Decriminalization as an Alternative Means of Protecting Abortion in America

By Rita Portenti, May 17, 2022

Introduction: An Unusual Trend in the United States
Over the past three decades, a global trend in increasing access to abortion has emerged. Meanwhile, in the United States, access to abortion is becoming increasingly limited.i For example, there is only one abortion clinic in Mississippi,ii and in Texas, one of “the most restrictive law[s] to date” has recently passed, banning abortions around six weeks.iii Additionally, a draft opinion of Dobbs v. Jackson Women’s Health Organization, expected to be finalized this summer, has revealed the Supreme Court’s plan to overrule two landmark cases that protect the right to an abortion: Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania. v. Casey. iv
In its draft opinion of Dobbs, the Supreme Court reasoned that Roe and Casey must be overruled because the right to abortion is not supported by the language of the Constitution, by America’s history and tradition, or by precedent.v Across North America, South America, and Europe, in countries with a trend towards increasing access to abortion, governments have largely decriminalized abortion rather than necessarily protecting it as a fundamental right. Thus, as the Supreme Court prepares to eradicate the right to abortion, a decriminalization framework may present a viable alternative to protecting abortion in America.
The Supreme Court’s Interpretation of Constitution, History, Tradition, and Precedent
The first conclusion in the draft opinion of Dobbs is that the Fourteenth Amendment does not protect the right to abortion,vi chiefly because abortion destroys “fetal life.”vii The right to obtain contraceptives and the right to reside with relatives involve distinct privacy interests. However, the Supreme Court only emphasized the difference between the right to abortion and other rights afforded the protection of liberty,viii, without explaining why such difference excludes the right to abortion from protection.
In addition, the Supreme Court reasoned that the right to abortion is not protected under a broader right to autonomy because such protection would “prove too much.”ix The Court warned that a broader right to autonomy “could license fundamental rights to illicit drug use or prostitution.”x While a broad right to bodily autonomy may license additional autonomy, the Supreme Court did not explain why such a possibility prohibits the continuation of an existing right. Thus, the Court reasoned that because the right to abortion is different from other rights protected by the Fourteenth Amendment and because protection under a right to autonomy would be too broad, a right to abortion does not exist.
The Supreme Court then turned to the history and tradition of America, finding that neither support a right to abortion.xi The Court began its analysis with common law, where abortion criminal after quickening, the first felt movement of the fetus, usually between the 16th and 18th week of pregnancy.xii The Mississippi law challenged in Dobbs bans abortions after fifteen weeks of pregnancy,xiii thus presenting a stricter cutoff than the common law. The Court argued that Roe was “egregiously wrong”xiv in part for drawing a line between pre- and post-viability to distinguish between permissible and impermissible abortions,xv but the common-law cited in the draft opinion drew a similar line, instead using the term “quickening.”
However, the Supreme Court placed greater consideration on the fact that abortion was prohibited in most states when Roe was decided.xvi Most civil rights that emerged from Supreme Court holdings were not widely available before the cases were decided. For example, most schools were segregated when Brown v. Board of Education ruled that schools must be desegregated.xvii Holding that a right must be widely available to be afforded constitutional protection betrays the purpose of an appeal to the highest court.
Notably, the Supreme Court did not acknowledge the impact of the oppression of women. The opinion cited common law as far back as the twelfth century,xviii ignoring that women were disenfranchised until 1920. A historical analysis of the treatment of a group of people that a country did not view as citizens for most of its history will not be favorable to those people. The analysis should not be whether the right has existed throughout history but instead, whether the right should have existed in accordance with our traditions. Nevertheless, the Supreme Court leveraged the lack of support for abortion throughout history to arrive at the “inescapable conclusion” that a right to abortion is not deeply rooted in the Nation’s history and traditions.xix
The final reason that the Supreme Court provided for overruling Roe and Casey was that the cases lack “a sound basis in precedent.”xx Casey relied on precedent involving the right to marry a person of a different race and the right to make decisions about the education of one’s children.xxi These cases held that a right to privacy includes “the right to make and implement important personal decisions without governmental interference.”xxii In Dobbs, the Court reasoned that the right to abortion is different from these other rights because it destroys the potential life of a fetus.xxiii Without further explanation of why this distinction excludes abortion from protection, the Court concluded that the Constitution does not confer such a right.xxiv
