23rd January 2021
Yesterday the twitter account of the new president of the United States tweeted about abortion rights:
As we mark the 48th anniversary of Roe v. Wade, now is the time to rededicate ourselves to the work ahead. From codifying Roe to eliminating maternal and infant health disparities, our Administration is committed to ensuring everyone has access to the health care they need.
— President Biden (@POTUS) January 22, 2021
Around the same time the following statement was published by the White House:
“Today marks the 48th anniversary of the U.S. Supreme Court’s landmark ruling in Roe v. Wade.
“In the past four years, reproductive health, including the right to choose, has been under relentless and extreme attack. We are deeply committed to making sure everyone has access to care – including reproductive health care – regardless of income, race, zip code, health insurance status, or immigration status.
“The Biden-Harris Administration is committed to codifying Roe v. Wade and appointing judges that respect foundational precedents like Roe. We are also committed to ensuring that we work to eliminate maternal and infant health disparities, increase access to contraception, and support families economically so that all parents can raise their families with dignity. This commitment extends to our critical work on health outcomes around the world.
“As the Biden-Harris Administration begins in this critical moment, now is the time to rededicate ourselves to ensuring that all individuals have access to the health care they need.”
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But what would this “codification” actually mean?
And why should it be welcomed?
The starting point is the 1973 decision of the United States supreme court in Roe v Wade.
That decision held, in effect, that access to an abortion is a fundamental right under the constitution of the United States.
And as a right within the constitution then it is not open to any individual state to prohibit access to an abortion absolutely.
The decision did not preclude regulation of such access by individual states but they could not formally – or practically – ban it altogether.
The ultimate right – subject to regulation – of access to an abortion was that of the woman, and this right could not be removed by any state legislature.
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From a liberal perspective, it does not ultimately matter what the legal basis is for the fundamental right of access to an abortion.
The basis in the United States could be a supreme court judgment, or a provision in the constitution, or a federal law, or whatever.
The important thing is that there is a right and that it is effective and can be enforced.
That said, there is considerable merit in placing the right on a firmer basis than just a supreme court decision.
What a supreme court giveth, a supreme court can taketh away.
And although conservative judges in particular believe (supposedly) in the principle of stare decisis (that is, precedent) they often find ways to distinguish and set aside precedents when those precedents are liberal.
The conservative packing by former president Donald Trump of the supreme court and the federal judicial benches generally mean that it is increasingly likely that Roe v Wade could either substantially limited or even reversed.
And this is partly because the privacy right that the supreme court articulated in 1973 as the basis of the right of access to an abortion is not actually an express provision in the constitution.
It is a right which the 1973 supreme court found to be necessarily implicit in the constitution.
But the general problem with any right judicially implied into a legal instrument by one court is that it is conceivable that another court will not make the same inference.
And although the 1973 judgment was a welcome advancement, few would say that the reasoning of the justices has been generally accepted.
So the judgment of Roe v Wade stands there precariously, awaiting an assault by conservative lawyers and judges.
And if it falls, then the constitutional right of access to an abortion falls with it.
What a supreme court giveth, a supreme court can taketh away.
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So what could be done?
Ideally, one would want a constitutional amendment.
If the right of access to an abortion was explicitly spelled-out in, say, an amendment to the constitution then the position would be placed beyond doubt.
And then no supreme court, however constituted and motivated, could do a thing about it (without breaching the constitution itself).
But this would be unlikely in practice, if not impossible.
There would not be sufficient support in congress and certainly not from a sufficient number of states for the constitution to be amended under Article 5 of the constitution.
The next best thing, however, is codification.
This means congress placing the right on a statutory basis at the federal level.
And this would be possible because, as with any express or implied right of the constitution, there is a basis for congress to legislate.
It is not a perfect solution.
It would still be possible for a supreme court to strike down such an act of congress as unconstitutional as it is possible for any other federal legislation.
But it would fortify the right: for instead of a conservative supreme court only needing to reverse the 1973 judgment it would also require striking down federal legislation that gave statutory effect to that right.
And although a right as fundamental as access to an abortion should never depend on mere majoritarianism – for even if abortion was prohibited by every state legislature there should still be a right of access of a woman to an abortion, as that is the nature of fundamental rights – it can be argued that endorsement by democratically elected politicians would also make it more difficult for judges to overturn the relevant legislation.
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Of course, it is at this stage only a proposal – former president Barack Obama also put forward codification only to not go through with it.
But given the recent packing of the federal benches with conservative judges and what seems to be (and without any serious doubt is) a long-term co-ordinated judicial strategy by conservatives of reversing Roe v Wade, it is prudent for the right of access to an abortion to be codified.
Rousing liberal judgments are wonderful gladdening things – but they are shaky as the sole basis for any fundamental right.
No fundamental right should depend only on a majority of judges at a certain moment in time.
Roe v Wade is a great judgment – at least in its effect, if not its reasoning – but the right it articulates is becoming more vulnerable than it needs to be, and so that right should now be codified.
For what a supreme court giveth, a supreme court can taketh away.
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An excellent commentary on the politics of ‘here and now’, and how it creates future turbulence. Hints of your recent Brexit post.
Are you ale to explain the option available to Biden of ‘packing the Supreme Court’, I have seen this quoted before his election as an option.
