AT A GLANCE
EPRS | European Parliamentary Research Service
Author: Gisela Grieger, Members' Research Service
PE 733.707 - October 2022
Growing transatlantic divide on abortion rights
Once at the forefront of liberalising abortion rights, the United States has rolled-back women's reproductive
rights. On 24 June 2022, the US Supreme Court overturned its landmark 1973 ruling in Roe v Wade, establishing
a constitutional abortion right under certain circumstances. For almost half a century, Roe v Wade made it
unconstitutional to enact and enforce abortion 'bans' at state level. The 2022 ruling defers the highly polarise d
US abortion rights debate to the state level, where a patchwork of abortion laws has since emerged. Republican
lawmakers seeking to codify a federal abortion ban, inter alia, claim alignment with Europe. The Supreme Court
ruling has galvanised voters, and abortion rights are unexpectedly on the ballot for the 2022 mid-term elections.
The US's liberal approach to abortion in the 1970s
After a long history of criminalisation of abortion, the US was one of the first countries to liberalise abortion
laws. In 1973, the US Supreme Court, in a 5 to 2 vote, held in the landmark Roe v Wade ruling that women
may choose to have an abortion until a foetus becomes viable, i.e. able to live outside the womb, based on
the right to privacy grounded in the
Due Process Clause of the US Constitution's Fourteenth Amendment.
US backsliding since the 1990s
Although Roe v Wade may have appeared to have kept a lid on a
highly divisive topic, in reality, the right to abortion was restricted
again early on at federal level. In 1992, the Supreme Court
decision in
Planned Parenthood v Casey reaffirmed the
constitutional right, but broadened the states' authority to
introduce restrictions, such as waiting periods. In 2003, Congress
passed the Partial-Birth Abortion Ban Act (
S.3), criminalising a
specific abortion procedure in the second trimester of pregnancy.
Former President Bill Clinton had earlier
vetoed the ban twice, but
then-President George W. Bush signed it into law. Despite the lack
of full data, Figure 1 shows how both Supreme Court judgments
and the 2003 law are likely to have influenced the number of legal
abortions. After a steep rise of the number of abortions following
Roe v Wade, the Supreme Court's 1992 restrictions and the 2003
law appear to have led to a fall in legal abortions, bringing
numbers almost back to 1973 levels.
Congress has passed the Hyde Amendment every year since 1976;
a law preventing use of federal health programmes such as
Medicaid for people on low-income to cover the cost of abo rtion
services, except in event of rape, incest, or danger to life.
Consequently,
16 states have used their own funds to pay for abortion under Medicaid. In 2021, the Biden
administration became the first administration to exclude the Hyde Amendment from the President's fiscal
year 2022 budget request. Although the initiative failed in the final 2022 fiscal year bill, it was renewed for
the 2023 fiscal year budget request. On the state level, over 1 300 restrictions were imposed, notably during
the last decade. However, most consequential for abortion rights in the US was former Pres ident
Donald Trump's nomination of three judges to the Supreme Court that established a 6 to 3 conservative
majority. The confirmation of Justice
Amy Coney Barrett, an anti-abortion advocate, to replace late Ju s t ice
Ruth Bader Ginsburg, a life-long advocate for gender equality and women's rights, has cemented the right-
wing shift in the Court for years to come. On 24 June 2022, the Supreme Court's conservative majority in
Dobbs v Jackson Women's Health Organization struck down Roe v Wade in a 6 to 3 vote, eliminating the
constitutional right to abortion enjoyed by US women for 49 years. US Attorney General Merrick B. Garland
stated 'the Court has upended the doctrine of stare decisis', i.e. that courts will adhere to precedent in
Figure 1 – Number of legal abortions
in the US since 1973
Source: What the data says about abortion in the
U.S., Pew Research Center, 24 June 2022.
CDC =
Center for Disease Control and
Prevention. For notes on the data, see original.
