Fact-check: How Mississippi’s abortion law compares with laws in Europe

The Supreme Court heard oral arguments in the case of a pivotal Mississippi abortion law Dec. 1. With a conservative majority on the court, the future of Roe v. Wade, the rule that has guided abortion laws for five decades, is in question.

The Mississippi law makes most abortions illegal after 15 weeks, about two months earlier than the 24 weeks that the courts have generally approved. 

The statute provides narrow exceptions for abortion beyond 15 weeks. It would be allowed to protect the life of the woman, or if there was "a serious risk of substantial and irreversible impairment of a major bodily function." A major bodily function includes "functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions."

In an interview on NBC’s Meet the Press, Mississippi Gov. Tate Reeves said the law is actually more permissive than the laws across Europe.

"In Europe, there are 42 countries that allow elective abortions," Reeves said Nov. 28. "If Roe is overturned and this 15-week ban in Mississippi is allowed to go into effect, Mississippi will still have a law on the books in which 39 countries — 39 out of 42 — in Europe have more restrictive abortion laws than what I believe to be one of the most conservative states in the United States."

We decided to see if Reeves had his numbers right.

We found that there are different ways of categorizing abortion laws in Europe. Reeves relied on one analysis, but that study made no allowances for broad exceptions in countries’ laws that could extend the cutoff point for a legal abortion well past the 15-week mark. We counted at least 15 countries where that could happen, with potentially 11 additional ones.

Reeves’ numbers are not as solid as he suggests.

Reeves’ office told us his data came from a report by the Charlotte Lozier Institute, an anti-abortion study center. Chief Justice John Roberts referred to it during oral arguments.

The authors made it clear that they weren’t looking at every European nation, just those that they consider to allow elective abortions. Elective is the key word. As the Lozier Institute defines it, it means when a woman can seek an abortion without meeting certain conditions.

This definition eliminated eight countries, including Britain (with a 24-week cutoff) and Finland (with a range of cutoffs from 12 to 20 weeks), because, the authors argued, the laws there required women to provide "some" justification for an abortion beyond it being their choice.

But their definition of "elective" can be subjective. In Britain, two medical professionals have to agree that a woman’s mental or physical health is at risk. In the Netherlands, a doctor has to agree with the woman’s claim that she faces a "distressed situation." The Lozier Institute study counts the Netherlands, but excludes Britain.  (Northern Ireland, the other part of the United Kingdom, is included.)

That said, within the group of countries they selected, the authors looked at the cutoff point for legal abortions before considering any special factors, such as profound fetal abnormalities, or factors affecting the woman.

"Out of the 42 European countries that allow elective abortion, 39 countries limit elective abortion to 15 weeks’ gestation or earlier," the report said.

Contrast that with an assessment of a group of European law professors in their amicus curiae brief on behalf of the woman’s abortion clinic in the Mississippi case.

"Abortion is permitted through at least 22 weeks of pregnancy in 37 states and through 18-21 weeks in a further three, either on request, or on broad socioeconomic grounds, or on a ... criterion that does not entail a risk to her life," they wrote.

So, which analysis is correct?

"As always, the devil is in the details," said Federico Fabbrini, professor of law at Dublin City University School of Law and Government. 

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For example, the great majority of European countries — 27 by our count — have a basic cutoff point of 12 weeks. But nearly all of those countries have exceptions that extend the period, often as long as 22 weeks.

What one makes of those exceptions influences the comparison between Mississippi and Europe.

"On its face, a 15-week limit is more permissive than a shorter limit," said Carter Snead, a law professor at University of Notre Dame. "Some have suggested that the European laws are more permissive because of their various exceptions, but this strikes me as mere speculation, because to assess that claim we would need to compare how such exceptions are interpreted and enforced alongside the Mississippi law's exceptions."

The Lozier Institute took a narrow approach. Its study looked at one part of each country’s law — the baseline period during which elective abortions are legal. It didn’t factor in the reasons that period could be extended or for how long. 

"Looking at abortion laws in their broader context reveals that comparable countries which, on their face, set shorter time limits on abortion access than the United States, often provide greater flexibility in obtaining abortions after those limits pass, with exceptions for a broad range of circumstances," according to a brief from a group of law professors in support of the abortion clinic.

Two of the most flexible terms are socioeconomic conditions and the mental health of the woman.

With the help of several databases — one from the United Nations, one from the World Health Organization, and a list from the Berkman Klein Center at Harvard — we examined the text of the laws of the countries the Lozier Institute examined, sometimes using Google Translate for our research.

The base cutoff periods for legal abortion in these countries broadly fall into three categories: 10 to 12 weeks’ gestation, 12 to 14 weeks, and 15 or more.

In the most restrictive category, 10 to 12 weeks, are 24 countries, including Northern Ireland. But 15 of those countries have exceptions for specific economic or mental-health reasons that extend the cutoff to 15 weeks or more.

The middle category, 12 to 14 weeks, includes 15 countries. All but four of these countries have exceptions for the health of the mother. Their laws don’t say if health is limited to physical health, or if it extends to mental health — a more subjective criterion. But if the exceptions apply broadly, they can extend the legal period for an abortion to the 15-week point or beyond.

Just three countries — Iceland, the Netherlands and Sweden — are in the least restrictive group. (Britain is excluded, as we noted above.)

Martha Davis, a law professor at Northeastern University, cautioned that text of any law alone fails to capture the full picture of abortion availability in Europe. It also depends on how those laws are applied.

Based on the text, there could be as few as 13 countries with shorter cutoff periods than Mississippi’s 15 weeks. Depending on how laws are applied, though, there might be 24 in that group. The gap between what’s written and what's practiced creates a gray zone. Some studies suggest that Belgium offers more flexibility than meets the eye.

Even with those uncertainties, it is difficult to get to Reeves’ claim of 39 nations once laws with exceptions for the life circumstances and mental well-being of the woman are taken into account.

Supporters of abortion rights argue that this sort of quantitative legal analysis comes with inherent limits.

"More than just exceptions to the abortion limitation itself, a country’s laws and policies on access to comprehensive sex education, modern contraception, paid parental leave, paid child care also are part of the context of abortion laws," said Mindy Roseman, director of International Law Programs at Yale University.

Reeves said that "39 out of 42 (countries) in Europe have more restrictive abortion laws" than Mississippi.

He relied on a study that looked only at one part of each nation’s law — the part that defined the initial time period for elective abortions.

Folding in the exceptions that many countries allow, the actual number could be one-third of what Reeves said.

But it’s hard to be precise with the count or the comparison. Abortion laws are subject to interpretation, and our point is that the study Reeves relied on is just one possible approach to making the comparison.

We rate this claim Half True.