Book Review: Francisca Pou Giménez on Rebecca J. Cook, Joanna Erdman and Bernard M. Dickens’s “Abortion Law in Transnational Perspective: Cases and Controversies”

[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Francisca Pou Giménez reviews Rebecca J. Cook, Joanna Erdman and Bernard M. Dickens’s Abortion Law in Transnational Perspective: Cases and Controversies (University of Pennsylvania Press, 2014).]

—Francisca Pou Giménez, Instituto Tecnológico Autónomo de México (ITAM)

This is an edited book, and an especially mature species of the genre, providing an encompassing analysis of abortion developments in the combination of spaces and jurisdictions we associate to the idea of the “transnational sphere.” The editors’ long experience in the field and their pluralistic sensitivities are everywhere detectable: in the choice of contributors and the countries they cover, in the range of understandings of law they engage–which prompt a serious focus on symbolic effects or on implementation matters–or in the way the collection succeeds at illustrating the wealth of interactions among rules, ideas, values, power and social action that scholarship as a distinctive endeavor is set to reveal. But in my view, as I will emphasize below, this is as much a book on abortion as it is a privileged balcony from where to watch contemporary constitutional engagement at work, and can be read with equal profit under any of those two interpretive keys.

The book has four parts, preceded by an introduction.

In the first part, “Constitutional Values and Regulatory Regimes”, Reva Siegel, Ruth Rubio-Marín, Adriana Lamačková, Verónica Undurraga and Rachel Rebouché display the organizing macro-grammar of the discussion. Siegel, for instance, conceptualizes the move from “constitutional politics” to “constitutional law” in abortion, and portrays several “forms of constitutionalization” articulating three distinct levels: constitutional values, regulatory regimes, and judicial responses. Her piece, as those by Rubio and Lamačková, illustrate how certain largely familiar positions in the abortion debate can be read as specific forms of connecting those three levels, and how they have importantly evolved over time; counseling-based systems, for instance, once seen as a way of protecting women at the fetus expense, are now increasingly taken–as developments in Slovakia, Portugal and even Germany attest–as a way of protecting unborn life (while also respecting women). Undurraga, for her part, synchronically reconstructs the clusters of arguments that have been channeled in different jurisdictions through proportionality analysis, showing the nuance and richness of abortion debates when read in these holistic terms, while Rebouché advocates functionalism as a comparative methodology to better account for the mix of formal law, background regimes and informal rules that shapes abortion controversies.

The remaining parts are more specific. In the second, “Liberal Justice and Liberal Access”, Johanna Erdman, Paola Bergallo and Charles Ngwena focus on the “procedural turn” in abortion law and analyze developments–in the European Court of Human Rights, Argentina, and Africa–tackling the challenge of effective implementation. They not only show that implementation gaps might have been particularly wide in this domain, but also how “procedure” has been adopted–with the corresponding gains and costs–as a self-standing strategy in contexts where other liberalizing avenues were foreclosed. In the third part, “Framing and Claiming Rights”, Sally Sheldon, Bernard Dickens, Julieta Lemaitre, and Melissa Upreti each take up one among the various normative frames that have been influential in the legal treatment of abortion–public health, individual conscience, religion, and equality–while Luis Roberto Barroso shows how they were combined in public interest litigation on anencephalic abortion in Brazil. Lastly, in “Narratives and Social Meaning,” Lisa Kelly, Alejandro Madrazo and Rebecca Cook underline how abortion controversies are inserted into broader social and cultural narratives that importantly influence how they play out. Their contributions explore, for instance, what might go into having legal arguments invoking images of sexual innocence or family life; what might go into using or sidestepping the idea of “prenatal personhood”; or what follows, in terms of stigma, from having women and medical personnel characterized through the conceptual and symbolic universe of criminal law.

Beyond the theme that justifies its position within the book, the chapters provide much more valuable information along the way. Ngwena’s “procedural” chapter on Africa, for instance, reconstructs also the historic treatment of abortion in the region, before and after colonization, and Bergallo’s one on Argentina tells also an instructive story about the interaction between civil society, courts and government structures in the making of public policy. While the editors praise “fragmentation” and humbly contend that what the chapters do not share render relevant what they share (p.9), in the end the book erects itself as a highly coherent whole that delivers far more than the sum of the parts.

