Extremism in America

Earlier this month, New Jersey passed yet another abortion law more extreme than the abortion laws of almost every nation in the world. In New Jersey, women may choose to end the life of the child they are carrying at any time and for any reason, including up until the minute they go into labor. The law has some startling features: It allows a state agency to mandate that health insurance cover abortions, and it allows midwives and nurses to perform them. But the reality is that late-term elective abortions have long been legal in New Jersey because of Roe v. Wade. As we now know, Roe is not only wrong but extreme.

While Roe purported to balance what it viewed as a woman’s constitutional right to an abortion against an interest in protecting unborn life, it did no such thing. Roe mandates elective abortion up until a baby is viable outside her mother’s womb—now about 22 weeks gestational age. Even today, after scientific evidence shows that a baby can smile, stretch, and likely feel pain as early as 12 weeks, Roe and subsequent cases permit jurisdictions like Alaska, Colorado, the District of Columbia, New Jersey, New Mexico, New Hampshire, Oregon, and Vermont to allow elective abortions for any reason up until birth.

While these laws shock our conscience, they expose a little-known truth about abortion in the United States: The country ranks as one of the most abortion-permissive nations in the world. Most countries do not allow abortions or do so only in limited circumstances, like to protect the life of the mother. Most do not allow elective abortions at all. And in countries that do allow on-demand abortion, an overwhelming majority limit them to the first trimester. Even nations with extremely permissive abortion laws like France, Italy, Germany, Spain, and Norway limit abortion to 14 weeks, except for medical reasons. Only seven nations that sanction elective abortions do so after 20-weeks of gestation.

The fact that the United States provides fewer protections for its unborn than almost every other country in the world is often obscured by pro-abortion rhetoric and reporting. In fact, The Washington Post didn’t believe it when the Trump administration noted that the United States was one of only a few countries to allow elective abortions after 20 weeks. Finding this “dramatic statistic” to be suspicious, the Post performed a fact check and found it “surprising” that data from both sides of the abortion debate confirmed the statistics. And when the Post ranked countries based on their liberality toward abortion, the United States came in fourth out of 198 countries, behind only North Korea, Vietnam, and China.

Those on the left have long argued that international law is relevant to U.S. constitutional law. They argue, for example, that international norms on the death penalty are relevant for evaluating “standards of decency” and whether a punishment is “cruel and unusual.” In fact, the U.S. Supreme Court relied on “the opinion of the world community” to strike down the juvenile death penalty. But those on the left are conspicuously silent about international law when it comes to abortion.

All of this is not to say that international law should be relevant to constitutional interpretation. It should not, but that is a separate question. In the United States, where the Constitution is silent on an issue, the question is left to the states and the people—or at least it would without Roe. That the United States is one of the least pro-life countries in the world is something our elected officials should be able to consider (but cannot because of Roe). As Chief Justice John Roberts asked during oral arguments in the Dobbs v. Jackson Women’s Health Organization case in December, are China and North Korea the sort of human-rights company we want to be keeping?

The liberality of U.S. abortion law is not a product of democratic consensus. Rather, the Supreme Court legislated abortion from the bench. Roe overturned pro-life laws of some kind in nearly every state. And Americans today remain opposed to late-term abortions. As a Knights of Columbus survey found, “By about 3-to-1, Americans oppose abortion after 20 weeks—or don’t want it at all. This includes about 8 in 10 Republicans and independents and nearly 6 in 10 Democrats.” And a new poll from the Associated Press finds that Americans want more restrictions on abortion than Roe allows.

In short, Roe has nothing to recommend it. It is terrible constitutional law with no basis in text or history. It is an international outlier, permitting abortion up until the moment before birth, and it puts the United States in the company of countries with terrible human-rights records. It is past time for the Supreme Court to return to the states and the people the ability to protect life.