The ‘European’ Future of American Abortion Law: Dobbs, Federalism and Constitutional Equality

Federico Fabbrini*

This article provides an innovative comparative examination of the Dobbs ruling of the United States (U.S.) Supreme Court and the resulting new U.S. legal framework on reproductive rights, in light of the European experience with abortion federalism.  The effect of Dobbs is to return regulation of abortion to the 50 U.S. states, with the consequence that major divergences are emerging across the United States.  In this context, important new constitutional questions are coming to the fore in the United States, including whether women residing in states that ban abortion can access information on services available in states where it is legal, and travel out of state to seek lawful interruption of pregnancy.  These legal questions are déjà vu for comparative legal scholars, as they have long shaped European abortion law.  In the European Union (E.U.), states have long had different regulations of abortion.  And while supranational courts shied away from establishing a transnational right to abortion, they established a woman’s right to receive information about abortion services, and to travel out of state to lawfully end a pregnancy—a jurisprudence which had profound consequences especially for Ireland, long the E.U. member state with the strictest abortion ban.  As such, the article claims that Dobbs is creating a ‘European’ future for U.S. abortion law.  Yet, as the article critically highlights, a federal system in which women can escape the Draconian abortion bans existing in some states raises profound normative questions in terms of constitutional equality.  As the ability of women to opt-out of abortion bans is ultimately dependent on financial resources, which are strictly correlated to race and social class, the new U.S. legal geography of abortion, like the old E.U. one, has discriminatory consequences which are difficult to square with the constitutional democratic commitment to the equal protection of the laws.

* Federico Fabbrini (PhD) is Full Professor of Law & Director of the Law Research Centre at Dublin City University, Ireland and Fellow in Law, Ethics and Public Policy at Princeton University, U.S.  An earlier version of this paper was presented at the Princeton University Centre for Human Values in the framework of the Laurence S. Rockefeller seminar series.  I would like to thank a number of colleagues who have either specifically commented a prior draft of this article, or discussed my work on the topic, including Farrah Ahmed, Elvira Basevich, Martin Flaherty, Liz Harman, Brian Highsmith, Stephen Gardbaum, Vicki Jackson, Desmond Jagmohan, Melissa Lane, Sarah Milov, Alan Patten, Evgeny Roshchin, Reva Siegel, Briana Toole, and Leif Wenar.  Moreover, I want to thank David Hollander, the Law Librarian at Princeton University, for his help in bibliographical searches.  Usual disclaimers apply.