Something puzzling is happening across Europe. In the wake of the recent US Supreme Court decision to overrule its previous landmark opinions – Roe vs Wade (1973) and Casey vs Planned Parenthood (1992) – which declared a constitutional right to abortion, European leaders are expressing dismay at the outcome while implying satisfaction with Europe’s own abortion laws.

Here’s what’s puzzling. The Supreme Court’s decision in Dobbs vs Jackson Women’s Health Organisation (Dobbs, for short) puts abortion politics in the US on a track similar to the EU’s. If you’re broadly satisfied with Europe’s arrangements, you need to explain why you’re decrying Dobbs.

Dobbs declared there is no constitutional right to abortion. I’m not aware of any EU member state where abortion is a constitutional right (as distinct from a legal right).

Dobbs didn’t ban abortion. It said abortion laws were a matter for individual states. Texas doesn’t have to be like California. That’s also the case in the EU, where abortion laws vary from state to state.

There’s more. Until Dobbs, the Supreme Court recognised a right to abortion until viability. That’s circa 24 weeks, a very liberal limit by EU standards. The US was only one of 12 states internationally (out of 198) to permit abortion after 20 weeks for any reason.

In the EU, we find the 24-week window only in the Netherlands. The majority of member states permit abortion (for most cases) only up to 10-12 weeks.

By the EU majority’s standard, until a few weeks ago even Mississippi had a liberal law. The Mississippi abortion “ban”, which led to the Dobbs decision, prohibited abortion (in most cases) after 15 weeks. That’s more permissive than any EU state, except for Sweden (18 weeks) and the Netherlands.

The EU and US have different baselines on abortion limits. What’s decried as a “ban” or unacceptable restriction in the US is sometimes a law that draws the limit down to the European average. After Dobbs, the likelihood is that, in all but a few states, abortion limits will (after a few election cycles) be in the European ballpark.

We can guess this with some confidence. Successive opinion polls are clear. A decisive majority of Americans favour a right to abortion. But 65 per cent would make most abortions illegal after 12 weeks; 80 per cent would make most illegal after 24.

American public opinion largely agrees with European opinion. It’s true that around half the US states are poised to introduce abortion bans (not all of them are total bans) through their legislatures. But we still have to see whether any total ban survives successive state elections. Thanks to Dobbs, lawmakers who enact unpopular abortion laws can be voted out. 

The vitriol and violence, on both sides, have been unworthy of the compassion that both claim to espouse- Ranier Fsadni

A handful of states might still end up having total bans. But 22 states have already moved in the other direction to protect their abortion laws or even enshrine them in their respective statutes or constitutions.

We should also expect to see more states follow California, Oregon, Washington and Colorado in dramatically increasing access to abortion services to cater for out-of-state women.

Indeed, by overturning Roe, the Supreme Court has placed abortion limits entirely in the hands of states. Some can decide to have a law like Colorado’s, which essentially permits abortion at any stage of pregnancy. The legal consequences of Dobbs are not, unequivocally, anti-abortion.

At this stage, I’ll wager some readers are already furiously typing a post demanding, in all-caps, to know whether I agree with Dobbs or Roe. Here’s my answer: alas, I’m not a Druid.

If distinguished scholars can disagree about whether a right to abortion is to be found in the US constitution, I’m not about to peer deeply into my bubbling magic cauldron, breathe in its vapours, divine the living truth and settle what decades of learned disagreement have not.

I don’t know what’s the right US constitutional reading, just as I’ve no idea what’s the right reading of Poland’s constitution. I am amazed by public figures who, not having immersed themselves in the study of either, can instantly tell if the constitutional court of a country whose language they don’t even speak has decided a case rightly.

I do know, however, the lesson Europe should learn from the US, in the aftermath of Roe.

In the US, when Roe was decided, even leading, pro-choice constitutional experts – like John Hart Ely and the future Supreme Court Justice Ruth Bader Ginsburg – criticised the attempt to change abortion law through the constitution, instead of through legislatures.

The effect was to politicise the judiciary and make judges seem like unelected politicians. It eroded trust in institutions. It poisoned a debate that had been proceeding much more calmly within individual states. The vitriol and violence, on both sides, have been unworthy of the compassion that both claim to espouse.

Whether Roe was decided rightly or not, the European way has been for the abortion debate to be conducted through the parliaments, not courts. That’s something we should seek to preserve. “Constitutionalising” a European right to abortion is a bad idea, irrespective of your abortion policy preference.

There’s something deeply odd, in the wake of Dobbs, about looking at America and preening yourself for being European while declaring yourself determined to Americanise the politics of Europe. It’s not just odd. It’s potentially destabilising.