Roe v Wade was overturned in the US by a court, not by voters. The same happened in Poland – and it could happen again
Abortion access is about to be severely curtailed or cut off for millions of women in the United States following the supreme court’s decision to abolish the constitutional protections for the termination of pregnancy established by the landmark Roe v Wade case 50 years ago.
The decision allows state legislatures to ban abortion and half are now likely to limit access.
Despite the condemnation from many European leaders, not all EU states have decriminalised abortion. Malta retains a total ban. And in Poland, an already restrictive law was made draconian in 2020. Medical personnel now face lengthy prison sentences for providing or procuring an abortion and women have died as a result.
It should be remembered, however, that in both the US and Poland, courts of law, not democratic majorities, made the decisions. What has happened in the US is the culmination of years of efforts by US activists to see more socially conservative judges appointed.
In Poland, the seismic change in abortion law also came after a court ruling. The conservative Law and Justice government had in 2016 attempted to push through legislation, but backed down in the face of massive street protests. Instead, it packed the constitutional tribunal and other courts with its appointees. In 2020, the tribunal duly ruled that foetal defects were no longer a justification for abortion, limiting abortion access to cases of verified rape and incest.
This judicial activism is no accident. Democratic majorities in most countries support the right to abortion. Independent judicial courts are not accountable to majorities, however. As a result, it is the judiciary that can often enact the restrictions that conservatives seek.
Majorities across Europe favour abortion rights. This is also the case in the US, where recent polls show more than 60% of respondents stating that abortion should be legal in most cases. In Poland, 66% of respondents in 2020 said they favoured legal abortion in the first trimester. Only one in 10 Poles backs the 2020 restrictions.
Men and women support abortion at very similar rates. In the US, support for abortion cuts across race and income. Not surprisingly, younger people are more likely to support abortion than older voters, and liberal voters are more likely to do so than conservative voters. Religious beliefs play less of role than we might think: the exception being white evangelical Protestants in the US, who overwhelmingly oppose abortion but only since a political shift within the Republican party in the 1980s.
Voters support abortion rights – and so democratic processes, such as parliamentary votes and referendums, generally tend to extend access to abortion. In most countries where abortion is legal, it is thanks to laws passed by democratic parliamentary majorities. In almost all European countries, democratically elected parliaments have gradually established legal support for abortion access with a broad societal consensus. Germany only last week abolished a Nazi-era abortion law that criminalised doctors after a majority of the Bundestag supported the reform.
Referendums have also widened access. In the famous 2018 abortion referendum in Ireland, more than 66% of voters supported the repeal of a constitutional abortion ban, with one of the highest voter turnouts recorded in the country. Recent referendums in San Marino and in Gibraltar have also increased access to abortion.
Anti-abortion groups pay close attention to the public mood. This is why they tend to steer the conversation away from majority views or democratic legitimation. They argue that public support for abortion is “artificially created” and have vociferously opposed popular referendums. In 1990s Poland, the Roman Catholic church was already so worried about the result of a referendum that it accepted a “compromise” solution that made abortion legal in some cases.
Anti-abortion campaigners have also begun using new EU citizens’ rights mechanisms to challenge the bloc’s funding of what they call “life-destroying” science and research programmes, rather than pursuing changes in abortion law, which would not fall within the EU’s remit.
This is not surprising, since abortion opponents face even more of an uphill climb in Europe than in the US. They command lower levels of political support and have fewer people turning out at their marches. Religious observance in Europe is less common than in the US, and so fewer people anchor their views about abortion in faith or belief. Most populist parties that have otherwise challenged the mainstream political consensus have left the issue of abortion alone.
Moreover, abortion is not simply available “on demand” in most European countries, and access is more limited after the first trimester. These strictures make it more difficult to polarise public opinion, or convincingly argue that abortion consists of “murdering babies” or “dismembering children” as anti-abortion forces have done in the US. Indeed, the self-proclaimed “largest international pro-life” group in Europe, Human Life International, is based in the US.
So how does this bode for opponents of abortion in Europe? Judging by these patterns, they can rely on non-democratic means, whether court challenges or autocratic leaders. But they cannot depend on popular backing or democratic legislative processes. Yet, as the US and Poland both show, determined minorities can still get their way.