As I announced, the book strikes me as a fascinating portrayal of paradigm traits of contemporary constitutional law and engagement, some of them heavily theorized in recent years, others far less noticed. A first trait the collection uncovers, in my view, is the profound path-dependence of contemporary constitutional law. As Rubio-Marín remarks (p. 38), current constitutions evolve from documents built upon a vision of equality and autonomy relevant among propertied, free and white man. What these chapters may be taken to narrate, therefore, are fragments of the epic struggle required to bring up to constitutional substance what had been designed to be invisible to it. If one needs illustration about the sort of phenomena feminist readings of constitutional structures point to, for instance, this book will help.[1]

Second, and transparently, the book illustrates the migration of constitutional ideas and most of its associated phenomena: the emergence of “generic constitutional law”, the use of the comparative law argument in adjudication, the increasing profile and practical import of “judicial dialogue”, or the interaction between national and international actors and sources of law.[2] To see borrowing and translation of arguments at work, to witness emerging global trends, or to observe how the boundaries of civil society, states and legal systems have abandoned their former Westphalian instantiations, enter this book. But also enter it to understand what critical comparative scholars mean when they denounce the power asymmetries that pervade the political economy of knowledge and determine what is considered “prestigious” and worth being imported, and what remains ignored.[3] In this regard–and the same applies to the path-dependence point–the book fulfills two functions: it renders the problem visible while showing it can be overcome, being as it is deeply informative about developments in the Global South and penned by 12 women scholars out of 16. It then portrays certain versions of contemporary constitutional engagement and “performs” others, suggesting how it might gain inclusion and quality.

Finally, the contributions nicely illustrate a wealth of phenomena about the fascinating life of the law, from the amazing micro-level changes in the meaning of words over time (“dignity”, “protection”) to the macro-level subtle and never-ending interaction between politics, law and morality.

The book presents itself as forward-looking: the editors say they wish take stock so as to identify new ideas in the way abortion issues are advocated, regulated and adjudicated (p. 2). This identification of new strategies is not explicitly mapped out, however, in the book itself. To advance in that direction, the sort of inquiry it deploys should be probably complemented with others paying more attention to the impact of broader institutional options (territorial model, type of constitution, judiciary design, etc.) and broader cultural and social backdrops. Yet this leaves untouched the value of the knowledge it produces. And, in view of the “non-linearity” warnings now heard in response to disturbing, unexpected developments in so many countries, it stands as a repository of patterns of human interaction through law around deeply controversial issues, many of which the future should vindicate and preserve.

Suggested Citation: Francisca Pou Giménez, Review of Rebecca J. Cook, Joanna Erdman and Bernard M. Dickens’s Abortion Law in “Transnational Perspective: Cases and Controversies”, Int’l J. Const. L. Blog, May 17, 2017, at: http://www.iconnectblog.com/2017/05/Pou-Giménez-on-abortion-law-in-transnational-perspective

[1] See, for instance, Rosalind Dixon, “Feminist Critique (Comparatively) Recast”, 31 Harvard Journal of Law and Gender 277 (2008); Helen Irving, “Drafting, design and gender,” in Tom Ginsburg and Rosalind Dixon, eds., Comparative Constitutional Law (2011).

[2] See Sujit Choudry, The migration of constitutional ideas (2006); David S. Law, “Generic Constitutional Law” 89 Minnesota Law Review 652 (2005); Damiano Canale, “Comparative Reasoning in Legal Adjudication”, Canadian Journal of Law and Jurisprudence 28 (1), 5-27; Ran Hirschl, Comparative Matters. The Renaissance of Comparative Constitutional Law (2014); Amrei Müller, ed., Judicial Dialogue and Human Rights (in press, 2017); Wen-Chen Chang and Jiunn-Rong Yeh, “Internationalization of Constitutional Law”, in Michel Rosenfeld and András Sajó, eds., The Oxford Handbook of Comparative Constitutional Law (2012).

[3] See Jorge Esquirol, “The Failed Law of Latin America”, 56 American Journal of Comparative Law 75 (2008); Daniel Bonilla, “La economía política del conocimiento jurídico”, in Daniel Bonilla, ed., El constitucionalismo en el continente americano (2016).