US abortion ban: Throwing the baby out with the bathwater
A protester holds her sign expressing her feelings in front of the Duval County Courthouse, last week in Jacksonville, Florida. Protesters voiced their opinions after a draft opinion suggests the US Supreme Court could be poised to overturn the landmark 1973 Roe v Wade case that legalised abortion nationwide. Picture: Bob Self/The Florida Times-Union via AP
A culture war with real consequences surrounding the issue of abortion is happening in the United States and there are reasons to believe that it might spread to Europe.
Since Tuesday, May 3, the elimination of the constitutional right to abortion in the US is no longer hypothetical.
An amendment to abortion law has been on the horizon since Donald Trump appointed three socially conservative justices to the Supreme Court altering the balance of the court to provide a decisive conservative majority leaving them set to roll back abortion rights.
However, the proposal to abolish the constitutional right to abortion in the leaked draft of Supreme Court Justice Samuel Alito’s majority opinion in the pending case of Dobbs vs Jackson Women’s Health Organization is a shock and has been described by one commentator as “going the nuclear route”.
The Dobbs case deals with the constitutionality of a 2018 Mississippi state law that banned terminations after the first 15 weeks of pregnancy.
It’s still possible that in late June or early July when the final ruling is expected that there could be some softening in the wording of the judgment which might avoid an absolute constitutional ban on abortion because draft opinions can and do change.
Chief Justice John Roberts has released a statement saying that the opinion “does not represent a decision by the Court or the final position of any member on the issues in the case”.
In his leaked opinion, Justice Alito declared that “the Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision”, and that the American Supreme Court must heed the constitution and return the issue of abortion to the peoples’ elected representatives.
This would mean that individual states would decide their laws on abortion with up to an estimated 26 states likely to ban abortion despite polls showing that a clear majority of Americans support abortion.
Jill Lepore in writes that “there is little mention of abortion in a 4,000-word document crafted by 55 men in 1787. This seems to be a surprise to Samuel Alito.”
Depending on where you stand on the issue of abortion this news is either a cause for celebration which will result in the saving of innocent unborn lives or a grave and dangerous attack on the health of pregnant women which will result in the deaths of women and pregnant people and have the worst impact on those who have the fewest resources to overcome the block on abortions.
This decision also potentially opens up previously resolved questions about which fundamental rights are protected by the American constitution including contraception and marriage equality.
The editorial in this paper on Wednesday termed the draft opinion “a decision to set the clock back” and likened it to something from , a dystopian novel by Margaret Atwood.
Moira Donegan in this paper and The Guardian writes that “some have raised doubts about whether America can call itself a democracy, now policymaking power has largely been taken over by the courts — whose decisions, like this one, are so radically out of step with, and indifferent to, public opinion.”
But Sam Ashworth-Hayes writes in that “the Supreme Court returning matters of politics to the realm of politics is not an assault on American democracy. Rather it’s a statement of faith in its ability to handle complex moral arguments, and an attempt to preserve what little faith in its ability to act impartially still exists.”
Associate professor of history Daniel Geary in writes that “just as opposition to Roe catalysed the growth of the religious right, its overturning might galvanise American feminists”'
Justin Webb in fears that the impending decision “could spark a new civil war”.
Rebecca Solnit in reminds Americans that they could make abortion a right by law and that “it’s worth remembering that Mexico, Ireland, and Argentina are among the countries that recently did so”.
In reality the hurdles facing the Democrats to enshrine abortion rights in legislation looks unfeasible if not near impossible. To do this Congress would need to pass a law that would provide the same protections that Roe did.
In simple terms even though the Democrats control both chambers of Congress, because of some anti-abortion Democrats they don’t have the necessary votes on abortion to pass such a law.
In 1973 Roe vs Wade involved an unmarried Texas woman who was unable to get an abortion in Texas where the procedure was illegal unless it was to save the life of the mother.
