ABSTRACT
Commenting from a comparative point of view, Professor Mary Ann Glendon, writing in 1987, characterised abortion policy in the USA as ‘singular’ because ‘it requires no protection of unborn life at any stage of pregnancy, in contrast to all the other countries with which we customarily compare ourselves, but also because [the US] abortion policy was not worked out in the give-and-take of the legislative process’ (Glendon (1987), pp 24-25). As we have seen from our survey, the basic American approach to, and regulation of, abortion was established by the US Supreme Court ‘in a series of cases that rendered the abortion legislation of all States wholly or partly unconstitutional and severely limited the scope of future State regulation of abortion’ (p 25). Nowhere else in the world, emphasises Glendon, have the courts gone so far in precluding further statutory regulation. Constitutional challenges have been made in several countries, but it was only in Canada, Italy and (the former) West Germany where the legislative attempts to resolve the problem were held unconstitutional. As our survey has also shown, when the landmark case of Roe v Wade was decided by the US Supreme Court in 1973, it did so in such a manner that put it in a class of its own, at least in relation to other developed nations. However, the debates on abortion continue to polarise opinion, and 16 American States still have pre-1973 laws on their statute books, even though they are strictly unconstitutional and nullified after Roe v Wade. As we have seen, there have also been many attempts since 1973 to reduce free access to abortions and court decisions in 1989 (Webster), 1990 (Akron Centre case) and 1992 (Casey), for example, have all somewhat circumscribed the conditions under which an abortion may be legally performed.
