3rd May 2022
I am not an American lawyer but I am a strong supporter of the fundamental right of a woman to choose to have an abortion, and so I have read what appears to be a leaked draft judgment by Alito published by Politico.
You can read the draft ‘opinion’ here.
If this opinion is adopted by the majority of the United States Supreme Court then the two key previous Supreme Court cases of Roe v Wade and Casey are overruled.
That would be bad enough.
But.
What is especially worrying for supporters of the right to choose is that the draft Alito opinion is not a flimsy piece of legal reasoning.
On its own terms, it is quite a solid and well-reasoned piece of legal writing, setting out in detail not only the limitations of the judgments in Roe v Wade and Casey, but also setting out why each basis for reversing a previous judgment of the court is met.
Some of this opinion is more plausible than other parts – the draft opinion is weakest (in my view) on some aspects of ‘stare decisis’ – the notion that a court should usually follow settled judgments of a previous courts, and some of its historical paragraphs are contestable.
But it is strongest when pointing out the weak legal reasoning of Roe v Wade.
As this blog has previously averred, the decision of Roe v Wade is not compelling.
A constitutional right to an abortion was implied into a constitution that does not expressly mention such a right, on the basis of a general constitutional right of privacy that also is not expressly mentioned, and this latter general privacy right has no firm basis – some judges think it is derived from a number of specific rights, while others derive it from the ‘due process’ clause.
Jurisprudentially, the Roe v Wade judgment is (sadly) all over the place.
All because – from a pro-choice perspective – the result in Roe v Wade was the right one, does not make the judgment itself solid.
And the worrying quality of the Alito opinion is not that it is a superficial counter-objection to Roe v Wade, but that it is detailed and reasoned in a way that the original judgment is not.
This in turn will mean, if adopted by the majority of the court, that reversing this reversal will be even more difficult.
And this creates a dreadful situation for supporters of the right to choose as a fundamental right across the United States, as opposed to the issue being left to different states.
It means that nothing less than a constitutional amendment is now needed – for even a federal law – ‘codification’ – may now be vulnerable to being struck down by the Supreme Court.
The problem is that constitutional amendments are almost impossible to achieve – especially when so many individual states are opposed to abortion.
But they may be no alternative for supporters of the right to choose as a fundamental right.
The Alito draft opinion not only will reverse Roe v Wade – but it also may close off the Supreme Court as the way of ensuring the a general right of access to an abortion.
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Sorry – I pressed ‘publish’ too quickly, and a couple of mangled sentences were originally published before correction. Now corrected.
Perhaps you were as angry as I’ve been all day about this? :)
Joe Biden, in his response to this leak, has tweeted:
“First, my administration argued strongly before the Court in defense of Roe v. Wade. We said that Roe is based on “a long line of precedent recognizing ‘the Fourteenth Amendment’s concept of personal liberty … against government interference with intensely personal decisions.”
Looking at that amendment it avows:
“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.”
“Abridging privileges” is quite the thing.
The fundamentalists have been rolling up their sleeves for years. As a woman, I find it terrifying to think that others may find themselves forced to bear children under circumstances that may be far from ideal.
The word ‘Gilead’ has been trending on Twitter. Yes, American women are in danger of becoming, once again, the mere handmaidens of men, their bodies there to be used at the whim of men, their lives to be ruled by birth giving and child rearing.
It’s pretty grim.
The general point is that a written constitution can only utilise knowledge, principles and criteria that exist when it is made. It can therefore be a straight jacket in a way that is avoided with the U.K. Constitution, where Parliament is Sovereign and can make and unmake any law.
“A written constitution can only utilise knowledge, principles and criteria that exist when it is made”
Not so. In Ireland the people can make and unmake any part of their written constitution and in fact have done so twice on the issue of abortion:
https://en.wikipedia.org/wiki/Eighth_Amendment_of_the_Constitution_of_Ireland
Interestingly in the current context, in Ireland pressure to change the constitution invariably comes from dissatisfaction at how the courts are interpreting it. So if the Irish supreme court were to drastically re-interpret a section of the constitution in the manner of this Alito opinion, there would be immediate pressure for a constitutional amendment.