The US Supreme Court decided that the constitution protected a pregnant woman’s liberty to choose to have an abortion without excessive government restriction.
They rested this right to abortion on the unenumerated (meaning unlisted) right to privacy with the result that their abortion law has always been vulnerable to reinterpretation by a differently-minded Supreme Court which is what is happening now.
In 1973 some legal commentators also saw the Roe v Wade ruling as being an example of judicial activism and of judges looking into their crystal ball and finding a right to abortion in the constitution thereby making rather than interpreting the law.
Sam Ashworth-Hayes in writes that “Roe v Wade, in the view of the dissenting justices at the time, was an ‘exercise of raw judicial power’.
Law is bound to have certain plasticity dealing with human relations in all their varied shades of grey, and it’s a fact that the boundaries of constitutional rights expand and contract as the judicial personnel on a supreme court change but what feels different in Justice Alito’s opinion is that a recognised constitutional right is being abolished and that precedent set over 50 years is being ignored.
Historically, it is unusual even bizarre for the Supreme Court to take a right away.
US president Biden said “Roe has been the law of the land for almost 50 years, and basic fairness and the stability of our law demand that it not be overturned”.
Nancy Pelosi, the speaker of the house of representatives called the draft decision “monstrous” saying that it represents an assault on “privacy, precedent and the Constitution”.
She believes that “in brazenly ignoring 50 years of its own precedent” the “radical Republican-appointed Justices” are eroding the legitimacy of the Supreme Court.
Whatever your personal stance on abortion rights might be, in legal terms it is beyond doubt that she has a strong point.
In theory, judges don’t make law because this would be a breach of the separation of powers doctrine that exists in both America and Ireland and which would usurp the legislature’s function.
Through the rules of precedent, judges supposedly discover and declare existing law by adhering to the court’s previous decisions although they can and do refine and distinguish prior decisions.
While this respect for precedent is supposed to give stability to the law (so that a plaintiff knows what they’re getting) it is also meant to limit judicial activism.
However, in reality the process is far less empirical than that so that judges’ own moral reasoning, values, and views on social policy are in the decision-making mix; this is no less true in Ireland than it is in the US.
Notable and controversial jurist Oliver Wendell Holmes (comments on him range from “he is the greatest jurist who ever lived” to “he is a fascist and a dangerous influence on American law”) believed that law was something that kept pace with the “felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men.”
But it is difficult to imagine him characterising this judicial opinion flying as it does in the face of almost a half a century of precedent and out of sync with a significant proportion of public opinion as the law developing along with the society, a nostrum he worked hard to promulgate.
Certainly, to me Justice Samuel Alito’s opinion feels ‘reactionary’ rather than ‘conservative’.
Sian Norris in writes that “after victory in the US, now the far right is coming for abortion laws in Europe”.
She further writes that “the attack on Roe v Wade has roots in well-funded organisations whose tentacles have spread across the Atlantic. These organisations and their billionaire backers have transatlantic reach.”
On Tuesday a spokesperson for the anti-abortion movement in Ireland expressed the view on the radio that she hoped that Irish abortion law would be revisited and that we would follow the example of the American Supreme Court.
Since 2018 as a result of a referendum that saw two out of three voters vote to repeal the abortion ban our Constitution explicitly provides for a right to abortion in Article 40.3.3 which states that “provision may be made by law for the regulation of termination of pregnancy” so it would be harder for our Supreme Court to limit the existing right to abortion than in the US where the right to abortion is an ancillary right to the unwritten right of privacy and not the result of a clear and decisive democratic process.
Of note perhaps is that in September 2018 the Supreme Court refused a petition challenging the result of the referendum repealing the Eighth Amendment characterising the applicant’s claims as a “frustration of the democratic process”.
It’s also worth saying that our Supreme Court isn’t stuffed with judges nominated by successive partisan presidents in a naked bid to load the court with their people to gain control of the court and to continue a proxy war between ‘conservatives’ and ‘liberals’.
And thank God for that.
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