INTRODUCTION

The impact of the Supreme Court’s decision in Roe v. Wade¹ has been immeasurable, both in the United States and around the world. In its opinion, the Supreme Court acknowledged that a woman’s right to decide whether to terminate her pregnancy was protected under the constitutional principles of individual autonomy and privacy. For the first time, reproductive choice was recognized as a fundamental right, entitled to the same protection as guarantees of religious freedom and free speech, and afforded the highest standard of constitutional protection under the doctrine of strict scrutiny.² The decision not only secured the legality of abortion in the United States, but also gave strength to an emerging reproductive rights movement that transcended national borders.

Roe was decided at a time when legislatures and courts around the world were showing increasing respect for women’s right to selfdetermination in all aspects of life, including in deciding whether or not to bear children. Roe, therefore, both informed and was informed by a larger global movement to recognize reproductive health and self-determination as integral components of women’s equality. By the late 1970s and 1980s, this movement had led to collaboration in United Nations conferences and other fora toward the development of international standards for the protection of women’s human rights, including their reproductive rights.

At the same time, since 1973, a vocal anti-choice movement within the United States has chipped away at the core of the principles espoused by Roe. This gradual backsliding in the legal framework and jurisprudence affecting women’s right to abortion, together with an increasingly anti-choice U.S. foreign policy, pose serious threats to women’s ability to exercise their right to reproductive choice, not only in the United States but around the globe. Early attempts by anti-choice fundamentalists to reverse Roe through frontal attacks on the right to abortion have steadily been replaced by a more sophisticated, surreptitious, multifaceted approach. In 1980, the right wing of the Republican Party succeeded in compelling the party to adopt a platform supporting a constitutional amendment to outlaw abortion.³ Having realized that a pro-choice majority within the United States opposed such a constitutional amendment,⁴ abortion opponents have largely turned to more incremental tactics to erode women’s ability to exercise their right to abortion. For example, they espouse restrictions primarily affecting those who are least likely to be able to exercise the franchise or have a voice in government, such as low-income women, adolescents, and women in other countries. In addition, anti-choice leaders have learned to moderate their rhetoric, using deceptive tactics to lull policy makers and the American public into believing that core reproductive rights are not being threatened by their individual policy initiatives. The sophisticated and disproportionately powerful anti-choice movement⁵ has been alarmingly influential to the current Bush administration, posing substantial threats to the right to choose both within our borders and overseas.

Pro-choice lawmakers have tended to confront each of the proposed infringements upon women’s reproductive rights as an isolated problem, not placing it within the context of the broader anti-choice offensive. In taking this disconnected approach, policy makers have enabled those opposing choice to control the debate. Anti-choice lawmakers have thus focused on isolated issues with limited constituencies, again, such as initiatives targeting low-income women or adolescents. Or they have taken measures with apparently limited direct— and therefore less visible—consequences, such as promoting fetal rights or stacking the federal judiciary. Furthermore, pro-choice lawmakers have largely failed to make the links between the anti-choice agenda in the United States and the U.S. foreign policy imposed upon women in the rest of the world. As one commentator put it, "George Bush . . . is gearing up to police the wombs of the world’s women."⁶

This Article argues that each seemingly disconnected initiative advanced by the U.S. anti-choice movement must be viewed collectively as part of a unified agenda to undermine global recognition of women’s reproductive rights. The argument is premised on the observation that global respect for reproductive rights, like all human rights, can be greatly enhanced or hindered by the policies and actions of the U.S. The Article first examines Roe in its historical, global context, considering the extent to which the decision was influenced by the legal approach to abortion taken in other countries and discussing its contribution to the liberalization of abortion laws that has been occurring around the world since the early 1970s. It next considers the gradual backsliding in abortion rights in U.S. domestic and foreign policy between 1973 and 2000. The Article then examines the vigorous momentum under the Bush administration toward an increasingly stringent schema of restrictions on women’s access to safe and legal abortion services in the United States and worldwide. It calls attention to the negative implications of the United States’ increasingly anti-abortion policies for women globally. Finally, the Article concludes with a call for pro-choice lawmakers to recognize the interconnectedness of each of the anti-choice initiatives—within both domestic and foreign policy—in order to expose the broad political agenda of the far right and more effectively fight against each initiative by placing it within this comprehensive framework.

I. BACKGROUND: ROE V. WADE IN THE GLOBAL CONTEXT

At the time of the Roe decision, countries around the world were instituting reforms that collectively laid the groundwork for international recognition of women’s right to reproductive selfdetermination. Reproductive rights activism in the United States during the late 1960s and early 1970s drew strength from liberal abortion reforms overseas, particularly in Western Europe.⁷ Roe, in turn, bolstered a global trend toward abortion law liberalization that continues to this day. Furthermore, by grounding a woman’s right to choose abortion in the guarantees protected by the U.S. Constitution, the U.S. Supreme Court offered a rights-based conceptual framework that has influenced constitutional decisions in the courts of other nations and has been read into the protections of international human rights treaties.

