Rachel Rebouché, “ A Functionalist Approach to Comparative Abortion Law,” chapter 5 in Abortion Law in Transnational Perspective: Cases and Controversies, ed. Rebecca J. Cook, Joanna N. Erdman, and Bernard M. Dickens (University of Pennsylvania Press, 2014) pp. 98-117, 404n-409n. A Spanish edition was published in August, 2016. Ahora disponible en español.
Decisions from courts around the world cite to comparative law to balance the rights of women against those of potential life and to position their decisions along a spectrum of legislative or constitutional reform. Many of these courts refer to high-profile, but dated, constitutional abortion decisions from the United States and Germany. The weakness of this methodology is that abortion law reform is evaluated, as well as legitimatized, against a stylized, abstract set of rights demarcated by what the U.S. and German decisions have come to represent. What abortion law reform actually achieves—be it access, prohibition, or compromise—is not assessed, comparatively or otherwise.
In this fifth chapter of Abortion Law in Transnational Perspective, Rachel Rebouché questions the costs of continuing to prioritize the relationship between constitutional values and regulatory regimes, rather than that between law and practice. She makes a compelling case that whether abortion services are available, affordable or accessible cannot be determined by legislative form or constitutional norms, but can be assessed by examining the complex relationship among formal, informal, and background rules. The chapter concludes with an alternative functionalist methodology to capture this web of rules and to study the practical impact of rules on access to services.
Abortion Law in Transnational Perspective: Cases and Controversies was published in August 2014. Table of Contents and other information online. A Spanish edition was published in August, 2016. Ahora disponible en español.