Ireland and the US both have written constitutions. The essential difference is the Irish constitution can be changed by a simple majority in a national referendum. You are wrong to ascribe difficulty updating to all written constitutions.
The privacy aspects to the ruling did strike me as quite antiquated given current attitudes. Privacy was once a highly sacred thing and is now given little heed by most people and even the attempts to defend it – GDPR and the cookie popups, for example – feel out of step with the value that most people place on their privacy. More a nuisance than a useful guard.
I’m old enough to remember a huge fuss about google scanning emails to target adverts being a gross breach of privacy so feel like this degradation in the value of privacy is a very recent thing. Compared to the ruling being discussed, at least.
Many thanks for your analysis. The other issue which the Supreme Court needs to contend with, beyond the legality , is public opinion. From various public polls it would seem that a majority (over 50% of respondents) would like to leave the Roe vs wade issue alone.
As such, the issue in front of the court is do I repeal something based on legality but that has popular support or leave it be.
Repeal Roe vs Wade risks undermining the standing of the Supreme Court ( not my Supreme Court mantra comes to mind) and greatly politicize the court. The court may well point to the need of a constitutional amendment yet knowing full well that there is no way one will be forthcoming.
So a rejection opens up the idea of term limits , a greater number of judges etc.
The greater risk I see is that states which would disagree with the ruling (should there be a change) just ignore the Supreme Court ruling. The latter does not ,after all ,have an army/police force which can be used to enforce the ruling.
If you then get a split between Dems vs Rep states -most likely outcome- it will get esp nasty. Just look at the fiscal transfers within the USA . These tend to flow from Dem states to Rep states. The exception being Texas as a net contributor. Politicians will jump on the divisive train of , “we state x, subsidize state y which is taking away your rights etc. if we did not pay for these bigots etc you could have better schools, tax cuts etc”. Sadly an easy vote winner in the current partisan world.
I am sure the Supreme Court is well aware that it derives its standing and thus power via popular support. Lose that and there is a lot at stake for the court itself.
It doesn’t seem to me that making such a judgment will further politicise the court so much as that an already politicised court may make such a judgment.
Since commenting, I’ve read this excellent article on the New Yorker website. Well worth a read.
https://www.newyorker.com/news/daily-comment/why-there-are-no-women-in-the-constitution
The Supreme Court should not (and, as far as I can tell, does not) take into account public opinion. Fiat justitia ruat caelum. It is the job of the elected politicians to take public opinion into account and formulate the laws accordingly. The courts should merely implement the laws. If they’re bad laws, then that is not for the courts to fix.
The American people need to accept that Roe v Wade was built on a weak foundation and get out and vote to fix it.
I wonder to what extent Roe may have inhibited a consensus on abortion in the US, in the sense that it obviated the need for consensus in pro-choice eyes, while giving anti-abortion activists something concrete to rally against.
I think this draft document has to be read and considered in context.
Specifically in this case, I think you have to read this draft in the context of numerous discussion threads in Democratic circles that one way President Biden could reset the balance in the Supreme Court would be to amend the Court’s constitution, increase the number of justices and reset the balance, for example to 7-6 Democrat to Republican, with 13 justices, or 9-6 with 15 justices.
The Supreme Court justices do not exist in a vacuum; Justice Alito is perfectly aware of those conversations, so we have to conclude that the intent of Alito is to write a draft opinion that is resistant to any attempt by the Democrats to amend the Supreme Court.
In other words, what Alito has attempted to do here is to write a draft that can withstand any attempt by a future, theoretically expanded court, that may attempt to overturn it.
If you read this draft closely, you will see that it has numerous differences from e.g. Roe v. Wade. That seminal legislation is well known by name, but the fact is that it is not a well-written opinion. By comparison, what Alito has crafted here is robust, hardened and thus makes it much, *much* more resistance to any possible Democratic response.
