Paul J. Zwier (Emory University School of Law) has posted US State Abortion Law in an International Context: Distinguishing Religion and Politics on SSRN. Here is the abstract:
Some US states could be soon adopting a conservative approach to abortion that could have far-reaching repercussions for women. By a conservative approach, I mean a legal framework that attempts to a “fetus” from the moment of conception. Depending on the state, it may mean that women cannot get access, for example, to certain birth control which contains medicine that thins the wall of the uterus and helps inhibit pregnancies from forming. In its most extreme some conservative legislation will also try to restrict access to medical abortion prescriptions. A conservative turn in the states, whether coming from the federal district court, a state’s court, or legislature, will put women who advocate for their right—some say their human right to control their own bodies in early pregnancy, 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? Should it seek to secure an even more explicit amendment to its state’s Constitution?
At the heart of the strategy will be essential questions: 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 best 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. The “religious” setting in a particular US state will likely share some of the “Catholic” perspectives on when human life may begin, but will probably 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 nonrational and political/cultural 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 weeks, and in the case of Argentina and Mexico, to 14 weeks. US states may do well to aim for a similar compromise. A conservative turn in the states, whether coming from the federal district court, a state’s court, or legislature, will put women who advocate for their right—some say their human right to control their own bodies in early pregnancy, 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? Should it seek to secure an even more explicit amendment to its state’s Constitution?