Who Decides Abortion Laws: Politics Or People?

Abortion laws are made by politicians and lawmakers, and vary from country to country, and even state to state. In the US, abortion laws have been in flux since the Supreme Court overturned Roe v. Wade in June 2022, ending federal protection for abortion rights and returning control over the procedure to individual states. In the 2024 US presidential election, Democratic Vice-President Kamala Harris has promised to restore abortion rights federally, while her Republican opponent, Donald Trump, has said he will leave the issue to the states.

In the UK, abortion was criminalized in 1861, but was later allowed on certain grounds and conditions in the 1967 Abortion Act. In Japan, abortion was initially legalized on eugenic grounds but was reformed in 1996 to omit all references to eugenics and now permits abortion to protect health, which includes socioeconomic reasons, and in cases of sexual offenses. In Canada, abortion has not been restricted since 1988 and is available on request with no stipulations. In Australia, abortion laws vary from state to state, ranging from very liberal to very restrictive.

The role of the Supreme Court

In the United States, the Supreme Court's 1973 decision in Roe v. Wade was a pivotal moment in the abortion debate. The Court ruled that the Constitution protected a woman's right to have an abortion, striking down many abortion laws across the country. This decision established a framework for state legislation, allowing abortions during the first trimester with minimal restrictions and imposing more stringent regulations in the second and third trimesters. The Court also classified the right to abortion as "fundamental," requiring strict scrutiny for any challenged abortion laws.

However, the Supreme Court's role in abortion laws has evolved over time. In 1992, the Court revisited Roe in Planned Parenthood v. Casey, abandoning the trimester framework and adopting the "undue burden" standard for evaluating state abortion restrictions. This standard gave states more flexibility in regulating abortions while still recognising a woman's right to choose.

In 2022, the Supreme Court overturned Roe and Casey in Dobbs v. Jackson Women's Health Organization, ending the constitutional protection for abortion rights. This decision allowed individual states to regulate abortion, leading to a patchwork of varying laws across the country.

The Supreme Court's rulings on abortion have had a significant impact on the legal and political landscape in the United States, shaping the abortion debate and influencing public policy. The Court's decisions have been controversial, with supporters and opponents debating the role of the Court in interpreting the Constitution and protecting individual rights.

The Supreme Court continues to play an active role in abortion laws, hearing cases and making decisions that shape the legal landscape. The Court's rulings can uphold or strike down state laws, set precedents, and influence how abortion is regulated across the nation.

The impact of state-level control

In June 2022, the US Supreme Court overturned Roe v. Wade, the 1973 decision that had previously protected abortion rights nationwide. The reversal of Roe v. Wade has resulted in a fragmented legal landscape, with abortion laws now varying significantly from state to state. This has led to a situation where abortion rights and access differ drastically depending on where one lives in the US, with some states enacting total bans, while others protect abortion throughout pregnancy.

As of August 2024, 17 states have outlawed nearly all abortions, banning the procedure at six weeks of pregnancy or earlier. These states, including Texas, Florida, and Alabama, are predominantly under Republican control and are mostly located in the US South. Another eight states allow some access to abortion, with varying restrictions on the procedure imposed between 12 and 23 weeks of pregnancy. Meanwhile, the remaining 25 states, plus the District of Columbia, protect abortion access. Nine of these states, along with DC, do not restrict abortion based on gestational duration.

The impact of this state-level control is profound and far-reaching. For those living in states with restrictive abortion laws, access to safe and legal abortions has become extremely limited, if not impossible. This has resulted in an increase in out-of-state travel for abortions, with people crossing state borders to access the procedure. Additionally, the criminalization of abortion in certain states has led to a rise in self-managed abortions and the illegal use of abortion medication, obtained through various means such as telemedicine services and online pharmacies.

The state-level control of abortion laws has also had a significant impact on the political landscape, with the issue of abortion becoming a key factor in the 2024 US presidential election. Both candidates, Democratic Vice President Kamala Harris and Republican opponent Donald Trump, have taken opposing stances on the issue, with Harris promising to "restore" abortion rights federally, while Trump has stated he will leave the issue to the states. The topic of abortion is also on the ballot in several states, with referendums on abortion access confirmed in 11 states as of May 2024.

Furthermore, the state-level control of abortion laws has led to a patchwork of inconsistent and often confusing regulations, with varying gestational limits, methods of abortion care, and reasons for obtaining an abortion. This has created a complex and challenging environment for both individuals seeking abortions and healthcare providers, who must navigate the differing laws and regulations to ensure compliance. The impact of these varying laws is particularly felt by those living in states with restrictive abortion laws, who may face significant barriers and limited options when seeking abortion care.

The state-level control of abortion laws in the US has resulted in a highly fragmented and inconsistent legal landscape, with wide-ranging impacts on individuals, politics, and society as a whole. The effects of these varying laws are felt disproportionately by those from marginalized communities, who already face numerous barriers to accessing healthcare and reproductive rights.

The influence of political parties

In the United States, abortion is a divisive issue in politics, with the Republican Party generally seeking to restrict abortion access and the Democratic Party defending access to abortion. Since 1976, the Republican Party has sought to restrict abortion access based on the stage of pregnancy or to criminalize abortion, while the Democratic Party has generally defended access to abortion and has made contraception easier to obtain.

The abortion-rights movement advocates for patient choice and bodily autonomy, while the anti-abortion movement maintains that the fetus has a right to live. The abortion debate has been historically framed as a debate between the 'pro-choice' and 'pro-life' labels, with most Americans agreeing with some positions of each side.