I don’t claim to have much understanding of US law but it does seem incredibly strange to me that the decision to legalize abortion and possibly the decision to criminalize it again were made by judges.
I can’t think of any other country where it was left to judges to create the law on abortion.
Surely this is the sort of thing that elected politicians should be deciding?
My strong suspicion is that if the judges had not changed the law then the liberalization would have continued state by state and the USA would have had legal abortion and the issue would have disappeared by now, as it has everywhere else.
It is absolutely impossible to image the UK Supreme Court suddenly deciding to change our law on abortion.
There are many reasons that the United States is a fundamentally different nation than those of Europe in General and the UK in particular, not least of which is that America fought (and won) a war of independence from the UK monarchy.
But even more important are the principle drivers that prompted the Pilgrim Fathers to leave Europe in the first place – they refused to compromise on passionately held religious convictions, so fled Europe in order to be able to practice their faith in a way of their choosing.
It would not be an exaggeration to describe the Founders as *extreme* Christian Fundamentalists; they originated a a group of Puritans from Nottinghamshire and Lincolnshire. Core to their differences were objections to practices adopted by the Church of England from the beginning of the reign of Elizabeth I. They believed that the Church of England was too close in teaching to the Roman Catholic Church and instead wanted a church closer to the literal teaching of the Bible.
It might also be worth noting that the Pilgrim Fathers were not democrats. They were, in fact, part of what was known as the “harlequin fringe” ( a radical group of religious separatists).
Of course, not all the pilgrims were religious refugees, but the fact remains that the pilgrims continue to exert considerable influence over national discourse to this day.
To bring us back to the present… the puritan views of the Founding Fathers would absolutely have rejected the idea of abortion and thus we see the current challenge to Roe v. Wade.
Where this otherwise logical model falls down, of course, is also with scripture… for example, “Thou shalt not murder”. I concede that I do not understand how either a nation or a man can argue to overturn Roe v. Wade on the basis that it contradicts the founding principles of the nation, yet remain happy with the notion of sending people to the chair or to death by lethal injection.
I agree.
It might also be worth noting, in passing, the strategic differences between the Democrats and Republicans with respect to both governance and to the law.
The Democrats believe they are a political party and movement and they continue to view the “Republicans” as an ideologically opposing political party. The Republican Party don’t much care for politics; their sole interest is in the acquisition, retention and exercise of power. They rather like that the Democrats still try and be political in nature, because they believe it leaves the Democrats weakened and vulnerable.
The Democrats believe that the Judiciary and the Supreme Court should be – and is – apolitical (they may be revising their views on the judiciary given what McConnell did to the Supreme Court through Trump) and that when they try and govern, administratively, that administration of the law would only become an issue in rare circumstances. The Republicans believe that the Judiciary is a mechanism by which they can perform an “end run” around Democratic Presidents and Democratic majorities in the House (let’s be honest, the Republicans have jerrymandering down to a fine art – there is *no* chance that the Senate will flip to a Democratic majority in our lifetimes). So the Democrats attempt to govern – and the Republicans throw law suits at the Democrats and then have a statistically certain advantage that any legal dispute is going to go before a Republican justice, a Republican-dominated Court of Appeals, or a Republican-dominated Supreme Court.
At this point it is hard to see any viable path forward for the Democrats as a party or as a political movement. They have been so thoroughly out-played that they have nowhere left to go.
To give you just one illustration of how far ahead the Republicans “play the game”, think back to the run-up to the 2020 Presidential Election. Mitch McConnell put out a call to all Conservative Judges – “If you are thinking of retiring at any time in the next 4 years and can afford to go now, please do so…” He wanted to make absolutely sure that appointments would be Republican and not Democrat in nature.
Democracies only work when all the participants – in this I’m thinking of political parties as much as individuals – understand and agree to abide by the same set of rules… and of course agree that they are “playing” the same “game” with those same rules. The Republicans no longer believe in this.
