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On the Legacy of Justice Scalia in Dobbs: The Lack of Comparative Analysis

–Stefanus Hendrianto, Pontifical Gregorian University

Much has been and will be written about Dobbs v. Jackson Women’s Health Organization, the decision by the Supreme Court of the United States which held that the Constitution of the United States does not confer a right to abortion, and which overruled both Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). Most of the public discussion points out that Dobbs will be “the enduring legacies” of several different people, including President Donald J. Trump (for his nomination of three conservative Justices) and Chief Justice John Roberts (for losing control of his Court). But Dobbs will also be “the enduring legacy” of the late Justice Antonin Scalia because of the lack of comparative analysis in the Court’s opinion.

Revisiting Justice Scalia’s view on Abortion and Comparative Law

For many, the late Justice Scalia was known for his opposition to the practice of citing comparative norms.[1] But his view on comparative law was more nuanced. He did not simply warn about the danger of the practice of citing foreign cases; instead, he was critical of the ideological convergence in the comparative constitutional realm. Scalia’s main concerns about the universal law of human rights related to moral questions such as the right to abortion, right to assisted suicide, right to same-sex marriage, etc.[2]  The bottom line is that Justice Scalia believed that the universal law of human rights had become an ideological project to define right and wrong.

As comparative law inquiry is closely intertwined with the universal law of human rights, Scalia then moved to attack the “cherry picking” approach because comparative theorists and judges would always have their own ideological biases, with their adherence to the universal law of human rights. In Scalia’s view, “if you are a living constitutionalist, you are almost certainly an international living constitutionalist.”[3]

Scalia had a strong view when it came to the specific issue of abortion in the U.S. Justice Scalia stated:

[T]he United States is now one of only 53 countries classified as allowing abortion on demand versus 139 countries allowing it only under particular circumstances or not at all. Among those countries, the U.N. classified in 2001 as not allowing abortion on demand were the United Kingdom, Finland, Iceland, India, Ireland, Japan, Luxemburg, Mexico, New Zealand, Portugal, Spain, Switzerland and virtually all of South America. But the Court has generally ignored the foreign law in its abortion cases. Casey does not mention it at all. Roe discusses only modern British law, which in any event is more restrictive than what Roe held. I will become a believer in the ingenuousness, though never in the propriety of the Court’s newfound respect for the wisdom of foreign minds when it applies that wisdom in the abortion cases.[4]

This statement signifies that Scalia believed that his liberal colleagues did not want to look into the abortion regulation in different countries because the data may not support their decision.

Dobbs and Comparative Inquiry

Dobbs involved the constitutionality of Mississippi’s Gestational Age Act (2018), which prohibits all abortions, with few exceptions, after 15 weeks’ gestational age. To support this Act, Mississippi’s legislature made a series of factual findings, in which they found that at the time of enactment of the Act, only six countries besides the United States permitted nontherapeutic or elective abortion on demand after the twentieth week of gestation. Those countries were Canada, China, Netherlands, North Korea, Singapore, and Vietnam.

During the oral argument, Chief Justice John Roberts stated to Julie Rickelman, the Counsel who represents Jackson Women’s Health, that the 15-week ban is the standard that the vast majority of other countries have.[5] The Chief Justice also argued that the United States shared the same standard with the People’s Republic of China and North Korea. Rickelman then replied that the Chief Justice made an incorrect statement about “international law,” that the majority of countries that permit legal access to abortion allow access right up until viability. So for example, Canada, Great Britain, and most of Europe allow access to abortion up until viability. Furthermore, Rickelman explained that while some countries have a nominal line of 12 weeks or 18 weeks, they permit legal access to abortion after that point for broad social, health, and socioeconomic reasons. Hence, their abortion regimes are not comparable to the United States, and they also do not have the same types of barriers that some states impose.

The Court majority mentioned the data about the abortion regimes abroad that became the background of the Mississippi law, but it did not address the issue at length.[6] In his 79-page majority opinion, Justice Alito only wrote one line discussing comparative law: “The viability line, which Casey termed Roe’s central rule, makes no sense, and it is telling that other countries almost uniformly eschew such a line.”[7] Chief Justice John Roberts, in his concurring opinion, reaffirmed Justice Alito’s point and added: “Only a handful countries, among them China and North Korea, permit elective abortions after twenty weeks; the rest have coalesced around a 12-week line.”[8]

The dissenting opinion by Justice Breyer, Sotomayor, and Kagan stated that American abortion law has become more and more aligned with other nations since Roe and Casey.[9] The dissents try to refute the majority and the Mississippi legislature’s claims that the U.S. abortion regime is an extreme outlier. The dissents point out that the global trend in abortion regulation has been toward the increased provision of legal and safe abortion care. The dissents relied heavily on the amicus curiae brief of International and Comparative Legal Scholars,[10] which argues that countries like New Zealand, the Netherlands, and Iceland permit abortions up to a similar time as Roe and Casey. In a nutshell, more than 50 countries around the world have expanded access to abortion in the past 25 years. Thus, the dissents conclude that the United States will itself become an international outlier in light of Dobbs.[11]

The dissents only spent around one page discussing the comparative aspect of the abortion issue. So overall, of the 213 pages of the Court’s decision, the Justices only spent around 1.5 pages addressing the comparative law regarding abortion. This extremely brief analysis is far from adequate to address the subject matter, considering that one of the primary driving forces of the enactment of the Mississippi law was based on a comparative inquiry on abortion.

