Getting Comparative Law Right in State Courts
The Supreme Court used flawed legal comparisons in overturning Roe v. Wade. Looking forward, state judges must take context into account when engaging with other countries’ abortion laws.
U.S. courts — and especially state courts — have a long history of looking to the laws of other jurisdictions both in the United States and abroad when issuing their own rulings. But it’s important for judges to carefully consider which comparisons are truly relevant to their jurisdictions, as ill-fitting parallels can lead to flawed rulings.
That’s what happened in the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Org., where the majority’s method of comparative analysis was deeply problematic. With reproductive rights litigation now largely moving to state courts, there are key questions about what lessons state courts will take from Dobbs’s comparative analysis and whether state court judges will continue to use comparative law with appropriate rigor.
In Dobbs, the Mississippi restrictive abortion law at issue asserted that under Roe v. Wade, the United States was one of only seven countries worldwide to permit elective abortion after the 20th week of pregnancy. The Dobbs majority credited Mississippi’s figure and claimed that Roe positioned the United States as an “extreme outlier” among nations in regard to abortion regulation.
As I and other international and comparative law scholars explained in a friend-of-the-court brief filed in the Dobbs case, this supposed “fact” is based on a flawed tally that fails as a valid exercise of comparative legal analysis. To be effective, such a global comparison must consider the larger context in which many of the world’s laws are implemented, including countries where abortion is provided as a part of a comprehensive health care system and countries where broad abortion access is the practice on the ground despite legal hurdles on paper. And a comparative analysis should not give equal weight to every country’s law, whether it is Malta (where Catholicism is the official religion) or our close historical and political ally, Canada. The dissenting justices in Dobbs recognized these factors, focusing on the standards in our closest peer countries, like the United Kingdom, and the unmistakable global trend “toward increased provision of legal and safe abortion care.”
In recent years, state court judges have been more likely than their federal counterparts to get comparative law right. That’s not surprising: in state courts that are considering novel issues, comparative approaches are the coin of the realm, from looking at nonbinding federal law to examining persuasive approaches adopted by sister states. Engagement with global comparative law has a rich history in state courts, from the legendary Oregon Supreme Court jurist Hans Linde citing the European Court of Human Rights in a 1981 case concerning prison conditions, to the recent dissent offered by New York Court of Appeals Judge Rowan Wilson in Nonhuman Rights Project, Inc. v. Breheny. There, Wilson highlighted rulings by other courts — particularly common law courts — that had considered issues of animal rights. As the late Wisconsin Supreme Court Chief Justice Shirley Abrahamson once observed about state court judges, “We are already comparatists.”
Looking forward, a critical issue will be whether state courts continue this tradition or whether Dobbs encourages a less nuanced approach. Notably, the erroneous tally cited in Dobbs also appeared in restrictive abortion legislation in Arizona, Arkansas, and Kentucky.
One new area of comparative analysis that is already coming to the fore arises in the context of religion-based challenges to abortion bans. For example, a recent Indiana case granted a preliminary injunction to Episcopalian, Jewish, Muslim, and other plaintiffs of various faiths. In evaluating the claims relating to Islam, the court looked to the laws of Muslim countries to support the conclusion that Indiana’s abortion ban violated the Muslim plaintiffs’ religious beliefs. As the court noted, “in a number of Muslim-majority nations, e.g., Kuwait, Jordan, Qatar, Bahrain, and the United Arab Emirates, abortions are allowed in cases of a risk to [a] woman’s mental or physical health. They may also occur in these countries in cases of fetal impairment.”
In granting the preliminary injunction, the Indiana court demonstrated a sound approach to comparative law, comparing apples to apples by looking at the specific practices of Muslim-majority countries rather than, for example, weighing the plaintiffs’ claims under the laws of Catholic-majority Poland. The laws in Muslim-majority countries confirmed experts’ testimony and Muslim plaintiffs’ assertions that their particular religious practices would be impermissibly impinged by the Indiana abortion ban. The case is currently on appeal to the Indiana Supreme Court, and similar religion-based claims are pending in Florida and Missouri.
As abortion issues play out in state courts, state court judges will need to get comparative law right and identify the flaws in findings like those in the Mississippi law. The fact is that post-Dobbs, it is the draconian abortion restrictions adopted in many states that are the international outliers.
Martha F. Davis is a university distinguished professor at Northeastern University School of Law.