The concerning thing is that the Republicans might *think* they have things sewn up. I’m sure the occupants of the Bastille, in Paris, were similarly confident, right up until July 13th, 1789.
You could be writing about the political situation in this country!!
Perhaps, but not as closely as a superficial glance might think. I would describe the current Democratic Party as being closer to “New Labour” under Blair (or Bleurgh as he should be pronounced) than today’s party under Starmer.
Perhaps the biggest difference between the Democrats and Labour would be the relationship between the latter and the UK’s Trades Union movement.
Obviously there is a difference in the legislative framework under which they operate, but weak as it remains, the UK Trades Union movement is stronger now than in the US. I don’t recall any other US President giving full and unequivocal support for labour unions before Biden.
One area where I think Democrats and Labour do share common ground is their messaging. The Republicans seem to have adopted a “scorched earth” approach to engagement with their electorate – with each senator and house member vying with the next to swear fealty to trump and climb further out on the limb of the fruit-loop tree. In the UK, I don’t think that Labour have a media strategy outside of attempting to respond to the latest Johnson/Tory outrage. The PM seems to realise this and simply manufactures a string of distractions to keep Starmer off balance.
Here’s a thought, though. (Unlikely to happen, granted). What would happen if Sir Kier called together his parliamentary party and said, “Right, from today forward, I am prohibiting anyone from making noise in the Commons. No boos, no jeering, no heckling, no nonsense. I want to show the people of the UK that we are the adults in the room and are ready to govern. I want to show the people of the UK that we take our jobs seriously.”
Instead, he allows himself to be drawn in to trading pathetic insults with Johnson at PMQs and then his sound byte interviews with the press seem weak and ineffective. Starmer is perpetually reacting to Johnson when he should be setting a direction and sticking to it. That’s one thing the Democrats seem to have learned that Labour have not.
What is worse, notwithstanding the protestation in the judgment that attempts to self limit its application to abortion rights, the effect may well be to impugn other “rights” established under the privacy aegis.
For me the case shines a renewed light on what seem – to an outsider – to be the major flaws of the Supreme Court as an institution and a part of the wider US constutional structures.
i) A system where partisan political views can have such a dramatic impact on understanding of the law, especially as derived from the constitution, is problematic in itself.
ii) That those responsible for interpreting the law are chosen *because of* their partisan views makes this situation worse.
iii) This is then further compounded by the lifetime terms that Justices serve, meaning that a president, if they are ‘lucky’ as Trump was, gets to effectively change the course of the country’s future for a generation despite serving only one term without winning the popular vote.
Clearly a written constitution is no panacea!
Term limits for Supreme Court justices seems a sensible first step to reform.
I’m not sure if this comment is accurate from a moment-in-time perspective, but if you look back at US politics, it was not always the hyper-partisan mess we see today.
That started, more or less, with the arrival of Newt Gingrich in the Republican Party (take a look at his Wikipedia page and the “Role in Political Polarization” section in particular. Since then, the GOP has become steadily more partisan and steadily more obstructionist in its conduct and practices.
Despite this, the appointment of a Supreme Court Justice remained relatively impartial and non-partisan up until the arrival of Mitch McConnell (if you’re willing to grant me the exception of maybe Anton Scalia, appointed by Regan). But McConnell didn’t just use his Senate Majority power to block Obama’s nominee, Merrick Garland (securing Neil Gorsuch instead), he ran an entire program of obstructionism that covered the spectrum from blocking legislation in the Senate to manipulating appointments to the bench.
In other words, this is a relatively recent phenomena – and it probably didn’t occur to the (small “d”) democrats in the United States that they had a problem with their governing protocols until Mitch got started, by which time it was too late to do anything.
What might be even more interesting is that the UK is no different. For example, Law Lords are appointed by Her Majesty the Queen, on the advice of the Prime Minister. Protocol suggests that appointments are usually selected from the ranks of senior appeal court judges, but that practice is not enshrined anywhere to my knowledge.
