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The latest US anti-abortion laws are a response to judicial activism

By Brendan O'Reilly - posted Friday, 24 May 2019


On 14 May the Alabama State Legislature passed America’s most restrictive abortion law.  The law permits abortion only if the mother’s life is at risk or if the foetus cannot survive.  Notably, the law does not permit abortion in cases of rape or incest.

Under the Alabama Human Life Protection Act, performing an abortion in Alabama becomes a felony, and, "for homicide purposes", a foetus is a legal person. The woman who receives the abortion, however, is not to be held "criminally culpable or civilly liable".  The legislation also specifies that it isn’t enough for the mother to have an "emotional condition" or mental illness to justify an abortion.  A second doctor needs to agree that the mother has a "serious mental illness" that could cause her or the foetus to die.

There has in effect been a rush by Republican-controlled states to challenge the US Supreme Court’s landmark Roe v. Wade 1973 ruling, which legalised abortion nationwide.  Lawmakers in Arkansas, Georgia, Kentucky, Mississippi, Missouri, Ohio, and Utah have also passed new anti-abortion bills, and similar measures are pending in some other states.  A Supreme Court challenge to these laws seems almost guaranteed.

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It is uncertain what the reaction of the Supreme Court will be.

On the one hand, following the retirement of Justice Anthony Kennedy, and the appointments of Justices Brett Kavanaugh and Neil Gorsuch, conservatives now are in the majority.  During the late 1980s, Reagan era Chief Justice William Rehnquist (who dissented in Roe) tried to assemble a coalition to reverse the decision but fell one vote short.  The result was an opinion that expressed hostility to Roe without changing the legal status quo.

On the other hand, the Washington Times has asserted that that no Court majority would now want to overrule Roe and "be credited with up-ending settled law and causing massive societal upheaval."  Another thesis is that the Republicans "want to keep their base mad and run on it forever, but never catch the car."

If Roe v Wade is over-ruled, it is very likely that the US would end up having very restrictive abortion laws in its "Bible-belt" states, and liberal abortion laws elsewhere.

Apart from moral and social considerations (and we all have our own standard of morality), there is a huge legal issue here, that is entirely separate from the moral one.  Who is to prevail in the making of law, the US Supreme Court or the various legislatures?  Obviously, if the Supreme Court is merely enforcing the contents of the US Constitution, it is on strong ground.  If the Supreme Court was not on strong constitutional grounds, then it had over-stepped its bounds and undermined democracy by over-ruling state legislatures.

It is therefore appropriate to examine the constitutional basis for Roe v Wade.  My take on the case is below.

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The decision in Roe v Wade was mainly based on Section 1 of the 14th Amendment to the U.S. Constitution, ratified in 1868.  This amendment was passed largely to protect the rights of freed slaves, who were affected by newly-enacted regressive laws in many southern states.  The relevant wording is as follows:

All persons born or naturalised in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

 

According to any plain English interpretation of this section, it is silent on the question of abortion.  If anything is said in relation to abortion, the reference to "nor shall any State deprive any person of life...without due process of law" can only be construed to support a "right to life" rather than a "right to abortion".

A woman's right to abortion instead was derived by the US Supreme Court along a convoluted route of legal interpretations.

In Griswold v. Connecticut(1965), a case about contraception, the Supreme Court held that the right to privacy was found in the Due Process clause of the 14th Amendment (cited above) because it was held to include individual privacy.  By upholding marital privacy, the Court struck down bans on contraception.  The newly discovered "right to privacy" subsequently was to have broader implications.

This (questionable) "constitutional right to privacy" went on to be the basis for Roe v. Wade (1973), in which the Court invalidated a Texas law forbidding abortion except to save the mother's life.  The Court ruled, in a 7-2 decision, that a woman’s right to choose an abortion was also protected by the privacy rights "guaranteed" by the Fourteenth Amendment to the U.S. Constitution. Essentially it was decided that Griswold v. Connecticut established the right to privacy in relation to a range of medical procedures.

Roewas criticised by many in the legal community, with the decision being seen as a form of judicial activism.  The American constitutional lawyer Laurence Tribe noted that: "One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found."

