As the state of Mississippi heads to the U.S. Supreme Court to defend the constitutionality of its abortion law—a 15-week gestational limit for abortion on demand—the international landscape offers much-needed context. In the midst of abundant misinformation, not widely discussed is the fact that the vast majority of the world’s countries heavily restrict access to abortion or protect unborn life entirely. Mississippi is far from alone in legislating to protect life.
Despite clear international support for protecting unborn life, the Supreme Court faces competing global perspectives as it prepares to hear Dobbs v. Jackson Women’s Health Organization on December 1. Both Mississippi and pro-abortion voices have turned to international law and practice to justify their respective stances.
Mississippi has pointed to other countries in support of its law limiting abortion on demand to 15 weeks, noting that the U.S. is one of only seven radically permissive countries, including China and North Korea, to allow the practice after 20 weeks. The state’s brief to the Court compellingly notes that such company for the U.S. “is not progress. The time has come to recognize as much.”
The opposing view, as articulated by eight United Nations officials in a friend-of-the-court brief, is that international law demands abortion for all, without restriction. They assert that, if the Court allows the Mississippi law to stand, the U.S. would be “retrogressing on human rights contrary to international law.”
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Which view is correct? The answer lies in the reality of what international law says and what countries do. While some may identify “something artificial about the recent conservative attentiveness to foreign nations”—as noted in a New York Times article tellingly entitled “Conservatives, Often Wary of Foreign Law, Look Abroad in Abortion Case”—international law is of relevance for all concerned with the authentic exercise of human rights. And “conservatives,” in this case meaning those supporting the legitimate and constitutionally protected interests of the state of Mississippi to limit abortion on demand, have good reason to point to international law. What is needed is an unbiased assessment of global abortion practice—a task that unfortunately has been neglected by U.N. special rapporteurs and other seemingly credible office-holders.
As stated in a friend-of-the-court brief by 141 international legal scholars supporting Mississippi, “should the Court find it useful to consider international law in this case, it will find no authority for a human right to abortion.” Such a conclusion follows logically from a simple assessment of both international law and the status of abortion legislation around the world. Abortion advocates shun this kind of basic fact-finding because it inevitably shores up the parallel constitutional right of Mississippi to restrict abortion—making clear that the state’s law is in no way extreme or lacking in international legal support.
Nothing in international law creates a “human right” to abortion. Correspondingly, gestational limits are a common way for countries to exercise their prerogative to protect unborn life. In fact, in restricting abortion on demand to 15 weeks gestation, abortion access in Mississippi remains more permissive than the laws of most countries.
Here is some useful comparative information that the Court may consider: only a minority of countries allow abortion on demand—that is, abortion based solely on the request of the woman. As indicated by the United Nations, just 34 percent allow it.
Among the minority of countries that allow abortion on demand, 82 percent have in place a gestational limit—a recognition that abortion should not transpire past a certain point in fetal age. Eighty-four percent of these countries cut off abortion on demand at 12 weeks’ gestation or earlier. Notably, even liberal European countries with legalized abortion on demand, such as France, Italy, Germany, Spain, Norway and Switzerland, have a gestational limit of 14 weeks or earlier.
As the Court reviews the law in Dobbs, it should consider that in the international abortion landscape, the extreme permissiveness of U.S. abortion laws is decidedly an outlier. It also could take into account that international law in no way contains any right to abortion—countries have the prerogative to restrict abortion access, and the majority do.
Perhaps of greatest significance is that the Court would find little to no support internationally for the concept of fetal “viability,” meaning survivability outside the womb, as a marker for legitimate abortion restriction—the central question in Dobbs. The majority international practice is to restrict abortion on demand to 12 weeks, well before the current (but ever-changing) viability point of about 21 weeks.
As Americans await Dobbs with bated breath, the rest of the world does as well. At home in the U.S., the case casts serious doubt on the legitimacy of American abortion jurisprudence, offering a pivotal opportunity for the Court to set the record straight. Abroad, it is a reminder that the U.S., the primary exporter of the abortion agenda globally, has far from settled its internal abortion debate, and is thus in no position to lure and coerce other countries into removing protections for unborn life.
LifeNews Note: Elyssa Koren is director of United Nations advocacy for ADF International. Follow her on Twitter @Elyssa_ADFIntl.