Lines get a little blurry as we move down the hierarchy. For example, Court of Appeal Judges are appointed, again by Her Majesty, this time on the recommendation of a selection panel convened by the Judicial Appointments Commission. Interestingly, the JAC does have a term limit of 10 years and the composition is bound by well-defined rules.
But when you dig a little deeper, it does seem as though there are gaps and loopholes in the governance of the upper reaches of the British system of jurisprudence, gaps that to this day have been non-issues, largely, one assumes, thanks to the integrity and impartiality of groups like the JAC. But just as the (first?) Trump Presidency taught the United States, norms are there to be broken, and reacting whilst that is happening is always too late.
What other rights, that Americans have been exercising for decades, depend on creative interpretation of the Constitution by the US Supreme Court?
For example, there is no Equal Rights Amendment, and various rights are largely based on the “due process of law” and “equal protection” provisions of the 14th Amendment: Reed v. Reed and later cases prohibiting discrimination on grounds of sex, Obergefell v. Hodges requiring same-sex marriage, even Brown v. Board of Education outlawing “separate but equal”.
The court has already eviscerated the Voting Rights Act of 1965. What next?
What can we expect from a court that is dominated by conservatives who are mostly old white men, where – extraordinary to say – the “swing vote” is currently Brett Kavanaugh. (The allegations of sexual harassment made during his controversial confirmation will follow him around, as with Clarence Thomas since 1991.)
If (when) Roe falls, you can be sure that Obergefell will be next on the block.
It’s possible to be wholly supportive of both (i) a woman’s right to an abortion, and (ii) Alito’s judgment that the ruling in Roe rests on a perverse and distorted reading of the US constitution.
But it’s predictable that precious few commentators will take this line. The judgment will be widely seen as nothing but political.
How have things come to this? Because the federal judiciary has been politicised. Which in turn is because federal judges are nominated by a party politician. Which in turn is because, in practice if not in theory, no one can become president who is not the nominee of one of the two main political parties.
How has that come about?
Thanks for covering this – long been a topic of personal interest.
What is also very worrying is that Alito argued that the fact that abortion was considered as an evil and thus made illegal for well over a hundred years before Roe and Casey meant that that this viewpoint was was perfectly acceptable to hold and thus it’s acceptable for individual states to curtail or ban outright the right to choose an abortion. (His reading of abortion always being banned is not actually historically true in the US.)
In the draft Alito then listed what he said were in his opinion broadly ‘accepted’ rights even though they too are not specifically mentioned in the Constitution – such as the end of slavery, the end of racial segregation and allowing mixed race marriages, and equal rights for women, but Alito specifically left out same sex relationships being legal (Lawrence 2003) and same-sex marriage being allowed (Obergefell 2015).
The ominous significance of this is that Alito, Thomas and Scalia all strongly opposed Obergefell on various grounds but for all three the main objection was nothing less than personal religious objection. ‘I believe God says it’s a sin’
Then along came the case of the Kentucky county clerk Kim Davis who defied a federal court order to issue marriage licenses to same-sex couples and claimed she acted only under ‘Gods authority’. She was ultimately jailed for contempt and released only after she agreed to let her deputies issue the licenses.
She became a cause Celeste among the religious right and they funded an appeal to the US SC in 2020 but the case was refused.
However despite the SC not accepting the appeal both Justices Alito and Thomas issued an extraordinary statement that Obergefell denied religious liberty and that Kim Davis was in their words ‘a victim’.
Now just this past May of 2022 Federal District Court Judge Bunning ruled in a civil case brought by three couples that Kim Davis violated their civil rights and they are owed financial compensation.
The ruling was greeted with joy in right wing circles as it provides the vehicle for another appeal to the Supreme Court and now Liberty Counsel (a conservative religious legal think tank set up specifically to take such cases) is confident that the religious majority on the SC will overturn Obergefell and just like this draft ruling on abortion rights declare same sex marriage as a matter for individual states to allow or disallow.