The broader issue of judicial activism should be of immense concern to those, who believe in democracy.  It is very clear that many judicial decisions in the US Supreme Court and its equivalent in some other countries (including Australia) involve (in part) the courts usurping the role of the legislature beyond any role of the common law.  In many cases the decisions of an activist court can be overcome with subsequent over-riding legislation, though it is politically difficult to remove a right already bestowed by a court.  (Imagine what would happen in Australia if a government sought to reverse the Mabo judgment through over-riding legislation!)

It is also well nigh impossible for the legislature to overturn a supreme/high court decision, if this is based on an interpretation of the constitution.  The only available option in such cases is a referendum, and we know how difficult they are to pass, especially in Australia.

There is a right way and a wrong way to determine legal solutions to controversial moral issues.  Relying on judicial activism is the wrong approach.  Indeed, if the judiciary are to confine their role to objectively interpreting the law, in theory liberal and conservative judges should not differ greatly in their decisions.

In Australia gay marriage was eventually brought about by a free conscience vote in the Parliament.  Conscience votes or referenda are the only sensible way of legally resolving divisive moral issues in a democratic way.  Where a parliament does not have the will to act, it is not the role of the courts to act on their behalf.

Other good examples of democracy in action were the moral battles in Ireland concerning divorce, abortion and same sex marriage laws.  Change was much easier to achieve in Ireland (despite the political influence of the Catholic Church) because constitutional changes are more straightforward to effect in Ireland compared with (for example) under Australia's constitutional provisions.

The Constitution of Ireland adopted in 1937 contained a ban on divorce (which was an appeasement to the Catholic Church).  Following a vigorous public debate in the 1990s, the Fifteenth Amendment of the Constitution Act 1995 removed this constitutional prohibition on divorce in Ireland, and allowed for the dissolution of a marriage, provided specified conditions were satisfied.

Ireland also had one major Supreme Court case and two successful referenda on abortion.  (Abortion had been prohibited in Ireland by the UK Offences against the Person Act 1861).

Following a campaign by Catholic activists, the Eighth Amendment of the Constitution Act 1983 amended the Constitution of Ireland by inserting a subsection recognising the equal right to life of the pregnant woman and the unborn.  The amendment ensured that legislation or judicial interpretation would be restricted to allowing abortion in circumstances where the life of a pregnant woman was at risk.

In 1992, the Irish Supreme Court had held in the X Case that a thirteen-year-old girl who had become pregnant as a result of rape could be permitted to obtain an abortion in the state because there was a risk to her life from suicide.  There were unsuccessful referenda in 1992 and in 2002 that aimed to further amend the Constitution so as to preclude this part of the decision in future cases.

On 25 May 2018, the Irish people finally voted in a referendum to repeal the Eighth Amendment and liberalise abortion. They approved the Thirty-sixth Amendment of the Constitution Bill 2018 to delete the existing provisions and replace them with "Provision may be made by law for the regulation of termination of pregnancy".  Ireland therefore went down the road of referenda and legislation to determine its abortion laws.

Compared with the American approach of judicial activism, that has perpetuated a bitter abortion debate, the route followed in Ireland brought much greater community acceptance.  This is because decisions were taken by electors and by parliament instead of being handed down by the judiciary.

Judicial activism is mainly associated with the liberal left, and contravenes broad doctrines of the separation of powers.  Besides its effects enabling the judiciary to set laws (mainly in support of a liberal social agenda), judicial activism has also led to ruthless appointment/confirmation battles in respect of the highest judicial appointments in the US.  Examples have included the confirmation processes endured by Brett Kavanaugh and Clarence Thomas.  Even in Australia, governments, when filling key judicial appointments, are now careful to largely appoint candidates sympathetic to the government's political view.

The only way to combat judicial activism, that I can think of, would be to seek the insertion of clauses into national constitutions related to their interpretation.  One possibility would be a clause requiring a narrow interpretation unless it was likely that a broader one was envisaged at the time the constitution or an amendment to it was constructed.

In my opinion judicial activism is not that much different to a (limited) bloodless coup d'état, except that there is no penalty potentially applying to offending judges.  In Australia a number of key judicial decisions (e.g. Mabo, Tasmanian dams) were said to involve judicial activism.  These are issues for another day.

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About the Author

Brendan O’Reilly is a retired commonwealth public servant with a background in economics and accounting. He is currently pursuing private business interests.

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