Comparative Pragmatism

Abstract

Over the past decade, high courts in many countries have either struck down statutes criminalizing abortion or upheld recently passed statutes expanding legal grounds for abortion. These courts have employed comparative analysis to position their decisions on a spectrum of transnational approaches to abortion law. The spectrum, as these courts describe it, ranges from unrestricted abortion, purportedly the approach of the United States under Roe v. Wade, to a broad prohibition on abortion, purportedly the approach of Germany under decisions of its Federal Constitutional Court. This comparative method, first identified by constitutional law scholars in the late 1970s and 1980s, relies on oversimplified and sometimes inaccurate portrayals of the law and of practice. Yet three decades later, this method continues to circulate among courts all over the world.

This article displaces the myth that comparative experience fits along a bi-directional spectrum by introducing a model better tailored to the realities of law and practice — comparative pragmatism. The article begins by critiquing recent decisions by courts in Colombia, South Africa, Portugal, and Mexico that have used comparative law to justify their decisions as part of a modern and universal conversation. By employing the prevailing comparative method, however, these courts not only misrepresent U.S. and German law, they look to comparators that are over thirty-years old and are exclusively from the global North. The article traces the courts’ methodology to a one-size-fits-all strategy embraced by women’s rights activists participating in each case. This method, however well-intentioned, blinds courts and lawmakers to local circumstances that will dictate realization of newly recognized rights. The article concludes by describing comparative pragmatism, a novel mode of comparative analysis, that draws upon public health literature and encourages contextualized reform strategies consistent with the state’s ability to implement formal rights.