-legal regime — combines with the disproportionately wealthy research base in the Global North to produce a raft of empirical, quantitative and qualitative research on the clinical, economic, aspirational, and legal implications of these interventions, some of which originate in and are almost completely limited to the United States. This research base has the capacity to dominate the international research landscape, not least given the dominance of the “systematic review” as an evidence-gathering approach in public health, and the high volume of U.S.-based abortion law research captured within such systematic reviews, often to the complete or substantial exclusion of research from the rest of the world.
The second reason for June Medical’s international traction is the long-standing and continuing norm entrepreneurship and transnational activism of proponents of many of these (mooted or promulgated) legal interventions.
As well as working to create legal barriers to safe abortion in their home countries, these anti-choice activists are often embedded in transnational networks of norm entrepreneurs through which such provisions can be exported to other jurisdictions.
In some cases—as Máiréad Enright and I found to have been the case in the legislative debates on a new abortion law in Ireland—anti-choice politicians and activists in a particular jurisdiction can and do take a “copy and paste” approach to provisions developed in the United States in an attempt to limit abortion law reform in their home country.
In addition, these networks of activists also exert influence on some donors on whom the health systems of at least some countries (largely in the Global South) are reliant, so that the regulatory disruption to abortion provision at home is exported as aid conditionality.
The decisions of the U.S. Supreme Court on the constitutionality of such interventions are, thus, of interest to those seeking both to restrict and to protect or expand access to safe abortion worldwide. The same interventions under consideration in the U.S. may well be making their way across borders in opposition or private members bills and amendments, private healthcare facilities’ codes of practice, and rogue pregnancy counselling agencies activities. They may ultimately need to be opposed through politics, activism, and possibly litigation.
Taking this into account, what succor—if any—might the transnational abortion lawyer committed to protecting and expanding access to safe abortion take from the Supreme Court’s decision in June Medical? The answer, regrettably, is very little. Although the top line outcome – the striking down of the admitting privileges requirement impugned in June Medical – is welcome, Chief Justice Roberts’ opinion shows very clearly that the regulatory disruption sought by proponents of such interventions is close to being realized.
In Whole Women’s Health, the Court made it very clear that the correct interpretation of the test in Planned Parenthood v Casey is that a court must consider the benefits and the burdens of an abortion restriction, which can survive constitutional scrutiny only if the benefits outweigh the burdens. However, in June Medical Chief Justice Roberts suggests rather a different approach to Casey. For him there is no need to balance benefits and burdens. Instead the question is whether a restriction imposes a substantial obstacle on accessing abortion and cannot be justified under a “rational basis” review. This is a much lower standard, from the perspective of the rights and reproductive agency of the abortion seeker, than the Whole Women’s Health approach.
It is hard to imagine an anti-choice judge reading and appreciating these laws, passed off as medical interventions, as imposing sufficiently substantial obstacles to women’s health to be deemed unconstitutional.
To an outside observer, then, June Medical seems to signal the Court’s openness to affirming the constitutionality of an abortion restriction that presents an opportunity for a determinative application of such an approach to Casey.
Indeed, as Gretchen Borchelt has written, it may even be an invitation to anti-choice legislators to promulgate a law that would result in a wholesale revisiting of Casey. That would be a real crisis for constitutionally protected access to abortion in the United States, but also lower the bar in ways that might well migrate across the legislation, regulation, and practices of other jurisdictions, ultimately making safe abortion even less accessible than it already is to pregnant people far beyond the United States.
Professor Fiona de Londras 