EPRS
Growing transatlantic divide on abortion rights
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making decisions, 'a key pillar of the rule of law'. President Biden warned that access to birth control and
same-sex marriage could also be at risk, and stated that 'this fall, Roe is on the ballot. Personal freedoms are
on the ballot.' He later signed an
executive order to defend reproductive rights. A July 2022 PEW Research
Center poll shows that 62 % of US citizens believe that abortion should be legal in all or most cases. Some
66 % of Democrats disapprove of the Supreme Court's ruling, while 70 % of Republicans approve.
Impact
The Supreme Court ruling has set the US
on a pathway to a division
into 'a bo rtion
desserts', where abortions are illegal, and
'abortion havens', where abortions can
still be performed legally. It has
prompted a patchwork of state abo rtion
laws and abortion restrictions (see
Map 1). Some states had abortion bans
in place before Roe v Wade, others have
multiple abortion bans and some
enacted trigger laws to either ban
abortion automatically or within 30 days,
once Roe v Wade was overturned. These
state laws all exempt abortions in the
event of life-threatening pregnancies,
but many do not exempt pregnancies
due to rape or incest. In July 2022, in a
widely reported incident, a
10-year old
rape victim had to travel from Ohio to
Indiana to access an abortion. Several US
companies have meanwhile made commitments to pay for their employees' abortion-related travel costs.
Recent Congressional legislative initiatives aimed at codifying Roe or Dobbs
Apart from holding a hearing on the Roe reversal, in July 2022, the House adopted two bills to protect access
to abortion. The first bill, the Women's Health Protection Act (H.R. 8296) passed with only Democratic
support (219-210). If enacted, it would prohibit government restrictions on the provision of, and access to,
abortion services. In 2021, the House
passed (218-211) a similar bill (H.R. 3755), which failed in the Senate
(46-48). The second bill, the Ensuring Access to Abortion Act (H.R. 8297), passed (223-205), and if enacted,
would provide legal protection to women forced to leave one state to receive abortion services in another.
Media outlets claim that many Republicans do not wish to
appear divided or extremist ahead of the mid-
term elections. They believe that states should legislate on the matter and they know that President
Joe Biden would veto a federal ban adopted by a Republican-controlled Congress. Nonetheless,
Representative Bob Good (R-Virginia)
has championed the Life at Conception Act (H.R. 1011), a total
abortion ban supported by over 160 House Republicans. Moreover, Rep. Earl Carter (R-Georgia) has
introduced the Defunding Abortion Transportation Act (H.R. 8354), which would prohibit the use of federal
funds for women to travel across state boundaries to receive abortion services. Senator Lindsey Graham (R-
South Carolina),
claiming among other things that his bill would align the US with Europe, has spearheaded
the Protecting Pain-Capable Unborn Children from Late-Term Abortions Act (S.61). Some 45 Republican
Senators support his bill, which would ban abortion nationwide after 15 weeks of pregnancy. Rep.
Christopher Smith (R-New Jersey) introduced a House companion bill (
H.R. 8814). However, of the 27 EU
Member States, only Malta and Poland maintain a ban, or have introduced restrictive laws, respectively.
On 7 July 2022, the European Parliament adopted a resolution in favour of including the right to abortion in the EU
Charter of Fundamental Rights and the need to safeguard abortion rights and women's heath in the EU (324 in
favour, 155 against, 38 abstentions). On 9 June 2022, it adopted a resolution calling for Roe to be upheld and on
11 November 2021, Parliament passed a resolution that reiterates 'its strong condemnation of the illegitimate
Constitutional Tribunal's ruling of 22 October 2020 that imposes a near-total ban on abortion' in Poland.
Map 1 – State abortion laws in the absence of Roe v Wade
Source: National Conference of State Legislatures, 24 June 2022.
Almost all states in red that, according to this map, permit abortion
correspond to 'blue' states that in 2020 voted for Joe Biden, and states in blue
prohibiting it correspond to 'red' states that voted for Donald Trump.