That refers to appointing liberal supreme court judges, as the usual bench number of 9 is not a firm limit
More specifically, the constitution does not specify the number of Supreme Court justices. The number has been set and reset by various federal Judiciary Acts – initially a chief justice and five associate justices under the Judiciary Act of 1789, so six in all; but then 5, 6, 7, 9, 10, 7, and finally 9 again under the Judiciary Act of 1869. It has not changed for 150 years. The present Congress could pass an Act to increase the limit to 11 or 13 or more, but that might open the door to the next Republican president with a Republican Congress doing the same in 4, 8, 12 years time.
Has Trump “packed” the federal courts? Or has he just appointed judges needed to fill vacancies? Biden now has the opportunity to fill judicial vacancies with his “liberal” or “progressive” choices, and his nominees can by confirmed by the Demcractic Congress, at least until the midterms.
One of the hallmarks of “conservative” US judges is respect for state rights, including the states’ rights to set the rules for elections, which rather ironically led many of Trump’s appointees to reject his claims of unfair changes to or implementation of the voter rules at the recent election.
This post overlooks the relevant Supreme Court decisions since Roe v. Wade. More important, it doesn’t get to grips with what “the right to choose” means. There’s no such unfettered right in the UK, where the famous 1967 Act restricted abortion to 28 weeks, a limit that was reduced to 24 weeks by the Human Fertilisation and Embryology Act 1990. However, legislation hasn’t changed the default position (although it’s probably gone a long way towards it in practice). To quote Department of Health guidance:
“The Offences Against the Person Act 1861 makes it a criminal offence to intentionally unlawfully procure a miscarriage, including for a woman to procure her own miscarriage. The Infant Life (Preservation) Act 1929 makes it an offence to intentionally kill a child, capable of being born alive, before it has a life independent of its mother. The Abortion Act creates exceptions to these offences in certain limited circumstances.”
The way to codify Roe v. Wade is to make explicit the circumstances when abortion is permitted. That will be no easy thing.
It does not ‘overlook’ anything of the sort – all commentary is selective. I know and have read those cases, and I chose not to use them. To say they were ‘overlooked’ is presumptuous and incorrect.
I also chose not to use the phrase ‘right to choose’ and so, again, you are being presumptuous and incorrect in averring that I ‘do not get to grips’ with it.
Of course all commentary is selective. Let’s say “doesn’t mention”.
The phrase “right to choose” is commonly used by those who believe that women should have a right to have an abortion. You wrote of “the fundamental right of access to an abortion”; I don’t see a significant difference between that and the right to choose to have one. Let’s consider an example: many people have the unfettered right (a right that of course legislation could remove) to get a free flu vaccination every year, which is a right of access they can choose to exercise or not.
You don’t say what you think should be in the codification. Very few people would argue that abortion should be on a par with a flu vaccination; legislators would have to decide what the right actually entailed. The devil is very much in the detail.
I have to record, respectfully, dissent on this one. Abortion is a grave wrong in Catholic moral teaching, just as capital punishment is. President Biden is surely as Catholic as I. Perhaps he is caving in to pressure from his caucus?
Then I would suggest that if abortion is wrong according to the moral teaching that you follow, then do not have an abortion.
But that is no reason to regulate the options of anyone else.
Again I have to record a respectful dissent. Not only is abortion wrong in Catholic teaching: it is additionally in Catholic teaching wrong to facilitate it by direct intention, as by selling to an abortionist an abortion-specific surgical instrument (to take a lugubrious and fanciful example: a tool designed to crush the foetal cranium) or again by giving the suffering woman a bus ticket specifically intended to convey her to the abortion clinic. As far as I can see, subject to correction by either lay authority or canonically competent Catholic theological authority, codifying Roe v Wade would be a form of facilitation by direct intention.
Analogously, not only is it wrong in Catholic teaching, as now at very long last clarified from the Holy See, for a state of the Union to perform capital punishment: it would be wrong for a federal US politician to pass a measure directly intended to facilitate a US state’s performing capital punishment (for instance, a hypothetical constitutional state-rights amendment explicitly reserving to individual states of the Union the right to perform capital punishment, should they so choose).
A correctly Catholic political response to abortion would indeed, as DAG says in the comment to which I am herewith replying, involve “regulating the options” of suffering women. However, the law regulates options all the time. I think DAG will forgive me for remarking that it is in every sphere of life common for the law to regulate options – as when, for instance, it regulates against the selling of one’s unruly children into bondage, in other words “regulates the options” of the suffering parents! :-)
My reply to your first comment stands.
Your comments have confirmed my view that the State should be secular. Religion – all religion – is founded upon belief. Belief is not underpinned by evidence or fact. Law should be based upon factual evidence. If the rule of law – fundamental to any functioning democracy – is to be the rule for all it cannot and must not be underpinned by the fact-free beliefs of any sect.
That reply suggests that there’s no such thing as regulation by society, when in fact such regulation is fundamental to what makes a society. Consider Toomas Karmo’s parallel with capital punishment. It would be absurd to say to someone who opposed it “in that case don’t execute anyone yourself, but don’t do anything to stop other people carrying out executions”.
No such suggestion is made.