IN CONTEXT: FOREIGN AND INTERNATIONAL LAW IN ABORTION LITIGATION

In Dobbs v. Jackson Women’s Health Org’n, the U.S. Supreme Court, both the majority and dissenting justices, employed comparative law. For some of the justices in the majority, this reflected a change from their prior rejection of comparative law in United States courts. However, a review of the majority’s approach to comparative law reveals flaws in their analysis – in particular, a failure to appreciate the broader context surrounding comparative sources. As state courts now take the lead in considering cases relating to abortion, they have the opportunity to develop more nuanced and accurate approaches to comparative law.