I’m pretty confident Roe, Casey, Lawrence and Obergefell will be overturned by this court.
The present government has ridden roughshod over many of the conventions of our unwritten constitution, prompting calls for something more formal that cannot be ignored by a government with a simple majority in the HoC. However the approach of the currently constituted US Supreme Court illustrates that a written constitution needs to be sufficiently flexible to respond to changing attitudes on social and moral issues, while respecting minority views, rather than an interpretation of attitudes which may have existed when the constitution was drawn up.
It’s not obvious to me that those wanting to see the UK adopt a written constitution (of which I am one) have not given sufficient thought to this issue.
A correction to my last paragraph.
It’s not obvious to me that those wanting to see the UK adopt a written constitution (of which I am one) have given sufficient thought to this issue.
I cannot help but think this shows the court to be right to overturn Roe vs Wade. Courts are supposed to enforce existing laws and constitutions, not make up the ones they would prefer the country to have.
It was decisions of the Supreme Court that ended the pervasive racial discrimination in all aspects of life in the US, including overturning anti miscegenation laws that made interracial marriage a felony punishable by life imprisonment – laws which still existed on the statute in 34 states when the the SC struck them down in Loving in 1967.
It was the US SC that in 1973 struck down the Head & Master laws that still existed in numerous conservative state – laws whereby a husband had total control of all aspects of life of his spouse.
These were ‘popular’ in these states and would never have been taken off the books by politicians at state or federal level, however by your lights the SC should never have intervened?
Children should not be allowed to play with matches. But in the USA the Supreme Court seems to be planning to allow just that.
In the long term maybe a good thing but with a high price. State politicians have been able to hide behind Roe v Wade. Now they will almost certainly cave in and restrict abortion and thereby stay in power. Restricting abortion will have no effect on the political or better off classes. However the deleterious social and economic effects will impact on the poor and likely deter the more brain-powered industries from setting up in anti abortion states. Over the succeeding 20+ years crime is likely to rise and poverty increase in those places.
The effect will be slow and ignorable by politicians for say 10 years. But then the effects will become obvious and the populists will realise that however much you dislike abortion it is a necessary part of human existence. Wise leaders know this and will leave Roe v Wade alone or some childish people will get their fingers burned and their politicians will still profit.
A useless political game with sad consequences for ordinary people. Something wise politicians and judges should seek to avoid.
How about revisiting Donoghue v Stevenson ?
Surely to make economic progress for us all we have fettered private enterprise far too much for far too long ?
The repeal of Roe v Wade could just be the start?
If the draft judgment stands what follows ? Discrimination of illegitimate children? Reintroduction of damages for broken marriage engagements ? A total ban on extra marital sexual relations? A ban on mixed race marriages ? Increased allegations of rape within and outside of marriage ?
The law generally has progressed rather than regressed over the centuries to reflect changing times and needs but not always peacefully.
Pandora’s box is being well and truly opened with this.
How it will end, who knows?
I believe that deliberate termination of pregnancy represents a difficult moral dilemma. It hinges on a decision about when moral rights are acquired, and that is not something amenable to scientific analysis. Some believe that full moral status as a human is acquired at fertilisation, and while I do not personally believe this, I appreciate that some might hold this view. In this case, of course, they should not seek a termination for themselves.
Other stages for the acquisition of moral status could be considered. The completion of gastrulation, when the main body axis forms, and we cease to be capable of being twins, is one. This occurs about 14 days after fertilisation (week 4 ‘of pregnancy’), and was set by the Warnock report as the limit on ‘in vitro’ studies of human pre-embryos in the UK.
The onset of heartbeat (at about 21-23 days after fertilisation at the earliest, week 5 of pregnancy) might be another, although the ‘heart’ is radically different and much simpler in these early stages from its later fully functioning form.
The Holy Quran suggests the formation of blood and bone as defining a new person. Blood is present from very early stages. Bone formation may begin at about 7 to 8 weeks after fertilisation (weeks 9 to 10 of pregnancy), but to me the relevant Surah suggests some development of bone, rather than the first onset.
