'Stunning on so many levels': CNN legal analyst breaks down draft opinion obtained by Politico
London (CNN)Tens of millions of women in America are on the verge of losing access to abortion, according to a draft of a document that appears to show the Supreme Court has decided to overturn the Roe v. Wade decision which legalized the procedure across the country.
Such a move would represent a drastic reversal of decades of precedent that would isolate the United States from most of the developed world on reproductive rights.
On Monday, Politico published a draft opinion from the court which indicates a majority of judges would vote to repeal the landmark 1973 Roe v. Wade ruling, which enshrined the right to have an abortion nationwide, though the final decision will not be announced until this summer.
The court’s public affairs office on Tuesday confirmed the document is “authentic,” but stressed that “it does not represent a decision by the court or the final position of any member on the issues in the case.”
The official opinion would reverberate around the world. It would firmly counter a global trend towards freer access to abortion, and place the US in a very small club of countries that have moved to restrict access in recent years.
Several states have already chipped away at the availability of the procedure; if swathes of the US are allowed to end it entirely, the country would become home to some of the strictest abortion laws in the Western world.
Here’s how the US would compare with the rest of the world on the issue of abortion.
Some US allies have greater access to abortion
Currently the US is one of 56 countries where abortion is legal at the request at a woman’s request, with no requirement for justification, according to the World Health Organization (WHO).
It is generally in the company of other Western nations, since few developed countries ban or heavily restrict access to abortions. Of the 36 countries the United Nations’ Department of Economic and Social Affairs defines as developed economies, all but two — Poland and Malta — allow abortions on request or on broad health and socio-economic grounds, according to the Center for Reproductive Rights (CRR), which campaigns for improved access to abortion and monitors laws worldwide.
But an end to federal protection of abortion would see parts of the US join that list. It would also push against a global tide that has seen many nations, including those on the United States’ doorstep, liberalize abortion laws in recent years.
Last year, Mexico’s Supreme Court unanimously ruled that penalizing abortion is unconstitutional, in a decision impacting precedent for the legal status of abortion nationwide.
“Never again will a woman or a person with the capacity to carry a child be criminally prosecuted,” Justice Luis Maria Aguilar said after the ruling. “Today the threat of imprisonment and stigma that weigh on people who freely decide to terminate their pregnancy are banished.”
The US’ northern neighbor, Canada, is one of the few countries which allows abortion at any point during pregnancy. Prime Minister Justin Trudeau has criticized moves in US states to make abortions more difficult to access.
Abortions are available at hospitals and private clinics; in most cases the procedure is covered by provincial government health insurance plans, which means they are essentially free. But the lack of a national abortion law in Canada has left access to services across the country patchy.
Most European Union nations — including those in the G7 — allow abortion with gestation limits, the most common being 12 weeks, according to monitoring charities including CRR. Exceptions after that period are usually permitted on certain grounds, such as if the pregnancy or birth poses a risk to the mother’s health.
Opposition to the procedure is generally less widespread in those countries than in the US.
And crucially, it is rare to find developed countries where abortions are not performed in extreme cases, such as when the woman has been a victim of rape or incest. Some state laws, as in the Mississippi law that the Supreme Court took up and based this decision on last year, bars abortions after 15 weeks, even in those instances.
Anti-abortion protests occasionally take place in countries including the UK, where some councils have responded by reducing protesters’ ability to interact with people entering clinics.
Activists around the EU have also called for loosening restrictions in their countries; in Germany for instance, abortion is permitted up to 12 weeks of pregnancy, but people seeking the procedure are required to attend a compulsory counseling session, which is followed by a mandatory three-day waiting period. Doctors there have also been prosecuted for sharing details about the abortion services they offer because any “advertising” of abortions is outlawed.
Japan, alongside countries like Finland and India, makes provisions for abortion in cases of rape or risk to the woman’s health, but also on wider socioeconomic grounds.
In developed countries where abortion is legal, none have set a gestation limit as early as six weeks — as a Texas law that the Supreme Court looked at last year did — according to the CRR. The court let that law stand in December, but the justices added that abortion providers have the right to challenge the law in federal court.
Among comparative democracies to the US, Australia’s laws have been among the most similar. As in the US, access to abortion varies in each Australian state and territory — and until recently, some regions criminalized the procedure.
But while some American states have gradually restricted their abortion laws, Australia has moved in the opposite direction. Since 2018 the procedure has been decriminalized in both Queensland and New South Wales; both states allow access to abortion up to 22 weeks. South Australia became the final state to decriminalize abortion this year.
US states could join a clutch of regions making abortion harder to access
The final opinion in the Supreme Court case isn’t expected to be published until late June. Votes and language can change before opinions are formally released.
But if the court follows through on its reported decision to repeal Roe v. Wade, several US states would be expected to quickly restrict or outlaw abortion. That would impact the lives and health care provisions of millions, and spark a myriad of concerns that are most commonly reported in developing countries.
In countries where abortion is restricted or illegal, evidence suggests that the number of procedures does not fall — instead, women resort to unsafe, so-called “backstreet” abortions, according to the WHO. Those dangerous procedures are a rarity in the Western world, but an overturning of Roe v. Wade could make them more common in the US.
Nearly half of abortions worldwide are unsafe, and 97% of unsafe abortions occur in developing countries, the WHO says.
But the United States is not the only nation where abortion rights are under threat; in other, more socially conservative pockets of the world, populist and authoritarian governments have similarly moved to restrict access to the procedure.
Among the most notable in this regard is Poland, where a ban on abortions due to fetal defects took effect last year — essentially ending almost all abortions in the country. Abortion is now only allowed in Poland in cases of rape or incest or when the pregnancy threatens the life of the mother.
The Polish government has made abortion a wedge issue since coming to power in 2015, appealing to social conservatives in the overwhelmingly Catholic nation, but sparking massive protests in the country’s more liberal cities.
Slovakia tried to follow Poland’s lead, but the country’s parliament has rejected several bills proposing restrictions on reproductive rights in the past two years.
And other European countries like Italy have seen extensive use of the “conscience clause” or “conscientious objections,” which allow providers to opt out of offering terminations because of moral objections, according to watchdogs including Human Rights Watch (HRW).
In Central and South America, abortion laws are generally strict. In Brazil, for instance, the procedure is illegal except for certain circumstances, such as fetal defects or if the abortion is a result of rape, according to HRW. Women and girls who end their pregnancies under other circumstances can face up to three years behind bars, HRW says.
In Nicaragua and El Salvador, abortion is completely illegal in every circumstance and prison sentences in the latter country can stretch up to 40 years. “Such laws effectively amount to torture, discrimination and the denial of some of the most basic human rights to life and to dignity,” human rights group Amnesty International said last year, in relation to El Salvador. In recent years some rulings there have been reversed, with several women released from jail after serving parts of their long sentences.
But other South American states have moved towards allowing abortion. Argentina passed a law allowing the procedure in December, while in Chile, where abortion was banned entirely until 2017, a debate is underway about decriminalization.
Editor’s note: A version of this story was previously published in December.
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