The Myth That America’s Abortion Laws Are More Permissive Than Europe’s
By making a false comparison, GOP apparatchiks hope to cushion the political fallout of Roe’s demise.
Stripping millions of American women of their constitutional right to decide whether to bear a child has potentially serious consequences for the political party that made it happen. Hoping to blunt the possible repercussions, Republicans have been arguing that the Mississippi abortion ban at the center of the Supreme Court case that overturned Roe v. Wade is a moderate law, in line with global standards, and that it is abortion-rights advocates who are taking an extreme position.
Republican Governor Tate Reeves of Mississippi made this assertion in 2021 ahead of oral arguments in Dobbs v. Jackson. “Mississippi will still have a law on the books in which 39 countries, 39 out of 42 in Europe, have more restrictive abortion laws than what I believe to be one of the most conservative states in the United States,” Reeves said on Meet the Press. This position was echoed by the right-wing majority in Dobbs, which presented the U.S. as an outlier for its permissive abortion laws. Since the ruling, conservative outlets and media figures have insisted that European leaders “who criticized the United States for the decision have laws that are … comparable to the Mississippi law,” or that “many European states have stricter abortion laws than the U.S,” and that the law at issue was “not extreme compared to many European abortion laws.”
The first big problem with this argument is that it is false. Although many European countries have gestational limits that on paper resemble those in the Mississippi statute, and some have mandatory counseling and waiting periods, the exceptions that come into effect after that initial limit mean that women in Europe can still get abortions later than the limit if they wish to. That means the difference between European gestational limits and the Roe and Casey framework was less than it appeared to be. Moreover, the bureaucratic obstacles to getting an abortion in the first trimester in many states pre-Dobbs were far greater than in most of Europe as a result of anti-abortion legislation designed to circumvent Roe.
The second big problem is that many of the post-Roe laws going into effect are outright bans with very few exceptions and with earlier time limits—much stricter than either the law in Dobbs or the European laws at issue. This misrepresentation relies on a superficial discrepancy—that the Roe framework appears more permissive than most European laws as long as one focuses just on gestational limits and ignores the many exceptions in those laws and the state of health-care access on the continent.
“We see earlier gestational limits in Europe,” Katherine Mayall, the director of strategic initiative at the Center for Reproductive Rights, told me, but “in practice, if somebody hits a gestational limit of 12 weeks, they’re still able to access abortion care, because the broad grounds after that limit option include things like mental health or the woman’s economic circumstances.” The three Democratic-appointed justices in Dobbs said as much in their dissent, noting that despite the majority’s framing of the U.S. as an outlier, many European countries “have liberal exceptions to those time limits, including to prevent harm to a woman’s physical or mental health.” For all the chatter about how strict European laws are, if Democratic legislators offered to pass a federal law making U.S. abortion laws resemble those of France or the United Kingdom, there might not be a single Republican in Congress who would agree.
A few countries have outright bans on abortion or maintain highly restrictive laws, such as Poland and Monaco, but they are the exceptions. This is not to say that abortion is always easy to obtain in Europe. In some countries, the bureaucratic barriers can still be substantial. In others where abortion is legal on paper, such as Italy, finding doctors willing to perform the procedure can be difficult, because many personally oppose it for moral or religious reasons. But that is also true in America, where women in states that ban abortion typically have to travel much farther than in Europe to access such services.
Then there’s the fact that many countries in Europe have more generous welfare states in which abortion care—in addition to medical care and child care—is either subsidized or paid for and typically easy to access. By contrast, Mississippi has extremely high maternal and infant mortality rates, part of the state government’s general indifference to the well-being of its residents and whether they have access to health care.
Some Democratic-controlled states, such as California and New York, have more liberal abortion laws than in Europe. But in Republican-controlled states, the picture is very different. Many such states passed trigger laws that came into effect post-Roe, or have laws that were not repealed after 1973 and became enforceable again as soon as the Dobbs decision was reached. That includes Mississippi, where abortion is now banned entirely, with few exceptions. In Ohio, a 10-year-old was recently forced to travel to Indiana to get an abortion because Ohio’s ban does not have an exception for rape past the six-week mark, which is sooner than most women—to say nothing of 10-year-old girls—know they are pregnant. Texas Attorney General Ken Paxton announced this week his intent to sue the federal government over its guidance that doctors can perform abortions to save the life of the mother. To put it bluntly, this is not how abortion laws work in most of Europe.
“The shifts in the laws that are actually [in effect] look absolutely nothing like what laws in most European countries look like,” Mayall said. “They predominantly look like what we see in laws in countries kind of across the global South, and in the countries that we work in where we see people who are actively in jail for having abortions, or we see scores of women dying from unsafe abortions.”
The argument that Europe generally has more restrictive abortion laws is misleading at best. But by muddying the waters, GOP apparatchiks hope to cushion the political fallout of Roe’s demise, and dismiss the observation that the new bans are both harsher than what preceded Roe and will require an incredibly invasive system of state surveillance, coercion, and punishment to enforce. To say that after Dobbs, American abortion laws will simply resemble those in Europe, is to drape a veil of normalcy over plans for a post-Roe world that will drastically circumscribe basic freedoms of speech, movement, and association. But whatever that future looks like, it will not look like Europe does today. It will be much worse.