‘Independent viability’, at about 24 weeks of pregnancy, is the rationale for the current limit, although of course, very few terminations occur close to this limit. Advances in medical technology are unlikely to make much difference to this time limit, although there is a constant struggle to preserve the life of very premature babies. There are good developmental reasons why this is very difficult. Onset of consciousness would be symmetrical with the end of life which may be taken as an irreversible loss of consciousness. As far as we can tell from studies of brain development in utero, this may be round about 24 weeks of pregnancy at the earliest, although new born babies still have some way to go in terms of what we consider full consciousness. My personal view is that the current 24-week limit is a reasonable one, although I think we should strongly support education on, and access to, birth control methods, and also support women who do indeed wish to carry a pregnancy to term.
However, the anti-abortion movement does not seek to gain a right for themselves, but instead, to deny actions to others who hold different views. They seek to legislate solely for others.
We should not forget that Nadine Dorris proposed a bill to limit terminations to 20 weeks, Jeremy Hunt voted for a bill reducing the limit to 12 weeks, and Jacob Rees-Mogg is opposed to any woman having any termination at all, even for incest or rape. He also (wrongly) regards the morning after pill as an abortifacient.
At his confirmation hearing Alito stated that the Supreme Court should consider only the law and the constitution, not public opinion. In the immediate aftermath of yesterday’s news I heard 76% quoted as the majority in favour of no change to Roe.
Ruth Bader Ginsburg has been proved right. Wasn’t all this precisely her concern about Roe vs Wade. Some thought she was opposed to abortion rights. Far from it, she was presciently concerned about the weakness of its foundation in Roe vs Wade.
A further thought is that the Supreme Court may be firing a warning shot. If this then that. Which may put the wind up some of the State politicians – getting more than they bargained for.
Sproggit made an interesting point about the religious starting point – the Founding Fathers. They seem to be held in high regard that side of the pond whereas over here they were lucky not to get the rope. A sort of 17th century Taliban. An interesting symmetry.
One of the biggest flaws of US democracy is its politicised supreme court. Roe-v-Wade was in its day a blatant political act by a political supreme court. Today the conservatives doubtless think that they are doing no more than what the liberals showed them to do.
The good news is that half the US states have explicitly permitted abortion of their own will, and are most unlikely to revert. The bad news is that the other half will now revert to trampling on women’s rights, resulting in much suffering and some death.
We have to have confidence in the ultimate power of democracy eventually to recognise to observe that suffering and death, and in time follow nearly all of the rest of the civilised world in permitting abortion. It has been taken out of the hands of the electorates in those states to observe the consequences of the strict abortion bans those electorates apparently desire. But if other long-term conservative hold outs like Ireland and Argentina (during the tenure of an Argentinean pope!) can finally understand it, I think even Texas may well come to understand it in time.
Sadly I think DAG’s post is more right than wrong. I add two points: (i) the reasoning suggests that Roe v. Wade is the thin end of a fat wedge, and SCOTUS is game for reversing other ‘controversial’ decisions much loved by liberals; (ii) if they were fully consistent with this reasoning as lawyers it might also undermine the basis of some other decisions loved by conservatives. We shall see how far they go with that.
There is much to admire in the way the United States has been associated with freedom. A kind of freedom, moreover, founded in openness, breaking down barriers and creating opportunity. Freedom which has attracted millions of people from all over the world who have made their lives much better as a result.
How far have we come, then, to a situation where those who most loudly proclaim ‘Freedom!’ are now prepared to use the power of the State to dictate what happens in another person’s body.
Surely one of the most illiberal expressions of freedom to be invented.
But perhaps some of them were the same people who shouted or spat at mask-wearers. Or those who ban books they don’t approve of from schools. Maybe even those demanding to have the ‘freedom’ to impose teaching demonstrably false things – creationism – on young children.
