Supreme Court urged to weigh foreign laws in abortion case

WASHINGTON – Not so long ago, Conservatives found it maddening that American judges cite foreign law in their decisions interpreting the...


WASHINGTON – Not so long ago, Conservatives found it maddening that American judges cite foreign law in their decisions interpreting the Constitution.

When the Supreme Court took international trends into account in a 2005 decision the elimination of the death penalty for minors, for example, Judge Antonin Scalia wrote furious dissent. “The basic premise of the court’s argument – that US law should conform to the laws of the rest of the world – should be rejected out of hand,” he wrote.

The justice also accused his colleagues of opportunism and hypocrisy. In other areas of law, he writes, the court ignored conservative foreign rulings on criminal procedure, religion and, most notably, abortion. “To invoke foreign law when it agrees with one’s own thought, and to ignore it otherwise, is not reasoned decision-making, but a fallacy,” Judge Scalia wrote.

Mississippi lawmakers seemed to take a different point of view in 2018, when they adopted a law banning most abortions after 15 weeks.

First legislative statement justifying the law, its editors sought help overseas. “The United States is one of only seven countries in the world to allow non-therapeutic or elective abortion on demand after the 20th week of gestation,” the result said. “In fact, 75 percent of all nations do not allow abortion after 12 weeks’ gestation except (in most cases) to save the life and preserve the physical health of the mother.”

The law was a calculated challenge for Roe vs. Wade, the 1973 ruling that established a constitutional right to abortion and prohibited states from banning the procedure before fetal viability, either around 23 or 24 weeks. The Supreme Court will hear arguments in December in a challenge to the law.

Statements by lawmakers about foreign practices appear to be generally correct. A fact check column The Washington Post in 2017 broadly confirmed the first: “This statistic seemed questionable at first, as it seemed extreme that only seven countries out of 198 allow elective abortions after 20 weeks of pregnancy,” he said. “But as you dig deeper, the data backs up the claim.”

And 12 weeks is a common nominal limit, said Marie ziegler, professor of law at Florida State University, although the social context is generally quite different.

“Most places in the world have something like 12 weeks, but with public health insurance,” she said. “They pay for it. If you want to have an abortion in the first 12 weeks, there’s no real reason you can’t.

Martha F. Davis, a law professor at Northeastern University, added that the limits were usually subject to important exceptions for patients who needed subsequent abortions.

“Many countries, but not all, and not our closest peers, have thresholds which, on paper, are pre-viability,” she said. “But they make so many exceptions that allow abortion much more liberally.”

To his confirmation of charges hearings in 2005, Chief Justice John G. Roberts Jr. questioned the use of foreign law in US constitutional cases, arguing that it was necessarily selective.

“In foreign law you can find whatever you want,” he said. “Looking at foreign law for help is like watching a crowd and choosing friends. “

In a Brief of the Supreme Court, Mississippi officials have focused on the nation’s adversaries. “The United States is in the company of China and North Korea among the only countries to allow elective abortions after 20 weeks of gestation,” said the brief.

Lawyers for abortionists challenge Mississippi law asked the court consider other nations.

“In countries with legal traditions and democratic values ​​most comparable to the United States, such as Britain and Canada, abortion is legal until at least viable,” they wrote. “And many countries that have limits earlier in pregnancy continue to allow abortion for broad social and health reasons after that point, functionally allowing abortion later in pregnancy.”

Friends of the court duels in the Mississippi case also supported Chief Justice Roberts’ comment about selectivity.

In a brief, professors of international law supporting Mississippi law said that “France, Italy, Germany, Spain, Norway and Switzerland have a gestation limit of 14 weeks or earlier for abortion on request, allowing later exceptions only for limited medical reasons “. The cited brief data collected by the Center for Reproductive Rights.

On the other side, a brief from another group of international and comparative law scholars supporting abortion providers in Mississippi focused on countries that he said had legal traditions similar to those of the United States, including Canada, the New Zealand and Great Britain, which “allow abortion up to or around viability”.

“Beyond their largely permissive laws,” the document said, “these countries also support abortion rights and reproductive decision-making through universal health care, access to services. abortion and access to contraception.

The brief added that recent international trends have been towards easier access to abortion, with more than 50 countries liberalizing their laws in the past 25 years. On the other hand, according to the brief, Roe’s cancellation “would put the United States in the company of countries like Poland and Nicaragua as one of the few countries to adopt stricter restrictions on legal access to abortion. over the past 20 years ”.

Professor Ziegler said there was something artificial about the Conservatives’ recent attention to foreign countries with limits of around 12 weeks.

“People who are against abortion are misleading about this because they are not proposing 12 weeks,” she said. “They offer six weeks, or they offer fertilization.”

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Newsrust - US Top News: Supreme Court urged to weigh foreign laws in abortion case
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