Professor Barbara Stark joins an international and comparative law amicus brief that was submitted on January 11, 2021 to the Fifth Circuit Court of Appeals for the en banc review of Whole Women’s Health v. Paxton.
Background
The Center for Reproductive Rights and Planned Parenthood are co-counsel representing abortion clinics and doctors, acting on behalf of themselves and their patients, in a challenge to a Texas law that bans a commonly used and safe second trimester abortion procedure (“dilation and evacuation” or” D&E”). A federal district court preliminarily enjoined the law, finding that it is likely unconstitutional, and the state appealed to the Court of Appeals for the Fifth Circuit. The Fifth Circuit panel upheld the lower court decision and endorsed the amicus argument. The state then sought en banc review.
The international and comparative law scholars brief supports those challenging the restrictive Texas law. The brief seeks to rebut Texas’ attempt to make use of comparative law in the District Court and again on appeal. In short, Texas argues that the vast majority of countries around the world presumptively ban abortion after the first trimester, and asserts that this constitutes a global consensus that later abortion is morally and ethically objectionable. Based on this, Texas claims that the challenged law brings Texas more in line with global norms, and courts should consider the global picture when assessing whether the law advances a state’s interest in medical ethics and respect for unborn life.
The amicus brief discusses international human rights law as a counterpoint to the comparative analysis on which Texas exclusively relies. It then shows that the expert witness who introduced comparative law evidence in support of Texas used a flawed methodology to compare countries, and his results are irrelevant because they do not speak to moral or ethical consensus.
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