The Court also reasoned that some of its “most important constitutional decisions have overruled prior precedents,”xxv citing Plessy v. Ferguson, Adkins v. Children’s Hosp. of D.C., and Minersville Sch. Dist. v. Gobitis.xxvi Overruling Plessy paved the way for the integration of schools,xxvii overruling Adkins permitted a minimum wage for women,xxviii and overruling Minersville freed public school students from violating their beliefs.xxix There is a significant distinction between the decision to overrule these cases and the decision to overrule Roe and Casey. Overruling the former set of cases resulted in the expansion of individual liberty, whereas overruling Roe and Casey results in a drastic debasement of individual liberty.
The Decriminalization Framework Across North America, South America, and Europe
Decriminalization of abortion, without the creation of a constitutional right, has proven to be successful in protecting abortion globally. In North America, the decriminalization of abortion has been particularly successful in Canada and Cuba. In 1988, the Supreme Court of Canada decriminalized abortion in R v. Morgentaler.xxx This case did not enshrine abortion as a “positive” right.xxxi Instead, Canada treats abortions like other medical procedures “regulated through provincial/territorial and professional bodies.”xxxii Abortion is similarly treated in Cuba, where abortion has been freely available since 1979,xxxiii when it was decriminalized.xxxiv In both Canada and Cuba, abortion is available on request, meaning people do not have to qualify their reasons for undergoing the procedure.xxxv In Canada, there is no gestational limit.xxxvi
In South America, the decriminalization of abortion has also successfully increased access to abortions, including in Colombia. On February 21, 2022, Colombia’s Constitutional Court legalized abortion in the first twenty-four weeks of pregnancy, making it one of the most progressive abortion regulations in the Americas.xxxvii In December 2020, Argentina became the largest nation in Latin America to legalize abortion.xxxviii Unlike Colombia, Argentina passed legislation that provides a positive right for people able to become pregnant to “decide on the termination of their pregnancy.”xxxix Abortion is available on request in Colombia and Argentina.xl Notably, however, Argentina only permits abortion until the fourteenth week of pregnancyxli, which is stricter than the limit at the center of Dobbs.
Finally, in Europe, decriminalization of abortion in the Netherlands and England has resulted in some of the most progressive abortion regulations worldwide. In the Netherlands, exceptions to the criminal code are permitted if an abortion is performed within the first twenty-four weeks of pregnancy.xlii In England, abortions may be performed within the first twenty-four weeks of pregnancyxliii under the Abortion Act of 1967, which decriminalized abortions performed under the circumstances listed in the act.xliv In the Netherlands and England, abortion has not been enshrined as a right, but instead has been decriminalized. Thus, North American, South American, and European abortion regulations appear to permit increased accessibility when regulated through a decriminalization framework, rather than a positive right framework.
Conclusion: Decriminalization Presents an Alternative to Protecting Abortion in America
The Supreme Court, in its draft opinion of Dobbs, held that Roe and Casey must be overruled because the right to abortion is unsupported by the Constitution, America’s history and tradition, and precedent.xlv The Supreme Court reasoned that women are not “without electoral or political power.”xlvi However, on May 11, 2022, the Senate failed to pass a bill that would codify Roe and Casey.xlvii Without a fundamental right to abortion and without recourse from the Legislature, it may be necessary to seek alternative means to protect abortion.
Across North America, South America, and Europe, in countries where the right to abortion has not been enshrined but abortion has been decriminalized, abortion has become more accessible. This route merits consideration, given the Supreme Court’s plan to recognize the protection of a “potential” life as a legitimate state interest.xlviii Such recognition poses a serious threat to the individual liberties of people capable of bearing children, because the state’s interest in protecting “potential” life has not been defined. It may be left to the states to decide when interest in potential life begins, and when regulation of the bodies of those capable of bearing children begins. The bill to codify Roe and Casey purportedly failed to pass because it proposed measures beyond Roe and Casey, even though moderate senators alleged they were prepared to support measures protecting abortion. xlix Therefore, decriminalization of abortion, which does not go beyond Roe or Casey, may present a viable alternative to protecting abortion in America.

