B. Roe-Era Reforms

Roe coincided with a period of rapid abortion law reform throughout the world.²⁷ As a dramatic victory for an emerging transnational reproductive rights movement, Roe brought the United States in line with a prevailing trend, thereby giving strength to activists in other countries. Denmark’s Pregnancy Act of 1973 made abortion legal at a woman’s request during the first twelve weeks of pregnancy. ²⁸ Sweden further liberalized its abortion law in 1974, making abortion legal at a woman’s request through the eighteenth week of pregnancy.²⁹ France enacted provisional legislation liberalizing abortion in 1975,³⁰ giving the law, with minor modifications, permanent status in 1979.³¹ France’s law provided that during the first twelve weeks of pregnancy, a woman who declared herself to be in "distress" could legally obtain an abortion, provided she underwent counseling and observed the mandatory waiting period of one week.³² Because the woman herself was made the final judge of whether or not she was in "distress," abortion was effectively made available on request.³³

The United States was unusual at this time for securing its abortion guarantee in a constitutionally protected right. In most cases, abortion law reform took place in national legislatures. While constitutional challenges to abortion legislation were not uncommon in Europe from both supporters and opponents of reform—and some notable decisions were handed down in Austria (1974),³⁴ France (1975),³⁵ and Italy (1975)³⁶—none at the time upheld the primacy of individual autonomy in reproductive decision making.

C. Global Developments Since Roe

Since 1973, over forty countries have adopted abortion laws that permit abortion under most circumstances, and this trend continues to this day.³⁷ Abortion law reform has been justified on numerous grounds, including women’s health, demographic considerations, and reproductive rights. In a few countries that share the United States’ common law legal tradition, the reasoning of Roe has been asserted to support legalization of abortion. Roe’s influence is most evident in the 1988 Canadian Supreme Court decision of R. v. Morgentaler.³⁸ In this case, doctors charged under a restrictive abortion provision challenged the legitimacy of that law under the Canadian Charter of Rights and Freedoms.³⁹ The majority ruled that "[f]orcing a woman, by threat of criminal sanction, to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman’s body and thus a violation of security of the person."⁴⁰ In a concurring opinion, Justice Wilson referred explicitly to Roe and the line of Supreme Court cases reaffirming that decision. Wilson stated:

In my opinion, the respect for individual decision-making in matters of fundamental personal importance reflected in the American jurisprudence also informs the Canadian Charter. Indeed, as the Chief Justice pointed out in R. v. Big M Drug Mart Ltd., beliefs about human worth and dignity "are the sine qua non of the political tradition underlying the Charter". I would conclude, therefore, that the right to liberty contained in s. 7 guarantees to every individual a degree of personal autonomy over important decisions intimately affecting their private lives.⁴¹

The abortion law reflects principles stated in the South African constitution, also adopted in 1996, which provides in Section 12 that "[e]veryone has the right to bodily and psychological integrity, which includes the right . . . to make decisions concerning reproduction."⁴³ The constitution has thus explicitly incorporated principles of autonomy in reproductive decision making into broader notions of individual liberty. Evidence of Roe’s reach in South African jurisprudence is found in a decision of the High Court of Pretoria, which turned to Roe to respond to a constitutional challenge brought in 1998 against the nation’s abortion law.⁴⁴ In ruling on the question of whether a fetus has protected constitutional rights, the court commented, "In its landmark ruling in Roe v. Wade the United States Supreme Court held that a foetus is not a ‘person’ within the meaning of the fourteenth amendment and accordingly does not enjoy a constitutional right to life."⁴⁵

By grounding the right to choose abortion in principles of privacy and individual liberty, the United States Supreme Court contributed to a conceptual framework that could be applied by courts of other nations. Roe’s influence as a potential jurisprudential model can also be measured in the reactions of governments that oppose reproductive choice. The evident power of a constitutional approach to ensuring abortion’s legality has prompted the imposition of constitutional protections for "unborn life" in some countries, particularly those where politicians are most influenced by the official position of the Catholic Church. For example, fears in Ireland that the supreme court of that country would adopt the reasoning of Roe prompted a 1983 referendum that resulted in a constitutional protection for the right to life of the fetus.⁴⁶ With a similar motivation, the Philippine government included in the 1986 constitution a provision requiring the state to "equally protect the life of the mother and the life of the unborn from conception."⁴⁷