For in spite of their proclaimed freedom and individualism, a large number of US citizens – especially the ones in States who would support overturning Roe v Wade – are remarkably clubby. The very same people, indeed, who are restricting individual rights in the name of freedom. And if we were to meet them, it would be hard to find a warmer, friendlier more welcoming set of people.
Well, for the first few minutes at least. And depending, sometimes, on the colour of your skin. Also whether you show signs of political correctness. Oh, and whether you believe in God or not. Actually, not believing in God is grounds for immediate ostracism.
The Club of like-minded freedom-lovers has its rules, you see. Not written down of course. Basically ‘our freedom, not yours’.
A club happy to include, but even happier to exclude.
The road to segregation.
How on earth did this happen ?
To a certain extent, it was always there. But very much in a minority. And very much the sort of thing we can see in any country.
But in the US, and it’s beginning here as well, there has been a gradual process of what I would call ‘secession of the mind’.
When the political and legal authorities allowed news to be devoid of balance, or even fact, when they allowed unlimited finance for political causes, when they allow restrictions on voter participation and rigging of electoral boundaries.
If you get your information from Fox News, or worse, and millions do, your mind has already partly seceded from the truth. It’s your truth, not theirs. And you can even find comfort in your President doing the same.
This secession of the mind may already be irreversible.
It does not depend on the exercise of democratic power. Because you can become President, or control the Senate even if you lose the popular vote. You don’t even need to win the support of the people in order to impose your views or your religion on others. Just your people, not theirs.
In this situation, it is difficult to see any legislative way to protect the rights of many people currently under threat. Because legislation requires discussion. Discussion requires contact with other points of view. Segregated communities can’t easily do that.
No wonder the citizens of California or New York are beginning to have their own secession in mind.
The problem is not just the usual issue that confronts western liberal democracies, of whether women are entitled to have an abortion and when, but the peculiarities of the US Constitution.
It was, of course, written a long time ago. But even then, when people still had a good idea what what human rights should exist, as demonstrated by the 1789 French Declaration of the Right of Man and Citizen, it was still pretty weak. My understanding is that it was never really intended, at the beginning, of a complete statement of rights but instead of a way to prevent the federal government from impeaching rights. Those rights were seen as part of the state government, hence one reason why the US is fixated on state rights.
The other problem, of course, is that it is extremely hard to amend the Bill of Rights. Imagine, in a modern democracy, that there is no formal constitutional statement of the equal right of the sexes. The US government tried to include that amendment in the Constitution in 1972, and fifty years later it still hasn’t passed through the amendment process.
The result of this is that judges, who want to recognize human rights that most other civilizations have in their constitutions, have to read those rights into the existing words. That process inflames the conservatives.
The real problem, then, isn’t just a left-wing/right-wing view of abortion, but that the US is being governed by a constitution that is no longer fit for purpose.
Abortion rights don’t need a constitutional amendment. There is no constitutional right to abortion in the UK. Overulling Roe doesn’t make abortion illegal, it just ends the practice of making restrictions on abortion illegal.
What is needed, of course, is legislation (I’m not saying that is easy – but it is easier than a constitutional amendment). To do that, Democrats need to win more elections. Hopefully this ruling will help them to do that.
Particular bitterness is shown in this comment in the New York Times this morning:
“Scholars and political experts have regularly debated whether the court’s steady march to the right was sapping public faith in the court as fundamentally a legal forum, not least after a number of conservative justices professed their respect for precedent and their view of Roe v. Wade as settled law in confirmation hearings — before apparently voting to overturn it.”
I have only read the opinion briefly.
In his influential dissenting opinion in Poe v Ullman, Justice Harlan makes it clear that it is not just the law itself but the unavoidable extras like the investigation, searches, the hearing and the sanctions which breach the privacy (not just privacy but the autonomous sphere – as Alito discusses).
In the case of abortion these are likely to include monitoring of communications and restrictions on movement. Not to mention the obligation to give birth and possible detention if there are indications that an abortion is being contemplated.
I can’t see any consideration of these aspects in Justice Alito’s opinion.