What should Dobbs have said about comparative analysis?

Regardless of whether one agrees with the Dobbs decision, there are several ways a comparative theorist could imagine what the majority may have said about the comparative issue in Dobbs. First, in Dobbs, Justice Alito heavily relied on Washington v. Glucksberg, [12] a 1997 decision that rejected an asserted unwritten right to physician-assisted suicide. In Glucksberg, the Court rejected the “right to die” because it is not “objectively, deeply rooted in this Nation’s history and tradition” and “essential to our Nation’s scheme of ordered liberty.” Based in part on Glucksberg, the Dobbs majority concluded that the abortion right created in Roe is not rooted in the nation’s history and tradition either.

In Glucksberg, Chief Justice Rehnquist wrote the Court’s opinion, joined by four other Justices, including most strikingly Justice Scalia. The majority opinion discussed at great length the laws and experiences of the Netherlands, which at that time was the only place with experience with physician-assisted suicide and euthanasia.[13] The Court pointed to a Dutch government survey that revealed possible problems with the country’s regulation of the practice of assisted suicide. The survey showed that in 1990, there were “more than 1,000 cases of euthanasia without an explicit request.”[14] The study also found “an additional 4,941 cases where physicians administered lethal morphine overdoses without the patients’ explicit consent.”[15] Based on the data, the Court concluded that despite various reporting procedures, the euthanasia regulation in the Netherlands had not prevented abuses in cases involving vulnerable persons, including severely disabled neonates and elderly persons who have dementia.

The majority in Dobbs could have followed the Glucksberg approach to use data from different jurisdictions, in which the Court majority could look to the effect of the liberalization of abortion in different jurisdictions to provide an empirical basis for answering the question of whether the State of Mississippi had a legitimate interest to set the 15-week line. The majority could also have use data from a different jurisdiction to argue that the expansion of abortion does not necessarily involve a clear convergence toward the right to abortion across the world. In other words, the adoption of abortion rights might only be constitutional borrowing, rather than constitutional convergence.[16]  Or the Court majority could have relied on the experience of different countries to argue that abortion should be decided through a democratic process via the legislature, instead of by the Court. For instance, the majority could have referred to the recent expansion of abortion in different countries via referendum (e.g., Ireland in 2018) or legislation (e.g., Argentina in 2020).  

Even if the majority did not want to take this approach, they might at least have relied on the amici curiae brief of 141 International Legal Scholars, which argued that there is no international legal basis—neither on the books nor in practice—to claim the existence of a right to abortion.[17]

In sum, the majority in Dobbs ignored comparative inquiry. Justice Scalia was correct in noting that the Court has generally avoided reference to foreign jurisdictions in its abortion caselaw. But while Justice Scalia intended to criticize the majorities in Roe and Casey, who arguably ignored or overlooked abortion restrictions in different countries, the conservative judges themselves took a similar approach in Dobbs. Constitutional debate was impoverished as a result.

Suggested citation: Stefanus Hendrianto, On the Legacy of Justice Scalia in Dobbs: The Lack of Comparative Analysis, Int’l J. Const. L. Blog, Aug. 3, 2022, at: http://www.iconnectblog.com/2022/08/on-the-legacy-of-justice-scalia-in-dobbs-the-lack-of-comparative-analysis/


[1] Claudia E. Haupt, Leading by Opposition: Justice Scalia and Comparative Constitutional Law, Int’l J. Const. L. Blog, Feb. 24, 2016, at: http://www.iconnectblog.com/2016/02/leading-by-opposition-justice-scalia-and-comparative-constitutional-law.

[2]  Antonin Scalia (edited by Christopher J. Scalia and Edward Whelan). Scalia Speaks: Reflections on Law, Faith, and Life Well Lived.” (New York: The Crown Publishing Group, 2017), 255.

[3] Id. at 255.

[4] Id. at 257.

[5] See the Transcript of the Oral Argument of the Supreme Court of the United States, Case No. 19-1392, Dobbs v. Jackson, December 1st, 2021, at https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/19-1392_4425.pdf.

[6] Dobbs v. Jackson, 597 US__(2002), at 6 (opinion of the Court).

[7] Id. at 53.

[8] Id. at 5 (Roberts, C.J., concurring in judgment)

[9] Id. at 42 (Breyer, Sotomayor, Kagan, JJ, dissenting)

[10] Brief of International and Comparative Legal Scholars as Amici Curiae in Support of Respondents,

at https://www.supremecourt.gov/DocketPDF/19/19-1392/192929/20210920124903156_Brief%20of%20Intl%20and%20Comparative%20Legal%20Scholars%20as%20Amici%20Curiae%20in%20Support%20of%20Respondents.pdf.

[11] Dobbs v. Jackson, at 43 (Breyer, Sotomayor, Kagan, JJ, dissenting).

[12] 521 U.S. 702 (1997).

[13] Id. at 785 (Souter, J., concurring in the judgment).

[14] Id. at 734 (Opinion of the Court)

[15] Id.

[16] See Rosalind Dixon and Eric Posner, “The Limits of Constitutional Convergence,” 11 Chi. J. Int’l L. 399 (2011)

[17] Brief of 141 International Legal Scholars As Amici Curiae in Support of Petitioners, at https://www.supremecourt.gov/DocketPDF/19/19-1392/185170/20210729071535904_19-1392%20Amicus%20Brief%20of%20141%20International%20Legal%20Scholars.pdf.

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Published on August 3, 2022
Author:          Filed under: Developments
 

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