Part A of this section provides an overview of the legal status of abortion around the world prior to Roe and the developments overseas that gave momentum to the reproductive rights movement in the United States. Part B discusses abortion reforms overseas that coincided with the Roe decision or immediately followed it. Part C surveys the history of global abortion law reform since Roe, with particular emphasis on reforms that were to some degree influenced by the Supreme Court’s reasoning in Roe. Part D reflects upon the extent to which Roe’s recognition of reproductive choice as a "right" has been adopted in international legal and policy instruments.

A. The World Before Roe: Pre-1973 Abortion Laws Worldwide

The practice of abortion predated all laws regulating the procedure and, historically, cultural and customary norms around the world took varying approaches to it. With the adoption of formal legal structures and institutions, however, most nations criminalized the practice. The first legal condemnations of abortion appeared in religious law, notably the Code of Canon Law of the Catholic Church, beginning in the twelfth century.⁸ While the Church’s position on abortion shifted significantly over the succeeding centuries, by the late nineteenth century, the Pope had decreed that abortion at any time following conception was a crime punishable with excommunication. ⁹ With the enactment of the 1803 Irish Chalking Act, England became the first country to prohibit abortion at all stages of pregnancy in its secular law, punishing the offenders with life imprisonment.¹⁰ This law would lay the ground for the 1861 OffensesAgainst the Person Act, which again criminalized abortion in England and became the basis of abortion’s criminal status throughout the Commonwealth countries.¹¹ France’s 1810 Napoleonic Code, a legal codification widely replicated in Europe and imposed upon French colonial territories, also prohibited abortion.¹² Highly influenced by the Code of Canon law, the Napoleonic Code treated abortion as homicide and imposed stiff criminal penalties upon women consenting to the procedure, as well as those providing it.¹³

The early twentieth century saw some softening of the prevailing legal stance on abortion. In 1920, the Soviet Union, guided by Marxist principles of gender equality, became the first country in modern times to make abortion legal at a woman’s request.¹⁴ Access to abortion in that country was severely curtailed by subsequent legal measures, but a decree in 1955 established once again that a woman could have an abortion on request during the first twelve weeks of pregnancy. ¹⁵ In Great Britain in 1938, the House of Lords handed down Rex v. Bourne, a highly influential judicial decision recognizing that abortion was lawful when performed to protect a woman’s life or health, including when an abortion would prevent a woman (in the case before the court, a fourteen-year-old rape victim) from becoming a "mental wreck" due to the pregnancy.¹⁶ China, beginning in 1953, crafted its abortion policy to support the national objective of curbing population growth, making abortion available at a woman’s request during the first six months of pregnancy.¹⁷ Both the Soviet Union and China regulated abortion in an ideological context that contrasted sharply with that of the United States.¹⁸ Neither, therefore, was significantly influential in the evolution of the rights-based approach to reproductive choice that would ultimately shape the Roe decision.

Later reforms preceding Roe occurred in Great Britain and India. Great Britain was the first country in Western Europe to liberalize its abortion legislation. The Abortion Act of 1967 allowed two medical practitioners to authorize an abortion during the first twenty-eight weeks of pregnancy if the continuation of the pregnancy would involve greater risk to the woman’s physical or mental health than if the pregnancy were terminated.¹⁹ The Abortion Act recognized social and economic grounds for abortion by providing for consideration of the woman’s actual or reasonably foreseeable environment when evaluating the potential threat to her mental health. While the Abortion Act gave medical practitioners—not women—the power to determine their eligibility for an abortion, liberal interpretation of the law rendered abortion available virtually on request.²⁰ India’s Medical Termination of Pregnancy Act,²¹ enacted in 1971, set forth liberal grounds for obtaining an abortion. Abortion was made legal within the first twelve weeks of pregnancy when a registered medical practitioner determined in good faith that the pregnancy posed a threat to a woman’s physical or mental health or that the fetus was likely to suffer a serious physical or mental disability.²²

The law recognized, among other things, contraceptive failure, rape, and the woman’s actual or reasonably foreseeable environment as considerations affecting her mental health.²³ The movement for abortion law reform in the United States was to some degree influenced by attitudes toward abortion and other reproductive health issues that were reflected in the laws of other countries. This influence began in the 1920s and 1930s, when early "birth control" advocates took note of movements to liberalize abortion in Europe.²⁴ In later years, there was also an indirect influence.

In 1962, the famous case of Sherri Finkbine, a woman who was unable to obtain an abortion in the United States after having taken thalidomide (a drug discovered to cause severe fetal impairments), brought to light the injustice of abortion’s highly restricted status in this country.²⁵ With much public sympathy, Finkbine was able to have an abortion in Sweden, where the law—though not yet liberal— recognized broader exceptions to its abortion prohibition than did that of Arizona, Finkbine’s state of residence.²⁶ Finkbine’s story illuminated for many the injustice of an absolutist stance against abortion and women’s right to private decision making regarding reproduction, at least under some circumstances.

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