Brief authored by Northeastern legal scholar on abortion heard by Supreme Court


Marta Hill

Attendees of an Oct. 2 rally hoisted signs expressing their support for abortion access, an issue coming before the Supreme Court this term.

Erin Fine, news correspondent

Repealing Roe v. Wade would make the United States an outlier in liberal democracies, argues a brief filed by Martha F. Davis to the Supreme Court. The Supreme Court heard arguments on Mississippi’s 2018 Gestational Age Act on Wednesday, including Davis’s brief. Davis is a professor of constitutional law and human rights advocacy at Northeastern.

Davis worked with a team of comparative and international legal scholars to dispute the opening argument from the law. The legislation begins by stating that “seventy-five percent of all nations do not permit abortion after twelve (12) weeks’ gestation.”

Davis and her colleagues’ brief asserts that this argument “is neither relevant nor compelling.”

Rather than argue the United States is out of line with the rest of the world on abortion laws, the brief states the United States should be compared to similar liberal democracies.

“It is just not accurate,” Davis said. “In fact, U.S. law is in line with other systems — like Canada, [and] the U.K. — that we share a legal history with.”

In preparation to file the brief, Davis contacted comparative and international legal academics, including Debevoise & Plimpton LLP and Paul, Weiss, Rifkind, Wharton & Garrison LLP, to collect data on abortion laws in foreign countries. The experts focused on Iceland, where abortion until the 22nd week of pregnancy became legal in 2019. The brief argues that Iceland’s law follows the general worldwide trend of liberalization in abortion laws, especially in comparable democracies in western Europe.

Additionally, the brief puts forward that even in the 75% of nations that block abortions after 12 weeks of preg-
nancy, comparable democracies often have health care systems that make earlier abortions more accessible.

Davis said pregnant people seeking abortions in Western Europe face less costs and legal hurdles. In this aspect, the brief argues that if the writers of the Gestational Age Act wish to compare the United States to other countries, it would be more accurate to compare similar legal systems instead.

Jackson Women’s Health Organization, the only abortion provider in Mississippi, filed a lawsuit over the Mississippi bill, which aims to ban abortions after 15 weeks of pregnancy. The Supreme Court heard arguments for Dobbs v. Jackson Women’s Health Organization Wednesday, Dec. 1. In September, the Supreme Court refused to block a Texas law prohibiting abortions after six weeks of pregnancy.

“The existing law is clearly on our side,” Davis said. “But the current Supreme Court has shown in its ruling on the shadow docket in Texas that it doesn’t feel bound by the current law.”

Margaret Y.K. Woo, a professor of law with a focus in comparative law that Davis contacted for the brief, said that broader access to health care in other comparable democracies allows for pregnant people to pursue abortions sooner. This can explain a shorter window to receive an abortion in some of these countries, while not making the laws around abortion more restrictive.

“If you look carefully, you’ll find that the systems [of foreign liberal democracies] have a lot more additional support that might justify the shorter time period,” Woo said.

Woo argued if the United States legislators that put forward the bill wish to align the country with other liberal democracies that have shorter windows for abortion access, they must also align the country with more accessible health care.

“Governments can’t selectively pick and choose,” Woo said. She said the United States is not an outlier in abortion access like the legislation argues. Repealing abortion access would set the United States behind other comparable democracies.

Davis and her colleagues’ brief added to the over 40 briefs filed to the Supreme Court, including those filed by over 500 female athletes and the head of President Joe Biden’s Justice Department.

International law firm Debevoise & Plimpton LLP served as counsel to Davis in writing the brief. The firm provided expertise on abortion law in England to serve the brief ’s comparative argument.

“Mississippi law currently bans abortions after 20 weeks and restricts access to abortion at all stages of pregnancy through laws that make it difficult for abortion clinics to operate,” said Jane Nam, senior communications manager for Debevoise & Plimpton LLP. “By contrast, abortion is both legal and widely available up to 24 weeks in England, Scotland, and Wales.”

Davis is “not optimistic” over the Supreme Court’s decision on Dobbs v. Jackson Women’s Health Organization but emphasized that conservative justices have made unexpected decisions in the past. Some conservative justices may back abortion access on the basis of the legal precedent established by Roe v. Wade in 1973.

“Justice Roberts is not a supporter of abortion law, but he is a supporter of rule of law,” Davis said. “Whether anybody else will move over into that camp — I think the most likely will be Justice Kavanaugh.”

As the United States threatens to move backward on abortion rights, Davis said the country previously “was a leader when Roe v. Wade was decided, as one of the earlier countries to adopt more progressive abortion laws.”

After Roe v. Wade, Davis said other similar democracies followed suit with progressive abortion laws. Overall, the worldwide trend “reflects a recognition of women’s rights,” she said.

As the United States begins to potentially reverse decisions on abortion, Davis compares it to “places where the political scene is much different — places where they’re teetering on the brink of autocracy.”

Members of Davis’s team on the brief shared their thoughts on the possible repeal of Roe v. Wade.

“It gets so fundamental,” Woo said. “It really goes down to the sense of a woman’s ability to protect her own body.”