In a letter to this paper about the legal consequences of repealing the Eighth Amendment to the Constitution of the Republic, which prohibits abortion in almost all cases, more than 60 legal experts claimed that in the United States the controlling supreme-court precedent on abortion "permitted states to regulate abortion access" and that, as a result, "many American states now have very conservative abortion laws".
This is not an accurate summary of how courts apply the law of abortion in the United States. To the contrary, the controlling legal precedents and their interpretation by US federal courts render American abortion law among the most permissive in the world.
It is true that in the companion legal cases of Roe v Wade and Doe v Bolton the US supreme court in 1973 assumed near-exclusive responsibility for the regulation of abortion in the United States. The court declared the basic question of a right to abortion to be beyond the authority of the nation's political branches, asserting that there is an unstated and undeclared fundamental right to privacy that includes the licence to terminate a pregnancy. That opinion was controversial then and remains so among commentators on all points of the political spectrum, many of whom have expressed concerns that the right invented in Roe was wholly untethered from the text, history or tradition of the constitution, laws and practices of the United States.
In 1992 a sharply divided court affirmed the core holding of Roe when it heard the case of Planned Parenthood v Casey. But it modified key features of that opinion such that now the right to abortion is grounded in a constitutionally protected "liberty" interest (instead of "privacy").
Moreover, Casey established a binary pre- versus postviability legal framework such that prior to viability (the moment a child’s lung capacity is sufficiently developed to survive outside her mother’s body) the state may not impose an “undue burden” on the right to choose abortion. Postviability, the court held, the state could impose regulations so long as it provided exceptions for those cases in which preservation of a woman’s life or health required an abortion.
Again, it is not clear how such a granular legal rule follows from the text, history or tradition of the US constitution, which nowhere mentions abortion and was ratified in relevant part in 1868 (when abortion was illegal in many states).
The supreme court of the United States has never sustained a restriction on abortion as such. The only limits it has permitted are side constraints
On its face this appears to grant the states latitude in regulating postviability abortions. But due to the capacious definition of "health" provided by Doe v Bolton, and left undisturbed by Casey, the "health exception" that must accompany any limit on abortion at all stages of development includes any aspect of a woman's wellbeing (including economic or familial), as determined by the abortion provider himself. Accordingly, the law of abortion in the United States is one of the most permissive worldwide.
Although it is true that many states have passed numerous laws in attempts to protect the rights of the unborn despite the hostile legal climate, federal courts regularly strike down such restrictions as unconstitutional. In fact the supreme court of the United States has never sustained a restriction on abortion as such. The only limits it has permitted are side constraints on the manner in which an abortion is obtained, including informed consent laws, parental-involvement requirements and limits on one particularly grisly form of abortion known as partial-birth abortion.
Far more often the federal courts invalidate modest, widely popular, commonsense limits on abortion. To take but a few recent examples, US courts have struck down bans on abortion based on genetic or sex discrimination (for example, to eliminate disabled unborn children), a ban on abortions of unborn children 20 weeks or older, requirements for the humane and dignified handling of foetal remains, and bans on the dismemberment of a living unborn child.
Indeed, as a Washington Post fact checker recently confirmed (to her surprise), the United States is one of only seven countries in the world that allows elective abortion after 20 weeks' gestation. The US joins China, North Korea, Singapore, the Netherlands, Canada and Vietnam in this sorry distinction.
By contrast Ireland has been a model for the world on how to extend care, concern and legal protection to both mother and unborn child. It has resisted the false narrative of “maternal/foetal conflict” that sets their interests against one another. As an outside admirer from a country whose abortion laws are among the most extreme in the world, I sincerely hope that the people of Ireland choose to retain the Eighth Amendment and thus continue as a beacon for the health and flourishing of mothers and babies, born and unborn.
O Carter Snead is the William P and Hazel B White director of the centre for ethics and culture, professor of law, and concurrent professor of political science at the University of Notre Dame, in the United States