Editor’s Note: This article is part of a symposium titled “Abortion after Dobbs.” We asked seven Commonweal contributors, from various backgrounds and with various views, to discuss what the Supreme Court’s recent decision is likely to mean for abortion law, American politics, and the creation of a “culture of life” worthy of the name.
Commentary on the overturning of Roe regularly makes references to European countries in which legislative measures have led to politically and socially acceptable compromise on abortion—some set of restrictions on a procedure that nonetheless remains legal and accessible—as if these examples could suggest a way for the United States to proceed in the aftermath of Dobbs. Italy is sometimes specifically cited, and sometimes in connection with the role of the Catholic Church in so much of Italian life.
Legge 194 (or “The 194,” as Italians call it), which the Italian Parliament passed in 1978, allows women to receive abortions through the first ninety days of pregnancy, after getting counseling in a public medical facility. Beyond ninety days, abortion is permissible “a) when pregnancy or childbirth involves a serious danger to the woman’s life; b) when pathological processes are ascertained, including those relating to significant anomalies or malformations of the unborn child, which cause a serious danger to the physical or mental health of the woman.”
When there is the possibility of viability outside the womb, interruption of pregnancy is permissible only when pregnancy or childbirth involves a serious danger to the woman’s life, and then the doctor who performs the surgery must take all appropriate measures to safeguard the life of the fetus. Before Legge 194, a woman who had an abortion risked up to four years in prison, and whoever performed an abortion faced up to five years. “The 194” has survived constitutional challenges and even a public referendum in 1981; though it decriminalized abortion, it did not make it a constitutional right.
But does Italy’s approach really have something to offer to the United States? It’s important to remember that the social, cultural, and historical tides leading to Roe in 1973 (and to Dobbs a half-century later) are far different from those that led to Legge 194 in 1978. Italy’s legislation initially grew out of a larger, somewhat drawn-out effort to overturn the legacy of fascism, particularly the penal code of 1930 (known as the Rocco Code), which applied to a number of issues. First, in 1971, the Constitutional Court ruled that Article 553 of the code, which had outlawed the “incitement of practices against procreation,” was unconstitutional. In 1975, the Italian Parliament passed a bill on family-law reform that established equality between the roles of father and mother in terms of duties and dignity. Then, in February 1975, the Constitutional Court declared Article 546 of the Rocco Code on abortion unconstitutional, ruling that the protection of an embryo is not equivalent to the right to life and health of one who is already a person, such as a pregnant woman. In 1978, the remainder of the portion of the Rocco Code pertaining to “crimes against the integrity and health of the lineage” was repealed with the passage of Legge 194.
Still, the Constitutional Court and other courts in Italy played a relatively marginal role. Policy was mainly produced through the parliamentary process, beginning in 1973, when the Socialist Party MP Loris Fortuna (who advanced the law that legalized divorce in 1970) made a moderate proposal amending the penal code on abortion. And then there was the influence of the Italian Church: in 1975, the Italian bishops’ conference issued a document that reiterated traditional Catholic teaching on abortion, but also indirectly critiqued the Fascist-era concept of abortion as a crime against the integrity of race or lineage. Then came the national elections of June 1976, which in bringing about significant gains for the Communist Party (thanks in no small part to Catholic voters) also brought about the end of the anti-abortion majority in Parliament. Leftist parties (Socialist, Communist, Proletarian Democracy), liberal-capitalist parties (Republican, Liberal, and Social Democratic), and the Radical Party—supported by numerous associations and movements—soon drafted a consensus bill on abortion that passed in the lower chamber. After being initially rejected by the senate it was resubmitted, and in May 1978, it overcame opposition from Movimento Sociale Italiano (the neo-fascist party) and Democrazia Cristiana (the Christian-Democratic party, composed mostly of Catholics) to pass. The law was then promulgated by the president of the republic, Giovanni Leone, a Catholic. Neither Leone nor any of the Catholic parliamentarians who’d supported it were threatened with canonical consequences: none of them were denied access to the sacraments (in contrast to what we’ve seen in the United States not only recently but as far back as 2004).