Roe’s impact in the political processes of other countries may be somewhat more subtle and less apparent than its influence on courts. However, it has contributed to a general trend—one that continues, albeit with signs of a conservative countertrend—of liberalization of abortion laws by governments throughout the world. Today, over 60% of the world’s population lives in the sixty-six countries that permit abortion without restriction as to reason or on broad grounds.⁴⁸ While the speed of abortion law liberalization has slowed in recent years, we are continuing to see dramatic changes in national abortion policies, with reforms aimed at making abortion more available to women. For example, in 2002, Nepal and Switzerland made abortion available at a woman’s request during the first twelve weeks of pregnancy.⁴⁹ Nepal’s recent shift from absolutely prohibiting abortion to removing most restrictions during the first three months of pregnancy is a particularly striking example of the continued force of abortion reform movements around the world.

These liberalizations have coincided with the imposition of incremental infringements upon choice in other countries. In recent years, two countries, El Salvador and Chile, removed narrow therapeutic exceptions to their abortion bans in favor of absolute prohibitions of the procedure, even prohibiting abortions to save the life of a woman.⁵⁰ In addition, the adoption of anti-choice constitutional amendments has continued in Latin America in such countries as El Salvador and Guatemala.⁵¹ Eastern and Central Europe is also under the sway of an increasingly powerful anti-choice movement, fueled by a post-Communist rush of religious fundamentalism and nationalism.⁵² While these conservative inroads have not yet challenged the clear trend toward abortion law liberalization worldwide, they are troubling reminders of the fragility of the advances women have made in the area of reproductive rights thus far, and parallel the threat to Roe that is currently being leveled within the United States.

D. The Influence of Roe in International Fora

Advocates for reproductive rights have argued that international human rights instruments support a right to reproductive selfdetermination. Protections of the right to health, nondiscrimination, and bodily integrity are fundamental to the rights to reproductive health and self-determination. The textual basis of these rights is recognized in the definition of "reproductive rights" adopted at the International Conference on Population and Development ("ICPD"), a United Nations conference held in Cairo in 1994 aimed at seeking consensus on basic norms relating to reproductive health and rights.⁵³

The ICPD Programme of Action provides:
[R]eproductive rights embrace certain human rights that are already recognized in national laws, international human rights documents and other consensus documents. These rights rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so, and the right to attain the highest standard of sexual and reproductive health. It also includes their right to make decisions concerning reproduction free of discrimination, coercion and violence, as expressed in human rights documents.⁵⁴

While documents adopted at United Nations conferences, including the ICPD, are not themselves binding human rights instruments, they are declarations of political commitment and therefore important in the development of emerging human rights standards and norms. In international fora, governments have not applied the principle of reproductive choice specifically to abortion. In fact, the provisions on abortion in the ICPD Programme of Action and elsewhere state specifically that abortion should not be considered a method of "family planning."⁵⁵ However, governments have recognized the need to address the issue of unsafe abortion as a public health concern. The ICPD Programme of Action characterizes unsafe abortion as a public health issue and calls for greater safety and compassion for women seeking abortions.⁵⁶ The Platform for Action of the Fourth World Conference on Women, held in Beijing, went further by urging governments to consider removing criminal penalties for women who have undergone illegal abortions and to take affirmative steps toward understanding and addressing the causes and consequences of illegal abortions.⁵⁷ At review meetings held five years after each of these conferences, their positions on abortion were reaffirmed and extended to a commitment to make abortion safer and more accessible where legal, despite opposition by reactionary governments.⁵⁸

Although a right to safe and legal abortion has not garnered explicit international legal support, reproductive rights advocates and international human rights scholars have begun to challenge restrictive abortion policies through the application of accepted human rights standards. In recent years, the strength of the rights-based approach to reproductive health adopted at these conferences has been called into question by the efforts of an increasingly radicalized cadre of conservative governments to block consensus on measures to promote reproductive rights. With the 2000 election of President George W. Bush, the United States joined this group. While the ultimate outcome of these attempts to undermine the Cairo and Beijing consensus is still uncertain, it appears that there will not be significant gains for reproductive rights—particularly abortion rights—at international conferences in the immediate future. Indeed, rather than moving forward, progressive governments are now engaged in a struggle to prevent the dismantling of existing reproductive rights standards and to minimize damage that may be inflicted in the next few years at the hands of the United States and other conservative powers.

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