References:

[i] Daniela Santamariña, et al., How Abortion Laws in the U.S. Compare with Those in Other Countries, Washington Post, Sep. 27, 2021.

[ii] Timothy Bella, Mississippi’s Last Abortion Clinic May Move to New Mexico if Roe Is Overturned, Washington Post, May 4, 2022.

[iii] Id. 1.

[iv] Josh Gerstein & Alexander Ward, Supreme Court Has Voted to Overturn Abortion Rights, Draft Opinion Shows Politico, May 2, 2022.

[v] Dobbs v. Women’s Health Org., No. 19-1392, U.S. Supreme Court, 2022, p. 8.

[vi] Id. p. 14.

[vii] Id. p. 5.

[viii] Id. p. 31.

[ix] Id. p. 32.

[x] Id.

[xi] Id.

[xii] Id. p. 16.

[xiii] Id. p. 6.

[xiv] Id. p. 6.

[xv] Id. p. 46.

[xvi] Id. p. 24.

[xvii] School Segregation, Library of Congress, https://www.loc.gov/collections/civil-rights-history-project/articles-and-essays/school-segregation-and-integration/.

[xviii] Id. vi. p. 24.

[xix]Id.

[xx] Id. p. 31.

[xxi] Id.

[xxii] Id. p. 45.

[xxiii] Id. p. 32.

[xxiv] Id.

[xxv] Id. p. 36.

[xxvi] Id. p. 37.

[xxvii] Id. p. 36.

[xxviii] Id.

[xxix] Id. p. 37.

[xxx] Irelyne Lavery, Nationwide Abortion Bill Would Backfire in Canada as It Did in the U.S., Experts Say, Global News, May 14, 2022.

[xxxi] Mark Gollom, Why Canada’s Roe v. Wade Didn’t Enshrine Abortion as a Right, CBC News, May 4, 2022.

[xxxii] Id. xlii.

[xxxiii] Fiona Samuels, et al., Family, Sexuality, and Sexual Reproductive Health in Cuba, ODI, Feb. 2020.

[xxxiv] Valerie Reynoso, Women’s Reproductive Rights in Cuba vs the United States: A Comparative Analysis, Hampton Institute, July 30, 2018.

[xxxv] Id. i.

[xxxvi] Id.

[xxxvii] John Otis, Colombia Legalized Abortions for the First 24 Weeks of Pregnancy. A Backlash Ensued, NPR, May 10, 2022.

[xxxviii] Id. xxvii.

[xxxvix] Access to Voluntary Termination of Pregnancy, Law No. 27,610, Dec. 30, 2020.

[xl] Id. i.

[xli] Id. xxvii.

[xlii] Wendy Zeldin, Netherlands: New Regulation on Late-Term Abortions and Terminations of Lives of Neonates, Library of Congress, 2016.

[xliii] What Are the UK’s Laws on Abortion?, BBC News, Oct. 22, 2019.

[xliv] Britain’s Abortion Law, British Pregnancy Advisory Service, https://www.bpas.org/get-involved/campaigns/briefings/abortion-law/.

[xlv] Id. vi.

[xlvi] Id. p. 61.

[xlvii] Alice Miranda Ollstein & Marianne Levine, Senate Fails to Pass Abortion Rights Bill—Again, Politico, May 11, 2022.

[xlviii] Id. vi. p. 46.

[xlix] Id. lxviii.