An Irish solution to a US abortion problem

Human rights framework that fuelled political change in Republic can also be effective in America

Abortion rights demonstrators outside the supreme court after Roe v Wade was overturned. 

File photograph: New York Times

By Julie F. Kay

Mon Jun 27 2022

Abortion was illegal when I moved to Ireland in 2000. As an American it felt like I’d stepped through the looking glass. I successfully sued the Irish government at the European Court of Human Rights on behalf of three women who had travelled for abortions — A, B and C — and celebrated as the Republic legalised abortion less than a decade later. Today I’m on the other side of the glass: an American stunned to see that the US supreme court has overturned Roe v Wade.

It’s America now that is going against the global trend, shrinking rights while the rest of the world expands reproductive freedom. On Friday, the US supreme court’s ruling in Dobbs v Jackson Women’s Health Organization wiped out nearly a half-century of abortion rights in the US with one stroke of the pen. As we saw in the Republic, banning abortion does not make it go away but it does put women’s health and wellbeing in harm’s way.

This judicial fiasco results directly from the polarisation of American politics. When Hillary Clinton lost the 2016 election, Democrats lost control of the supreme court. The vast majority of Americans — as much as 70 per cent — favour abortion rights as defined by Roe v Wade. Right-leaning, evangelical voters turn out to fervently support anti-abortion candidates, often voting as single-issue voters. These anti-abortion-focused voters turned a blind eye to Donald Trump’s indiscretions in exchange for his appointing three ultra-conservative justices to the supreme court — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Doing so tipped the balance of the nine-member court solidly in favour of curtailing abortion rights.

Constitution

In overturning Roe, the Trump-appointed trio was joined by Justice Clarence Thomas and Samuel Alito, conservatives who rely heavily on the literal language of the constitution. Chief Justice John Roberts joined with less enthusiasm and more concern about the legitimacy of the court that bears his name. The majority brazenly overturned nearly 50 years of its own precedent simply by asserting that the US constitution contains no mention of abortion. By supplementing this with a false historical narrative about the legality of abortion around the time when the constitution was first drafted, it held that Roe had been wrongly decided in 1973. The dissenting opinion by Justices Breyer, Sotomayor and Kagan recognises that once Roe’s framework is discarded, “from the very moment of fertilisation, a woman has no rights to speak of. A state can force her to bring a pregnancy to term, even at the steepest personal and familial costs”.

Now that the US constitution no longer provides protection for abortion rights, each of the 50 states can decide whether to permit abortion. More than a dozen will immediately ban abortion through laws they already had on the books. At least another dozen are expected to enact severe restrictions within the next several months. In total, abortion will likely remain legal in approximately half the US states. Moreover, those states that will preserve legal abortion are clustered on the east and west coasts with broad abortion deserts in between.

Conspiracy

Travel for abortion services will now be the American solution to the American problem and many states are set to welcome abortion migrants. However, some anti-abortion states are threatening to ban travel for abortion services through enacting specific legislation (Missouri) or by construing abortion travel as a conspiracy to do an act in another state (Alabama) or as aiding and abetting someone to commit a crime. Add to this the fact that America’s criminal justice system is inherently racist, and the threat of prosecution for women of colour who miscarry or use medications to self-induce abortion is significant.

Nonetheless, many charity organisations exist nationwide to fund abortion travel and services. With the threat to abortion rights rising, these organisations have been receiving increased financial support from individuals and sympathetic state and local governments. Anticipating the overturn of Roe, New York state governor Kathy Hochul, a long-time supporter of abortion rights, signed legislation that granted $35 million (€33 million) to support abortion providers in the state. Other “blue” or Democrat-led states have done similarly.

Now with state and federal elections set for November, abortion rights activists are urging supporters to focus on every candidate’s position on abortion. The issue has fallen squarely along party lines for more than a decade now: more than 70 per cent of voters for the Democratic party support abortion rights; only 34 per cent of Republican voters do and you’d be hard-pressed to find a pro-choice Republican official these days. Republicans control 30 state legislatures while Democrats control 18 making progress difficult. The Dobbs ruling is expected to motivate voters to turn out for those who support abortion rights.

Meanwhile, we are starting to see a shift in how the American public views abortion. Corporations that once shied away from mentioning it as “too controversial” are now stepping up to pay for employees to travel out of state for abortion services. They need to do more, including putting their voices and their electoral and philanthropic dollars toward supporting abortion as a human right. Religious leaders of many varied denominations are vocal in their support of these rights.

Ultimately the legal and political work and the mass activism that led to the legalisation of abortion in the Republic can serve as a model for the US. The human rights framework that fuelled protests and political change in Ireland can be effective in the US as well. It brings into focus that the state should not interfere with an individual’s decision about whether, when and with whom to have a child, neither should any woman be forced to risk her life or health during pregnancy. Americans will now have to fight to restore these rights, state by state and at the federal level as well, all while supporting those who need immediate access to abortion. It’s a long road but one we have no choice but to travel.

Julie F Kay is an American human rights lawyer who argued against the Republic’s ban on abortion before the European Court of Human Rights and the co-author of Controlling Women: What We Must Do Now to Save Reproductive Freedom.