Toughness of abortion laws is dependent on exceptions
The claim: “If Roe is overturned and this 15-week ban in Mississippi is allowed to go into effect, Mississippi will still have a law on the books in which 39 countries — 39 out of 42 — in Europe have more restrictive abortion laws.” — Mississippi Gov. Tate Reeves.
Reeves made the statement on NBC’S “Meet the Press” on Nov. 28.
Politifact rating: Half true.
Reeves relied on a study that looked only at one part of each nation’s law — the part that defined the initial time period for elective abortions. Folding in the exceptions that many countries allow, the actual number could be one-third of what Reeves said.
Discussion
The Supreme Court heard oral arguments in the case of a pivotal Mississippi abortion law Dec. 1. With a conservative majority on the court, the future of Roe v. Wade, the rule that has guided abortion laws for five decades, is in question.
The Mississippi law makes most abortions illegal after 15 weeks, about two months earlier than the 24 weeks that the courts have generally approved.
The statute provides narrow exceptions for abortion beyond 15 weeks. It would be allowed to protect the life of the woman or if there was “a serious risk of substantial and irreversible impairment of a major bodily function.” A major bodily function includes “functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.”
There are different ways of categorizing abortion laws in Europe. Reeves relied on one analysis, but that study made no allowances for broad exceptions in countries’ laws that could extend the cutoff point for a legal abortion well past the 15week mark. Politifact counted at least 15 countries where that could happen, with potentially 11 additional ones.
Reeves’ numbers are not as solid as he suggests.
Reeves’ office told us his data came from a report by the Charlotte Lozier Institute, an
anti-abortion study center. Chief Justice John Roberts referred to it during oral arguments.
The authors made it clear that they weren’t looking at every European nation, just those that they consider to allow elective abortions. Elective is the key word. As the Lozier Institute defines it, it means when a woman can seek an abortion without meeting certain conditions.
This definition eliminated eight countries, including Britain (with a 24-week cutoff ) and Finland (with a range of cutoffs from 12 to 20 weeks), because, the authors argued, the laws there required women to provide “some” justification for an abortion beyond it being their choice.
But their definition of “elective” can be subjective. In Britain, two medical professionals have to agree that a woman’s mental or physical health is at risk. In the Netherlands, a doctor has to agree with the woman’s claim that she faces a “distressed situation.” The Lozier Institute study counts the Netherlands, but excludes Britain. (Northern Ireland, the other part of the United Kingdom, is included.)
The great majority of European countries — 27 by Politifact’s count — have a basic cutoff point of 12 weeks. But nearly all those countries have exceptions that extend the period, often as long as 22 weeks.
What one makes of those exceptions influences the comparison between Mississippi and Europe.
“On its face, a 15-week limit is more permissive than a shorter limit,” said Carter Snead, a law professor at the University of Notre Dame. “Some have suggested that the European laws are more permissive because of their various exceptions, but this strikes me as mere speculation, because to assess that claim we would need to compare how such exceptions are interpreted and enforced alongside the Mississippi law’s exceptions.”
The Lozier Institute took a narrow approach. Its study looked at one part of each country’s law — the baseline period during which elective abortions are legal. It didn’t factor in the reasons that period could be extended or for how long.
“Looking at abortion laws in their broader context reveals that comparable countries, which, on their face, set shorter time limits on abortion access than the United States, often provide greater flexibility in obtaining abortions after those limits pass, with exceptions for a broad range of circumstances,” according to a brief from a group of law professors in support of an abortion clinic involved in the Mississippi case.
Two of the most flexible terms are socioeconomic conditions and the mental health of the woman.
With the help of several databases — one from the U.N., one from the World Health Organization and a list from the Berkman Klein Center at Harvard — Politifact examined the text of the laws of the countries the Lozier Institute examined, sometimes using Google Translate for our research.
Based on the text, there could be as few as 13 countries with shorter cutoff periods than Mississippi’s 15 weeks. Depending on how laws are applied, though, there might be 24 in that group. The gap between what’s written and what’s practiced creates a gray zone. Some studies suggest that Belgium offers more flexibility than meets the eye.
Even with those uncertainties, it is difficult to get to Reeves’ claim of 39 nations once laws with exceptions for the life circumstances and mental well-being of the woman are taken into account.