Two world-shattering developments this week tell the storey of abortion rights in the twenty-first century.
In the first case, the United States Supreme Court effectively upheld new abortion restrictions in Texas. A few days later, Mexico’s Supreme Court cleared the way for widespread legalisation.
It’s tempting to regard Mexico’s ruling as the more surprising, launching the world’s second most populous Catholic country on a deeply contentious social issue.
However, experts believe that the United States stands out. Since 2000, 31 countries, many of them as religious as Mexico, have expanded abortion access. Only three countries have rescinded it: Nicaragua, Poland, and the United States.
There are numerous parallels between the United States and Mexico. Public opinion has become polarised. On one side, there are fiercely committed women’s rights groups, and on the other, there are religious groups. Federal systems that allow for a patchwork of state-level legislation. High courts with a track record of intervening.
If anything, the United States appears to be the most likely to broaden access. Its public opinion is much more favourable. It has precedent in Roe v. Wade and a 48-year-old cultural norm surrounding abortion as a result of that 1973 decision.
The divergence between the two countries exemplifies the advancement and backlash that now drives abortion politics around the world.
It is a storey defined by the collision of larger forces, which is frequently linked to a defining issue of our time: the rise and fall of democracy.
According to Sonia Corrêa, a prominent women’s rights researcher, a rough but reliable rule has emerged. Wherever democracy grows, so do women’s rights, of which abortion is frequently one. However, the inverse may also be true.
That trend has accelerated, she claims, but so has a backlash, which she attributes to rising nationalism and right-wing populism.
A Global Struggle
From Britain’s Abortion Act in 1967 to Mexico’s ruling this week, the liberalising trend has usually followed a pattern.
A women’s rights movement will emerge somewhere, often as part of democratisation, in which such organisations will play an important role. Medical organisations and United Nations agencies may express their support. The public’s attitude toward abortion will change.
As in Mexico, partial or local legalisation will be popular, paving the way for more. Perhaps, in response to public pressure, the legislature or the high court will intervene.
And each breakthrough will serve as an inspiration to others. Mexican activists wore green handkerchiefs as a nod to Argentine activists who successfully lobbied for legalisation last year.
“Seeing what they’ve done in Latin America, we would have thought it impossible ten years ago,” said Serra Sippel, president of the Center for Health and Gender Equity.
Traditional abortion opponents, such as the Vatican and evangelicals, have found new allies after years of losing ground.
Nationalist leaders have incited social resentment and gained the support of religious groups by targeting abortion rights activists, often as part of a larger crackdown on civil society.
According to Elizabeth Heger Boyle, a gender rights scholar at the University of Minnesota, the U.S. reversal is an even greater outlier in a wealthy democracy with long-held abortion rights.
Despite the fact that the majority of Americans support legal abortion, a vocal minority persists.
Partisanship is one factor that has locked in opposition among demographics that have softened their views in other countries.
Nonetheless, in most countries, forces such as partisanship or nationalism only serve to stifle the expansion of abortion rights. It takes something more drastic to reverse it.
On contentious social issues, high courts are generally thought to incorporate public opinion. Mexico is an example: it moved ahead of public opinion on abortion, but in a direction that Mexicans were gradually moving in.
However, some political scientists believe that last week’s ruling in the United States is symptomatic of a significant shift in democracy there and elsewhere. Minority rule is becoming increasingly powerful in its major institutions.
“Thirty-five, 40 percent of the electorate,” said Steven Levitsky, a democracy scholar at Harvard University, “can now be enough, given the electoral system,” to win power.
Electoral College and Senate maps have always skewed American elections in favour of some voters over others, for example, by giving rural states disproportionate representation. For the first time in American history, demographic groups that tend to support one party, the G.O.P., are overwhelmingly concentrated in areas with disproportionate voice.
As a result, Supreme Court justices are more likely to be appointed by a president who received a low popular vote and confirmed by a Senate elected by a minority. Republicans have won only one of the last eight presidential elections, but they have appointed six of the nine current Supreme Court justices.
A shift toward minority rule in democracies can feed the perception that power does not flow from the will of the people as a whole. Such leaders and institutions are more likely to defy the majority on issues important to the minority that elected them.
At the same time, partisanship has intensified, with studies showing that Republicans are more likely to violate democratic norms, such as blocking then-President Barack Obama from filling a Supreme Court vacancy in 2016.
“There’s a lot of hardball involved in achieving this six-out-of-nine conservative majority,” Dr. Levitsky explained.
He discovered that in highly polarised societies, parties frequently fight bitterly for control of the courts. These contests often send the unintended message that courts exist to serve partisan interests rather than to protect them.
Decisions at odds with public opinion, according to Dr. Levitsky, are “very likely in a period of polarisation and hardball politics.”
This may help explain why all three countries that have rolled back abortion rights this century — Nicaragua, Poland, and the United States — did so in the midst of bare-knuckle battles for control of the Supreme Court.
The only two developed countries to restrict abortion rights, the United States and Poland, have followed a startlingly similar path.
In both cases, high courts overturned abortion rights that were supported by national majorities.
Both decisions were preceded by the rise of populist leaders who widened social divisions and promised to destroy or co-opt independent institutions.
Conservative organisations have long sought to repeal abortion laws. However, they have been “radicalised” by the populist surge of voters who see themselves as besieged minorities fighting for the survival of their way of life, according to Dr. Levitsky.
Though Texas’ abortion restriction was enacted through normal channels – albeit one that some critics regard as legally dubious due to its open attempt to avoid judicial oversight – it hints at a larger phenomenon.
According to nearly every independent metric and watchdog, curbs on women’s rights tend to accelerate in backsliding democracies, which includes the United States.
The effect is more pronounced in more degraded democracies. According to a 2019 Freedom House report, the rise of right-wing populism has been accompanied by extraordinary reductions in women’s rights around the world.
Strongmen frequently stifle civil society as a whole, of which women’s groups are often at the forefront. And they rise on nationalist appeals, with their calls for rigid social hierarchies and mores.
“There is a trend to watch for in countries that haven’t necessarily succeeded in rolling it back, but are introducing legislation to roll it back,” Rebecca Turkington, a University of Cambridge scholar, said of abortion rights, “in that this is part of a broader crackdown on women’s rights.” And this is inextricably linked to the rise of authoritarianism.”
Despite the complexities surrounding the ebb and flow of abortion rights, a simple formula holds surprising sway. Women’s rights, as the only universal majority, are inextricably linked to majoritarianism. Where one rises or falls, the other follows.