Comparative Limitations on Abortions: The United States Supreme Court v. The European Court of Human Rights

Padmanabhan, Sunaya | October 1, 2021

This Note compares the balancing tests implemented by the United States Supreme Court and the European Court of Human Rights to determine the legal status of abortion within their jurisdictions. This Note will argue that the Supreme Court’s balancing test better protects a woman’s legal path to an abortion because it A) limits states’ restrictions to specific categories and B) regulates the extent to which states can restrict a woman’s pre-viability abortion. This Note will also examine the ways in which each court’s abortion jurisprudence substantively restricts a woman’s ability to obtain an abortion, even where legal avenues to the procedure exist. It will explore how anti-abortion states utilize weaknesses in the Supreme Court’s undue burden framework to impose obstacles on a woman’s right to an abortion. In the European context, it will review how anti-abortion countries take advantage of the discretion, granted by the European Court of Human Rights, to determine the legality of abortion and criminalize abortion care outside of particular circumstances provided by law, creating a chilling effect that substantively limits a woman’s access to abortion. This Note proposes that the Supreme Court should further develop the “effect” piece of its undue burden test such that states cannot enact laws which have the effect of preventing women from terminating their pregnancies. It also recommends that the European Court of Human Rights alter its balancing framework to reduce member-state discretion in the evaluation of whether a law violates a woman’s right to privacy.