The Democratic Party platform considers abortion to be a woman's right, while the Republican Party platform opposes abortion and considers fetuses to have an inherent right to life. The Republican Party was supportive of abortion rights prior to the 1976 Republican National Convention, where they supported an anti-abortion constitutional amendment as a temporary political ploy to gain more support from Catholics. This stance brought many more social conservatives into the party, resulting in a large and permanent shift toward support for the anti-abortion position.

The abortion issue has become deeply politicized, with Christian right organizations like Christian Voice, Christian Coalition of America, and Moral Majority having an increasingly strong role in the Republican Party. This opposition has been extended under the Foreign Assistance Act, with a 1973 amendment banning the use of aid money to promote abortion overseas.

The Democratic Party has embraced reproductive rights as a key promise, with Vice President Kamala Harris enthusiastically embracing reproductive rights and promising to support legislation that would protect abortion rights nationally. The majority of Americans support legal access to abortion, and this broad support for abortion is expected to benefit Vice-President Kamala Harris's bid for the White House.

The effect of public opinion

Public opinion on abortion has a significant impact on the laws and policies surrounding the issue. In the United States, for example, abortion is a highly divisive and politicised issue, with varying laws across different states. Public opinion polls show that a majority of Americans support access to abortion and self-identify as "pro-choice," but there is also a significant portion of the population that opposes abortion and identifies as "pro-life." This polarisation has led to a highly contested debate between the abortion-rights movement, which advocates for patient choice and bodily autonomy, and the anti-abortion movement, which maintains the fetus's right to live.

The impact of public opinion on abortion laws can be seen in the fluctuating support for legal abortion over the years. While public support has remained relatively stable in recent years, it has fluctuated over the past two decades. This shift in public opinion has influenced policymakers and legislators, resulting in changes to abortion laws at the state and federal levels. For instance, in 2022, the Supreme Court overturned Roe v. Wade, ending the protection of abortion rights under the US Constitution and allowing individual states to regulate abortion. This decision was influenced by public opinion, with a significant portion of the population expressing support for restrictions on abortion or opposing it entirely.

Public opinion on abortion also varies based on religious affiliation, political ideology, gender, race, age, and education level. These factors play a crucial role in shaping abortion laws and policies. For example, White evangelical Protestants are more likely to oppose abortion, while religiously unaffiliated individuals strongly support abortion rights. Additionally, Democrats are generally more supportive of abortion rights, while Republicans are more likely to seek restrictions or criminalisation of abortion.

The impact of public opinion on abortion laws extends beyond the US. Globally, there is a trend towards the liberalisation of abortion laws, with more than 60 countries and territories liberalising their abortion laws over the past 30 years. This shift is driven by public opinion and advocacy efforts, recognising abortion rights as fundamental human rights. However, a few countries, including the US, have rolled back the legality of abortion, demonstrating the ongoing influence of public opinion on abortion laws worldwide.

The global context

Liberalising abortion laws

Over the past three decades, more than 60 countries and territories have liberalised their abortion laws, marking a significant trend towards the liberalisation of abortion globally. This shift is driven by a growing recognition of abortion rights as fundamental human rights, with countries such as Ireland, Nepal, and several Latin American nations, including Colombia, Mexico, and Argentina, leading the way. These countries have expanded access to abortion and enshrined abortion rights into law, reflecting a progressive shift in societal attitudes and political priorities.

Restrictive abortion laws

In contrast, a small number of countries have rolled back the legality of abortion, with the United States being a notable example following the Supreme Court's decision to overturn Roe v. Wade in 2022. This ruling removed nationwide protections for abortion rights and empowered individual states to criminalise or severely restrict abortion. As a result, nearly half of the states in the US have enacted total bans or stringent restrictions on abortion, often with limited exceptions. This regression on abortion rights in the US stands in stark contrast to the global trend towards liberalisation.

Impact of restrictive abortion laws

Restrictive abortion laws have far-reaching consequences and cause significant harm. They lead to approximately 39,000 deaths per year from unsafe abortions, loss of educational and economic opportunities for women, and the deepening of historical marginalisation of vulnerable communities. The denial of abortion care is a violation of human rights, as affirmed by various human rights bodies that have consistently condemned restrictive abortion laws.

Global variations in abortion laws

The legal status of abortion varies widely across the globe, with a diverse range of approaches adopted by different countries. While some countries fall into distinct categories, such as those that broadly legalise abortion or prohibit it altogether, many others have more nuanced and context-specific abortion laws. These laws may be influenced by various factors, including cultural, religious, and political dynamics unique to each country.

International human rights perspective

International human rights bodies and regional organisations have played a pivotal role in advocating for progressive abortion law reform. They have called for the decriminalisation of abortion and the recognition of abortion as a component of international human rights law. Notably, the African Commission on Human and Peoples' Rights (ACHPR) has championed the decriminalisation of abortion across Africa, aligning with the Maputo Protocol, which calls for safe and legal abortion under specific circumstances.

Country-specific approaches

A closer examination of individual countries reveals a diverse array of abortion laws and policies. For instance, countries like Cuba and Japan have liberal abortion laws that prioritise women's health and well-being. In contrast, countries like Chile and Russia have experienced fluctuations in their abortion laws, with periods of liberalisation followed by restrictive policies. Meanwhile, countries like Ethiopia and Uruguay have made significant strides in improving access to safe and legal abortion through a combination of legal reforms, court rulings, and public health guidelines.

Ongoing challenges and future prospects

Despite the global trend towards liberalisation, abortion remains a contentious issue, and efforts to reform abortion laws continue to face challenges. Stigma, misogyny, religious influences, and political obstacles persist in many parts of the world, hindering progress toward recognising abortion as a fundamental human right. However, there is a growing momentum for change, with women's groups, human rights organisations, and health professionals advocating for transformative thinking and legal reforms that prioritise women's reproductive rights, health, and autonomy.

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