The Supreme Court Should Look At International Abortion Law and Overrule Roe v. Wade
By Ligia de Jesus Castaldi, Public Discourse:
After almost fifty years of abortion jurisprudence, the US Supreme Court has an opportunity to overrule the arbitrary viability standard, to expand states’ ability to regulate pre-viability abortions, and to narrow down Doe’s unconscionable definition of health. International and foreign law on abortion can provide legal support for such a ruling…
…If the US Supreme Court does decide to look at international law, it will find that viability is not an international legal standard for abortion. As of today, even the most liberal abortion regimes in Western countries establish a twelve-week gestational age limit, not the child’s ability to survive outside the womb, as the most important limitation for abortion on demand. The viability rule, created by seven US Supreme Court judges in Roe, is uniquely arbitrary both from a comparative law and from a constitutional law perspective because it prohibited any state legal protection of the unborn child’s right to life before viability, identified at around twenty weeks’ gestational age. It held that a state’s interest in prenatal life begins only after the point of viability, using the child’s biological dependence on her mother against her. Casey reaffirmed Roe and its viability rule, toning down its prohibition of pre-viability regulation of abortion, holding that states may protect both state interests in women’s health and fetal life before viability. This is a test that Mississippi’s law certainly seems to meet.
[Editor’s note: in his survey of abortion policy in various countries around the world, the author does not include the UK in the list of those permitting abortion on demand. However, as articles on this website have regularly reminded us, while this may be technically and legally true, in practice on the ground the UK effectively permits and facilitates abortion on demand, and this has been made easier by the provision of abortifacient pills delivered by post.]
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