Foreign Law Cited in Mississippi Abortion Case Headed to Supreme Court

Foreign Law Cited in Mississippi Abortion Case Headed to Supreme Court supreme court building (AP)

By Charlie McCarthy | Monday, 04 October 2021 08:54 AM

Supreme Court justices considered to be conservative have not always favored the citing of foreign law in cases.

However, the court will consider dueling accounts of international practices when it hears arguments for a high-profiled abortion case from Mississippi in December, The New York Times reported Monday.

Mississippi in 2018 enacted a law banning most abortions after 15 weeks. In the first legislative finding justifying the law, drafters looked for foreign support, the Times said.

"The United States is one of only seven nations in the world that permits nontherapeutic or elective abortion-on-demand after the 20th week of gestation," the finding said.

"In fact, fully 75 percent of all nations do not permit abortion after 12 weeks’ gestation, except (in most instances) to save the life and to preserve the physical health of the mother."

The Mississippi law challenged Roe v. Wade, the 1973 decision that established a constitutional right to abortion and prohibited states from banning the procedure before fetal viability.

State officials focused on the nation’s adversaries in a Supreme Court brief.

"The United States finds itself in the company of China and North Korea as some of the only countries that permit elective abortions after 20 weeks' gestation," the brief said.

Lawyers for the abortion providers challenging the Mississippi law also asked the court to consider other nations, the Times said.

"In countries with legal traditions and democratic values most comparable to the United States, such as Great Britain and Canada, abortion is legal until at least viability," they wrote. "And many countries that have limits earlier in pregnancy continue to permit abortion for broad social and health reasons after that point, functionally allowing abortion later in pregnancy."

Justices nominated by Republican presidents have questioned the use of foreign law in U.S. constitutional cases.

"In foreign law, you can find anything you want," Chief Justice John Roberts said at his 2005 confirmation hearings. "Looking at foreign law for support is like looking out over a crowd and picking out your friends."

Also that year, Justice Antonin Scalia wrote a scathing dissent when the Supreme Court took account of international trends in a decision eliminating the juvenile death penalty, the Times said.

"The basic premise of the court's argument — that American law should conform to the laws of the rest of the world — ought to be rejected out of hand," said Scalia, who also accused his colleagues of opportunism and hypocrisy.

He wrote that in other areas of the law, the court had ignored conservative foreign decisions on criminal procedure, religion and, notably, abortion.

"To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decision-making, but sophistry," Scalia said.